Deal - Ash25 -Won

[Ash25]

Hi guys. I got the exact same notice from N county court as delbook. Same date, solicitor signature & claim amount. I have a separate thread going ....

[Ash25]

Re: Debt Enforcement & Action - Final reminder before court action

By filing the Acknowledgement of Service you are disputing the claim and will have to lodge a defence within 28 days.

My main worry is having a CCJ against my name. If DEAL do turn up in court & the court finds in their favour will I still be able to pay the alleged fine & resolve the matter & not have a CCJ. Or will I have the CCJ even though I have paid the full amount?

Also even at this stage where I have received the claim form - if I contact DEAL & make full payment, can they take it any further ie ask court for a calculation of interest on the debt & get a CCJ against me?

[mystery1]

Re: Debt Enforcement & Action - Final reminder before court action

By filing the Acknowledgement of Service you are disputing the claim and will have to lodge a defence within 28 days.

My main worry is having a CCJ against my name. If DEAL do turn up in court & the court finds in their favour will I still be able to pay the alleged fine & resolve the matter & not have a CCJ. Or will I have the CCJ even though I have paid the full amount?

Also even at this stage where I have received the claim form - if I contact DEAL & make full payment, can they take it any further ie ask court for a calculation of interest on the debt & get a CCJ against me?

If you pay within 28 days of judgement then it won't appear on your record. They might get interest. However it's odds on they won't turn up if a decent defence is entered.

M1

[Ash25]

Re: Debt Enforcement & Action - Final reminder before court action

I am not fully decided whether to pay up or to contest. The crooks of the matter is will my defence stand up in court. Here are my thoughts;1. There was no binding contract between me & CEL. The signage in the evening is difficult to read. 2. An overstay of just 16 minutes amounted to a fine of £90. This is unfair. 3. I responded to their letter about court action in September 2014 & they did not respond. I sent it via recorded delivery & can prove they received it. So it boils down to a water tight defence or else I might just pay & get it over & done with!!! I would hate to do the latter. Any thoughts or comments on this would be appreciated.

[mystery1]

Re: Debt Enforcement & Action - Final reminder before court action

Well i will never say don't pay as i believe everyone has to make their own choices and for some the easy way is best because stress, time constraints etc make it so.

If you take on CEL/DEAL with a decent defence, with which i'll help, then they will not turn up at court and you'll win and learn a lot about a process you had no desire to learn. I'll be writing a defence soon but i only have the court papers of Delbrook to use in that and he has indicated that he doesn't wish to proceed. The more info you give, the better.

Anyone who pays should negotiate 1st.

Once i start to help i'll be splitting things up so each user has their own thread otherwise i'll be scratching my head a lot and wondering wtf is going on.

M1

[mystery1]

Re: Debt Enforcement & Action - Final reminder before court action

http://parking-prankster.blogspot.co...ally-turn.html

http://nebula.wsimg.com/d8670de1426e...&alloworigin=1

M1

[Ash25]

Re: Debt Enforcement & Action - Final reminder before court action

Ok. I think you know the story so far. Incident took place in Feb 2014. Received a few letters demanding payment. I wrote to them asking for more info & they did not reply. I don't have a copy of this letter but it was sent out in late March 2014. Received the letter from DEAL in September 2014 - final before court action. I contacted co-op CEO but to no avail ie co-op did respond but stating their hands were tied. I used your letter in response to their September court threat but they did not respond & now I have the EXACT same claim form as delbrook posted. I am happy to contest the claim but need to a good defence Could you help me with this? If so how do you want to proceed as 14 day deadline is looming.

[Ash25]

Re: Debt Enforcement & Action - Final reminder before court action

Yep, mine are exactly the same documents as posted above.

[mystery1]

Re: Debt Enforcement & Action - Final reminder before court action

Does the claimant list an email address under the signature where the address is ?

M1

[Ash25]

Re: Debt Enforcement & Action - Final reminder before court action

The claimant is DEAL. They just specify their Liverpool address, contact number & reference number. So no email address. On the second page they provide the particulars which I have posted before. There are no solicitors contact details at all, they have been blanked out, only giving a name & signature of the solicitor.

[mystery1]

Re: Debt Enforcement & Action - Final reminder before court action

I thought the posters had blanked that out. OMG.

I'll be offline for a bit whilst i relocate my computer but fear not i will be back.

M1

[mystery1]

Re: Deal - Ash25

Without any further info that could add to a court defence i'd suggest something like :-




Ok i'm using the claim form from http://www.legalbeagles.info/forums/...729#post494729 to base this on as i haven't seen yours. I also assume you had a letter such as http://parking-prankster.blogspot.co...-made-bad.html
































IN THE [TOWN] COUNTY COURT CASE No.
BETWEEN
[IVOR PROBLEM] Claimant
AND
[JUSTIN TIME] Defendant
AMENDED DEFENCE








1. The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.








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 in so far as Civil Enforcement Limited and the landowners are concerned and 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 basis to demand money and no right to assign a debt to another party. In any event if the assignment is legal it was not for the full amount. The claimant is attempting to recover sums that they are not entitled to should they be entitled to anything, which is denied. I believe the claimants claim for £130 is an attempt to be unjustly enriched.




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




6. Paragraphs 3 & 4 are denied. I did park at xx.xx 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.




7. Paragraph 5 is denied as the claimant was not entitled to demand money from the defendant as none was owed. In any event, even if it was, the sum demanded was not as the full amount of the penalty was not assigned.




8. Paragraph 6 is denied. Interest is not due as there is no base debt on which interest should be charged.




9. The claimants claim fails to meet CPR 16.2 (1) (a). It does not include a concise statement of the nature of the claim. It's either a contractual charge, damages for breach of contract or damages for trespass.




10. The claimants claim is also denied for the following reasons :-




A. 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 .




B. A charge of £130 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 £100. 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 £5 was persuasive. As ParkingEye could not explain how their alternate calculation of £53 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.




Statement of Truth
I believe that the facts stated in this Defence are true.
Dated this 2nd day of June 20....
To the court and
to the Claimant




..........................
JUSTIN TIME
Defendant
of [Address],
at which address he/she will accept service of proceedings.












The 2 appendix items can be found http://www.parking-prankster.com/sample-defence.html although the lettering is different you should know which is which




M1

[Ash25]

Re: Deal - Ash25

M1. I will post a copy of the claim form later on tonight. The other documents are just the court guidance notes & N9 (AOS), N9A form (admission) & N9B (defence). I think another member had posted these already. I will also add a photo of the signage in the car park & the car park itself. I guess the amount of time overstayed or the time & day (eg Sunday's) do not add much weight to a defence?In my case it was just 15 mins & it was a Sunday evening!!

[mystery1]

Re: Deal - Ash25

Not unless it was busy and it took more than 15 minutes to enter and exit past the cameras which would be time not parked.

No point posting standard court forms. Just stuff that may help your case. Whilst it is standard for CEL/DEAL to run when a case is defended that should not stop you thinking you might be the next Kerry Mccafferty and so you should still do the best effort you can.

M1

[Ash25]

Re: Deal - Ash25

I read the case last night. However she did have a McKenzie friend to help her in court. There must be cases where the parking companies have actually won - perhaps in similar situations as mine!