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Civil Enforcement - COURT CLAIM LETTER, Threads merged
maddox
post Mon, 3 Jul 2017 - 10:42
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Hi All

I received a court claim letter from CEL. I have checked the box online stating I will be defending the claim in full and have not touched the defence section yet (thanks to the advice of this board). I now have until the 15th July to enter my defense.

1. I have included a photo of the sign below. It is a Chinese restaurant (yummy). The sign states: YOU CAN REGISTER FOR A FREE ONE DAY PARKING PERMIT IN THE RESTAURANT. This basically means if you are dining in the restaurant they take your registration plate and enter it into their system. The registration was not registered and the driver went to the shop across the road to it and didn't realise that cameras were checking on the way out of the car park.

2. There are no signs stating that there is a camera system in place other than on the small print on the sign.

3. Does anybody see anything wrong with the signage in place?

4. I was never send a LBCCC.

5. Before I enter my defense should I have sent CEL a letter asking for photo evidence, contract between them and landowner etc?. Or should I just make the claim that I didn't receive them in the first place and it is up to them to prove it?

6. The original "PCN" I received was past the 14 days from when the event allegedly happened. Does this matter and should it be included?

Thanks for any help on this. I will post my defense before I enter it.




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post Mon, 3 Jul 2017 - 10:42
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Jlc
post Mon, 3 Jul 2017 - 10:51
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1/2 - BPA code of practice says:

QUOTE
21.1 You may use ANPR camera technology to manage,
control and enforce parking in private car parks, as long
as you do this in a reasonable, consistent and transparent
manner. Your signs at the car park must tell drivers that
you are using this technology and what you will use the
data captured by ANPR cameras for


Worth attacking...

3 - The £100 'core' term is particularly small (Unlike Beavis)
4 - Not fatal but worth mentioning
5 - You can ask what you like but they'll ignore it (Don't miss the deadline!)
6 - ABSOLUTELY!!!! This is key plank of the defence that they have failed to meet the necessarily Schedule 4 deadlines for 'keeper liability' - they would have to show the keeper was driving. It's even better if the keeper was not driving and can state this.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Mon, 3 Jul 2017 - 10:52
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Date of issue plus 33 days is your deadline, so check your date again to be sure.

If no windscreen notice was affixed, then to hold the kepeer liable they have to have recieved the NtK within 14 days of the parking event. However assuming you have the PoC that CEL state they will send within 14 days, it will likely state they dont use POFA but instead assume the keeper and driver are the same.

If it can be truthfully stated that the keeper did NOT drive, and even better evidenced in some way (Witness statement of another person, phone locaiton history, etc) then tht will massively assist

Use a recent CEL defence - nothing older than 1 o r2 months. Tons on here to find. Edit it to fit then post on here

I wouldnt ask for documents.
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Jlc
post Mon, 3 Jul 2017 - 11:01
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QUOTE (nosferatu1001 @ Mon, 3 Jul 2017 - 11:52) *
I wouldnt ask for documents.

Agreed - recent defences will assert the necessary chain of authority they would need to aver.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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maddox
post Wed, 5 Jul 2017 - 12:08
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QUOTE (Jlc @ Mon, 3 Jul 2017 - 11:51) *
6 - ABSOLUTELY!!!! This is key plank of the defence that they have failed to meet the necessarily Schedule 4 deadlines for 'keeper liability' - they would have to show the keeper was driving. It's even better if the keeper was not driving and can state this.


thanks for this. That's great.

Is there anywhere I can go to find out how to best word this??

Not sure if I need to use all the legal terms?
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kommando
post Wed, 5 Jul 2017 - 12:26
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QUOTE
Is there anywhere I can go to find out how to best word this??


Search the forum for CEL defences, stick to the most recent, they discontinue when faced with these defences. The wording is good as they stem from a 'Gan' defence.

QUOTE
Not sure if I need to use all the legal terms?


Yes you do, its a court claim so you defend using legal terms.
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maddox
post Wed, 5 Jul 2017 - 12:32
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QUOTE (kommando @ Wed, 5 Jul 2017 - 13:26) *
QUOTE
Is there anywhere I can go to find out how to best word this??


Search the forum for CEL defences, stick to the most recent, they discontinue when faced with these defences. The wording is good as they stem from a 'Gan' defence.

QUOTE
Not sure if I need to use all the legal terms?


Yes you do, its a court claim so you defend using legal terms.


Thank you Kommando I really appreciate the help...
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nosferatu1001
post Wed, 5 Jul 2017 - 16:48
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Post your updated defence here asap.
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maddox
post Thu, 6 Jul 2017 - 09:13
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QUOTE (nosferatu1001 @ Wed, 5 Jul 2017 - 17:48) *
Post your updated defence here asap.


Thanks I'm just working on it as we speak.

A quick question. Should I mention anything about the "1 Day pass" stated on the sign?

For example:

The signs state that "YOU CAN REGISTER FOR A FREE ONE DAY PERMIT IN THE RESTAURANT". It has not been established that the driver did not register for this one day pass. The pass is electronic therefore no receipt, paperwork or proof of registration is offered. This would prevent the driver from proving registration and allows for human error on the landowners part. This electronic registration can now be removed by the landowner, therefore removing the drivers ability to prove registration.

Something like that??


... Another question

Should CEL send proof of not only driving out of the car park but also driving in?

This would prove that the driver did not drive in then decide to drive straight out without parking.

Is this worth a mention??

And lastly.. Lets say CEL decided to go ahead and take us to court for the claim. Wouldn't we then be able to identify the driver and everything would have to start again. The driver admits they were they driver and a new PCN would need to be sent from the beginning??

P.S. This restaurant has caused quite a stir in our town so by helping me I plan to help quite a few others in my area to defeat these claims!!!!

Hopefully this will provide a good blueprint.

This post has been edited by maddox: Thu, 6 Jul 2017 - 09:16
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nosferatu1001
post Thu, 6 Jul 2017 - 14:09
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Yes. Youc an state that the driver at the time followed the instuctions of the restaurant, and had no reason to believe the registration had not occurred. Unde rthe CRA2015 a consumer is entitled to rely upon verbal OR written information provided to them. A failure by the restaurant to perform their obligations, or a failure of the parking company to correctly record the registration, is not of any concern to the consumer.

I hae no idea what you mean about driving in and out. What does it matter if the driver didnt park? I thought it was agreed the driver did park that day.

No. BY the time it is at court under POFA it is too late to tell them off the driver. CEL so far havent turned up to a court hearing.

Tell the resturant you have no intention of going back, and you will ensure noone else does, while these parasites are in place. A 5 mionute bit of research from their part would have shown how horrible CEL are for any business.
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maddox
post Thu, 6 Jul 2017 - 14:49
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QUOTE (nosferatu1001 @ Thu, 6 Jul 2017 - 15:09) *
Yes. Youc an state that the driver at the time followed the instuctions of the restaurant, and had no reason to believe the registration had not occurred. Unde rthe CRA2015 a consumer is entitled to rely upon verbal OR written information provided to them. A failure by the restaurant to perform their obligations, or a failure of the parking company to correctly record the registration, is not of any concern to the consumer.


Thanks for this but I think I will omit this part as the driver popped to the shops and didnt realise that a camera would nab him on the way out. I already called the Chinese restaurant to ask them if they would put a stop to this and they said no and they can prove he didnt dine in the Chinese through their CCTV system!!. I doubt will go to court but something like that could discredit it all if it did.

QUOTE (nosferatu1001 @ Thu, 6 Jul 2017 - 15:09) *
I hae no idea what you mean about driving in and out. What does it matter if the driver didnt park? I thought it was agreed the driver did park that day.



Apologies for not explaining this a little better. What I meant was they may be able to provide proof (photographic evidence) of the vehicle leaving the premises but shouldn't they also be able to provide a photo and time stamp of the vehicle driving into the premises. Otherwise the driver could have just pulled into the car park to turn around and then drove straight back out. I doubt it is of much use so will leave it out anyway.

QUOTE (nosferatu1001 @ Thu, 6 Jul 2017 - 15:09) *
No. BY the time it is at court under POFA it is too late to tell them off the driver. CEL so far havent turned up to a court hearing.


Ok, thank you

QUOTE (nosferatu1001 @ Thu, 6 Jul 2017 - 15:09) *
Tell the resturant you have no intention of going back, and you will ensure noone else does, while these parasites are in place. A 5 mionute bit of research from their part would have shown how horrible CEL are for any business.


Yes I have called them and explained that this is not good for their business and to at least let people know there is a camera system in place so you cant just pop to the shops and come back. The shops are opposite the car park so it is extremely tempting to just run across the road quickly.

Thanks again
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maddox
post Fri, 7 Jul 2017 - 09:46
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A quick question.

Do I have to send my defence to the court in writing or can it all be done via the website they provided?

Thanks
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maddox
post Fri, 7 Jul 2017 - 10:09
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Ok all here is my defence. Any help greatly appreciated

Defence (Draft)

Please advise how I open/intro the defence?

1. 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. 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 unless the party is legally represented and the legal representative has signed the statement of truth.
The claim should therefore be struck out.

2. The Defendant does not know what action by the driver they are defending. The Particulars of Claim are generic and the Schedule of Information only states the location, date, parking time and a summary of the terms of parking. The Defendant requests the court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 – 7.5

3. The Particulars of Claim do not meet the requirements of CPR 16. In particular it does not include a concise statement of the facts on which the Claimant relies as it must do under CPR 16.4(1)(a) Neither are they compliant with practice direction 16 7.5.

4. There is no explanation who Ashley Cohen is. The Defendant has the reasonable belief that he has no personal knowledge of the case and the signature is a template.

5. CEL failed to meet the requirements of POFA schedule 4 to hold the keeper liable. Namely, but not limited to, failed to deliver the notice to keeper within 14 days. The claimant did not comply with the Protection of Freedoms Act 2012 (“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 which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges. The following are some of the reasons the speculative invoice was not a notice to keeper and did not comply with
POFA 2012:
a) It was not a notice to keeper but a “Parking Charge Notice” as detailed in the title of the invoice.
b) It did not advise that the driver is liable for the parking charge and that it has not been paid in
full.
c) It did not warn the keeper that if the parking charges remains outstanding after 28 days and the
name and address of the driver has not been given, or otherwise known to the person entitled to the
parking charge, that “creditor” will be entitled to recover the parking charge from the registered
keeper.
d) It did not invite the registered keeper to pay the outstanding parking charge or, if he was not the
driver, to provide the name and address of the driver and to pass a copy of the notice on to that
driver.
e) It did not state the means of how the parking ticket was issued, it simply quoted
dates and times of the alleged offence.
f) It was a speculative invoice titled “Parking Charge Notice” and not a notice to keeper and was not
sent within the 14 day period to comply with POFA 2012 even if it was deemed to comply with
POFA 2012.

6. The defendant has claimed legal costs that cannot be recovered in the Small Claims Court (CPR 27.14)
The solicitor, Wright Hassall, was in any case engaged by ZZPS, not the Claimant that is a stranger to the arrangement.


(point 6) There is no mention of Wright Hassall or ZZ PS on the particulars of claim or the court claim form. Should I omit this?


3. The Particulars of Claim state that it concerns a debt that was due on 30/10/16. No debt could possibly have existed on this date.
The Claimant did not issue a Parking Notice until at least two weeks letter that demanded payment within four weeks
No debt could have been due until at least six weeks after the date stated and the Statement of Case is therefore false.


7. CEL failed to serve a valid Notice to Keeper in accordance with the Protection of Freedoms Act
It has never acquired any right to recover payment from the registered keeper

8. CEL is not the land-owner and therefore has no legal capacity unless in accordance with the British Parking Association Code of Practice, it is specifically authorised
The Defendant has the reasonable belief that the Claimant, in fact, has no contract with the land-owner and puts it to proof of the chain of authority

9. The signs fail to meet the requirements of the British Parking Association Code of Practice.
The driver did not see and agree to the £100 charge for the undisclosed action that he is alleged to have performed
The charge is only mentioned in very small text
If the Claimant believes it to be a core term, it should have been given equal prominence with the advertisement of the parking and tariff

10. CEL did not employ a legal representative and cannot claim a £50 fee.
The Defendant refers the court to the incompetent particulars of claim that were clearly not prepared by a legal professional

8 The Defendant has the reasonable belief that the Claimant did not pay ZZPS £60 to recover a £100 parking charge whether or not it was successful and that it has artificially inflated the claim.
Neither does it believe that any payment was made to Wright Hassall LLP


Reason for omitting above: Although I got many letters from ZZPS and Wright Hassall. The particulars of claim make not reference to Wright Hassall as being their legal representatives.

This is how total on the claim form is worded
Amount claimed: £246
Court Fee: £25
Legal Representatives costs: £50
Total Amount: 321.81
The particulars of claim state:
Outstanding amount: £321.81 (including legal fees and interest to date)



9 The defendant has claimed legal costs that cannot be recovered in the Small Claims Court (CPR 27.14)
The solicitor, Wright Hassall, was in any case engaged by ZZPS, not the Claimant that is a stranger to the arrangement.



Again struck out for the same reason. There does not seem to be any reference to Wright Hassall or ZZPS in the particulars of claim. In the particulars of claim it states:

8. The claimant (direct/through its agents) was left with no alternative but to escalate the matter as a result of their non-payment of debt, which further increased the amount owed, in accordance with the terms of parking.

9. The claimant claims the amounts owed, plus court and legal fees, and interest, pursuant to section 69 of the County Courts Act 1984 on the amount found to be due the Claimant at such rate, and for such period, as the court thinks fit.
The particulars of claim were sent from a robot Ashley Cohen.



10 The defendant has the reasonable belief that the claimant has not incurred £40 costs as 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.


They are not claiming any administration costs on the claim form.

CEL failed to take legal action following its LBA for £140. It has not only failed to mitigate its costs but artificially inflated the amount in an attempt at double recovery

The defendant invites the court to strike out the claim for failing to disclose any cause of action


There are no signs warning drivers of the ANPR cameras installed. It does state it in the small print of the signage but I believe this needs to be a separate sign?

Thank you



This post has been edited by maddox: Fri, 7 Jul 2017 - 10:20
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ostell
post Fri, 7 Jul 2017 - 10:47
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But you responding as the keeper and therefore POFA should have applied (though they failed to get it right) POFA states that the keeper can only be liable for the amount of the original PCN and therefore CEL have attempted to add additional costs that are not permitted under POFA or small claims court. You did not see the signs and therefore could not have contracted for any additional charges on the sign.
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nosferatu1001
post Fri, 7 Jul 2017 - 16:21
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For the costs - how in helll do you think they got from £100 to £246?! That will be by adding random charges...such as WH.

Don't you have ANY previous paperwork?
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maddox
post Fri, 7 Jul 2017 - 19:02
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QUOTE (nosferatu1001 @ Fri, 7 Jul 2017 - 17:21) *
For the costs - how in helll do you think they got from £100 to £246?! That will be by adding random charges...such as WH.

Don't you have ANY previous paperwork?


Hi Yes I kept everything they sent me. The thing is the particulars of claim only make note of extra charges "through their agents".

8. The claimant (direct/through its agents) was left with no alternative but to escalate the matter as a result of their non-payment of debt, which further increased the amount owed, in accordance with the terms of parking.

The agents would have been ZZPS and WH but as they are not mentioned on any claim should I just refer to them as the "agents" ??
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nosferatu1001
post Sun, 9 Jul 2017 - 17:58
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No, you do exactly as told. You detail all the extra spurious charges, same as everyone else does. It is unimportant that the PoC fail to mention the breakdown - what's important is you alert the court to exactly how £100 became over £200.
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Gan
post Sun, 9 Jul 2017 - 18:22
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You don't believe that CEL incurred £40 of costs to write two letters
Even if it did, the work was performed by staff performing the task they were employed for as the CEL business model and this cost cannot be recovered

You don't believe that CEL paid ZZPS £60 to recover £140 whether or not it was successful

Wright Hassall correspondence says it was engaged by ZZPS not CEL, that is a stranger to any arrangement

You've missed an obvious defence point :

No debt could possibly be due on the date stated on the claim form

CEL didn't send a parking notice until at least two works after the parking event that gave four weeks for payment
No debt therefore became due until at least six weeks after the state stated on the claim form

The interest has also therefore been miscalculated
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maddox
post Mon, 10 Jul 2017 - 13:34
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Thanks for your help all

This post has been edited by maddox: Mon, 10 Jul 2017 - 13:45
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maddox
post Tue, 11 Jul 2017 - 08:35
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Can the defence form be completed online or do I have to send in the defence via letter along with a copy of the forms I refer to in the defence?

Also is this usable?:

CEL failed to meet the requirements of BPA Code of Practice 21.1 by failing to use ANPR camera technology in a reasonable, consistent and transparent manner. There are no signs at the entrance of the car park telling the driver that CEL are using this technology and what they will use the data captured by ANPR cameras for.

This post has been edited by maddox: Tue, 11 Jul 2017 - 09:11
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