Debt Enforcement and Action LTD Court Hearing

[joeygriff1]

Hi Guy's
I have a court hearing next week regarding a parking fine from Civil Enforcement Ltd. A week or so ago I received a letter from DEAL with a witness statement ( I have attached the first 5 pages on this post and will add the rest in another post as it wouldn't let me put it all on this one). just wanted some advice, where do I stand with this statement? Is there anything that I can do to support my case? should I just pay? Any help would be gratefully appreciated.
Joe

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

Here is the rest of the letter that I have been sent.
Joe

[mystery1]

Re: Debt Enforcement and Action LTD Court Hearing

To advise properly you'll need to post the claim defence and your witness statement.

I won't be around until tomorrow evening.

I usually expect them to fold when they issue that costs guff. Read cpr 27 on costs.

M1

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

Thanks M1 for you quick response.
Not sure if I have sent a witness statement unless this is one of the forms that I needed to fill in for the court. I have sent back all correspondence to the court that I have received including the form when you can request mediation, which the declined!!!!!!
The parking notice was for Feb 29th 2013 if this makes any difference to the situation.
I used this defence for the forum:

IN THE NORTHAMPTON COUNTY COURT CASE No: ............
BETWEEN
Debt Enforcement and Action Limited (Claimant)
AND
.....................(Defendant)
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, ............, a ..........


3. I am the registered keeper of vehicle, registration number ............. and was the driver on 26/02/2013.

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 09:49. 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. 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 £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 4th day of December 2014
To the court and to the Claimant

Hope this is enough information.
Thanks in advance
Joe

[mystery1]

Re: Debt Enforcement and Action LTD Court Hearing

How does the 2 hour limit stack up with the overstay claimed ?

M1

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

20 minutes overstayed.

[mystery1]

Re: Debt Enforcement and Action LTD Court Hearing

Was it 2 hours though ? If i recall correctly 2 other claims were 90 min limits who stayed less than 2 hours and were sent the same guff as you.

M1

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

No it was 2 hours I have been and checked and it was in previous correspondence that I have had with the court action.

[mystery1]

Re: Debt Enforcement and Action LTD Court Hearing

Not much more you can do now. You really should've done a witness statement but too late now.

Pick what holes you can in the story, learn the defence and write down the unreasonable behaviour so you can attempt to claim costs based on it.

I'm 80/95% sure this will either be cancelled or a no show though

M1

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

Thanks for the advise M1, what type of holes and unreasonable behaviour are common in these cases? Not dealt with anything like this before so not too sure what to look for.
I will have a look over the CPR 27 tonight to see what coatings are not eligible And read through the defence.

[mystery1]

Re: Debt Enforcement and Action LTD Court Hearing

It varies.

Bringing a case is in itself not unreasonable but if they had no intention of seeing it through i'd say it is or is at least part of an unreasonable pattern. A massive list of costs to threaten and intimidate. Evidence that doesn't stack up, lies etc etc.

M1

[joeygriff1]

Re: Debt Enforcement and Action LTD Court Hearing

Cheers M1 will build my case this week.