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    • Esperanto
    • By Esperanto 14th Oct 18, 5:37 PM
    • 10Posts
    • 4Thanks
    Esperanto
    CEL county court claim letter - defence advice needed
    • #1
    • 14th Oct 18, 5:37 PM
    CEL county court claim letter - defence advice needed 14th Oct 18 at 5:37 PM
    Hi all,

    I have just received an official county court claim letter for a parking charge – the claimant is Civil Enforcement Ltd (I can see from some other posts on this forum they’re one of the usual suspects). I am the registered keeper – although the car was scrapped months ago – and I have no intention of paying and will defend it.
    The letter is about a parking charge for exceeding the free time period at a private car park in late 2017. The letter says ANPR cameras, as well as manual patrols, are used to identify cars but I haven’t received any letters containing any photos or any actual evidence.
    The letter refers to it as a PCN and the claim is well over £200, including interest, a court fee and a legal representative’s cost.
    Previous to the claim letter, CE passed this to ZZPS and then QDR Solicitors.
    Judging by what I’ve read on here – the newbies FAQs and some similar cases, here’s my plan:
    • Acknowledge the service asap on MCOL following the instructions given on the newbies thread (the pdf linked on Dropbox on there) – basically leave the defence box blank like CouponMad and RedX say on ‘Civil Enforcement Ltd - County Court Claim Form’ thread (8 Mar 2016)
    • Make no contact directly at all with Civil Enforcement
    • Use the defence example on the thread ‘Civil Enforcement Limited County Court Claim 2018’ posted by ajtravel on 5 March, edit it as relevant to my case
    • Post my defence on here and hopefully get approved by some of the experts on here
    Is that okay?
    Couple of questions – apologies if they have been addressed elsewhere:
    • Civil Enforcement not owning the car park anymore seems to have been used as a defence previously (although that’s probably pre-court claim stage) – is there any way I can check whether they do or shall I assume they do as they are listed as owner on the court letter?
    • I’m not familiar with the rules and regs about signage. I’m unfamiliar with the car park but can go and check – is it worth doing so? I can see some useful stuff on newbies thread so can follow that but surely that means I have to go to the car park and check the signage? Happy to do so if it could make the difference in this case
    • No mention of Mr Schwartz – presumably I should edit that bit out of my defence. Is he long gone now?

    Any other advice welcomed. Thanks – learnt so much from this forum already.
    Last edited by Esperanto; 14-10-2018 at 9:28 PM. Reason: typo
Page 2
    • Esperanto
    • By Esperanto 6th Nov 18, 8:12 PM
    • 10 Posts
    • 4 Thanks
    Esperanto
    Draft two
    Thanks again all. I've emailed their data protection email with a SAR - they have a month or so to respond so I'm not holding out for them to send anything before this defence is due in on Nov 13th. Anyway I've incorporated all this into a defence based on one of Bargepole's . Any other suggestions welcome:

    ---------

    The Defendant admits that he was the registered keeper of vehicle XXXXXXX at the relevant time and that the car was parked on the land in question.

    The Defendant denies that he is liable for the entirety of the sum claimed for each of the following reasons:

    1. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action. Consequently, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
    - The Particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
    - The Claim Form was not signed by a legal person but signed by a Civil Enforcement Limited (Claimant’s Legal Representative),, failing to meet the requirements of Practice Direction XXX [sure I've seen this but can't find the correct part right now - can anyone help?].
    - The Claimant has never provided the Defendant with an explanation of the alleged contract or any evidence of contravention such as ANPR photographs.
    2. The Defendant denies that he, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

    3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

    4. According to the Land Registry the land in question is not owned by the Claimant. The Claimant is therefore put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices and to pursue payment through litigation.

    5. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £xxx. The claim includes an additional £xx, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    6. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
    Last edited by Esperanto; 06-11-2018 at 8:12 PM. Reason: typo
    • Coupon-mad
    • By Coupon-mad 7th Nov 18, 1:19 AM
    • 63,875 Posts
    • 76,533 Thanks
    Coupon-mad
    That defence is too short (there is concise and there is ''too short'' IMHO!).

    I can't even see anything that says much about the facts, or that the driver has never been identified and that this Claimant cannot hold you liable as they do not use the POFA. You might well need that in this case!

    Search the forum for Civil Enforcement POFA defence and copy a few paras.
    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
    • Esperanto
    • By Esperanto 7th Nov 18, 8:14 PM
    • 10 Posts
    • 4 Thanks
    Esperanto
    The Defendant admits that he was the registered keeper of vehicle XXXXXXX at the relevant time and that the car was parked on the land in question at the time specified on the claim form.

    The Defendant denies that he is liable for the entirety of the sum claimed for each of the following reasons:

    1. The Claimant has not complied with pre-Court protocol. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action. Consequently, the Claim fails to comply with Civil Procedure Rule (CPR) 16.4, or with Civil Practice Direction (CPD) 16, paras. 7.3 to 7.5.
    - There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
    - The particulars of the claim do not meet the requirements of CPD 16 7.5 as there is nothing which specifies how the terms were breached.
    - CPD 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/her own name and not that of his/her firm or employer. The Claim form was therefore 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’s Legal Representative.
    2. The Claimant has breached the terms listed in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
    - The notice to keeper (NTK) from the Claimant did not cite POFA, so the Claimant has no basis whatsoever to write to a registered keeper, except for the single purpose allowed under the DVLA KADOE rules, namely to 'enquire who was driving'. The Claimant was barred from using not use the data for any other purpose whatsoever, and certainly not to pursue a registered keeper as if the alleged 'debt' was their liability in law.
    - The Claimant has never provided the Defendant with the wording of the alleged contract. The wording of any contract will naturally be a key element in this matter so this has prevented the Defendant from preparing a full defence. The Claimant has also never provided the Defendant with any photographic evidence (ANPR photos) of the contravention. The driver has never been identified.
    - The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. This is a breach of POFA Schedule 4 and the British Parking Association Code of Practice and no contract formed to pay any clearly stated sum. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
    - POFA Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £xxx. The claim includes an additional £xx, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. The Defendant believes the Claimant has artificially inflated this claim. The Defendant has reasonable belief that the Claimant is a speculative serial litigant, issuing a large number of 'draft particulars'. The Claimant is claiming legal costs when not only is this not permitted (Civil Procedure Rule 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. 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.

    3. According to the Land Registry the land in question is not owned by the Claimant. The Claimant is therefore put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices and to pursue payment through litigation.

    4. 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.

    In summary, the Defendant denies that he, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. The claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
    Last edited by Esperanto; 09-11-2018 at 8:59 PM. Reason: typo
    • Coupon-mad
    • By Coupon-mad 8th Nov 18, 2:10 AM
    • 63,875 Posts
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    Coupon-mad
    You can't say this, they are allowed to ask for interest if they win:
    The Defendant also denies that the Claimant is entitled to any interest whatsoever.
    I still can't see anything that says much about the facts, or that the driver has never been identified and that this Claimant cannot hold you liable as they do not use the POFA.

    Why do people fixate on the date of the NTK...a non POFA NTK is still ''non POFA'' (in wording, as CEL's are) even if served in week one!
    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
    • Esperanto
    • By Esperanto 10th Nov 18, 12:25 PM
    • 10 Posts
    • 4 Thanks
    Esperanto
    You can't say this, they are allowed to ask for interest if they win:


    I still can't see anything that says much about the facts, or that the driver has never been identified and that this Claimant cannot hold you liable as they do not use the POFA.

    Why do people fixate on the date of the NTK...a non POFA NTK is still ''non POFA'' (in wording, as CEL's are) even if served in week one!
    Originally posted by Coupon-mad

    Thanks. Will remove the bit about interest. I've now got the original PCN. It says 'This Notice is issued under Schedule 4 of the Protection of Freedoms Act 2012'. Given that is included, does that mean that they do use POFA and they can find me liable as registered keeper?

    Happy to send letter as message if that helps ?
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