Re: Civil Enforcement Ltd parking charge notice

[Marken]

Hi. In July 2012 we parked on the Coop car park in Whitby. As mentioned by other contributors, this car park used to be operated by a payment booth at the entrance with an employed person giving tickets (pay on exit). However on this occasion the booth was closed and the entrance barrier up. We parked thinking that the car park was free as there was no one to give a ticket and/or pay on exit.
A few months later we started to receive the demand for payment letters from CIL and subsequent letters from DEAL. We did not reply to any of them. Now my wife (as registered keeper) has received a CCMCC on behalf of Debt Enforcement & Action Ltd.
I understand that as the parking relates to a date prior to October 2012, my wife is not obliged to disclose who was driving at the time.
On our counterclaim to this, does she just state that she was not the driver? Or does she need to give more information as a defense?

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

Well, if she was not the driver then not being the driver is a defence in itself. Of course that is only if the court believes her. It is always best to put in a good defence. They probably wouldn't show up to try and win in that case.

If you want and hand give me as much info as possible excluding names, address, reg number etc.

M1

[Marken]

Re: Civil Enforcement Ltd parking charge notice

Hi M1. Thanks for the quick reply. As mentioned in my last post. I , with my wife as passenger, parked the car on the Coop car park to shop at the store.
We have done this many times before on visiting Whitby (we live in Manchester) and obtained a ticket (to pay on exit) from the manned both at the entrance (swing barrier).
However, on this occasion, July 2012, we noticed that the booth was closed (as sometimes it is depending on the time of day) and the barrier was up. We did not think much of it and, as previously when the booth has been closed, just parked the car. It has to be said that due to the proximity to the town center we often leave the car on the car park and go into town which, as we obtain a ticket, receive a charge for the time there as normal.
Some months after this date we received the first of the Parking Charge Notices from CEL addressed to my wife as registered keeper. On taking advice to 'just bin them', I ignored them. Also the subsequent notices.
On 9/1/2013 she received a letter from Debt Recovery Plus Ltd acting on behalf of CEL. Again, we ignored. On 24/1/2014 she received a letter from CEL informing us on the Notice of Assignment of Debt.
From then, I do not recall receiving any further communication from them (or at least do not have the letters). Last week she received the CCMCC for £215.00 (same format as other contributors. Today, my wife has signed the AoS form and I have emailed it to CCMCC to ask for the 28 day period.

Sorry if this is a little 'disjointed'. My wife is non-confrontational and on receiving the CCMCC wanted to pay immediately. Over this process it has been I who hates corporate bullies that think they can fleece the public at will. Perhaps now regretting ignoring the notices?
I would welcome advice on this.

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

Can you post up any paperwork you have please excluding name,address, reg number and reference numbers.

M1

[Marken]

Re: Civil Enforcement Ltd parking charge notice

Hi M1. Please find document as requested.

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

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. Further it is denied that "The debt was assigned to the claimant with the knowledge of the Co-operative" as the Co-operative have advised that this is not true.






5. Paragraph 2 is outside my knowledge and is neither admitted nor denied. Save for 6 below. The claimant is put to strict proof.




6. Paragraphs 3 & 4 are denied. The defendant was not the driver and was merely a passenger at the time. The claimant is put to strict proof CEL 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 driver would have paid in any event had the booth been staffed and open but it it was neither.




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 neither admitted or 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 is investigating Mr M. Schwartz 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, which was not there on the day of parking but seen at a later date, 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 CEL 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

[Marken]

Re: Civil Enforcement Ltd parking charge notice

Thanks for that M1. On a separate note, if/when this goes to court could I represent my wife? She would be extremely nervous in this situation.

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

Thanks for that M1. On a separate note, if/when this goes to court could I represent my wife? She would be extremely nervous in this situation.

Yes, in small claims there is a statutory right to have a lay representative as long as the defendant is present.

M1

[Marken]

Re: Civil Enforcement Ltd parking charge notice

Hi M1. Thanks for the defence text. Is it important to also make reference to the past cases in the defence reply?

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

The judge may no nothing so these are key to persuading them that we are right. Having said that, when Parking Eye v Beavis is resolved you won't need so many.

M1

[Marken]

Re: Civil Enforcement Ltd parking charge notice

Hi M1. We are going to send our defence statement today. Can I please clarify your paragraph:

"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"

I do not quite understand this paragraph the way it's written!

[mystery1]

Re: Civil Enforcement Ltd parking charge notice

You deny you owe £90 because you owe nothing.

If the court finds you do owe £90 for the parking then it is not all due to DEAL as only 87.5% was transferred (assigned) from CEL to DEAL and therefore DEAL cannot claim it all as theirs.

M1