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    • rainbow_dash
    • By rainbow_dash 7th Jul 18, 11:23 PM
    • 5Posts
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    rainbow_dash
    CEL Claim Form defence check please
    • #1
    • 7th Jul 18, 11:23 PM
    CEL Claim Form defence check please 7th Jul 18 at 11:23 PM
    Hi there, I'd be really grateful for any feedback on the defence I've put together in response to a Civil Enforcement Limited Claim Form please. I've adapted a template from this forum after reading hundreds of threads so hopefully it will be ok and good to go!

    The situation: The vehicle in question was parked for 4h31m at a free shopping centre car park. The driver was unaware that there was a 4h parking limit until returning to the vehicle to leave. The vehicle was parked in a regular bay but displayed a Blue Badge as one of the occupants was an 89-year old disabled person. The vehicle was parked in a regular bay as, despite circling the car park several times upon arrival, there were no disabled spaces available. This led to far lengthier arrival/departure times than they would have been otherwise. No PCN was ever received; the first letter was a PCN Reminder approximately 6 weeks after the date of the alleged offence. Subsequent correspondence (ZZPS, QDR, Wright Hassell) was ignored.

    Is that enough information? I'll post the defence in a new post after submitting this one.

    Many thanks in advance for any feedback/tips. All gratefully received!
Page 1
    • rainbow_dash
    • By rainbow_dash 7th Jul 18, 11:24 PM
    • 5 Posts
    • 2 Thanks
    rainbow_dash
    • #2
    • 7th Jul 18, 11:24 PM
    • #2
    • 7th Jul 18, 11:24 PM
    In the County Court Business Centre
    Claim Number: --------

    Between:

    Civil Enforcement Limited v -------

    I am -------, the defendant in this matter and the registered keeper of vehicle --------.

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on XX/06/2018 by Civil Enforcement Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited; as the Claimant!!!8217;s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre- Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant !!!8220;Letter before County Court Claim!!!8221;, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical draft particulars. The badly mail-merged documents contain very little information.

    c) The Schedule of Information is sparse of detailed information.

    d) The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre- Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute;

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue); and

    iv. support the efficient management of proceedings that cannot be avoided.

    e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event and in the absence of this nor any fully compliant statutory wording, this Claimant is unable to hold the defendant liable under the strict keeper liability provisions.

    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no Notice to Keeper was sent within the 14 days required to comply with POFA 2012, only a speculative invoice entitled Parking Charge Notice Reminder which was sent outside of the 14 day period and did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that; However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £322.69 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative!!!8217;s costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original Parking Charge Notice Reminder to £322.69. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

    5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case.

    6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs;

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant;

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum;

    ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring an inflated sum as compensation from an authorised party using the premises as intended;

    iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant;

    iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    d) BPA CoP breaches - this distinguishes this case from the Beavis case:

    i. The signs were not compliant in terms of the font size, lighting or positioning;

    ii. The sum pursued exceeds £100;

    iii. There is/was no compliant landowner contract.

    7. No standing - this distinguishes this case from the Beavis case:
    It is believed that Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    8. The allegation appears to be an !!!8216;overstay!!!8217;, timed by ANPR cameras at the entrance and exit. However, there is no evidence of the length of the actual parking and any extra minutes can be explained by the lack of availability of a disabled parking space upon arrival, and the longer time it takes an 89-year old Blue Badge holder to get in and out of the car safely, with assistance, plus the time to drive in/out of the car park. The applicable 2017 BPA CoP (as well as stating their outright prohibition on issuing PCNs to disabled Blue Badge holders) states at 16:
    !!!8216;The Equality Act 2010 says that providers of services to the public must make !!!8216;reasonable adjustments!!!8217; to remove barriers which may discriminate against disabled people ... You and your staff also need to realise that some disabled people may take a long time ... You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.!!!8217;

    a) As well as requiring well placed signs, such that disabled people can see the full terms, the applicable BPA CoP (Oct 2015 !!!8211; Jan 2018 version) stated unequivocally:
    !!!8217;27.5: If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge, you must not issue it with parking charge notices.!!!8217;

    10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    11. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on XX June 2018.

    b) Sent a template, well known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    12. The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    STATEMENT OF TRUTH

    I confirm that the contents of this Defence are true to the best of my knowledge.
    • Coupon-mad
    • By Coupon-mad 8th Jul 18, 4:35 PM
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    Coupon-mad
    • #3
    • 8th Jul 18, 4:35 PM
    • #3
    • 8th Jul 18, 4:35 PM
    It needs a heading 'DEFENCE' underneath the named parties.

    Is the total claim for £322.69? If so, based on a case struck out by a Judge shown on here last week, I would say as #12:

    12. The court is invited to strike out the claim on the Court's Own Initiative, as having no merit, no particulars of claim, no reasonable prospects of success, and given that the claim is based on an alleged contractual parking charge of £100. The amount claimed on the claim is £322.69 and the Defendant avers that this inflation of the considered amount is a gross abuse of process.
    I would remove the verbose and unnecessary 2 d and e:

    d) The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre- Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute;

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue); and

    iv. support the efficient management of proceedings that cannot be avoided.

    e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
    Also this has not been in the BPA CoP for years:

    a) As well as requiring well placed signs, such that disabled people can see the full terms, the applicable BPA CoP (Oct 2015 !!!8211; Jan 2018 version) stated unequivocally:
    '27.5: If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge, you must not issue it with parking charge notices.'
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • rainbow_dash
    • By rainbow_dash 8th Jul 18, 11:43 PM
    • 5 Posts
    • 2 Thanks
    rainbow_dash
    • #4
    • 8th Jul 18, 11:43 PM
    • #4
    • 8th Jul 18, 11:43 PM
    Thanks Coupon-mad, I really appreciate you taking time to look at this! Iíll remove the sections you mentioned and add #12 - thanks for this suggestion. Yes, the total claim is £322.69.

    Iím a bit confused by your BPA CoP comment, the version thatís relevant to this case (Version 6, for non-compliance issues up to 2nd Jan 2018 - the alleged offence took place in Nov 2017 so this is the version I was using for reference) definitely has that line in it (27.5)?

    Apologies - I wanted to link it here directly but as a new user, I canít.
    • KeithP
    • By KeithP 8th Jul 18, 11:55 PM
    • 10,523 Posts
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    KeithP
    • #5
    • 8th Jul 18, 11:55 PM
    • #5
    • 8th Jul 18, 11:55 PM
    As your Defence quotes POFA 2012, and you appear to be dealing with The County Court Business Centre, can we assume you are in England or Wales?

    27.5 of the BPA CoP v6 is in the section headed:
    C OPERATIONAL REQUIREMENTS IN SCOTLAND AND
    NORTHERN IRELAND


    27.5 has been removed from the latest version of the BPA CoP.
    Last edited by KeithP; 08-07-2018 at 11:58 PM.
    .
    • rainbow_dash
    • By rainbow_dash 10th Jul 18, 9:39 PM
    • 5 Posts
    • 2 Thanks
    rainbow_dash
    • #6
    • 10th Jul 18, 9:39 PM
    • #6
    • 10th Jul 18, 9:39 PM
    You're absolutely right KeithP (and Coupon) - my apologies. Thank you very much for clarifying! I made the mistake of searching the document for 'blue badge' without taking note of which section that bit was actually in (rookie error...). Now removed from my defence!
    • rainbow_dash
    • By rainbow_dash 10th Jul 18, 10:11 PM
    • 5 Posts
    • 2 Thanks
    rainbow_dash
    • #7
    • 10th Jul 18, 10:11 PM
    • #7
    • 10th Jul 18, 10:11 PM
    I don't suppose anyone has some more Blue Badge related wording I could add in do they please? I don't feel I've fully addressed this point but not sure what else to include. Grateful for any advice!
    • Coupon-mad
    • By Coupon-mad 11th Jul 18, 1:54 AM
    • 63,811 Posts
    • 76,448 Thanks
    Coupon-mad
    • #8
    • 11th Jul 18, 1:54 AM
    • #8
    • 11th Jul 18, 1:54 AM
    I'd save it for the Witness Statement stage, later. A defence should be concise.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
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