CEL - Co-op Jan 2012 Northampton CC Claim

[AnthonyS]

Hi, first time poster here. Been following for a while though.

My particulars are identical to those in this thread
http://www.legalbeagles.info/forums/...-liability-Won

except the Plaintiff is CEL rather than DEAL. Acceptance has been sent off.

I threw away all the material, based on the old advice, as it was pre Keeper Liability. I do recall an assignment letter in Jan 2014 but no longer have this. Not sure if this means CEL have any legal standing in the matter after that but can''t prove it even if that is the case..
It was a car park I and my family used regularly. I checked the signage once when parking there and realised it was small and only around the outside of the car park and difficult to see at night, nothing at the entrance. Its all different now as Horizon have taken over. I have no pictures though. Should I add anything about this into my defence?

What I've written so far - using stuff from here and other sites.

INTHE NORTHAMPTON COUNTY COURT CASE No.
BETWEEN
Claimant
AND
Defendant
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 the Claimant and the landowners are concerned and the claimant is put to strict proof that Claimant has a valid contract with the landowners. If the Plaintiffs do not have a proprietary interest in the land then there is no basis upon which the Plaintiffs can demand money . The claimant is attempting to recover sums to which they are not entitled should they be entitled to anything, which is denied. I believe the claimants claim for £215 is an attempt to be unjustly enriched.
   
5. Paragraph 2 is outside the knowledge of the Defendant and is neither admitted nor denied. The claimant is put to strict proof. The Defendant is in no position to confirm what signs were in place more than three years ago A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park.
   
   
6. Paragraphs 3 & 4 are denied. As the event was more than three years ago the defendant has no specific memory of the date in question and as there are multiple possible users the claimant is put to strict proof of who was driving. It is noted that keeper liability was introduced after the date of the alleged event and is not retrospective. 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 the Defendant; The gift of parking is the landowner’s, not the Claimant's. There is no consideration from the Defendant to the Claimant.
   
   
7. Paragraph 5 is denied as the Claimant was not entitled to demand money from the Defendant as none was owed. The Claimant gives no reason for the requirement of payment other than it arises from the terms and conditions on the signage. The claimant is put to strict proof of how the balance was accrued.
   
   
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. Neither does it explain how the charge has reached £215. The Defendant submits that if a breach of contract has occurred which is not admitted then a genuine pre-estimate of loss would be required to assess the value of the loss. The Defendant is aware of numerous other cases brought by the Claimant in which the loss figures are exactly the same as claimed here and thus submits no attempt has been made by the Claimant to arrive at an accurate figure of loss.
   
10. The Defendant petitions the Court to strike out the claim for damages for trespass as the Claimant by their own admission in Paragraph 1 of the Particulars of Claim do not have exclusive possession of the land in question.
    
    
11. The claimants claim is also denied for the following reasons :-
    
    
    1. 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 (Luton County Court, February 2014). The 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 by the Defendant. Any losses are due to the landholder, not the Claimant. It is further submitted that the loss to the landholder is zero .
       
    2. A charge of £180 is above and beyond that which the British Parking Association expects and is a trade association of which the Claimant is 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 The Defendant relies 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.
       
       

[mystery1]

Re: CEL - Co-op Jan 2012 Northampton CC Claim

If you are sure that CEL are the claimant and you've filed a defence then it's time to await the directions questionnaire.

Probably should've included a paragraph stating the "debt" was assigned to DEAL.

M1

[AnthonyS]

Re: CEL - Co-op Jan 2012 Northampton CC Claim

If you are sure that CEL are the claimant and you've filed a defence then it's time to await the directions questionnaire.

Probably should've included a paragraph stating the "debt" was assigned to DEAL.

M1

Haven''t filed the defence yet and yes CEL is the claimant (I checked a number of times because it seems that they have been mainly using DEAL recently) Will add something about re-assignment of debt - your input most appreciated.. Can I use a copy of letter posted here that show the residual £16 ish going to the Co-op even though I have no evidence myself?

[mystery1]

Re: CEL - Co-op Jan 2012 Northampton CC Claim

If you remember getting it and aren't afraid to say so in court then of course you can

M1