received a N149A regarding CEL

[scv48]

Hi, I'm new to the forum and would be grateful for any advice you can give me, last year on june the 16th I parked in the co op car park it was a sunday evening at around 6.30pm and the store was closed, we went on holiday a couple of days after and when we came back after 2weeks we had a PCN from civil enforcement, we tried to contact them to speak to them but it was an automated system, we also called into the co op and a staff member told us they didnt even own the car park, we also contacted the council, we later found out the co op did own the car park as a family member used to be employed there. after reading advice from forum sites we ignored the letters from CEL. Last month I received a letter from the county court, this arrived two days before I was going on holiday, so I filled in my defense as I was worried about leaving it too late. In the mean time I emailed the CEO of the co op stating that as it was a Sunday evening and the store was closed there was no loss to the company, I also stated that I didnt know it was a two hour limit as the signs were so poorly displayed, I was told they couldnt help and that I would have to go to court and defend myself against CEL. I have now just received in the post my directions questionnaire. I'm now worried the information I previously filled in as a defense is not good enough, will I get a chance to give more evidence in court, if so do I need to give copies of any evidence to CEL before the court appearance. I also for got to mention that I received a letter previously stating that 87.5% had been assigned to a company called DEAL so CEL only own 12.5% of the debt, I would be grateful if you could help
thanks

[mystery1]

Re: received a N149A regarding CEL

POst up everything you have but make sure you delete your name and address.

M1

[scv48]

Re: received a N149A regarding CEL

Hi ive sent three attachments containing letters from CEL plus defense (sorry about that)

Thanks

[mystery1]

Re: received a N149A regarding CEL

You've left your name on the first one and not posted your defence.

Glad to see the assignment letter

M1

[mystery1]

Re: received a N149A regarding CEL

I didn't notice you added the "defence" when you edited your post. Your defence is toilet paper.

Can you post the particulars of claim please ?

M1

[scv48]

Re: received a N149A regarding CEL

I know the defence is rubbish but we were going on holiday the day after the forms came so I was worried about posting it off in time so just filled it in, I should have asked for the extended time,info's below for the claim

Claimant has a contract with the co operative group
Car park is private property
There are clear and visible signs displayed advising drivers of of terms&conditions
When the defendant parked in the car park they accepted by their conduct the claimants offer as set by the signage, consequently a contract was formed between the claimant and defendant
As a result of the defendants conduct a charge was incurred
The defendant has not paid the outstanding charge
Costs escalated further as a result of non-payment
Further the claimant claims interest pursuant to section 69 of the county courts act 1984 on the amount found to be due to the claimant at such rate and for such period as the court thinks fit and the claimant claims damages in the sum of Ł165.00
Costs escalated further as a result of non-payment

thanks

[mystery1]

Re: received a N149A regarding CEL

Well the rules allow an amendment with either the cooperation of the claimant or the court. http://www.justice.gov.uk/courts/pro...l/rules/part17

Ask the claimant if they will allow it. They may be penalised later on for unreasonable behaviour.

It may well be that you could just do it but that may cause issues although not as likely at small claims level.


A defence would be along the lines of :-

http://www.compactlaw.co.uk/free-leg...t.html#Defence




DEFENCE




1. Save as specifically admitted in this defence the Defendant denies each and every allegation set outin the Particulars of Claim, or implied in Pre action correspondence.




2. I am the Defendant, xxxxx, a brain surgeon.


3. I am the registered keeper of vehicle, registration number xxxxx and was the driver on xxxxx


4. I have no knowledge of paragraph 1. The claimant is put to strict proof that they have a valid contract with the landowners. If they do not have a proprietary interest in the land they have no locus standi to bring a court claim.


5. Paragraph 2 is outside my knowledge and is neither admitted nor denied.. The claimant is put to strict proof.


6. Paragraph 3 is neither admitted nor denied. The claimant is put to strict proof they are entitled to enter in to a contract. Any contract must have offer, acceptance and consideration both ways. There is no consideration from Civil Enforcement Ltd to motorist; The gift of parking is the landowner’s, not Civil Enforcement Ltd’s. There is no consideration from motorist to Civil Enforcement Ltd. Any fees for parking are due to the landowner and not Civil Enforcement Ltd.


7. Paragraph 4 is denied. The signage was poor and can't be read upon entry to the car park and therefore there can be no contract.


8. Paragraph 7 is admitted on the basis that I believe no charge is due.


9. Paragraphs 6, 8 & 9 are denied for the following reasons.


A. The claimant has assigned 87.5% of the debt, a debt which in any event is disputed. As the claimant does not own 87.5% they cannot recover that part.


B. The sign was not an offer but a threat of a punitive sanction to dissuade drivers from parking without payment and was therefore a penalty clause. It was not an offer to pay for a period of parking. The charge was held to be a penalty in the appeal ruling of Civil Enforcement Limited v McCafferty Their claim is based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero or negligible.


C. A charge of Łxxx is above and beyond that which the British Parking Association expects and is a trade association of which Civil Enforcement Ltd are a member. 19.5/6 of the trades code of practice states "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than Ł100. If the charge is more than this, operators must be able to justify the amount in advance.




19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by The Office of Fair Trading. "






Case Law Relied Upon:




a) With regard to point 4 & 6, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case. In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and
dismissed the claim. No transcript is currently available.






b) With regard to point 9 I rely upon the following cases and evidence:




OBServices v Thurlow (Worcester County Court, 2011) (Appeal hearing before Circuit Judge).3JD00517 ParkingEye v Clarke (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss as any loss was to the landowner and not the Claimant. “The problem which the present Claimants have, however, in making this assessment is that on any view, any loss is not theirs but that of the land owners or store owners”




3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) This case followed on from the previous case and Deputy District Judge Buckley ruled the same way.(No transcript is available)




3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). The judge ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss as the loss for a four minute overstay was negligible.




3JD03769 ParkingEye v Baddeley (Birmingham 11/02/2014) District Judge Bull. The judge found that the defendant's calculation of ParkingEye’s pre-estimate of loss of around Ł5 was persuasive. As ParkingEye could not explain how their alternate calculation of Ł53 was arrived at, he accepted the defendant's calculations. The
transcript is not yet available.


The Office of fair Trading agreed with this, pointing out that all costs must be directly attributable to the breach, that day to day running costs could not be included and that the charge cannot be used to create a loss where none exists (Appendix A).




Appendix B contains the minutes of the British Parking Association where parking charge levels were decided, showing that there was no consideration whatsoever
given to pre-estimate of loss, and that at least one factor was to set the charges the same as council penalties. The minutes also show there is no financial basis for the 40% discount but that it is needed to ‘prevent frivolous appeals. Any charge set to deter is a penalty. A charge set to the level of a penalty is a penalty.








Conclusion




I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit, and with no realistic
prospect of success.All evidence and transcripts referred to will be provided at least 14 days before any hearing date.














Appendix A is D and appendix B is O from http://www.parking-prankster.com/sample-defence.html


M1

[scv48]

Re: received a N149A regarding CEL

Thanks for the quick response, is that a defence to submit now if they'll grant permission or to present on the day in court? What kind of information do you need to present to the court?

[mystery1]

Re: received a N149A regarding CEL

You need to get something similar in well before court. If you get a decent defence in they will not turn up.

You need to present your arguments and any documents you wish to rely on. A witness statement and any documents need to be sent before the hearing (usually at least 14 days before).

Your defence is already past due and the one you filed is a defence in name only because in substance it's zero. If i were them i'd have applied for summary judgement based on your defence but it seems you're lucky so far on that score.

M1

[scv48]

Re: received a N149A regarding CEL

Sorry to bother you again, but will it state on the next letter i receive from the court that i can send in any relevant details for my defence to fight my case, and also will i need to send a copy of that defence to CEL. I havent posted my directions questionnaire back to the court yet it needs to be received back by the 3oth October, i read previously on a forum to leave posting the one back to CEL as late as possible is this the case if so when do you thimk i should post it to them. Do you think it would be worth my while trying to get an amendment and send off a stronger defence for my case or just wait for the next correspondence from the courts and post it in well in advance of the court date.Can i also add the advice i have received so far has been very helpful and i am really grateful
thanks

[mystery1]

Re: received a N149A regarding CEL

Anything you are told to do by the court should be done shortly before it needs to be to arrive within 1/2 days before the due date.

You will not now be told to refile your defence. Changing it to something decent is your responsibility. It something you need to do asap. Technically you need permission for either CEL or the court.

M1

[scv48]

Re: received a N149A regarding CEL

ok thanks, i thought i would be able to take information into court with me

[mystery1]

Re: received a N149A regarding CEL

Yes but it needs to be sent to the court and CEL at least 14 days before the hearing as the judge should order upon sending back allocation and subsequently fixing a date.

It's in cpr 27 somewhere but as i'm off out i don't have time to point it directly to you just now.

M1

[Kati]

Re: received a N149A regarding CEL

Yes but it needs to be sent to the court and CEL at least 14 days before the hearing as the judge should order upon sending back allocation and subsequently fixing a date.

It's in cpr 27 somewhere but as i'm off out i don't have time to point it directly to you just now.

M1

Is this the part you are talking about M1?

3) In this rule –(a) ‘standard directions’ means –
(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing; and
(ii) any other standard directions set out in Practice Direction 27; and
(b) ‘special directions’ means directions given in addition to or instead of the standard directions.

CPR part 27

[mystery1]

Re: received a N149A regarding CEL

:okay:

M1