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  • FIRST POST
    • Sun1234
    • By Sun1234 15th Oct 18, 6:49 PM
    • 19Posts
    • 4Thanks
    Sun1234
    Court Claim CEL Ltd
    • #1
    • 15th Oct 18, 6:49 PM
    Court Claim CEL Ltd 15th Oct 18 at 6:49 PM
    Hi
    I have now compiled a defence and would appreciate any comments

    Thanks

    Statement of Defence

    I xxx, defendant in this matter was the authorised registered keeper of the vehicle in question at the time of the alleged incident. I deny liability for the entirety of this claim for the following reasons:

    1. The Claim Form issued on 01/10/2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”. 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 Claimants Legal Representative. Practice Direct 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. CLAIM FORM SIGNED CEL (CLAIMANTS LEGAL REP)

    2. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

    3. The claimant allows employees of a third party (xxxx) to vary its terms and conditions as stated in their POPLA response. The defendant was advised verbally by this third party on the day as stipulated in the POPLA appeal that they would be fine to park, without penalty, for the whole duration of the stay on the evening in question.
    4. The defendant refutes that full terms and conditions for parking are displayed on the site.
    i. The claimant cannot fully display terms and conditions for parking on their signage when they acknowledge in the response to the defendants POPLA appeal that they allow a third party to decide whether or not to advertise additional terms and conditions relating to the exemption of the 3 hour maximum parking term.
    ii. The defendant believes that the signage relating to terms and conditions is incomplete and misleading as the 3 hour maximum term does not exist for members and no contract can legally be formed on this basis.
    iii. The signage is poorly maintained, the defendant has proof the lighting is not in full working order and the font barely legible especially in low light.
    5. The Claimant did not identify the driver
    The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
    The Defendant parked in the same car park at the same time as xxxxx but in another vehicle, evidencing that the defendant was not the driver of xxxxx at the time.

    In the claimants response to POPLA they stated the defendant had admitted to being the driver.
    The defendant strongly refutes this allegation and is able to provide the full details of the make, model and registration of the vehicle he was driving that was parked in the same carpark at a similar time along with confirmation that this vehicle was for the sole use of the defendant from his employer.
    6. The claimant claims on their POPLA statement that signs must be placed throughout the site so the drivers are given chance to read them, however the claimant has chosen to ignore the BPA CoPs in relation to grace and observation periods 13.2 and 13.4 which state:
    “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”
    And
    “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.”

    The driver had only overstayed by 13 minutes and believes that this is not an unreasonable grace period for entering the car park, waiting for a space, parking in that space, finding and reading the terms and conditions, and a “reasonable period” to leave the car park.

    7. The defendant was not in receipt of a compliant “Letter Before Court Claim”, under the Practice Direction, meaning the Defendant could not compile a Formal Response. There was no response form provided, nor was the amount owed specified on the letter. This is in direct contradiction with paragraph 7 of the particulars where the Claimant’s solicitor states ‘The Claimant has complied with the requirements of the Pre-Action Protocol for Debt Claims’ and the Defendant believes that this is a deliberate attempt to mislead the court. The Defendant invites the Claimant to provide proof of their compliance.

    8. Civil Enforcement Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
    a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


    9. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on 04/10/2017. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    10. i.No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
    ii. The Defendant also disputes that the Claimant has incurred £50 legal representative costs. CPR 27.14 does not permit these to be recovered in the Small Claims Court. In 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.
    iii. The Defendant has the reasonable belief that the Claimant is a serial litigant has therefore not incurred £136 costs to pursue an alleged £100 debt.

    iv. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.


    11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.
    The defendant believes that the claim has no merit or reasonable prospects of success and invites the court to strike out the claim.

    I believe the facts stated in this defence are true.
    Last edited by Sun1234; 22-10-2018 at 8:50 PM.
Page 2
    • Sun1234
    • By Sun1234 2nd Apr 19, 4:35 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    I have looked at pofa and believe they have complied apart from some minor differences eg they say “parked” between certain times but in fact it was the time The anpr caught the car driving in and out.

    Not sure if something like that is strong enough and don’t want to make the judge angry......
    • Coupon-mad
    • By Coupon-mad 2nd Apr 19, 6:06 PM
    • 70,394 Posts
    • 82,989 Thanks
    Coupon-mad
    The POFA requires:

    - adequate notice of the parking charge (i.e. clear signs with £100 in large letters)

    AND

    - a 'relevant contract' or 'relevant obligation' on the driver; you can argue they were a genuine patron of the gym and either knew nothing about any such obligation (if true) or that there is no obligation on gym users - you know the issue better than me...

    AND NOT JUST THIS ALONE, BUT IT'S IMPORTANT TO CHECK IT PROPERLY:

    - a compliant Notice to Keeper (CEL do not always include para 9(2)f).

    Ive read a few of the witness statements and although they are very similar im not sure what to write as to who was driving.

    It wasnt me as i was in another car but we were both attending the same gym for the induction.
    So you write that, in a WS format, with attached evidence like the 'tips' for evidence show you, in the NEWBIES thread... The simple story as a witness, about what happened and why the VRN was not input or the system failed, or the system was hidden or whatever (I have had no time to look back...).

    Do i now name the person who was driving and ask them to submit a witness statement and attend court?
    If that is convenient, you could, but you do not have to name the driver and I wouldn't, if they are vulnerable and would fold if CEL decided to start a case against them instead.
    Last edited by Coupon-mad; 02-04-2019 at 9:09 PM.
    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
    • Sun1234
    • By Sun1234 2nd Apr 19, 6:41 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    I have today received CEL witness statement, there’s lots of irrelevant case law and there are points where it seems they haven’t even read their own previous communications to me.

    Is the witness statement the right place to point this out or should I wait till court?
    • beamerguy
    • By beamerguy 2nd Apr 19, 7:16 PM
    • 11,092 Posts
    • 14,869 Thanks
    beamerguy
    I have today received CEL witness statement, thereís lots of irrelevant case law and there are points where it seems they havenít even read their own previous communications to me.

    Is the witness statement the right place to point this out or should I wait till court?
    Originally posted by Sun1234
    Sounds typical of CEL's total incompetence

    Like ALL these scammers, dodgy legals included, they are struggling to find anything new so resort to meaningless cases hoping a judge will be unaware.

    Why point out their stupidity when you can go to court and rubbish their claim in front of judge.

    Remember CEL often discontinue their claim but because they are a company NOT TO TRUST ..... always check with the court whatever they say to confirm

    Don't forget your costs schedule when you win
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Coupon-mad
    • By Coupon-mad 2nd Apr 19, 9:10 PM
    • 70,394 Posts
    • 82,989 Thanks
    Coupon-mad
    Is the witness statement the right place to point this out or should I wait till court?
    In both. You know that from the example WS you've read.
    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
    • Sun1234
    • By Sun1234 2nd Apr 19, 9:36 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    The witness statements that Iíve read seem to pretty short and sweet which is why Iíve asked....cel witness statement is over 20 points long and if I begin to refute them in my own witness statement itís going to be quite long

    I was wondering if I put so much info in it if the judge will miss some of my points and also by submitting it to cel Iím giving them time to find out answers.

    On another point they havenít included their contract with the landowner in there witness pack, can they submit this at court or should they have provided me with it?

    Thanks
    • Coupon-mad
    • By Coupon-mad 2nd Apr 19, 9:40 PM
    • 70,394 Posts
    • 82,989 Thanks
    Coupon-mad
    They had to prove they have landowner authority if you raised it in defence.

    Are you sure the only WS I've linked in the NEWBIES thread are short? I was thinking they were quite long and detailed (don't look at defences, only WS examples).

    If you miss out pulling apart their evidence in your WS you have missed a trick!

    Look at the thread tonight by Lop5 and the replies by me and Johnersh as to what we noticed about the parking firm's WS in that case.

    Do the same line by line demolition, it is fairly easy when you start.
    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
    • Sun1234
    • By Sun1234 2nd Apr 19, 10:10 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    Ok thank you I will look.

    I have just gone over the original notice and it is compliant with pofa

    Should I post my statement on here when it’s completed?
    • Coupon-mad
    • By Coupon-mad 2nd Apr 19, 10:31 PM
    • 70,394 Posts
    • 82,989 Thanks
    Coupon-mad
    CEL PCNs are not usually POFA compliant, except for a MUCH newer version I saw.

    Are you sure it has 9(2)f in full, and not just in the payment slip?
    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
    • Sun1234
    • By Sun1234 2nd Apr 19, 10:39 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    No youíre right it only has it on the payment slip, I thought that as this is on the same piece of paper itís compliant?

    Also Iíve just read your comments on Lop5 very helpful as they are quoting the vine case too
    • Sun1234
    • By Sun1234 7th Apr 19, 10:08 AM
    • 19 Posts
    • 4 Thanks
    Sun1234
    Order for Costs
    Iím just working on the witness statement which I need to send tomorrow,
    Please can someone point me in the right direction for how I calculate an order for costs?

    Thank you
    • Le_Kirk
    • By Le_Kirk 7th Apr 19, 10:55 AM
    • 4,625 Posts
    • 3,999 Thanks
    Le_Kirk
    If you refer to the NEWBIE thread post # 2, you should find some examples of cost schedules. I found THIS ONE.
    • Sun1234
    • By Sun1234 16th Apr 19, 1:49 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    We lost!
    So we went to court today, CEL Ltd hired a barrister to fight their claim and unforetunately we lost

    However he didnít award them any costs so weíre not really any worse off and even the barrister feels we were unfortunate with the judges decision!!
    • Le_Kirk
    • By Le_Kirk 16th Apr 19, 1:54 PM
    • 4,625 Posts
    • 3,999 Thanks
    Le_Kirk
    That's tough luck. Could you post a few details about the judge's decision and outline why you lost?
    • Sun1234
    • By Sun1234 16th Apr 19, 2:00 PM
    • 19 Posts
    • 4 Thanks
    Sun1234
    Yes the judge straight away removed all cels debt collection costs and said the matter is for £100 that is all.

    Then we went through what happened on the day and argued the non complaint ntk which the judge was going with until the barrister said that the claim we had cited referred to a charge notice under the road traffic act not a contractual one.

    He dismissed the grace periods from the bpa
    He wasnít concerned that civil enforcement hadnít provided an agreement not was he concerned with the fact the gym had varied the terms and conditions of parking as allowed by cel just that the signs were clear and perhaps weíd been informed incorrectly by the gym!
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