Debt Enforcement & Action Ltd

[bepo]

I'm in exactly the same situation as delbook with the same notification from Northampton County Court. I look forward to seeing the reply from M1

[bepo]

Debt Enforcement & Action Ltd

Hi everyone great to be a member of such a helpful community. This is my story which I should imagine has been oft repeated.
Yesterday I received a Claim Form from Northampton County Court on behalf of the above company to the tune of £215 for "contractual fees blah blah damages for trespass". This arose from the following incident:
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Iparked my car at the Co-Operative car park at 1430 in September of last year andwent to draw some money from Lloyds Bank ATM in ******* HighStreet


Ireturned to my car approximately 20 minutes later and drove to ****** Tennis Club where I played tennis with a friendwho will bear witness to the fact
Onreturning home I entered the car park at 1740 to buy some food at theCo-Op


Thecameras used by the PPC either did not record my departure from thecar park or alternatively the company, Civil Enforcement Limited,chose to ignore the fact and issued a "Parking EnforcementNotice" saying I had been parked in the car park for over three hours


Upontaking advice I was informed that this notice had no legal standingand to ignore it


Ihave no social or business connection with ***** and would haveno reason to spend over three hours there
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I have sent this defence by e-mail to ccmcce-filing@hmcts.gsi.gov.uk and would be grateful for any comments or advice

Many thanks

[mystery1]

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

I'm in exactly the same situation as delbook with the same notification from Northampton County Court. I look forward to seeing the reply from M1

You could always post up your own info

Make sure you file acknowledgement of service too.

M1

[mystery1]

Re: Debt Enforcement & Action Ltd

Can you give us more info please ? Pocs, signage, letters etc. Sounds like a typical double dip ANPR balls up to me.

I'd say quite confidently that they will never chose this one to go back to court with but they may, as usual, try and test your bottle right up to making you turn up at court only to find they didn't.

M1

[bepo]

Re: Debt Enforcement & Action Ltd

Thanks for your reply M1. The Co-Op mentioned has now been taken over by Waitrose so the signage will be different but I still have the original letter from Civil Enforcement and also the one telling me my "debt" was being assigned to Debt Enforcement & Action. I will scan and post these these as soon as I can Just another query. As I said I have sent my defence email which would give me 14 days but should I also send the paperwork including Acknowledgement of Service which would give me 28 days?

Also, please accept my apologies for jumping in on your conversation with another member dealing with the same outfit. I'm new to these forums and I will just post on this thread in future

[mystery1]

Re: Debt Enforcement & Action Ltd

Yes file acknowledgement of service. Can you explain defence email please ?

M1

[bepo]

Re: Debt Enforcement & Action Ltd

OK will do thank you. On one of the forms it states that I can send a defence in reply to the attached claim electronically to the County Court Money Claims Centre which I did. The defence being exactly as I stated between the dotted lines in my first post. Thanks also for the info on double dipping, I had never heard of this before - you live and learn!

[mystery1]

Re: Debt Enforcement & Action Ltd

Can you call the court and ask if they have served the defence on the claimant please ? If not ask them not to so you can file a more robust defence.

M1

[bepo]

Re: Debt Enforcement & Action Ltd

I phoned the court this morning and as I was too quick off the mark with sending my defence by email I no longer have the option of extending for 28 days. The defence takes around 5 working days to work through the system. I can however supply further information for a more robust defence but have to send a copy to both the court and Debt Enforcement & Action. I am now going to the library to scan the 2 letters I mentioned and will post them as soon as I have them done

[mystery1]

Re: Debt Enforcement & Action Ltd

The question we need to know is, "has the defence been served on the claimant ?"

If not we do not need permission to amend. If it has then we do.

M1

[bepo]

Re: Debt Enforcement & Action Ltd

No it will take approx 5 working days for the defence email to work through the system so the claimant won't receive my defence until then at least. I have scanned two of the letters but cannot find the original from Civil Enforcement. Will post these as soon as I figure out how to attach them to a post

[mystery1]

Re: Debt Enforcement & Action Ltd

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 in order to use an atm however i left the car park in my vehicle to go and play tennis at xxxxxxxxx and when finished returned to said car park and shopped at the Co-op. The defendant at no time breached any terms and conditions. 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. I did not park for x hours and x minutes. I made 2 visits.

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 .


C. 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



When emailing the court add a note

I enclosed an amended defence pursuant to CPR 17.1 (1) and note that upon calling the court on xxx @ xxxx i was informed my previous defence had not yet been served on the claimant.


M1

[bepo]

Re: Debt Enforcement & Action Ltd

Many thanks for the time and trouble you have taken M1. Just one query, as the claim has been assigned to Debt Enforcement by Civil Enforcement, do I replace the wording "Civil Enforcement Ltd" with Debt Enforcement and Action?

[mystery1]

Re: Debt Enforcement & Action Ltd

Many thanks for the time and trouble you have taken M1. Just one query, as the claim has been assigned to Debt Enforcement by Civil Enforcement, do I replace the wording "Civil Enforcement Ltd" with Debt Enforcement and Action?

No. They are trying to say that CEL had a contract with the Co-op in paragraph 1. All you are saying in response is, how the hell would i know that but i want you to prove it anyway.

Later on they are saying yourself and CEL had a contract for you to park. Deal couldn't have been a party to that as they were only assigned a "debt".

M1

[bepo]

Re: Debt Enforcement & Action Ltd

OK understood and thanks again

bepo