Claim form received from Northampton Court Claimant Civil Enforcement Ltd

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Ok so I've been researching this matter online and there are a lot of different opinions on it and I'm confused and don't know where to go with it.
I am not trained in any way in civil law so I am having a hard time understanding what I need to do so I'm appealing for help.
The short version is that back in 2012 a 'Parking Contravention Enforcement Notice' was sent to my wife as she was the registered keeper of the car in question at that time. This claimed that the car had been parked in a C0-OP car park between 11:06:24 and 13:35:50 on 29/06/2012 and they required payment of £90 or £45 if within 14 days, it did not tell us why this was the case just that they required payment "in accordance with the parking terms and conditions clearly stated on the signage"
To be honest we thought this was just a scam as the photo of the car supposed to be ours was a small B&W pic with no visible reg or driver and as this was not a council or police ticket thought it was illegal or unenforceable. I did attend the car park to check for the signage which was placed on a sign about A4-A3 size on the party wall to the adjacent car park at the furthest point from the store entrance as I remember but I had never noticed it before and I'm sure there was no sign as you enter the car park, I did take a photo on my mobile just to check but think I have since deleted this (sorry it has been 3 years or so).
Anyway after looking online we went with the general advice to just ignore the correspondence, though we did keep it all in case we were to make a report of harassment for example, this continued over the last few years in the following order which I believe is the standard:
27/07/2012 Final reminder for amount of £90
15/11/2012 Debt recovery plus for client CEL for £140
26/11/2012 Debt Recovery Plus Notice of Intended Litigation for outstanding £140
05/12/2012 Debt Recovery Plus Reduced Payment offer of £140 (yes £140????)
15/09/2014 Debt Enforcement & Action Limited final reminder before court action states "as per our previous correspondence"?? (what happened to Debt recovery Plus?) the debt of £170 was acquired from Civil Enforcement and a draft claim form is attached with total amount of £255, but they are willing to accept £130 as full and final settlement.

I'm sure you'll appreciate with all the changing names and amounts I was happy this was some sort of phishing exercise to get money by scaring people into thinking bailiffs would be kicking their doors in. As they had no power to demand the ID of the driver I was happy that this could not happen as they can not determine who the debt is with and therefore can't pursue my wife so I thought they had no legal leg to stand on.
Un fortunately we have now received a claim form marked Northampton County Court 19/05/15 and stamped served 22/05/15 and getting somewhat stressed and upset about it I started checking these threads and it would appear that this may be a legit claim form signed up by the infamous Mr M Schwartz of unknown firm. Also attached is a copy of a letter supposedly from the CO-OP signed by a Chris Jones Solicitor (or at least PP'd with that name below)
What I need to know now is what on earth do I need to do, I certainly don't want to pay £215 to this disgusting firm for what they claim is a 29 minute overstay in a free car park. Is there a legitimate online form to fill in for the court to acknowledge receipt and state the defence?
and does anyone have a sample defence which would be relevant for this case? Bearing in mind we have never stated who was the driver what is the best approach to say here as they have no power to demand it. 3 years have passed so you'd think they might expect a response of "I DON'T KNOW".

Any help (in laymans terms of course for me) would be greatly appreciated as my wife is extremely stressed as this is in her name at this time.

thanks

[mystery1]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

Sanitise (take your details off) the PCN, claim and assignment and post them up.

If the defendant was not driving, they are utterly snookered.

M1

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

There's a lot to post but I'll do my best to get it all up tonight. Been and checked for signage change and low and behold it's all changed and is now managed by a company called Horizon Parking.
What if we can't remember who was driving? Many people had access to that car, do they have any way of identifying the driver? The only pic we have seen is a rubbish black and white. Is there a risk of stating you weren't the driver if it turned out you were, can we demand proof of driver from this company?

[mystery1]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

There's a lot to post but I'll do my best to get it all up tonight. Been and checked for signage change and low and behold it's all changed and is now managed by a company called Horizon Parking.
What if we can't remember who was driving? Many people had access to that car, do they have any way of identifying the driver? The only pic we have seen is a rubbish black and white. Is there a risk of stating you weren't the driver if it turned out you were, can we demand proof of driver from this company?

If the registered keeper denies driving it certainly helps but they'd probably need more than a bare denial should it ever reach trial. (pre Oct 2012 cases)

M1

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

I have sanitised all the documents I have for you as best I can and have them as jpeg's but I can't seem to find the option to add attachments to post them to the thread for you to view please help

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

Eureka! something just wasn't working on the site for some reason I'll post a few at a time

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

the next 5 (nearly there)

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Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

and finally the last

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

Sanitise (take your details off) the PCN, claim and assignment and post them up.

If the defendant was not driving, they are utterly snookered.

M1

[MENTION=5354]mystery1[/MENTION] just wondered what you make of the below statement for part of defence as it seems to make sense for our situation:
There can be no keeper liability because this Claimant has never issued Notice to Keeper letters which are compliant with paragraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition' for keeper liability has not been met. It is far too long ago for the keeper to have any knowledge of who was driving thevehicle to do the weekly shop that day, and it was the will of Parliament when the Impact Assessment of thePOFA 2012 was discussed in 2011, that keepers are not legally obliged to name a driver - even if known. So thedefendant cannot be held liable in law.

[mystery1]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

Well PoFA only came in to force in October 2012 so doesn't apply under any circumstances.

If you file acknowledgement of service we get more time to file a defence. I won't be around for long until Friday.

They are chancing it. Their last 2 blocks of claims must have seen enough profit from people feeling the pressure and paying that they are keeping on with it. Aside from default judgements i am not aware of them actually winning a court case (that is, one that is defended).

M1

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

We have filed acknowledgement so have until June 20th to send in our defence now. Thanks for getting back to me and I'd love to know what you think of the co-op letter, what with them supposedly in dispute I can't believe they would provide them with that.

[mystery1]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

It means they had a contract at the time. Doesn't mean a whole lot really.

M1

[mystery1]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

IN THE [TOWN] COUNTY COURT CASE No.
BETWEEN
[IVOR PROBLEM] Claimant
AND
[JUSTIN TIME] Defendant
DEFENCE






1. The Defendant denies that she 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 Civil Enforcement Limited 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 £170 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. As the event was years ago the defendant has no specific memory of a typical shopping event and as there are multiple possible users te claimant is put to strict proof of who was driving and notes that keeper liability was introduced after this 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 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. 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 £170 .

10. The claimants claim is also denied for the following reasons :-

A. 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 .


B. A charge of £170 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.



M1

[IKNOWNOTHING]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

All the facts in your case are similar to mine in that we (we're a company) did not know who the driver was and DEAL pursued us (the Keeper) in the same way as they are pursuing you. You can look at my thread under username IKNOWNOTHING. It would appear that DEAL go through the court procedure to scare people into settling early. During the county court claim process they rang me to ask if I wanted to settle (I said no) and also sent a letter much later on in the process suggesting and an out of court settlement based on their threat of costs escalating to £545. I didn't particularly want to go to court (I would've done if necessary) and they rely on this to get an early settlement from people who just see the costs going up and up. The claim against me started in Nov 2014 (alleged parking incident in Jan 2013) and was only struck out by the court last week due to DEAL not providing sufficient evidence to the court. Try not to let it stress you, as long as you comply with court procedure they appear to give up before actually going to court. Hope this helps.

[vbo]

Re: Claim form received from Northampton Court Claimant Civil Enforcement Ltd

I thank you both [MENTION=5354]mystery1[/MENTION] and [MENTION=57365]IKNOWNOTHING[/MENTION] for your replies, I've been away hence its took me some time to reply again but I will look over both as soon as I get the time.

Thanks again