Claim form received from Debt Enforcement & Action ltd -Won

[Jaxjax]

Hi All,

hoping you can help me. I got a parking charge from CEL ages ago for overstaying my time at a co-op at Park. The charge was £90 (£45 if I paid in 14 days) I looked online and followed the advice to just ignore.

Today I received a claim form from Northampton County court for £215 (£130 for the claim, £35 court fee and £50 solicitors fee)

The date of Servicr on the form is 27 Nov. Is that right? Given that today is 25 nov?

Jax

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

Date of service is largely irrelevant as it only dictates the date you must do stuff by.

Post up all the detail you can excluding your name, address and reg number.

File acknowledgement of service too.

M1

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

Thank you so much for your help Mystery1!

Here goes:

Brief details of claim

The claim is for contractual fees due alternatively damages for breach of contract arising from the non-payment of the fees alternately damages for trespass

Value
£215 plus interest pursuant of section 69 of the County Courts Act 1984 on the amount found to be due to the claimant at such rate and for such period as the court thinks fit.

Particulars of the Claim
1. The Car Park is private property owned/ leased by The Co-operative Group Ltd of 1 Angel Square, Manchester, M60 0AG ("The Co-operative") The address of the car park is 431-435 Downham Way, Bromley, BR1 5HR and at all material times the Car Park was managed by Civil Enforcement Ltd ("The Operator") on behalf of The Co-operative. The debt was assigned to the Claimant with the knowledge of the Co-operative.
2. By way of Backround , the Operator uses vehicle plate recognition on the entrance and exit of the car park which works by capturing images of the text displayed on Vehicle Number plates. In the Car Park there are many clear and visible signs displayed advising drivers of the terms and charges applicable when parking in the Car Park.
3. Drivers are permitted to park in the Car Park in accordance with the terms displayed on the signage. These signs constitute and offer by the Operator to enter into a contract with drivers. The Operators recorded the Defendant's vehicle, reg no [xxxxxxx] entering the car park on 09/05/2012 at 13:22 and departing on 09/05/2012 at 16:02. When the defendant parked their vehicle in the Car Park they accepted, by their conduct, the Operator's pricing structure.
4.The Defendant was allowed to remain in the Car Park in consideration for agreeing to pay £90.00 (reduced to £45 of paid within 14 days) to the Operator. Consequently, a contract was formed between the Operator and Defendant and as a result of the Defendant's conduct £90 is owed by the defendant.
5. The Defendant did not take up the offer to pay the reduced amount if £45.00 within 14-days. The defendant failed to pay the agreed fee of £90.00 and as a result the Operator (directly/through its agents) was left no alternative but to write to the defendant several times in respect of their non-payment if the debt which increased as result by £40.00.
6. Further the Claimant claims interest persuant to section 69 of the County Courts Act 1984 on the amount found to be due to the Claimant for such period as the court thinks fit.
AND the Claimant claims
Amount of £215, alternatively, damages for breach of contract, alternatively, damages for trespass.

Statement of truth signed by Mr M Shwarts (Solicitor)


Now there are normally no charges for the use of this car park. In other Car Parks in the Area you would pay £1 to £1.50 per hour for parking and around £15-£20 for a lost ticket/staying all day. I would be willing to pay for 3 hours use @ £1.50 so £4.50

Kind regards
Jax

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

I take it the claim is addressed to the person who was driving ?

M1

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

yes it was - I was driving and I am the registered keeper of the car

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

You have no other letters/notices or pictures of the signs ?

M1

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

I threw them away - sorry. I can get pictures of the signs as they are today, but I have not got any from 2012.

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

Without any further info that could add to a court defence i'd suggest something like :-



I assume you had a letter such as http://parking-prankster.blogspot.co...-made-bad.html




IN THE [TOWN] COUNTY COURT CASE No.
BETWEEN
[IVOR PROBLEM] Claimant
AND
[JUSTIN TIME] 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, xxxxx, a brain surgeon.


3. I am the registered keeper of vehicle, registration number xxxxx and was the driver on 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. The claimant is put to strict proof.

6. Paragraphs 3 & 4 are denied. I did park at xx.xx 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 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

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

Thank you M1

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

http://parking-prankster.blogspot.co...ear-to-be.html

Please contact the SRA as per that blog.

M1

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

Hi All,

Sorry one more question - do I physically sign the document? Also do I send a copy to the court and the claimant or just the court?

Jackie

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

If you can sign it it's probably easiest but if they accept via email typed should be fine (Northampton do, i expect Salford do to) http://www.lawsociety.org.uk/news/st...-money-claims/ give them a call to confirm and get the correct email address.

M1

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

Hello again. I hope you are having a good Christmas!!

I have received a letter from the court stating that the claim seems suitable for the small claims track. I have read the leaflet that explains that this is done based on the value of the claim and that I am supposed to contact the claimant to see if we can settle outside of court.

The leaflet also states that it is the responsibility of both parties to contact each other - I have not had any contact from Debt Enforcement - should I still try to contact them? Now I have just moved house and the deadline for submission is Monday which I think is fine as I can scan and email or fax the form, but I don't know if I have time to contact Debt enforcement. What happens if I don't contact them and just complete and send off the form? Also they are suggesting a mediation service. I don't think I want this as I don't think I should be paying anything!

Kind regards
Jackie

[Jaxjax]

Re: Claim form received from Debt Enforcement & Action ltd

Hello again. I hope you are having a good Christmas!!

I have received a letter from the court stating that the claim seems suitable for the small claims track. I have read the leaflet that explains that this is done based on the value of the claim and that I am supposed to contact the claimant to see if we can settle outside of court.

The leaflet also states that it is the responsibility of both parties to contact each other - I have not had any contact from Debt Enforcement - should I still try to contact them? Now I have just moved house and the deadline for submission is Monday which I think is fine as I can scan and email or fax the form, but I don't know if I have time to contact Debt enforcement. What happens if I don't contact them and just complete and send off the form? Also they are suggesting a mediation service. I don't think I want this as I don't think I should be paying anything!

Kind regards
Jackie

[mystery1]

Re: Claim form received from Debt Enforcement & Action ltd

You should make both the court and the claimant aware of your new address.

I am of the opinion you should seek mediation even when you feel it will not work as they want your cash and you're not going to give it to them. The judge doesn't know what happens at mediation and it makes you look good, particularly if they don't accept it. Unreasonable behaviour is the basis for extra costs in the small claims track and you don't want to be unreasonable but you don't mind so much if they are and the judge agrees


Should you not contact them i doubt anything will happen but if you don't give them new details you may miss some post.

M1