Received court papers: Re: Parking Co-op, Whitby 27th July 2012... WON

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi mystery1,

... keep thanking you in the body of my posts but have now discovered the 'thanks for this post' button :tinysmile_twink_t2:

[Bradford1956]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Solicitor.
I am pasting in my reply which has just come from Northampton CC in reply to my query regarding this unheard of solicitor.....................................

Good morning,

Please note according to our records that no solicitor is acting for the Claimant.

Kind regards,

CCMCC
County Court Money Claims Centre

My reply back..................

Thanks for your reply. But there is some serious confusion here as the form you have sent me clearly shows that there is a "solicitor" acting for the claimant. This "solicitor" is attempting to claim £50 in costs. The name is very clearly on the claim form as a Mr M Shwarts. I therefore put my query back to you for correct actioning and suggest it is escalating to a manager especially when this matter is also being investigated by the Solicitors Regulatory Authority. So to summarise, contrary to what you have said in your email, someone, who has signed himself as an acting solicitor for the claimant, is charging £50 for his services.Please look at your paperwork again and explain the discrepancy. Thanks

All very confusing/suspicious !!!

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

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.


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 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. The defendant was looking to pay a charge on the day but the hut which was there and used to accept payment was closed. The defendant was told by a local he could park for free. The defendant duly checked for signs and saw none.


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 has no knowledge of Mr M. Shwarts 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 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

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi mystery1,

I have kept things moving along this end - don't want you to think that I've lost interest!

The council has confirmed that at the material time there was no planning permission granted for the ANPR installation.

I have also established contact with the Co-operative Group who say that camera's and signage was in place at the time but they cannot shed any further light as to description, quantity or location. They have suggested that I write directly to CEL.

On 24/01/14, I received written Notice of Assignment of Debt (dated 23/01/14) from CEL stating that 87.5% of the outstanding amount had been transferred to DEAL.

DEAL has since stated in the 'Particulars of Claim' that the debt was assigned to them with the knowledge of the Co-op.

With a view to establishing Locus Standi, I intend to write to the Co-op requesting un-redacted copy of their contract with CEL and for them to also confirm whether they were informed that CEL had assigned the majority of the debt to DEAL.

I am curious as to why DEAL has made a point of stating that the Co-op are aware of the assignment?

Do you have a sample letter or any advice in relation to how this enquiry should be officially worded please?

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

I wouldn't bother to be honest. The claim will not succeed and you're just wasting time hitting your head against a brick wall. The guys on PPP might help with that as they love weird stuff to try and upset companies. I'm more it's all about winning kind of guy.

M1

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi mystery1,

Fine...

I'm happy to take your advice...

How do we move this on now then?

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi mystery1,

Fine...

I'm happy to take your advice...

How do we move this on now then?

Defence, i assume, is in so we await a directions questionnaire and/or a reply to defence.

M1

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

So, we submit a defence and wait a directions questionnaire followed by a reply to our defence?

Will you help to compile the defence / how will we do this?

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

So, we submit a defence and wait a directions questionnaire followed by a reply to our defence?

Will you help to compile the defence / how will we do this?

See #33 above :okay:

A reply to defence is optional for Deal so you may or may not get one.

M1

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi M1,

I think there may be some confusion... apologies if I haven't explained myself too well... I have acknowledged service but not entered a defence yet - I was asking whether you might offer to compile a defence for me or whether you would ask me to do this and let you have site of it before I submit it.

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

No confusion. Post 33 above is a defence for you to use and/or change.

http://www.legalbeagles.info/forums/...921#post497921

M1

[mystery1]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

PS given that the Co-op are saying they were not consulted on assignment it may actually be a good tactic to ask them if they consented to assignment as it seems that statement is a lie which is beneficial if a real Mr M Shwarts turns up.

M1

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

PS given that the Co-op are saying they were not consulted on assignment it may actually be a good tactic to ask them if they consented to assignment as it seems that statement is a lie which is beneficial if a real Mr M Shwarts turns up.

M1

Hi M1,

Already done sir...

Thank you so much for providing me with such a robust defence. I really do appreciate the effort that you have gone to and for doing your best to put us at ease since seeking your advice.

Please be assured that I am now much more confident of a successful result should this matter go all the way,

My wife and I only wish you were here to see the smile on our faces - we feel as if the weight of the world has lifted from our shoulders!

I will read the defence several times and let you know if there is anything else that might be relevant.

I really am gobsmacked with your response - thank you once again mashappy:

[Bradford1956]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

I would also like to sincerely thank all forum members for all the hard work gone into providing all the helpful info supplied so far.
A few further thoughts on the matter.................
CEL have assigned their supposed " debt " to DEAL, so one would assume that CEL are now out of the picture regarding these CC Claims. Curious why DEAL are using the same address as CEL?
Should BPA be brought into the picture, although they represent their own members, they have I think thrown out parking companies in the past?. Fake solicitor use of ?
I no longer have any paperwork from DEAL, but it is a legal requirement that they clearly state their registered address on paperwork, which is London.
If, in my case a co-op, when they were applying for planning permission, they had to provide numerous free parking spaces, as a requirement of getting planning permission, would this whole business of parking charges/debt etc by CEL be then not allowed?

[spotty dog]

Re: Received court papers: Re: Parking Co-op, Whitby 27th July 2012...

Hi Bradford1956,

I'm sure you mean well and I certainly don't wish to offend you in any way - after all, we're all seeking advice to our own individual cases.

Would you be kind enough to start a new thread concerning your case so as to maintain uninterrupted continuity and allay any confusion?

Many thanks...