Another DEAL County Court Claim Form - Won

[superpaw]

Hi,

I'm in the same boat as many on here having yesterday received a Claim Form in an envelope post marked Salford containing papers stating they are from Northampton County Court relating to a PCN received in a Co-Op car park on 9/3/13.

I overstayed the 2 hour limit by over an hour and a half as the car park for the Co-Op in Hove was linked to the one for the Hove Greyhound track next door that I was visiting and both were controlled by CEL CCTV. I thought that the exemption the greyhound track had with CEL for visitors entering their registration number into an online system covered me, but it turns out the part of the car park at Co-Op was not included in that exemption, despite many people having parked there on Saturday nights when it was virtually empty of Co-Op customers, for years. When I queried the original PCN with the Co-Op I was advised that the greyhound track staff should have made me aware the exemption only covered their part of the car park - somewhat annoying that they didn't when pointing me towards the machine to enter my car registration details.

Following advice from the likes of BBC's Watchdog I ignored all correspondence from initially CEL, and then DEAL when they wrote to me in September with a last chance offer to settle before court proceedings.

I have now received the Claim Form, which I am detailing below, and would like some advice as to how to proceed after I file the acknowledgement of service.

The claim is addressed to me as the defendant, and I was the driver.


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 Car Park at Nevill Road, Hove, BN3 7BZ 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 background , 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 09/03/2013 at 19:10 and departing on 09/03/2013 at 22:48. 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 if 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)


As the Co-Op has been taken over by Waitrose they have removed all signage and CCTV from the car park so I have no means of including a photograph of the sign.

Any help would be much appreciated.

Paul

[mystery1]

Re: Another DEAL County Court Claim Form

Well aside from the usual defence which i'm sure you've seen, we need to include what we can about the parking arrangements.

How did you know about the greyhound exception ? How were you supposed to identify the areas covered and not covered ?

In essence what i want to know is, is the charge due aside from the penalty aspect and assignment issues in other cases ? It sounds like no so we need to incorporate that similar to the extra issue in http://www.legalbeagles.info/forums/...amp-Action-Ltd where the issue was that the ticket was never due because there was no contravention of any dubious contract entered into via the signs as the driver entered then exited before returning.

M1

[superpaw]

Re: Another DEAL County Court Claim Form

Thanks for replying M1.

On the night in question I found out about the CCTV cameras of CEL when the door staff at the greyhounds said I'd need to enter my car reg no. into a machine they had so I wouldn't get a ticket as now anyone staying over 2 hours would otherwise. There was no specific demarcation in the car park to state that specific spaces were only for use for Co-Op and others for the greyhounds, and all of the car park areas had the same CEL signage. During the daytime Co-Op shoppers used both sections of the car park.

With regards the specifics of this I've only discovered today when Googling to see if anyone else at Hove had the same issue and found this thread:
http://www.hovedogs.co.uk/forum/inde...howtopic=16085

Paul

[michael]

Re: Another DEAL County Court Claim Form

Parking Prangster's blog re Mr M.Schwarts might be of interest:
http://parking-prankster.blogspot.co...ear-to-be.html

[mystery1]

Re: Another DEAL County Court Claim Form

Thanks for replying M1.

On the night in question I found out about the CCTV cameras of CEL when the door staff at the greyhounds said I'd need to enter my car reg no. into a machine they had so I wouldn't get a ticket as now anyone staying over 2 hours would otherwise. There was no specific demarcation in the car park to state that specific spaces were only for use for Co-Op and others for the greyhounds, and all of the car park areas had the same CEL signage. During the daytime Co-Op shoppers used both sections of the car park.

With regards the specifics of this I've only discovered today when Googling to see if anyone else at Hove had the same issue and found this thread:
http://www.hovedogs.co.uk/forum/inde...howtopic=16085

Paul

Can't read that. Does it have any pictures or anything that'll help or is it just moaning ?

M1

[mystery1]

Re: Another DEAL County Court Claim Form

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

Please contact the SRA as per that blog.

M1

[superpaw]

Re: Another DEAL County Court Claim Form

Thanks M1. I have just forwarded a copy of the papers to the SRA.

The link I provided is a very flaky website that seems to fall over if more than 2 people are viewing it! It did have pictures of the signs, but it seems the link to them no longer works to be able to view or download them.

The post was started in November 2011, so I guess by March 2013 when I visited the greyhound track staff were no longer being specific about not parking in the Co-Op part of the car park and I assumed that punching in my reg. no. would cover the whole of the car park. Apparently in November 2011 tannoy announcements were being made not to park there. The thread also stated that Corals (the greyhound track owner) owned the whole of the car park and leased some of it to Co-Op.

Someone who had viewed the sign at the time posted it said Maximum free stay 2 hours for Co-OP customers only and then surmised that if you were not shopping at Co-Op did that mean the 2 hour limit only applied to Co-op customers and you were therefore entitled to more than 2 hours if you did not shop there

Paul

[mystery1]

Re: Another DEAL County Court Claim Form

The thing is if the information was passed on after you parked and was not passed on before or at the time you decided to park then it does not form part of any contract which may apply.

http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html

M1

[superpaw]

Re: Another DEAL County Court Claim Form

The information was only passed on after I'd parked and paid for entry to the greyhound track and no mention was made of the exemption only applying to specific areas of the car park. There were no signs in any areas of the whole car park highlighting this exemption and all the standard CEL signs advising the 2 hour stay limit in both areas of the car park were the same.

[superpaw]

Re: Another DEAL County Court Claim Form

Hi M1

Was just in the process of filling out my specific details in the standard defence you've provided to most people, having filed the AoS last week.

You'll have to excuse me here if I'm appearing to ask something you've already answered, but is the fact of the machine at the greyhound stadium that gave exemption to parking in the stadium's half of the car park something I should be including in my defence, and if so how should I be phrasing it, as obviously the standard defence is very legalese whereas my description regarding this would be in very standard english.

Thanks,

Paul

[mystery1]

Re: Another DEAL County Court Claim Form

Hi M1

Was just in the process of filling out my specific details in the standard defence you've provided to most people, having filed the AoS last week.

You'll have to excuse me here if I'm appearing to ask something you've already answered, but is the fact of the machine at the greyhound stadium that gave exemption to parking in the stadium's half of the car park something I should be including in my defence, and if so how should I be phrasing it, as obviously the standard defence is very legalese whereas my description regarding this would be in very standard english.

Thanks,

Paul

Yes you would. That part isn't so legalese more i was allowed to park as per the signs and machine and as they never specified only part of the car park there was no fee due.

Hoping to get on top of yours and a few other parking bits when i'm off for 3 days after tomorrow.

M1

[mystery1]

Re: Another DEAL County Court Claim Form

In the absence of any further info 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 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 neither admitted or 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. There was a terminal at the dog track which the defendant duly entered his registration number in to which gave free parking in the carpark and there were no areas for dog track visitors only according to any signs around. The whole car park was assumed to be ok to park in for free whilst visiting the dogs.


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 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.


It is best to add to your defence anyting which helps, for example, not being the driver, not breaching any terms of a sign anyway etc etc.


M1

[superpaw]

Re: Another DEAL County Court Claim Form

Hi M1,

Thanks for your continued support with this, it is greatly appreciated.

I have now received the notice of Proposed Allocation to the Small Claims Track.

Having read through can you just confirm I'm correct in thinking I should not be agreeing to it being referred to the mediation service.

Also, with regards the hearing venue, in your experience, does it always get heard at the defendants preferred county court rather than the claimants?

Thanks,

Paul

[mystery1]

Re: Another DEAL County Court Claim Form

Having read through can you just confirm I'm correct in thinking I should not be agreeing to it being referred to the mediation service.

It is better to say yes even when we think they'll say no and it won't work even if they agree. Whilst it shouldn't effect the merits of the case it may have a bearing on costs for or against.

Also, with regards the hearing venue, in your experience, does it always get heard at the defendants preferred county court rather than the claimants?

Yes.

M1

[superpaw]

Re: Another DEAL County Court Claim Form

Hi M1,

Just a further update to advise I've received a voicemail from the small claims mediation centre, asking me to call back with some available dates as they advise that DEAL have advised they are up for using mediation. I'm sure the mediation won't take long as they want full payment and I don't intend to pay anything!

Paul