Re: Civil Enforcement Ltd CCJ County Court - won

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

I tried to contact Denis Hilton but he has left the CoOp, the department he worked in, doesn;t exist any more and the CoOp no longer use CEL.
Although another member in an earlier post did provide some alternative contact details or CoOP

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

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 driver on xxxxxxxx


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. 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 that Civil eforcement limited 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. Having appealed the matter and upon hearing nothing further i considered the matter closed.




7. Paragraph 5 is denied as any contract was frustrated as the claimant was uncontactable and the payment machines were faulty. It was impossible to accept the contract offered.


8. Paragraph 6 is denied. The defendant made all attempts to contract and contact the claimant. They did not answer their phone and as the machines were faulty had no way to accept payment.

9. Paragraph 7 is admitted as the defendant appealed and having heard nothing assumed the matter was closed and no payment was due.

10. The claimant is put to strict proof of paragraph 8.

11. Paragraph 9 is denied as no payment is due so there can be no interest upon it.

12. 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.

13. 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 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) I further 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”


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.


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

- - - Updated - - -

I tried to contact Denis Hilton but he has left the CoOp, the department he worked in, doesn;t exist any more and the CoOp no longer use CEL.
Although another member in an earlier post did provide some alternative contact details or CoOP

http://ceoemail.com/s.php?id=78072&c=Co-operative%20Food

Did you get the set aside costs awarded ?

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

No I didn't ask for the set aside costs to be awarded - I didn't know I could ask

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

The judge also gave me a copy of the Parkingeye LTD and Barry Beavis case which was appealed succesfuly by Parking Eye
Will post it up


- - - Updated - - -

Do you want me to post all the pages up?

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

No I didn't ask for the set aside costs to be awarded - I didn't know I could ask

PMSL draft order no 3

M1

- - - Updated - - -

The judge also gave me a copy of the Parkingeye LTD and Barry Beavis case which was appealed succesfuly by Parking Eye
Will post it up


- - - Updated - - -

Do you want me to post all the pages up?

No thanks. It's in the Supreme court in 4/5 weeks and widely known anyway.

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court



- - - Updated - - -



- - - Updated - - -

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court






- - - Updated - - -



- - - Updated - - -



- - - Updated - - -



- - - Updated - - -



- - - Updated - - -



- - - Updated - - -



- - - Updated - - -



- - - Updated - - -

Sorry M1 just read you didn't need me to post all that content

- - - Updated - - -

What is a PMSL draft order no 3?

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

Here's the Draft Order[IMG][/IMG]

Draft order ^^^^^ no. 3 is well err number 3

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

M1 Thank-you so much for all your help!!!!! You have been amazing!!!!!!!!!

- - - Updated - - -

No judge didn;t mention anything about awarding costs - what should I do?

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

Ask later when you win.

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

ok thanks!!!
So all the evidence I have collected - I would present when I go to court?

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

The court will give instructions for evidence. Probably produce 14 days minimum before court and then use them in your submissions.

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

Ok thanks - do you have a favorite charity - I would like to make a donation to say thanks for the support you have given me.

[mystery1]

Re: Civil Enforcement Ltd CCJ County Court

Ok thanks - do you have a favorite charity - I would like to make a donation to say thanks for the support you have given me.

I'm not a charity lover. They do good work but they keep trying to mug me.

You haven't won yet anyway.

M1

[Littlegem]

Re: Civil Enforcement Ltd CCJ County Court

lol .... ok thanks anyway