District Enforement Limited vs Defendant (Staffordshire University)

DH90

Hi,

I would greatly appreciate any help or advice anyone can offer with this.

Back in October last year my partner was issued with a ticket for not parking wholly within a marked bay. We appealed it and DE responded asking for the address of the Defendant, which we replied to. We then had no further communication with DE until we received a letter from the court (Money Claim) on the 21st May for £200. I have written a defense and submitted it basically stating that we received no further communication from DE.

They have then written a reply to the defense stating that they did reply to the email declining the appeal and after they received no further communication from the defendant they sent a letter before action and to no surprise this was also not received. (I would like to state that there is no evidence or date on the reply to the defense regarding the letter they apparently sent)

I can prepare and upload a redacted version of the "Reply to Defense" if that will help?

Thanks

HO87

Where are you in the process at the moment?

Presumably you have passed the allocations/directions questionnaire?

DH90

Hi HO87,

Thanks for posting, we have recivced a copy of the "Reply to Defense" from Gladstones Solicitors (DE Solicitors) and are awaiting to hear from Money Claim regarding their Defense.

I'm unsure what you mean by "Presumably you have passed the allocations/directions questionnaire?"

Thanks

HO87

Having submitted your own defence the usual process is for Northampton to send you a questionnaire asking, amongst other things, whether you would be prepared to take part in mediation. Have you had that questionnaire yet?

DH90

Hi HO87,

We have not received any questionnaire yet, its not showing that they have submitted their "Reply to Defense" on the Money Claim site yet.

Thanks

HO87

You have a PM

Coupon-mad

Stay in touch with HO87 because this wasn't one to write the defence for yourself and he needs to unpick this a bit for you now.

You can't say in defence that it wasn't a genuine pre-estimate of loss, for example, as that's not how they 'work' at that notorious car park. Hope the keeper appealed, never the driver, because they do not use compliant wording on their Notice to Keeper letters. But it sounds as though you rushed to appeal too soon to get that NTK letter, which is a shame.

Staffs Uni should be ashamed.

I am sure HO87 will help you now but for others finding this thread, these are the sort of things to include in a District Enforcement defence. This below is one I wrote for someone earlier who will get a hearing date sooner than you will. Does depend on which campus car park it was though:

Defence Argument

I am [NAME] of [ADDRESS], [POSTCODE], defendant in this matter and this is my defence which relies mainly on the following points:

(1) - Lack of Standing by Claimant: The Claimant is not the landowner and has no proprietary interest in this site. District Enforcement operate under a bare licence as a contractor for the University. This is the wrong Claimant.

(2) - There was no contract formed to pay any charge for parking in a completely unmarked area of the site and neither was the car park obstructively.

(3) - There is no transparent 'tariff', no sum payable in the nature of a parking fee and no payment mechanism or pay and display machine to cause any consideration to flow from a driver at the point of parking.

(4) - According to the pictograms and wording on the sign, there is no sum or charge that arises for parking in a place where there are no yellow markings or bay lines. If the Claimant chooses not to mark areas of the site then they cannot rely upon this particular signage wording to form a contract in unmarked areas.

(5) - Notification of parking conditions was not given to students/staff until an email dated 11th October 2013 'Car parking on the Stoke Campus' with a clear general heading 'Enforcement of Parking Conditions' which states 'If anyone does not receive their permit before the end of the month then as long as their application is in progress, they will not receive a parking charge notice.' I could not have been expected to guess that some PCNs would be issued straight away, but others not, when the University (the principal) stated without caveat that people 'would not get a PCN'.

(6) - I will show that Staffordshire University intended their parking scheme to deter certain parking events. This Claimant states that the charges are 'contractual fees' to park but a driver cannot enter into a contract to pay to be allowed to do something which is expressly disallowed by the University acting upon instruction from the Fire Service. The real predominant purpose is to deter, so these charges are disguised penalties.

(7) - The amount of the invoice was £70 and the Claimant has not demonstrated incurring an extra £50 costs per invoice and used no debt collection service. because we appealed, then we heard no more until court papers arrived. They have also added £50 Solicitors costs to the overall claim and yet their legal work is in-house and no Letter before Claim was ever served.

(8) - Charges for unauthorised parking are not 'core terms' and must relate to a genuine pre-estimate of loss, as directed by the Office of Fair Trading and the BPA Code of Practice. These charges do not relate to any initial loss and there is no consequential loss, and any loss is not District Enforcement's in any case.

(9) - Terms that are found unfair under the European Directive 93/13/EEC European Unfair Contract Terms are not binding for consumers. The charges are not core terms, they are punitive in nature since the predominant aim of the University is to deter. Where an ostensible 'price term' has a punitive effect, the principle of fairness still applies under the EC Directive and the UTCCRs: 19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

(10) - Terms that are found not to be transparent under the European Directive 93/13/EEC European Unfair Contract Terms are not binding for consumers. The terms of the commencement date of parking enforcement, the lines and signage wording were not transparent so were incapable of forming a contract.

(11) - It is trite law that penalties are not recoverable in civil claims, see Dunlop Tyre v New Garage and Motor Co. (1915) AC79 and the UTCCRs Group 18(a):
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”

(12) - There was no trespass so Vine v Waltham Forest and Arthur v Anker are irrelevant, as is University of Edinburgh v Onifade. In this regard, as binding Appeal court decisions, I rely upon OBServices v Thurlow (Worcester County Court, 2011) (Appeal) 0QT34807 and Civil Enforcement v McCafferty (appeal) 3YK50188 (AP476) 21/02/14. Transcripts will be provided.

(13) - If this Claimant refers to the recent Judgment handed down by HHJ Moloney QC, in the recent small claim case at Cambridge County Court of ParkingEye Ltd v Beavis and Wardley, this cannot be relied upon. Leave for the Court of Appeal was granted, Mr Beavis filed an appellant’s notice on 9th June 2014, and a date for the appeal hearing is awaited so it is an unresolved matter. In Beavis the parking charges were ruled to be penalties, but the Judge found there was commercial justification with the caveat that there were no higher court authorities to support this decision. Examples of such cases only exist in disputes between parties of equal standing. Where one of the parties is a private consumer, the law is moving in the opposite direction, with greater protection afforded to consumers. The Court’s attention is directed to Brookfield Aviation International Limited v Van Boekel (26 July 2013, Unreported) Mayor’s and City of London County Court, His Honour Judge Hand QC, and to CMC Group plc & others v Zhang [2006] EWCA Civ 408, as examples of unenforceable penalty clauses.

(14) At no point did I receive a reply from this Claimant to the initial appeal and nor was a POPLA code provided. At no point did I receive a formal Letter Before County Court Claim, as is required by the Civil Procedure Rules. The first notification that they were taking court action, was the receipt of the MCOL form from the Northampton bulk centre.

(15) - Parking charges of any amount (above or below the BPA guidelines) are neither agreed nor accepted by the Office of Fair Trading, who stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge.'

(16) - I deny that I am liable for the sums claimed, or any amount at all. I invite the court to strike the claim out or stay the claim for both parties to undertake the bespoke ADR of POPLA (Parking on Private Land Appeals) which has 100% prospects of success.

This would follow the successful direction of other small claim courts recently, e.g. in the order made by District Judge Mayor, Croydon Court, 13/09/13 (Case no. 3JD00719, ParkingEye v Mr O), and by Deputy District Judge Bridger, Southampton Court, 21/01/2014 (Case no. 3JD05448, ParkingEye v Gilmartin) and by Deputy District Judge Buckley, Blackburn County Court, 11/02/2014 (Case number 3JD10502, ParkingEye v Mrs P) and by Deputy District Judge Baddeley, Sheffield County Court, June 2014 (Case number A0JD4266, ParkingEye v Mr X) where the Judge in fact ordered a stay for POPLA and, failing resolution, a further stay for the outcome of the ParkingEye v Beavis Court of Appeal case which is currently pending. In every case except the last one which is in progress at POPLA, the matter has been resolved without a hearing. Although this Claimant has since left the BPA, that body has encouraged POPLA to be used in every case and has recently confirmed that it is available even now, for PCNs issued when an Operator was a BPA AOS member.

4consumerrights

Just for information Steve Clark confirmed that POPLA will be offered for parking charges incurred whilst the PPC is with the BPA - where the PPC then jumps ship to the IPC.

- this was conveyed in person to me by Steve at Parkex

HO87

4consumerrights wrote: »

Just for information Steve Clark confirmed that POPLA will be offered for parking charges incurred whilst the PPC is with the BPA - where the PPC then jumps ship to the IPC.

- this was conveyed in person to me by Steve at Parkex

Would this also apply to court ordered ADR?

DH90

Hi Coupon-mad and 4consumerrights,

Thank you for your replies, I would agree with Coupon-mad that we may have rushed the appeal and probably should have taken more time and turned to MSE first.

I'm hoping that with HO87's help we can still sort something ou

bod1467

HO87 wrote: »

Would this also apply to court ordered ADR?

I don't see why not ... everything ties back to the date of the original "event".