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Re: Claim received from Northampton County Court Business Centre
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Re: Claim received from Northampton County Court Business Centre
IN THE [TOWN] COUNTY COURT CASE No.
BETWEEN
[IVOR PROBLEM] Claimant
AND
[JUSTIN TIME] Defendant
DEFENCE
1. The Defendant denies that she 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.
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 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 original parking charge letter is not an invoice. It is headed "parking enforcement notice" and it is clearly not a contract.
The Defendant is in no position to identify who visited a supermarket three years ago. The parking event took place before the introduction of the Protection of Freedoms Act and the Claimant cannot use it to hold the registered keeper liable if it cannot identify the driver. The claimant is put to strict proof of who was driving.
7. Paragraph 5 is denied as the claimant was not entitled to demand money from the defendant as none was owed as no contract was agreed.
8. Paragraph 6 is denied. Interest is not due as there is no base debt on which interest should be charged.
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 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 £130 is above and beyond that which the British Parking Association expects and is a trade association of which Civil Enforcement Ltd are a member. 19.5/6 of the trades code of practice 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 claimant "Civil Enforcement Limited" assigned £113.75 of the alleged debt to Debt Enforcement & Action limited and in the letter of assignment, on their own headed paper, stated that the balance of £16.25 was kept due to an ongoing agreement and that it was due to the Co-operative. The claimant is attempting to be unjustly enriched and if the claim succeeds the defendant will be in the position of owing the same monies to 2 different companies.
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.
M1Comment
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Re: Claim received from Northampton County Court Business Centre
Thank you for this, we will get this drafted up and onto the moneyclaims website tonight
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Re: Claim received from Northampton County Court Business Centre
I'll get a follow up letter to the court done eventually too with regard to contempt of court.
M1Comment
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Re: Claim received from Northampton County Court Business Centre
Do I file all this in the post or online, sorry to ask questions, but I can only do 122 in my response online, not sure if I can upload files as well?Comment
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Re: Claim received from Northampton County Court Business Centre
Originally posted by VampireG View Post
Email should be fine.
https://www.justice.gov.uk/courts/em...idance#canfile
M1Comment
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Re: Claim received from Northampton County Court Business Centre
Yes cool, thank you.
Anyone else looking for it. it is here:
ccbcdefendants@hmcts.gsi.gov.uk
https://courttribunalfinder.service....?q=NorthamptonComment
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Re: Claim received from Northampton County Court Business Centre
Originally posted by VampireG View Post
Make sure you follow the subject line rules
M1Comment
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Re: Claim received from Northampton County Court Business Centre
Form and content of emails
When you email the court the subject line of your mail must contain (in the following order): -
- The claim number
- The title of the claim (abbreviated if necessary) **
- The subject matter (e.g. defence)
- If relating to a hearing the date and time of hearing
- The judge or legal advisers name, where the correspondence/document is for their attention
**If your email is in relation to a family matter, please refer to the initials only.
Your message should also contain the name, telephone number and email address of the sender. If you email us we will normally send any reply to you by email.
Correspondence and documents may be sent as either text or attachments. Where there is a practice form, it must be sent in that form by attachment.
Attachments must be in one of the following formats and the complete email (including any attachment(s)) must not exceed 10MbComment
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Re: Claim received from Northampton County Court Business Centre
Email has been sent Fingers crossed, we are on holiday next week so I assume we probably won't hear anything that quickly will we?
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Re: Claim received from Northampton County Court Business Centre
[MENTION=69495]VampireG[/MENTION]... Did you ever receive your detailed particulars separately? I'm about to file my defence, but predictably they haven't submitted any further documentation other than the claim form.
I thought it was our legal right to receive the particulars before we are called to defend ourselves?Comment
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Re: Claim received from Northampton County Court Business Centre
No had a claim form sent in the post to us, which was then only followed up by a letter from the actual court. We have had nothing else from CEL.Comment
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Re: Claim received from Northampton County Court Business Centre
Should be fine.Originally posted by VampireG View PostEmail has been sent Fingers crossed, we are on holiday next week so I assume we probably won't hear anything that quickly will we?
M1Comment
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Re: Claim received from Northampton County Court Business Centre
Originally posted by MrRK View Post
You should phone them and enquire if they haven't sent the number paragraphs signed by Schwarts.
M1Comment
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Re: Claim received from Northampton County Court Business Centre
We have received today another document from CEL, which I believe is a statement of truth again signed by Mr Schwarts, with another copy of the Coop letter they had previously supplied. I will see if I can get these scanned this weekend for your amusement, bearing in mind they have assigned the debt to another company they have simply just confirmed their lie!Comment
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