DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability - Won

[sammax]

I have received a summons from Salford County Court with Date of Service as 24/11/14

Particulars of Claim

1. The Car Park is private property owned / leased by The Co-operative Group Limited of 1 Angel Square, Manchester, M60 0AG. The address of the Car Park is xxx and at all material times the Car Park was managed by Civil Enforcement Limited on behalf of The Co-operative. The debt was assigned to the Claimant with the knowledge of The Co-operative.

2. By way of background, the Operator uses vehicle plate recognition on the entrance and exit of the car park, which works by capturing images of the text displayed on vehicle number plates. In the car park there are many clear and visible signs displayed advising drivers of the terms and charges applicable when parking in the car park.

3. Drivers are permitted to park in the car park in accordance with the terms displayed on the signage. These signs constitute an offer by the Operator to enter into a contract with drivers. The Operators recorded the Defendant’s vehicle, registration xxx entering the car park on 18/02/2012 at 13:04 and departing on 18/02/2012 at 16:12. When the Defendant parked their vehicle in the car park they accepted, by their conduct, the Operator's pricing structure.

4. The Defendant was allowed to remain in the car park in consideration for agreeing to pay £90.00 (reduced to £45.00 if paid within 14 days) to the Operator. Consequently, a contract was formed between the Operator and Defendant and as a result of the Defendant’s conduct £90.00 is owed by the Defendant.

5. The Defendant did not take up the offer to pay the reduced amount of £45.00 within 14 days. The Defendant failed to pay the agreed £90.00 and as a result the Operator (directly / through its agents) was left with no alternative it to write to the Defendant several times in respect of their non-payment of the debt which increased as a result by £40.00

6. 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

amount of £215, alternatively, damages for breach of contract, alternatively, damages for trespass

Mr M Shwarts (Solicitor) – no firm mentioned
Position held - Solicitor

I have acknowledged service.
I have written to the SRA about the 'solicitor'.

I believe that I should submit a Defence in the following terms but would like your comments:

DEFENCE

1 I received claim number xxxxxx on 2^nd December 2014 issued by the SALFORD COUNTY COURT with a date of service of 24^th November 2014.
2 The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save as specifically admitted in this Defence, the Defendant denies each and every allegation set out in the particulars of claim'.
3 Paragraph 1 of the Particulars of Claim; the Defendant is unable to admit or deny, but which he requires the claimant to prove.
4 Paragraph 2 is admitted; the Defendant is unable to admit or deny, but which he requires the claimant to prove.
5 Paragraph 3 is admitted insofar as the Defendant was the owner of the vehicle. It is denied that the Defendant was the driver.
6 Paragraph 4; the Defendant denies that he was the driver so couldn’t have entered into contact with anybody.
7 Paragraph 5 is denied. The Defendant was not the driver and denies receiving any letters about this matter until receiving these court papers.
8 Paragraph 6 is denied. The Defendant was not the driver.
9 The date of the claim is 18^th February 2012 and as this predates the Protection of Freedoms Act 2012 which was passed on 1^st May 2012 the Claimant is not entitled to rely on ‘keeper liability‘. The Defendant has never admitted being the driver and the Claimant is not entitled to presume that the Defendant was the driver.
10 The person named as the acting solicitor, Mr M Shwarts (Solicitor) is not on the Solicitors’ Regulation Authority register though he is known to have regularly signed Claim forms issued by this Claimant. I have written to the Solicitors’ Regulation Authority to see if Mr Shwarts has asked for his name removed from the register.
11 In the event that the Claimant does not withdraw this claim I would also put them to strict proof that:
a) the solicitor is registered with the Solicitors’ Regulation Authority and provide his contact details
b) a solicitor prepared the claim and charged the Claimant £50 to do it.
12 It is denied that the Claimant is entitled to the amounts claimed or any interest on such amounts.
13 I request the court orders the Claim be struck out as it has no merit and no hope of succeeding.


Statement of Truth
I believe that the facts stated in this Defence are true.
Dated this 4th day of December 2014

To the court and to the Claimant

Thanks for taking the time to read this.

[mystery1]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

I assume you were not the driver in which case i'd suggest along the lines of






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.


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. I also understand that the Co-operative had no knowledge of assignment as is claimed.


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 neither admitted or 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. The claimant is put to strict proof that the driver was the defendant. It is denied that the defendant was the driver at the material time. Explain how you know this.


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. The claimant is put to strict proof that any amount is due and that the further £40 is not in itself a penalty.


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 Solicitors regulation Authority has no knowledge of Mr M. Shwarts being the solicitor who signed the claim form. The claimant claims £50 for a solicitor. The claimant is put to strict proof of entitlement to this charge. The defendant also states that even if he is a genuine solicitor the statement of truth is defective in accordance with CPR 22 and invites the court to use it's case management powers to dismiss the claim.


11. 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 £90 is above and beyond that which the local authority charges for a penalty charge notice. Civil Enforcement Ltd are a member of the BPA. The BPA code of practice at 19.5/6 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. "


The charge, according to the signs, is to deter abuse which is a clear penalty and in breach of it's own trade code of practice.






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

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Hi mystery1

Thanks for the speedy reply which is gratefully received.

You highlighted one area in red as follows; It is denied that the defendant was the driver at the material time. Explain how you know this.

I have put 'At the time my health prevented me from driving. This is the reason I am aware I was not the driver.'
(Is this what you meant?)

[mystery1]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

:okay:

M1

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Many thanks M1. I will file the defence and keep you updated.

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Hi, today I received the Notice of Allocation to the Small Claims Track. and Directions Questionnaire Form N180. Which route do I take now? I have till 5th January 20145 to file.

Many thanks

[mystery1]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

http://www.legalbeagles.info/forums/...l-Claims-Track

Fairly straight forward. Witnesses depends on whether you can have someone confirm inability to drive or if you wish to get the driver to admit to it. Don't forget you too are a witness.

M1

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Hi, I have now received Notice of Transfer of Proceedings Form N271 dated 9th January 2015 which states:

The claim has been transferred to the County Court at Bath (home area for me) for allocation. On receipt the file will be referred to a procedural judge who will allocate the claim to track and give case management directions. Details of the judge's decision will be sent to you in a notice of allocation.

Please allow 5 working days from the receipt of this notice for the file to be received at the Court.

Not heard anything yet but I will keep you updated.

Many thanks

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

I also had a reply from the Solicitors Regulation Authority concerning Mr M Shwarts. They are making an assessment and will write again and say this might take 30 days.

[ericsbrother]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

there is a lot more going on with this group of claims than is in the public domain. You may well get another letter from your court for a preliminary hearing. Take a look at the parking pranksters blog on CEL/DEAL and the class action defence of the end of last month.

[halfadent]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

HI Sammax,

I am a SMTC councillor and am helping a few people with court claims from this particular car park (in a personal capacity, not on behalf of the town council).
We currently have two hearings scheduled in Bath at the beginning of May.
Please get in touch if you want help or support - you can PM me and I'll give you my email.

[mystery1]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

http://www.legalbeagles.info/forums/...ement-of-truth

A letter/email to see if your local court is interested in stopping claimants take the mick out of them.

M1

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Here is the copy of Notice of Allocation from my local court, Bath County Court.

Any advice?

Many thanks

[mystery1]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Check with the court that they paid the hearing fee.

Did they send you their DQ ?

Have you sent the email/letter i suggested ?

M1

[sammax]

Re: DEAL and Coop at Shepton Mallet - 18th February 2012 before Keeper liability

Thanks for the reply M1. I will come back to that later today. I received a reply from the SRA who have decided M Shwarts is a bona fide solicitor. I will scan and upload the letter tomorrow.