NEW CEL / DEAL - Unwon - but going to....

[momorris1980]

Hello Everyone,
I hope you are all having a good weekend, firstly apologies about being a first time poster and newbie, ive only just found this site, i wish i had found it 2 months ago.

Ill start, long story short hopefully.
My mother in Law parked in a Co-op car park. in March 2013
A few weeks later got a PCN, ignored that, and then threatening debt letters followed constantly for a few months, and then it all stopped.
Fast forward to November 2014 and we got a Northampton County Court Claim form saying DEAL were taking us to court, obviously Mother in Law got scared and i started to look into it.
I replied with a witness statement and followed the procedures listed...(during all this time there is no recorded evidence being given to us ie pictures of ANPR, only time and date which amounts to 1 hour 47 minutes stay in the car park.)

We recently received another Debt letter with a witness statement on it with extra charges for them appearing in court amounting to a total of £545, but if we paid today they would accept £215 (original court costs they say they incurred)

There is a paragraph in DEAL's witness statement that says ;

4. There are many signs displayed in the car park which explain the terms and conditions of parking. These signs are clear and visible for all drivers to see. Please see attached exhibit marked Exhibit 1.

I have attached exhibit 1 and await everyone's reply about what we should do!!!

many thanks one and all

[mystery1]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

PMSL.

Can you post up your defence and any other letters/notices please ?

No names, addresses, reference numbers or registration numbers. Dates and times are best left on.

M1

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

Hi Mystery1

thanks for your rapid reply, i will do it now...im trying not to get excited and shout from the rooftops but i do hope i can get this taken further

Attached is a copy of the first county claims court letter i received, apologies about the clarity of the first page

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

This is my witness statement that i replied to court with (just cut and pasted from my word document, the layout was a lot better)

Claim Number: *******
Debt Enforcement & Action Limited vs ********
Statement of Defence

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :

1. The Claimant has no capacity to form a contract with the motorist
2. The Claimant has disclosed no cause of action
3. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
4. The claimant “Debt Enforcement & Action Ltd” says they have the debt assigned to them. They are put to strict proof that Co-op authorised this.
5. The Claimant Debt Enforcement & Action Ltd are also put to strict proof that they are a separate company from Civil Enforcement, given they use the same Mail Drop address

1. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in place more than two years ago. The Defendant was unaware of the. 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.

1. The Claimant states that the operator is contracted to manage the car park. As a mere contractor, the Claimant cannot possibly be entitled to damages for trespass as claimed in Alternative #3. The Claimant is also put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators. As a third party agent, the Claimant may not pursue any charge (ParkingEye v Sharma 3QT62646 Brentford County Court) and (ParkingEye v Rickard 3JD10678 Aylesbury County Court).

1. The Defendant is in no position to confirm or deny the Claimant’s timings and whether they have recorded a single or failed to record multiple visits. Neither can the Defendant understand why they are relevant. The Parking Enforcement Notice does not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage.

1. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. , the Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action. As the Defendant has never received any other information from the Claimant, she has no idea what conduct he is defending and is unable to assist the court to understand the claim.

1. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies that she would have agreed to pay the original demand to perform the alleged but undisclosed conduct.

The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

1. The court is invited to consider whether a document titled Parking Contravention Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s claim for Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from the initial figure.

1. The court is invited to strike out the claim as having no prospect of success.

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

All PCNS and earlier debt letters from CEL and DEAL got filed in the correct place.....the bin... (although i wish the Mother in Law had now kept them for reference....

after i sent off the witness statement i received the attached reply from the court, i didn't ring up for mediation as i wasn't sure if i was supposed to, and there was nothing in my mind to mediate, (like i said wish id found this site a lot sooner)

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

I now have an 8 page letter from DEAL and will attach it 4 pages at a time.....and to anyone who has taken the time to read them, many thanks...

(ive highlighted page 3 paragraph 4....the exhibit)

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

second set of pages 5 to 8

[mystery1]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

What is the date for filing documents you wish to rely on ? Witness statements filing date ?

M1

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

Mystery1

Im sorry im lost, im not a "learned person" im an ex forces lad, whos now an engineer.....this is my first attempt at this with the courts etc...i know i will of messed some things up, can you explain a bit better?
thank you

[mystery1]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

All PCNS and earlier debt letters from CEL and DEAL got filed in the correct place.....the bin... (although i wish the Mother in Law had now kept them for reference....

after i sent off the witness statement i received the attached reply from the court, i didn't ring up for mediation as i wasn't sure if i was supposed to, and there was nothing in my mind to mediate, (like i said wish id found this site a lot sooner)

Usually with these you get something like



M1

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

Hi Mystery1

the only reply we have had from court is in my post number 5 saying it was a notice of hearing in April....1 hour allocated, i was going to go to court on this date, am i (mother in Law) supposed to receive something else, she hasnt said she has got anything else, just given me everything she receives?

[mystery1]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

It may come later.

I'm going to try and construct a letter to the courts on this to see if we can push it along. The only thing i'd suggest at the moment is to email the Co-op and ask if they had the full knowledge of assignment as claimed in the court claim. They didn't but you want your own email for evidence.

M1

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

wow thank you Mystery1,
the weird thing is i rang up the co-op the ethical company and got through to someone.
I told them the mother in law has a daughter who works for the Bradford Telegraph and Argus , I asked why a pensioner (65 years old) who has never been in trouble with the courts, criminal or civil and has a clean record and never had a CCJ is now being dragged to the small claims court by a company representing to sub contract for them for parking for less than 2 hours at one of their local stores. The Mother in law had also just 2-3 weeks earlier had a hip replacement so was recovering still on crutches / walking stick.
She went away and after 5 minutes and came back and said sorry but she had been informed to say no comment, and then i asked about the companies mission statement etc etc about quoting ethical practices etc etc...all i got was no comment...i just wish i had more of an educated mouth on me, i suppose that comes with maturity and age.

I will try and find the best email address to email them on and ask them, thank you once again, i wouldn't of expected you to try and construct a letter for us.

[Kati]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

Am I right in thinking that your MIL was charged for parking in the carpark (according to post #1) for a total of 1hr 45mins?

And that according to the image below (from their witness statement, post #7) you get 2hrs free parking?



Is there anything on any of the documents you have that show how long your MIL was actually parked for (photos with times/dates on etc...)?

[momorris1980]

Re: NEW CEL / DEAL debt letter after sending in witness statement for Small claims co

Hi Kati

thanks for your reply, i only have post 3 thumbnail 2 which states she was parked there from 13:05 to 14:52....there is no mention anywhere else...just the exhibit they have sent as a reply to my witness statement...which is laughable if it wasnt so serious!

thank you for your message