Civil Enforcement County Court Claim Received

[mystery1]

Re: Civil Enforcement County Court Claim Received

Did you ever get a letter, probably at the end of january, assigning 85% of the "debt" to debt enforcement and action limited ?

M1

[daveod50]

Re: Civil Enforcement County Court Claim Received

NO not that I can remember or find.
I did eventually get through to CEL by e-mailing them and asking for someone to contact me. Amazingly they did but we not very helpful.
They said they hadn't yet received the payment so I asked for them to approve and extension to my period for defence filing but they kept saying there is no need and once payment is received the case will be cancelled and they won't pursue any action if the time expires as they know payment is coming to them.
I have to admit it sound very fishy and I am not trusting to their word at all. I e-mailed again asking for the same thing but as yet no response.

Is it worth just phoning the courts to explain the situation and see what they advise or should I just file my defence before 1st August as planned?

Sorry to be a pain but this is really causing some headaches....

[mystery1]

Re: Civil Enforcement County Court Claim Received

I'd file a defence. Whilst they are correct they are also devious enough to go for default judgement if it doesn't arrive in time. The no extension stance is quite frankly petty and designed to pressure you. Currently constructing one for another member which we can edit to suit.

M1

[daveod50]

Re: Civil Enforcement County Court Claim Received

Fantastic. That would be a massive help.

[mystery1]

Re: Civil Enforcement County Court Claim Received

http://www.legalbeagles.info/forums/...225#post456225

Have a look and delete stuff that didn't happen. Post it up and i'll check it for you.

M1

[daveod50]

Re: Civil Enforcement County Court Claim Received

Here you go:

DEFENCE

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

2. I am the Defendant, <name hidden> , a IT Professional.

3. I am the registered keeper of vehicle, registration number <Reg Hidden> and was the driver on 18/5/2013

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 however I used, and purchased from, the adjoining co-operative store who advertised 2 hours free parking for customers. I also did buy a ticket for 4 hours parking after I had used the co-operative store, for which the time when the ticket was purchased after use of said store, the 4 hours commenced which i did not exceed. 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 in as far as I paid for 4 hours parking on 18/5/2013. It took longer than 22 minutes to from entrance to parking to payment as well as the use of the store from the initial parking event (the store offers 2 hours FREE parking for customers) as passing the camera upon exit. I deny that I was parked for over 4 hours AFTER the purchase of my ticket. I have no knowledge of the claimants systems.

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. I did not park for 4 hours and 22 minutes. I used the adjoining co-operative store which entitied me to 2 hours FREE parking. After my use of the store I bought 4 hours of parking time. Upon entry I took time to park and purchase from the store, time to purchase a ticket for 4 hours parking AFTER using the store and then time again to exit. The cameras are located at the entrance/exit and not at the parking bay. In any event the "de minimis" principle should apply amd the court should not be concerned by an insignificant amount such as 22 minutes.

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 £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.
All evidence and transcripts referred to will be provided at least 14 days before any hearing date.

[mystery1]

Re: Civil Enforcement County Court Claim Received

Works for me :okay:

M1