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 M1,

Thank you for preparing a very robust defence on my behalf - I've been going through everything very carefully to ensure that I fully understand everything in case I have to present it in court.


There are just a few things that I would like to mention which you may feel could also be included:


Keeper Liability:


This claim arises from a PCN dated 27th July 2012 (prior to POFA October 2012) but we have made no mention of ‘Keeper Liability’ in the defence?


All correspondence has been addressed to myself as the registered keeper but I have not been asked / nor disclosed to anyone who the driver was at the material time.




Planning Permission:


Scarborough County Council has provided written confirmation that there was no planning permission in force in respect of the installation and use of ANPR at the material time.


Incidentally, they have also confirmed they have not received any application for the continued use of ANPR.


Some may feel the lack of planning permission is of little relevance in defending a claim arising from an unpaid PCN but I would ask you to consider whether an ‘operator’ can justifiably make a claim which arises from an unauthorised / illegal ‘operation’.


To me, it would be like a thief lending someone cash from a bank job and later trying to take civil action against that person for not paying it back to him.

[spotty dog]

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

Hi M1,


Thank you for compiling the defence which I have read very carefully.


There are a few things that I have altered and a few questions which I hope you will answer so that I fully understand everything in the event that I have to present this defence in court.



Apologies for the length of this post - I have kept everything together so that it is complete but highlighted the parts (in blue) which require your attention.






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.

Para 4. changed to:I have no knowledge of paragraph 1 in so far as Civil Enforcement Limited and the landowners are concerned and the claimant (DEAL) is put to strict proof that they (CEL) have a valid contract with the landowners. If they (CEL) 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 (DEAL). In any event if the assignment is legal it was not for the full amount. The claimant (DEAL) 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.


This part raises two questions that I would like to fully understand.


"In any event if the assignment is legal it was not for the full amount”.


Question 1
CEL assigned 87.5% (£113.75) to DEAL but it would appear they also instructed DEAL to recover the remainder on their behalf (final para ‘Notice of Assignment’ dated 24/01/14 - see document attached).


Are we challenging the legitimacy of the assignment on the grounds that it was not for the full £130 or are we questioning why DEAL are claiming £130 when in fact they were only assigned £113.75.


"I believe the claimants claim for £130 is an attempt to be unjustly enriched.”

Question 2
Not sure what you mean here - it would appear DEAL are claiming the amount assigned to them (£113.75) plus the amount retained by CEL (£16.25) as per the final para in ‘Notice of Assignment’ dated 24/01/14. (see document attached). Are they allowed to do this or can they only claim the amount that has been assigned to them (£113.75)





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.


Para 6. changed to:


6. Paragraphs 3 & 4 are denied. The claimant is put to strict proof they are entitled to enter into 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 resident that for the time being parking was free of charge. The defendant duly checked for signs, payment machines and parking receipts displayed on other cars and saw none.




"The claimant is put to strict proof they are entitled to enter in to a contract”


Question 3
Should this not read, "The claimant is put to strict proof that CEL was entitled to enter into a contract”



"There is no consideration from Civil Enforcement Ltd to motorist; The gift of parking is the landowner’s, not Civil Enforcement Ltd’s."

Question 4
Does this apply even if DEAL can show that CEL did have a valid contract and a proprietary interest in the land.




"There is no consideration from motorist to Civil Enforcement Ltd.”


Question 5
Is this because, in the absence of, or failure to see any signs, the defendant did not know the terms upon which parking was allowed and therefore, could not enter into a contract


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.


Question 6
So, again, the only amount that can be claimed is the actual amount that was 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.


Para 10. changed to:


10. The claimant is claiming an additional £50 for solicitor’s costs. The claimant is put to strict proof of entitlement to this charge. On the Claim Form, there is a section entitled ‘Statement of Truth’, duly signed by a person purporting to be a solicitor using the name Mr. M. Shwarts. The Statement of Truth does not include details of the solicitor’s firm as per the requirements of Civil Proceedings Rules 22. The Solicitors Regulation Authority has no knowledge of Mr. M. Shwarts and has advised this person may be a bogus solicitor. The defendant 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 .




Question 7
Can I have some help here please.


Your draft of Para 11A seems to be more applicable to cases where signage was erected. Therefore, I have started to re-write 11A which reads as follows:


The defendant puts the claimant to strict proof that “there are many clear and visible signs displayed advising drivers of the terms and charges applicable when parking in the car park” (Para 2, Particulars of Claim).


Either there were no signs displayed at the material time or any that were present were not clear and visible despite a concerted effort by the defendant and his wife to find them or anything else that might suggest parking restrictions were in force, e.g. tickets machines or parking tickets purchased by other drivers and displayed inside their vehicles.


Please let me know what you think and feel free to amend accordingly.



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.


Para B changed to:


B. A charge of £90 is above that which the local authority charges for a Penalty Charge Notice (£60). This initial charge of £90 has since been inflated to £130 without any justification.


Civil Enforcement Ltd is a member of the British Parking Association (BPA)


The BPA Code of Practice (Version 5 October 2014) contains two sections which are particularly relevant to this case:


Section 19.5
"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."

Section 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 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.


Question 8
I thank you for providing these case references but I question whether the first one (a) is relevant to my case as there is no contract available to compare at this time.


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.


Question 9
Have you got this document (Appendix B) or if not, where Can I get a copy?


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.

[mystery1]

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

Keeper Liability:

This claim arises from a PCN dated 27th July 2012 (prior to POFA October 2012) but we have made no mention of ‘Keeper Liability’ in the defence?

All correspondence has been addressed to myself as the registered keeper but I have not been asked / nor disclosed to anyone who the driver was at the material time.

It's in your first post. I wouldn't try no liability on that score after posting that. http://forums.pepipoo.com/index.php?showtopic=78633

Planning Permission:



Scarborough County Council has provided written confirmation that there was no planning permission in force in respect of the installation and use of ANPR at the material time.




Incidentally, they have also confirmed they have not received any application for the continued use of ANPR.




Some may feel the lack of planning permission is of little relevance in defending a claim arising from an unpaid PCN but I would ask you to consider whether an ‘operator’ can justifiably make a claim which arises from an unauthorised / illegal ‘operation’.





To me, it would be like a thief lending someone cash from a bank job and later trying to take civil action against that person for not paying it back to him.

To me it's about how you were caught rather than were you caught doing what they say. I cannot see any judge, anywhere saying you do not owe money because they used a camera system without permission.

Question 1CEL assigned 87.5% (£113.75) to DEAL but it would appear they also instructed DEAL to recover the remainder on their behalf (final para ‘Notice of Assignment’ dated 24/01/14 - see document attached).




Are we challenging the legitimacy of the assignment on the grounds that it was not for the full £130 or are we questioning why DEAL are claiming £130 when in fact they were only assigned £113.75.




"I believe the claimants claim for £130 is an attempt to be unjustly enriched.”


Question 2

Not sure what you mean here - it would appear DEAL are claiming the amount assigned to them (£113.75) plus the amount retained by CEL (£16.25) as per the final para in ‘Notice of Assignment’ dated 24/01/14. (see document attached). Are they allowed to do this or can they only claim the amount that has been assigned to them (£113.75)

The "debt" if it existed belongs to 2 people. It does not all belong to 1 of them. DEAL are asking for money that is not theirs. That is unjust enrichment. It is absolutely not allowed. No way Jose.

Question 3
Should this not read, "The claimant is put to strict proof that CEL was entitled to enter into a contract”

Well spotted.

Question 4
Does this apply even if DEAL can show that CEL did have a valid contract and a proprietary interest in the land.

Yes. A contract needs Offer consideration and acceptance in your country.

Question 5

Is this because, in the absence of, or failure to see any signs, the defendant did not know the terms upon which parking was allowed and therefore, could not enter into a contract

It is not whether you saw the signs or not, it is whether you should have seen them. (i.e. deliberately not looking is no help). In the absence of signage which you ought to have seen there would be no contract, period.

Question 6
So, again, the only amount that can be claimed is the actual amount that was assigned?

Correct but only if it's not a penalty as penalties in a civil contract are forbidden.





The sign, which was not there on the day of parking but having seen examples of CEL signs at a later date, would not have been an offer but a threat of a punitive sanction to dissuade drivers from parking without payment and was therefore a penalty clause. It would not have been 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 .

The stuff about not seeing etc would go in both witness statements (you and your wife) at a later date.

Question 8
I thank you for providing these case references but I question whether the first one (a) is relevant to my case as there is no contract available to compare at this time.

Leave it in.



A and B can be found http://www.parking-prankster.com/sample-defence.html scroll down and download evidence they are both in that (or were) but the letters were different as i recall.

M1

[spotty dog]

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

Hi M1,

Another stunning response and I note that you were up very late going through my questions which is really appreciated.

There is still one thing confusing me as I don't fully understand the relevant point in law - this concerns the rights of the 'landowner' and 'third parties' with regards to 'locus standi'.


Please bear with me...

1. Are we saying that a 'third party' (CEL) cannot form a 'contract' with a driver as they (CEL) are not the 'landowners'.

2. Can the rights of the 'landowner' be passed to a 'third party' via a contract

Looking forward to hearing from you, in the meantime I will prepare the final draft for you to double-check before it is submitted.

[spotty dog]

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

Hi M1,


Please find (Draft V3.0) which consolidates everything as per your advice.


There are just two matters (highlighted in blue) that I would ask you to have a further look at please.






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 (DEAL) is put to strict proof that they (CEL) had a valid contract with the landowners. If they (CEL) did not have a proprietary interest in the land they had no basis to demand money and no right to assign a debt to another party (DEAL). In any event if the assignment is legal it was not for the full amount. The claimant (DEAL) 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 that Civil Enforcement Limited was entitled to enter into 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 resident that for the time being parking was free of charge. The defendant duly checked for signs, payment machines and parking receipts displayed on other cars and saw none.


Question 1
Paragraph 6 (Paragraphs 3 & 4 are denied) - I believe this needs clarifying...
Paragraph 3 talks about terms displayed on the signage and pricing structure and also mentions the date and times the car entered and left the car park. Therefore, it does not seem appropriate to deny everything in Para 3 as I accept the car was there during the material time. (Can you re-word Para 6. please)



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 Civil Proceedings Rules 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 claimant is claiming an additional £50 for solicitor’s costs. The claimant is put to strict proof of entitlement to this charge. On the Claim Form, there is a section entitled ‘Statement of Truth’, duly signed by a person purporting to be a solicitor using the name Mr. M. Shwarts. The Statement of Truth does not include details of the solicitor’s firm as per the requirements of Civil Proceedings Rules 22. The Solicitors Regulation Authority has no knowledge of Mr. M. Shwarts and has advised that this person may be a bogus solicitor. The defendant 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 having seen examples of Civil Enforcement Limited signs at a later date, would not have been an offer but a threat of a punitive sanction to dissuade drivers from parking without payment and was therefore a penalty clause. It would not have been 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 that which the local authority charges for a Penalty Charge Notice (£60). This initial charge of £90 has since been inflated to £130 without any justification. Civil Enforcement Ltd is a member of the British Parking Association (BPA). The BPA Code of Practice (Version 5 October 2014) contains two sections which are particularly relevant to this case:

Section 19.5
"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."

Section 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 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.


Question 2
I questioned whether this case reference is relevant to my case as there is no contract available to compare at this time and you have advised that it should remain. However, please note that I have substituted the words shown in blue - perhaps you will confirm if this is correct.


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 relationship between Civil Enforcement Limited 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.

[mystery1]

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

Hi M1,

Another stunning response and I note that you were up very late going through my questions which is really appreciated.

There is still one thing confusing me as I don't fully understand the relevant point in law - this concerns the rights of the 'landowner' and 'third parties' with regards to 'locus standi'.


Please bear with me...

1. Are we saying that a 'third party' (CEL) cannot form a 'contract' with a driver as they (CEL) are not the 'landowners'.

2. Can the rights of the 'landowner' be passed to a 'third party' via a contract

Looking forward to hearing from you, in the meantime I will prepare the final draft for you to double-check before it is submitted.

Yes x 2.

Question 1Paragraph 6 (Paragraphs 3 & 4 are denied) - I believe this needs clarifying...
Paragraph 3 talks about terms displayed on the signage and pricing structure and also mentions the date and times the car entered and left the car park. Therefore, it does not seem appropriate to deny everything in Para 3 as I accept the car was there during the material time. (Can you re-word Para 6. please)

There were no signs so you do deny it

6. Paragraphs 3 & 4 are denied. The claimant is put to strict proof that Civil Enforcement Limited was entitled to enter into 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 resident that for the time being parking was free of charge. The defendant duly checked for signs, payment machines and parking receipts displayed on other cars and saw none. The defendant admits to being on site but neither admits nor denies the precise times of an incident of parking from a long time ago.

Question 2
I questioned whether this case reference is relevant to my case as there is no contract available to compare at this time and you have advised that it should remain. However, please note that I have substituted the words shown in blue - perhaps you will confirm if this is correct.

Correct.



Sometimes my brain is mince masdopey:

M1

[spotty dog]

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

Hi M1,

WOW...

How do you find the time to answer these questions so fast?

Thank you for answering my questions.

I'm glad I have persisted with the questions relating to whether a 'third party' (CEL) can form a 'contract' with a driver as they are not the 'landowners'. It seems there is a general belief that a 'contract' can only be formed by a 'landowner' whereas I think you're advising that a 'third party' can have the same rights as a 'landowner' if there is a contract which is worded accordingly.

[spotty dog]

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

Hi M1,

HOT off the press!

You may recall me writing to the Co-operative Group seeking information concerning this matter. They have been very timely in their replies albeit rather non-comital. However, I have persisted with asking them to respond to the question as to whether the 'assignment of debt' was with their knowledge (as per the 'Particulars of Claim' submitted by DEAL and signed by Mr M. Shwarts.

I have just received this response:



Dear Mr XXXXXXXXX

Thank you for your email and in response to your question

The Group’s consent to Assignment from Civil Enforcement Ltd to Debt Enforcement Action Limited was neither sought, nor granted.

Regards

Nigel Radcliffe


This statement totally contradicts the final sentence in the opening paragraph of the 'Particulars of Claim' which states <quote> "The debt was assigned to the Claimant with the knowledge of The Co-operative" <end quote>

Can you suggest where details of this contradiction should be included in my defence - perhaps you will be kind enough to re-write the appropriate paragraph to save us bouncing it back and forth.

[mystery1]

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

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.





You could lodge an application to have this struck out but alas it costs £155 and although costs should be awarded to you there is no guarantee they'd pay.

There is no way they'll put this crap in front of a judge. They'll pull out but i don't know when.

M1

[spotty dog]

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

Hi M1,

Thanks yet again....

Just a final one for you to clarify...

Re: my earlier question relating to whether a 'third party' (CEL) can form a 'contract' with a driver as they are not the 'landowners'. It seems there is a general belief that a 'contract' can only be formed by a 'landowner' whereas I think you're advising that a 'third party' can have the same rights as a 'landowner' if there is a contract which is worded accordingly.

[mystery1]

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

Hi M1,

Thanks yet again....

Just a final one for you to clarify...

Re: my earlier question relating to whether a 'third party' (CEL) can form a 'contract' with a driver as they are not the 'landowners'. It seems there is a general belief that a 'contract' can only be formed by a 'landowner' whereas I think you're advising that a 'third party' can have the same rights as a 'landowner' if there is a contract which is worded accordingly.

A very complicated issue.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/186.html

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1338.html


2 court of appeal verdicts which reach different conclusions. It depends on the facts and the contracts between Cel and Co-op which clearly you haven't seen.

You'll drive yourself nuts trying to work this out especially if you don't have the contract to help

M1

[spotty dog]

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

Hi M1,

OK... point taken... I'll have a read but not lose any sleep over it.

So, here's the final draft defence for submission as soon as you give me the green light!


(Draft V4.0 - FINAL) 17/12/14







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 (CEL) had a valid contract with the landowners. If they (CEL) did 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 (DEAL). In any event if the assignment is legal it was not for the full amount. The claimant (DEAL) 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. Furthermore, it is denied that "The debt was assigned to the claimant with the knowledge of the Co-operative" as the Co-operative Group has provided me with written confirmation that none was neither sought nor granted.


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 that Civil Enforcement Limited was entitled to enter into 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 resident that for the time being parking was free of charge. The defendant duly checked for signs, payment machines and parking receipts displayed on other cars and saw none. The defendant admits to being on site but neither admits nor denies the precise times of an incident of parking from a long time ago.


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 Civil Proceedings Rules 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 claimant is claiming an additional £50 for solicitor’s costs. The claimant is put to strict proof of entitlement to this charge. On the Claim Form, there is a section entitled ‘Statement of Truth’, duly signed by a person purporting to be a solicitor using the name Mr. M. Shwarts. The Statement of Truth does not include details of the solicitor’s firm as per the requirements of Civil Proceedings Rules 22. The Solicitors Regulation Authority has no knowledge of Mr. M. Shwarts and has advised that this person may be a bogus solicitor. The defendant 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 having seen examples of Civil Enforcement Limited signs at a later date, would not have been an offer but a threat of a punitive sanction to dissuade drivers from parking without payment and was therefore a penalty clause. It would not have been 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 that which the local authority charges for a Penalty Charge Notice (£60). This initial charge of £90 has since been inflated to £130 without any justification. Civil Enforcement Ltd is a member of the British Parking Association (BPA). The BPA Code of Practice (Version 5 October 2014) contains two sections which are particularly relevant to this case:

Section 19.5
"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."

Section 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 relationship between Civil Enforcement Limited 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.

[mystery1]

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

Change

b) With regard to point 9 I rely upon the following cases and evidence:

To

b) I further rely upon the following cases and evidence:


Add

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, the claimant had no standing to bring the claim and refused leave to appeal.



3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss and refused leave to appeal.



After the Thurlow case and remove the Pearce one already there.

M1

[spotty dog]

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

Hi M1,

All done (as per your latest amendment)

Whilst reviewing the cases references, I did wonder why you had included this one:

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.

CEL say my car was there for 2 hrs 50 mins

I don't know what restrictions were in place at the time but according to one local source, parking was allowed for a maximum of 2 hours resulting in an overstay of 50 minutes.

I don't think this case reference will help my case but I am willing to respect your better judgement - please advise whether to leave or remove it.

[mystery1]

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





It's about what they would be entitled to, if anything. Genuine pre estimate of loss

Full details of that particular case http://forums.pepipoo.com/index.php?...dpost&p=602252

M1