DEAL Court Claim - Won

[lemsip]

Good Afternoon,

I have been sent a CCMC claim form for what I can gather is an overstay at my local Co-op, The amount is £215 (this seems standard from what I've read over the past few days). Yep - signed by this M. Shwarts chap.

It was only by chance that we got these papers as we've recently moved house.

I don't recollect receiving anything before this - I may have and ignored at the time, or in my usual un-organised fashion put it somewhere safe unopened

The particulars state the 26 Oct 2012 20:08 - 23:25

We vaguely remember this as we had a flat tyre on the car after shopping there. During this time the store had shut so we would have thought it'd be ok anyway so left it at that.

I've sent numerous emails to Steve murrells (to complain as we shop there weekly) with no reply and also calls to the customer care line who have stated today can't help.

The court say its genuine and if I acknowledge the service my defence must be in before Christmas day of all days.

The date of service was 27th November - I am yet to acknowledge as I was going to fold today and pay it but after the last call from the co-op this morning, they've rubbed me up the wrong way so I want to defend it.

I'd rather pay someone to help with the defence now, than pay it.

I've noticed a standard defence form kicking around over the past couple of days, would this be sufficient for me too? http://www.legalbeagles.info/forums/...139#post495139

Apologies for the lack of detail - I'm on my lunch break.

I've attached the particulars and also a recent (yesterday) photograph of the sign-age.

Any guidance would be greatly appreciated.

Thanks for your time


Liam

[mystery1]

Re: DEAL Court Claim

I'll take a look asap. Make sure you file acknowledgement of service.

Lovely picture of the sign which says the charge is to deter abuse i.e. a penalty.

M1

[mystery1]

Re: DEAL Court Claim

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.. 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. As the parking event was over 2 years ago the defendant does not recall who was driving at the time for a relatively routine shopping trip. The claimant is put to strict proof that the defendant was the driver who entered the contract, if indeed one was entered in to at all.


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.




M1

[lemsip]

Re: DEAL Court Claim

Thanks for this M1, you're a legend.

I've just come back from a break so I'll get onto this this weekend.

The advice kicking around to complain to the co-op didn't work for me, I've had a response from them saying they stand by the charge.

I've managed to find some of the previous letters from CEL, is it worth posting these up?

Thanks again

[mystery1]

Re: DEAL Court Claim

Thanks for this M1, you're a legend.

I've just come back from a break so I'll get onto this this weekend.

The advice kicking around to complain to the co-op didn't work for me, I've had a response from them saying they stand by the charge.

I've managed to find some of the previous letters from CEL, is it worth posting these up?

Thanks again

Depends on what they say

M1

[lemsip]

Re: DEAL Court Claim

Ok I've now got the defense sorted I think.

Forgive my ignorance but how much detail should be put in the defense with regards to the appendices and transcripts, should these be attached also at this stage?

Thanks in advance

[mystery1]

Re: DEAL Court Claim

No. The judge will tell you when to lodge the evidence etc, usually at least 14 days before any hearing date.

M1

[mystery1]

Re: DEAL Court Claim

http://www.legalbeagles.info/forums/...ement-of-truth

A letter/email to see if your local court is interested in stopping claimants take the mick out of them.

M1

[lemsip]

Re: DEAL Court Claim

Hi All,

Thought I'd update the thread.

Had a letter this week stating the claim has been struck out!

I served up the witness statements as part of the court bundle (100 pages+) and also sent the email relating to the statement of truth (thanks again M1)

DEAL were asked to provide the info on the bogus solicitor, serve up their copies to me of the questionnaire etc, and also to pay the fee.

They never done any of it.

M1 - many thanks for your help - I'm glad I didn't fold and pay up in the beginning, learnt a lot about the process too.

Thanks

Liam

[mystery1]

Re: DEAL Court Claim

Hi All,

Thought I'd update the thread.

Had a letter this week stating the claim has been struck out!

I served up the witness statements as part of the court bundle (100 pages+) and also sent the email relating to the statement of truth (thanks again M1)

DEAL were asked to provide the info on the bogus solicitor, serve up their copies to me of the questionnaire etc, and also to pay the fee.

They never done any of it.

M1 - many thanks for your help - I'm glad I didn't fold and pay up in the beginning, learnt a lot about the process too.

Thanks

Liam

"In the County Court at xxx

~~ To be put before procedural judge ~~

In the matter of

Deal v XYZ
Claim Number XXX

Dear Sir or Madam,

I have been advised that this claim has been discontinued.

CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but that this does not apply to claims allocated to the small claims track (r.38.6(3)). However, the white book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(d))." I believe it should actually refer to r.27.14(2)(g) as that is the rule which allows the court to award costs for unreasonable behaviour.

On this basis I would like to request a costs order to be made against the Claimant given that DEAL has behaved unreasonably by discontinuing this claim, and also by not submitting any evidence/witness statement in support of their claim other than their claim form, and by not serving me with a copy of their Directions Questionnaire contrary to the court order.

The Defendant had significant costs to prepare the Defence and prepare attendance of the hearing and the costs claimed are as follows:

(explain any expenses here).

Yours faithfully,

XYZ
Defendant"

This won't guarantee you anything but it is worth a shot, and as long as you're not taking the p##s with what you're claiming you may have a friendly judge who gives you a costs order.

£18 per hour is the litigant in person. £190 was awarded to 1 person. http://parking-prankster.blogspot.co.uk/2015/03/prankster-runs-out-of-deal-headlines.html

M1