Deal county court form- Struck out

[Angryhead1]

Please help!!

I vivisted a friend and overstayed in the car park at the coop, I was not aware that there was a time limit as I'm not local to the area
As a result I received a letter advising that I had overstayed and needed to pay £45 within so many days, I searched this online and ignored the letter.
I did not hear anything else then last week received a Claim form from Northampton County Court with post mark CCMCC Salford
The date of service is 27 Nov 14

I don't know what to do? It seems its the same reasons as others that its for 'contractual fees due alternatively damages for breach of contract arising from the non-payment of the fees alternatively damages for trespass'

The letter states I owe £215

Im concerned that I'm running out of time and the form seems to be endorsed with a barcode and stamp

Please help!!!!

[mystery1]

Re: Deal county court form

Have you filed acknowledgement of service yet ? You have until 11th do do that or to enter a defence.

Do you have any further info apart from the claim form ?

M1

[Angryhead1]

Re: Deal county court form

Have you filed acknowledgement of service yet ? You have until 11th do do that or to enter a defence.

Do you have any further info apart from the claim form ?

M1

I have sent through an electronic acknowledgement of service this evening

the particulars of the Claim are:
1. The car park is private property owned / leased by the cooperative group limited of 1 angel square, manchester, m60 0ag. The address of the car park is xxx and at all material times the car park was managed by civil enforcement limited on behalf of the cooperative. The debt was assigned to the claimant with the knowledge of the cooperative
2. Bay 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 thee 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 an offer by the operator to enter into a contract with drivers. The operators recorded the defendants vehicle, registration xxx entering the car park on xxx at 11.38 and departing at 13.50. When the defendant parked their vehicle in te car park they accepted, by their conduct, the operators pricing structure
4. The defendant was allowed to remain in the car park in consideration for agreeing to pay £90 (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 defendants conduct £90 is owed by the defendant
5. The defendant did not take up the offer to pay the reduced amount of £45 within 14 days. The defendant failed to pay the agreed £90 and as a result the operator (directly / through its agents) was left with no alternative it to write to the defendant several times in respect of their non payment of the debt which increased as a result by £40
6. Further the claimant claims interest pursuant to 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
AND the claimant claims
amount of £215, alternatively, damages for breach of contract, alternatively, damages for trespass

[mystery1]

Re: Deal county court form

Before or after 1/10/12 ?

Are you the registered keeper ?

M1

[Angryhead1]

Re: Deal county court form

After and yes I'm the registered keeper

[Angryhead1]

Re: Deal county court form

After and yes I'm the registered keeper

also would I hear anytging following my acknowledgement or just the auto response?

[mystery1]

Re: Deal county court form

Just auto response i think.

M1

[Angryhead1]

Re: Deal county court form

Just auto response i think.

M1

could you help me what I do next please

[mystery1]

Re: Deal county court form

could you help me what I do next please

As soon as i get time :okay:

M1

[mystery1]

Re: Deal county court form

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. I also understand that the Co-operative had no knowledge of assignment as is claimed.


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. The claimant is put to strict proof that the driver was the defendant.


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

[Angryhead1]

Re: Deal county court form

Thanks very much

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. I also understand that the Co-operative had no knowledge of assignment as is claimed.


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. The claimant is put to strict proof that the driver was the defendant.


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

[Angryhead1]

Re: Deal county court form

Hi again
today I've received a notice of proposed allocation to the small claims track and a directions questionnaire, what do I do? Help!!!

[mystery1]

Re: Deal county court form

Fill it in.

Your nearest court. Yes to mediation, yes to small claims.

Send to court and claimant.

M1

[Angryhead1]

Re: Deal county court form

I'm sorry, I have no idea what I'm doing
what about the expert evidence and witness sections?
thanks for your help so far and hope you've had a nice christmas

[mystery1]

Re: Deal county court form

No experts and 1 witness (you)

Don't panic. A while until a potential hearing and they are unlikely to turn up for it.

M1