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  • FIRST POST
    • catoutthebag
    • By catoutthebag 29th Oct 17, 11:17 PM
    • 2,177Posts
    • 478Thanks
    catoutthebag
    Please assess my defense
    • #1
    • 29th Oct 17, 11:17 PM
    Please assess my defense 29th Oct 17 at 11:17 PM
    Hello. I intend to submit this this week as I'm away for over a week having selected to defend myself.

    Previous tread http://forums.moneysavingexpert.com/showthread.php?t=5733203

    Claim No: xxx
    Civil Enforcement Ltd v xxxxxxx
    Statement of Defence
    1. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
    a. The Claimant has not identified the driver
    b. The Claimant had no capacity to form a contract with the motorist
    c. The Claimant did not offer a genuine contract and the amount claimed was intended as a penalty
    d. Even if the Claimant did have the capacity to form a contract, it would be void under the Unfair Terms in Consumer Contracts Regulations

    2. The Defendant neither admits nor denies that he was driver. The Defendant is in no position to identify who visited the carpark at the alleged date. Under current law, the registered keeper is only responsible for the drivers conduct and Claimant cannot use it to hold the registered keeper liable if it cannot identify the driver

    3. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant denies that signs were clear and visible. The Defendant was unaware of any signs until alerted to them by the Claimant’s Parking Enforcement Notice. 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. This was absent

    4. The Defendant is in no position to confirm or deny the Claimant’s timings. Neither can the Defendant understand why they are relevant. The Particulars of Claim do 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 states that the claim results from a contract with the Defendant in accordance with terms and conditions of the site. The Defendant denies that he would have agreed to pay the original demand of £100 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.!

    a. 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)

    6. The court is invited to consider whether a document a Parking Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s alternative 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.

    a. 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.
    b. 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:
    c. 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
    d. The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has provided loosely an explanation of 8% interest on the asking amount and it is not clear how 8% pa interest on £100 became £251.52 in a year’s time

    7. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
    a. With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

    8. The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. In Beavis, it was a free car park, with turnover required and a deterrent needed to stop commuters parking. As per the Claimant, this is a 24 hour car park and as long as the amount was paid, the driver can stay there indefinitely. As such turnover is not a requirement, meaning Beavis cannot apply

    9. The Defendant disputes that the Claimant has incurred £50 solicitor cost to prepare the claim
    a. The Defendant refers the court to the incompetent Particulars of Claim that does not clearly disclose how the amount is arrived!
    b. The Defendant has the reasonable belief that the named solicitor is an employee of the Claimant and hence cannot charge Legal representative’s costs

    10. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed. The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing. The court is invited to strike out the claim as having no prospect of success
Page 1
    • Redx
    • By Redx 29th Oct 17, 11:23 PM
    • 16,937 Posts
    • 21,075 Thanks
    Redx
    • #2
    • 29th Oct 17, 11:23 PM
    • #2
    • 29th Oct 17, 11:23 PM
    apart from anything else , there is no statement of truth at the bottom

    and you should be adding it to your previous thread, not start a new thread

    pm soolin or crabman and ask them to merge the 2 threads for you
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • bargepole
    • By bargepole 29th Oct 17, 11:27 PM
    • 2,170 Posts
    • 6,259 Thanks
    bargepole
    • #3
    • 29th Oct 17, 11:27 PM
    • #3
    • 29th Oct 17, 11:27 PM
    A classic example of someone finding some out of date template and regurgitating it without any understanding of the legal arguments and whether they are relevant.

    Going to court with a defence like that is a sure-fire loser. Nearly all of those arguments no longer apply post-Beavis.

    Also, para 2 suggests that the Claimant needs to identify the driver, then para 3 says 'the Defendant was unaware of any signs', making it clear that the Defendant was the driver.

    If you were driving the vehicle, say so, don't try to hide behind POFA or the Judge will rip you a new one.

    Back to the drawing board and more research required, I'm afraid.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 30. Lost 9.
    • KeithP
    • By KeithP 29th Oct 17, 11:57 PM
    • 4,800 Posts
    • 3,165 Thanks
    KeithP
    • #4
    • 29th Oct 17, 11:57 PM
    • #4
    • 29th Oct 17, 11:57 PM
    You were offered a basis for an excellent defence in the first response on your earlier thread.

    Why did you ignore that and abandon that thread?
    .
    • catoutthebag
    • By catoutthebag 30th Oct 17, 12:09 AM
    • 2,177 Posts
    • 478 Thanks
    catoutthebag
    • #5
    • 30th Oct 17, 12:09 AM
    • #5
    • 30th Oct 17, 12:09 AM
    I didn't abandoned anything because I didn't see it.

    I've had a lot on my plate

    I'm flying long haul in a few days and im frightened.

    So I'll need to copy and paste something in the next 2-3 days
    • fisherjim
    • By fisherjim 30th Oct 17, 9:03 AM
    • 2,588 Posts
    • 3,850 Thanks
    fisherjim
    • #6
    • 30th Oct 17, 9:03 AM
    • #6
    • 30th Oct 17, 9:03 AM
    I didn't abandoned anything because I didn't see it.

    I've had a lot on my plate

    I'm flying long haul in a few days and im frightened.

    So I'll need to copy and paste something in the next 2-3 days
    Originally posted by catoutthebag
    What do you mean you didn't see it, it's your thread do you ask for help then not check back?
    You need to keep to one thread, you seem to expect help from the regulars and also expect them to keep abreast of your multiple threads on the same subject.
    Everyone has a lot on their plate, but the regulars are giving you free help!

    Whatever you "copy and paste" please make sure you understand it and it's current, and relevant!
    Last edited by fisherjim; 30-10-2017 at 9:05 AM.
    • nosferatu1001
    • By nosferatu1001 30th Oct 17, 9:39 AM
    • 1,185 Posts
    • 1,229 Thanks
    nosferatu1001
    • #7
    • 30th Oct 17, 9:39 AM
    • #7
    • 30th Oct 17, 9:39 AM
    Indeed, you can easily see it, by clicking on your username and seeing all the threads youve started.
    • catoutthebag
    • By catoutthebag 3rd Dec 17, 10:11 PM
    • 2,177 Posts
    • 478 Thanks
    catoutthebag
    • #8
    • 3rd Dec 17, 10:11 PM
    • #8
    • 3rd Dec 17, 10:11 PM
    Update:

    I constructed a proper defense this time, emailed it as an attachment to the county court at the end of October/beginning of Novemberr, just in time for the deadline.

    Few weeks after, I received a letter from civil enforcement ltd dated 11th October (!) with particulars of the Claim, around the same day as the CCBC wrote to confirm aknowledgement of my defense which was being served to the claimant (dated 1st November - I was on holiday first two weeks of November)

    I recently got a letter from CCBC dated 20th November 'notice of proposed allocation to the small claims track'.

    I apparently have to fill in the small claims direction questionnaire and file with Court office by 7th or fill box c1 of form 180 explaining why I shouldn't.

    I'm guessing I do the former?

    The questionnaire appears to be 3 pages and attached to the letter.

    Any links to filling it in please?

    - do I agree to being referred to small claims mediation
    - do I agree if small claims track is appropriate for this case
    - which hearing venue? I'm in bham.
    - am I asking courts permission to use written evidence of an expert (no?)
    Etc

    Does this mean that the case has not warranted being thrown out?
    • Johnersh
    • By Johnersh 3rd Dec 17, 10:21 PM
    • 750 Posts
    • 1,394 Thanks
    Johnersh
    • #9
    • 3rd Dec 17, 10:21 PM
    • #9
    • 3rd Dec 17, 10:21 PM
    These are all in the Newbies section, if you go through it.

    FWIW

    * you can consider mediation but it is unlikely the claimant will agree or that you will have sufficient information to truly reconsider your position
    * This is a small claims track case, yes.
    * I'd be guessing Birmingham County Court, then? Why - "the Defendant, a litigant in person, resides in Birmingham"
    * Who are you planning to call? Ghostbusters?
    * Yes - unsurprisingly.
    • Umkomaas
    • By Umkomaas 3rd Dec 17, 10:24 PM
    • 15,962 Posts
    • 24,774 Thanks
    Umkomaas
    Does this mean that the case has not warranted being thrown out?
    They take this to the wire, you can’t read anything - one way or the other - as to how or when it will conclude. So far, where a defendant jumps through all the hoops and meets the court imposed deadlines, CEL discontinue. But there’s bound to be one that will defy the ‘norm’, so work on the basis that this will go the whole way, then there’s no complacency setting in that may prove costly.

    The questionnaire appears to be 3 pages and attached to the letter.

    Any links to filling it in please?
    All covered in the bargepole walkthrough in the NEWBIES FAQ sticky, post #2.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • catoutthebag
    • By catoutthebag 5th Dec 17, 1:17 PM
    • 2,177 Posts
    • 478 Thanks
    catoutthebag
    Done! What's next step from CCBC?
    • KeithP
    • By KeithP 5th Dec 17, 1:22 PM
    • 4,800 Posts
    • 3,165 Thanks
    KeithP
    Done! What's next step from CCBC?
    Originally posted by catoutthebag
    The answer to that question is also in post #2 of the NEWBIES thread.

    You should be following the guidance there for all your answers.
    .
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