CEL have filed a county court claim against me

**ostell** · 2nd July 2018, 12:53:PM

So let's see the original Notice to Keeper that the keeper received, suitably redacted but leave dates.

**Kianna** · 2nd July 2018, 13:43:PM

So the PCN issue date was the 04/12/2017. The incident date was the 12/11/2017.

The letter said:

On 12 November 2017 the above vehicle which was parked at : *************

From: 12/11/2017 16:40:48 To: 13/11/2017 18:37:55

We therefore require payment of this parking charge notice, in accordance with the parking terms and conditions clearly stated in the signage:

Maximum 90 minutes free parking

amount due within 28 days: £100

Reduced amount if paid withing 14days: £60

i just realised I wrote 19:37 in my original post. The time over the 90 minutes free stay is 27 minutes.

**Kianna** · 2nd July 2018, 13:48:PM

Apologies, I also just realised I put the to date wrong as well. The whole incident happened in one day and there is only 27 minutes over the 90 minutes free stay.

Sorry for all the confusion.

**ostell** · 2nd July 2018, 14:49:PM

So did the driver find a windscreen ticket on the car? For liability to be transferred from the driver to the keeper, when there is no windscreen ticket, the NTK has to be received within 14 days of the alleged infringement.

Has there been any other exchange of letters with CEL that could have identified the driver?

**Kianna** · 2nd July 2018, 14:59:PM

There was no ticket left on the car. The driver never left the car or switched off the engine at the time of being in the car park or saw any parking attendance. (The reason the driver never left the car was because the car park is for a fast food chain that has a drive through within the car park) So the only way it could have been done was through the ANPR camera as you go in and out of the car park.

All letters have been ignored from the CEL and no phone calls were made. The only letter that was sent for this incident was the acknowledge of service letter to the county court with a follow up phone call to ensure they had received it.

**ostell** · 2nd July 2018, 16:15:PM

CEL will go to court, especially if no one responds to them and they think they can get a default judgement. Long time in the Drive thru !!

Do you still have the original Notice to Keeper? If not write to CEL and request copies of all document that they intend to rely on in court, with receipt within 7 days.

Look around this froum and the Pepipoo forum for recent CEL defences. Modify to suit and post here for critique

**Kianna** · 15th July 2018, 11:18:AM

Good Morning,

Thank you for your help previously, I have done as you have said and found a template which I believe is relevant to my case. Please see below.

Please could you check it and advise further?

Many thanks,

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

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 19th June 2018 by Civil Enforcement Ltd 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’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 ‘Letter before County Court Claim’ under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of ‘draft particulars’. The badly mail-merged documents contain very little 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 when the notice was served, did not fully comply with statutory wording. The Claimant is therefore 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 which 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 mentioned a possible £322.22 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’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 notice to £322.22. 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. The Defendant avers that the parking signage in this matter was inadequate.
6.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation
6.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association’s ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory

7. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 7 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

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 19th 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.

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 and recollection.

I am unsure about section 7.(b) as they did not mention this in my particulars of claim, however, the person that used this defense had identical particulars to myself.

**ostell** · 15th July 2018, 12:06:PM

Leave in 7B

Be specific about the failing to meet the 14 days, ie POFA 2012 section 9 (4)

**Kianna** · 15th July 2018, 12:53:PM

Please see below section 3 amended.

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 when the notice was served. The incident date was 13^th November 2017 and the PCN issue date is 05^th December 2017. If the notice to keep was sent the same date that it was issued then I would not have received it until ether the next day or even a couple of days after that depending on what postage was used. The notice did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:

I was also wondering if i should add the below in as well? What do you think?

Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.

This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and
This Claimant has therefore failed to meet its legal obligations under the DPA.

In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.

The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #16 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:
(a) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
(b) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.
(c) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 16 and 17 above were argued.

**ostell** · 15th July 2018, 13:24:PM

I think that the additions about DPA that you are suggesting are going in a bit heavy and probably better left out. You don't want to annoy the judge. You still haven't specified the particular sections of POFA section 9 that have been breached. You are relying on this and must be clear and specific. Basically you must point the judge straight to the section. Similarly with the others portions that are missing. Say which section.

"The claimant fails to meet the requirements of POFA 2012 ....... And therefore the liability for tha actions of the drive cannot be transferred to the keeper. .......

Also query the amount of the charge. This is on excess of that permitted by POFA 4 (5). The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

**Kianna** · 15th July 2018, 15:38:PM

Please see below for edit of defense.

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

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 19th June 2018 by Civil Enforcement Ltd 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’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 ‘Letter before County Court Claim’ under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of ‘draft particulars’. The badly mail-merged documents contain very little 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. 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 of the POFA 2012 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, 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.
4.(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). neither the signs, nor the NTK mentioned a possible £322.22 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.
The Claimant also failed to meet the Notice to Keeper obligations of Schedule 9 of the Protection of Freedoms Act 2012 (POFA 2012).
9)(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
The notice was not served within 14 days of the incident, the incident date was 13^th November 2017 and the PCN issue date is 05^th December 2017. If the notice to the keeper was sent the same date that the PCN was issued then the defendant would not have received it until ether the next day or even a couple of days after that depending on what postage was used by the claimant. Therefore, the notice to keeper was issued over a week late and therefore does not comply with the POFA 2012.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
10.(1)The appropriate national authority may by regulations made by statutory instrument prescribe evidence which must accompany a notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) or paragraph 6(1)(b)(as the case may be).
(2)The regulations may in particular make provision as to—
(a)the means by which any prescribed evidence is to be generated or otherwise produced (which may include a requirement to use equipment of a kind approved for the purpose by a person specified in the regulations); or
(b)the circumstances in which any evidence is, or is not, required to accompany a notice to keeper.
The notice to keeper states “We have photographic evidence of this incident” however, not evidence sent to the keeper.
The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions and the liability for the actions of the driver cannot be transferred to the keeper.

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’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 notice to £322.22. 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. The Defendant avers that the parking signage in this matter was inadequate.
6.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation
6.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association’s ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory

7. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 7 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

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 19th June 2018.
(b) Failed to meet the regulations of the POFA 2012 schedule 4,9 and 10.

(c) 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.

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 and recollection.

**MIKE770** · 15th July 2018, 20:23:PM

county court rate is 8%

**Kianna** · 15th July 2018, 20:46:PM

I have had some further advice on this and have changed the statement a bit. Please could you have a look and tell me what you think?

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

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 19th June 2018 by Civil Enforcement Ltd 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.

3. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 7 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

4. Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that !!!8220;However keeper information is obtained, there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.!!!8221; Schedule 4 of the POFA 2012 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, and if there was a 'relevant obligation' and !!!8216;relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. The Notice to Keeper used by this Claimant is routinely worded in a way that can only hold a driver liable and/or the NTK will have been served outside the mandatory 14 day period set within Schedule 4 of the POFA. Whilst this is a choice a parking firm can make (effectively to serve a PCN document like those that existed pre-POFA), it means they can only hold known drivers liable, never registered keepers.

5. 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 notice to £322.22. 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.

6. 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 !!!8216;contract!!!8217; none of this applies in this material case.

7. The Defendant avers that the parking signage in this matter was inadequate.
6.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation
6.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association!!!8217;s ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory

8. No standing, this distinguishes this case from the Beavis case: It is believed Civil Enforcement Ltd 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.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

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 failed to disclose any cause of action in the Claim Form, which disclosed no Particulars of Claim that can give rise to a cause of action, or any claim in law at all, against this registered keeper Defendant.

12. If Directions are given rather than the court acting of its own volition to strike the case out due to a lack of properly pleaded Particulars, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is widely know that, where a claim is robustly defended, this particular Claimant routinely discontinues at Witness Statement stage and never pays the court hearing fee.

13. It is an unfair burden and a complete waste of time for the Courts, and for a Defendant to spend hours on their own Witness Statement against a vexatious litigant who invariably discontinue and are clearly in pursuit of default judgments and abusing the court process as an aggressive form of debt collection with no intention of paying for or attending a hearing.

14. Given that in 2017 and 2018 it has been observed in the public domain - and hopefully by the Courts, who cannot have missed the fact - anyone who defends robustly against this Claimant receives a notice of discontinuance, the Court is asked to act at an early stage, using its case management powers to prevent this abuse.

15. The Defendant asks that the court gives consideration to striking 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 £322.22 and the Defendant avers that this inflation of the considered amount is a gross abuse of process.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

**Kianna** · 17th July 2018, 08:28:AM

Hi All,

Please could someone advise on the above? Should i be using the a more generic template or should i put specific information in? I keep getting told that CEL do not proceed to court when they see a strong defence. But i am i worried that the second defence may annoy the judge as well as CEL so that they would end up going to court and both end up against me.

thanks,

CEL have filed a county court claim against me