DEAL - Chelmsford County Court Monday 16th March 15 - won

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Thank you so much as i'm at my wits end just now ....take care

[mystery1]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Your chances of actually having a hearing are low. Your chances of winning even if it does are high.

I appreciate you will find it stressful but in reality it's really not a big deal. When you win you'll wonder what all the fuss was about.

Chin up.

M1

[Amethyst]

Re: DEAL - Chelmsford County Court Monday 16th March 15

DEFENCE

Claim Number: xxxxxxxxxxxx
Debt Enforcement & Action Limited vs
Statement of Defence

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
I. The Claimant has no capacity to form a contract with the motorist
II. The Claimant has disclosed no cause of action
III. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IV. The claimant “Debt Enforcement & Action Ltd” says they have the debt assigned to them. They are put to strict proof that Co-op authorised this.
V. The Claimant Debt Enforcement & Action Ltd are also put to strict proof that they are a separate company from Civil Enforcement, given they use the same Mail Drop address


2. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in place more than two years ago. The Defendant was unaware of the. A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park.

3. The Claimant states that the operator is contracted to manage the car park. As a mere contractor, the Claimant cannot possibly be entitled to damages for trespass as claimed in Alternative #3. The Claimant is also put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators. As a third party agent, the Claimant may not pursue any charge (ParkingEye v Sharma 3QT62646 Brentford County Court) and (ParkingEye v Rickard 3JD10678 Aylesbury County Court).

4. The Defendant is in no position to confirm or deny the Claimant’s timings and whether they have recorded a single or failed to record multiple visits. Neither can the Defendant understand why they are relevant. The Parking Enforcement Notice does not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage.

5. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. , the Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action. As the Defendant has never received any other information from the Claimant, he has no idea what conduct he is defending and is unable to assist the court to understand the claim.

6. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies that he would have agreed to pay the original demand to perform the alleged but undisclosed conduct.
The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

7. The court is invited to consider whether a document titled Parking Contravention Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s claim for Breach of Contract and Damages further confirm that the sum is neither a contractual term nor a genuine assessment of pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company. The Defendant asserts that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from the initial figure.

8. The court is invited to strike out the claim as having no prospect of success.

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

[Amethyst]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Thank you so much as i'm at my wits end just now ....take care

Olds, you have done absolutely fine - you've submitted a defence and sent back the directions small claims track questionnaire fine - no issues there at all. Have you emailed me the 'bundle' from DEAL ?

[Amethyst]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Docs from Bundle (unapproved by M1 can see them )

I can't see the times of parking in there - but it's not a great copy - have they put timings in the witness statement ?

Also it's signed by Ashley Cohen for Civil Enforcement Ltd

[mystery1]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Does that say the debt was assigned on 31/05/2012 ?

http://www.endole.co.uk/company/0885...and-action-ltd

M1

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

No, it was assigned on 31/08/12 ...
The relevant times were between 10.02.04 and 12.45.08.
I can't agree or disagree as we never timed ourselves as there was no need as we didn't know about any time restrictions.

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Also, i have never been shown any proof that we were there on that day - i'm not saying we weren't as we don't remember that far back. We did go there and we did park there, but as for anything else, we really can't say one way or the other

[mystery1]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Have you read CEL v McCafferty ?

http://nebula.wsimg.com/d8670de1426e...&alloworigin=1

The 2 hour sign says "to deter abuse"

Did you ever get the DQ from Deal ? Have DEAL paid the hearing fee ? Did you submit a witness statement (presumably saying you saw no signs) ?

M1

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

I have now read CEL V McCafferty - thank you, not sure i fully understood all the legal jargon though.lol
No, i have not recd anything from DEAL and YES, they have paid the hearing fee.
In my original appeal to CEL, I stated that i did not see any signs.
Hopefuly, i have managed to attach a photo of 'Signage' on entering car park. I have taken a series of photos leading into, looking around the parking area and on exit from car park. No clear signs can be seen from them.

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

I don't think i managed to master the art of inserting photos onto this log, so i have sent them in an email to the admin address

[Amethyst]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Sign on entering the car park

[Amethyst]

Re: DEAL - Chelmsford County Court Monday 16th March 15

No other signs whatsoever

[oldsxman]

Re: DEAL - Chelmsford County Court Monday 16th March 15

As you can see, there are no obvious signs in view, also it is a two way ramp as well as a pedestrian exit too and very tight for manoeuvre between any cars already parked and the concrete stauntions. At the time of taking pictures, some of the lighting was not working. I took the pictures from the approximate area where the car had been parked on date of alleged incident.

[mystery1]

Re: DEAL - Chelmsford County Court Monday 16th March 15

Part of the issue with that though, is that if you haven't sent them to the court and the opponent previously you shouldn't get to use them.

M1