Civil enforcement parking fine: Court papers received

eddy1

Because they do not deal with people, they think they deal with victims who will just pay up when receiving official looking documents

No need for argument for ignoring, although if asked you could say that you believe illegal pcn,s have no legal clout therefore ignored.

Take previous advice search for other schwarts threads and your confidence will increase

Good luck

Eddy

Umkomaas

Redx wrote: »

and its pre-pofa 2012 too , so plenty of good arguments and rebuttals to put forward, even if they turned up in court

Hello Redx - nice that you're inputting again. The fight against PPC-world goes on, and your future input will help hugely in that task.

Good to see you back buddy.

Coupon-mad

woolymamoth wrote: »

I need to read more of the newbie sticky stuff as I'm not sure what my argument is for ignoring it all in the first place!?

Also if I lose will I need to pay court costs? Il phone Northampton court again tomorrow

Why can they do this to people!?

You don't have to explain why you ignored a scam that had been outed on Watchdog, and as keeper you were not liable anyway in early 2012! You don't need excuses.

YOU WILL NOT LOSE - IN FACT YOU SHOULD START A NOTEBOOK OF RECEIPTS AND SUMS ABOUT YOUR COSTS TO RECLAIM. NO-ONE HERE HAS LOST V CEL.

READ OTHER THREADS LIKE YOURS!!

Someone has just posted a defence yesterday (NO I will not link the thread, it's for you to practise using the forum to research this, it will help you!).

Coupon-mad

Where is your defence, have you submitted it (could have copied from another CEL thread after all)?

woolymamoth

Hi Coupon-mad thanks for your advice, I have read many of the threads as you suggested and found this on pepipoo by Gan I have only changed points 5/9 and 20

I am nearing my deadline so i am hoping to get this submitted this weekend so any further advice hints or tips would be great.


cheers



defence:

Claim Number : *******
Debt Enforcement & Action Limited v ******
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 not acquired the alleged debt as a valid Legal Assignment from the Operator and has no legal capacity to bring the claim
II. The Defendant has never owed any debt to the Operator to be assigned
III. The Operator had no capacity to offer a contract with the motorist
IV. The signage did not offer a contract with the motorist
V. No consideration passed from either the Operator or the motorist
VI. The Operator did not identify the driver
VII. The Claimant has disclosed no cause of action to give rise to any debt
VIII. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
IX. Even if a debt had existed, it would be due to the Co-operative Society, not the Claimant

2. The Operator informed the Defendant in January 2014 that it had assigned 87.5% of the alleged debt to the Claimant. The Operator did not therefore assign THE debt to the Claimant as stated in the Particulars of Claim. Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.

3. The Particulars of Claim state that the Operator managed the car park on behalf of the Co-operative Society. The Operator was not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it was merely a contractor. The Claimant has not explained what authority the Operator had to acquire a chose in action to assign to the Claimant.
ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the Co-operative Society, not the Claimant and/or Operator. The Operator could not therefore acquire any chose in action to assign to the Claimant

4. The Particulars of Claim state that the alleged debt was assigned to the Claimant with the knowledge of the Co-operative. The Claimant is put to proof that the Operator’s contract provided for parking charges to be so assigned, that the Co-operative was so informed and that it accepted the assignment.

5. The Defendant denies that he was the driver. It is impossible for the Defendant to remember who was driving more than two years ago. The incident occurred before the introduction of the Protection of Freedoms Act and the Operator had no right to pursue the registered keeper for payment if it cannot identify the driver.

6. 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 content of any signs until alerted to it by the Operator’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. 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.

7. The Claimant states that the Operator was contracted to manage the car park. As a mere contractor, the Operator could not possibly be entitled to damages for trespass as claimed in one of the possible grounds for action. The Claimant is also put to proof that the Operator had 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.

8. The Defendant is in no position to confirm or deny the Operator’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.

9. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. Notwithstanding that the Defendant was not the driver; 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.

10. 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 of £90 to perform the alleged but undisclosed conduct in a free car park and submits that no motorist would agree to such a contract

11. There was no consideration from the Operator to the Defendant. The Operator was not a tenant of the Co-operative Society and the provision of any parking is by the land-owner. It is therefore nonsense that the Operator provided consideration by allowing the Defendant’s vehicle to remain.

12. There is no consideration from the Defendant to the Operator in a free car park. Even if it were not free, any consideration would be due to the land-owner with whom the motorist would have intended to deal.

13. The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges, a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

14. Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

15. 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 Operator’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).

16. 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 £90 to £130.

17. The Defendant disputes that the Operator incurred £40 costs writing letters. The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely over-stayed in its car park. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments
The Operator’s business model in a free car park relies entirely on the income from alleged breaches of terms and conditions, not from customers that adhere to them. The cost of administration staff involved with the processing of parking notices cannot be presented as a loss because their employment is essential to the Claimant’s revenue.
If the Operator suggests that these costs are in fact the charges of an external Debt Collection Agent, the Defendant submits that such a contract would be most unusual and understands that such companies are normally paid only if successful.

18. The Defendant disputes that the Claimant has incurred £50 solicitor cost to prepare the claim. Apart from the incompetent Particulars of Claim that fail to disclose a cause of action, the solicitor named as the signatory cannot be found on the registries of either the law Society or the Solicitors Regulatory Authority. The Statement of Truth has not therefore been verified and the Claimant cannot rely on it as evidence of any of the matters set out in it (CPR Practice Direction 22)

19. The Defendant fails to understand why the Claimant, a London-based Debt Collection Agent has provided the Operator’s address and telephone number as its contact details on Page 1 of the Claim. The Defendant has the reasonable belief that the Operator and Claimant are not independent and there has not been a genuine assignment of the disputed debt.

20. The Claimant has no legal capacity to bring a claim; the Operator that it states to be the assignor of the debt has never had any legal capacity to offer a contract to the motorist. Even if a debt had ever existed, it would be due to the land-owner, not the Claimant. The Claimant has also failed to disclose the conduct that is complained of and has therefore brought a claim that discloses no cause of action. The incident occurred before the introduction of the Protection of Freedoms Act and the Operator had no right to pursue the registered keeper for payment if it cannot identify the driver. The Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.
If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

Marktheshark

woolymamoth wrote: »

20. The Solicitor that allegedly signed the Particulars of Claim does not exist; the Statement of Truth has not been verified and cannot be relied upon. The court is invited to strike out the claim as having no prospect of success.
If the court chooses not to strike out the claim, the Defendant invites the court to order the Operator to be added as a party to the claim

I believe the facts stated in this defence are true

(Name) (Signature) (Date)

This statement about the fictitious solicitor needs to be number 1 point A
It has the potential to pull the case down on its foundations in the first ten seconds of the judge reading it.
Do not tuck it away, go in with that as the battle flag.
I would state:
Section 1 point A :
The defendant request the judge rules upon the right to audience and locus standi of the filed claim.
The Claim papers are signed by XXXXXXX who has placed signatory as a solicitor making the claim on behalf of the agent.
Mr XXXXXX is in fact not a solicitor as evidence obtained from the SRA attached will show, the SRA are investigating this person acting illegally under the legal services act as unlawfully claiming to be a solicitor.

The defendant puts forward the legal argument that if Mr SXXXXs is not a solicitor as claimed he has no right of audience to act on litigation on behalf of the agents or principles in the case and therefore any representatives acting on behalf of mr XXXXXX also have no assigned right to audience or locus standi to bring a legal case with the court as the claim is based upon a false declaration upon the claim form itself.
Mr ScXXXX is a indeed a fiction, he does not exists as a person and is certainly not a solicitor as claimed, a claim can only be brought by an actual person acting on behalf of an entity or company, as far as i am aware the legal services act states only a actual solicitor may act on behalf of a company in litigation .

I request the judge rules upon this legal question before we move on to discuss the case.
If doubt is to exists or be introduced to the court then as defendant I request that this Solicitor who has signed the declaration in bringing this case makes himself known to the court.

Therefore I request the case be struck out upon the principle that the claimants have come to court with unclean hands having made fraudulent declarations to this court and that in doing so the claimant has no right of audience as the solicitor making this claim your Honour does not even exist .

The_Deep

A TV company is seeking to do an expose on CEL, read the comment

http://parking-prankster.blogspot.co.uk/search?updated-min=2014-01-01T00:00:00-08:00&updated-max=2015-01-01T00:00:00-08:00&max-results=50o

woolymamoth

maybe this one is better? Again I would Change and put the solicitor bit first as suggested. Any thoughts?


DEFENCE STATEMENT





Initial Defence to Particulars of Claim



1. Itis denied that the Claimant entered into a contract with the Defendant. Undercivil law, any contract must be formed by offer, consideration both ways andacceptance. The Claimant is a third party agent of a private parking company(Civil Enforcement Ltd) who was simply contracted by the landowner to providecar-park management services. The claimant therefore is not capable of enteringinto a contract with the Defendant on its own account. Accordingly, it is deniedthat the Claimant has any standing to bring this claim in their own name.



2. Thedefendant did not receive a letter before claim which does not comply withpractice directions.



3. Partof the alleged debt (87.5%) was apparently assigned to Debt Enforcement &Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim forthe whole alleged amount, or any sum at all since all parties to the allegeddebt must be listed as claimants. Further,this is not a 'debt' at all. There wasno credit agreement so the defendant has never consented to the possibility of'assignment' which has taken place unilaterally and is unenforceable.



4. TheN1 claim form has been signed off by a Mr. M.Schwarts (Solicitor); the SRA haveconfirmed that this person does not appear to be listed as a solicitor on theSRA roll. It is a criminal offence for somebody to call themselves a solicitoror act as a solicitor if they are not on the roll of solicitors. It istherefore denied that the £50 solicitor’s fee can be claimed. Also the fullclaim is denied as the claim has not been signed by either the landowner or thelandowner’s solicitor. The claimant has sent a copy of the claim forms to theSRA who have replied via email that said forms have been forwarded to theirFraud Intelligence Unit for Investigation.





5. The Defendant denies the accuracy of such ANPR equipment in that the‘time stamping’ of such equipment is controlled via the internet to remoteservers where a delay would exist.



6. The claim does not differentiate between a breach, trespass or acontractual charge so therefore does not disclose what conduct is complainedabout, therefore discloses no cause of action. If the claim is for a breach ofcontract or trespass then the claimant may only claim for their losses due tosaid breach. If the claim is for a contractual charge then the defendant submitsthat it is a contractual charge disguised as a penalty.





7. The claimant’s notices do not create any contractual relationshipbetween the claimant and motorists using the car park.



8. The car park is a free car park and as such there can be no losssuffered by either the claimant or the landowner as a result of any allegedoverstay. The charge of £260 (plus other fees) is therefore not a genuine preestimate of loss.



9. The claimant has not provided enough information to enable the defendantto fight this claim. The claimant requires to see what alleged contract wasbroken (i.e. the signage), also the Notice to Keeper sent as it is theclaimant’s submission that any contract was unfair and unsupported by consumerlaw.



10. There can be no keeper liability because thisClaimant has never issued Notice to Keeper letters which are compliant withparagraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition'for keeper liability has not been met. It is far too long ago for the keeper tohave any knowledge of who was driving the vehicle to do the weekly shop thatday, and it was the will of Parliament when the Impact Assessment of the POFA2012 was discussed in 2011, that keepers are not legally obliged to name a driver- even if known. So the defendant cannot be held liable in law.



11. Thedefendant requests that the claim be stayed until the claimant provided the followinginformation, which should have been part of the initial particulars of claimand would have been requested had the claimant obeyed practice directions andsent a letter before claim
a) A copy of the alleged contract (signage) at the time of the parking event
b) A copy of the notice to keeper
Without these, the defendant cannot fully defend the claim.



12. The Defendant relies on the ruling of Mr Recorder Gibson QC in the caseof Civil Enforcement v McCafferty (3YK50188, Luton County Court on Appeal fromWatford County Court, 21/02/2014) in which it was held that the primary purposeof CEL’s ‘parking charge’ was to deter, and that it is therefore a penalty in terrorem which is irrecoverablethrough civil action.



The above points will be explained fully in theWitness Statement which will be served not later than 14 days before the dateof any hearing.



I believe that the facts contained in this DefenceStatement are true.





……………………………………….. Date

(Defendant)

bluetoffee1878

If as I suspect on the particulars of claim it states that the debt assignment was with the knowledge or consent of the co-op, then I would put something in that point that this is untrue and has been confirmed as untrue by the co-op customer careline.
You could email Deborah Misell-Williams at customer.careline@co-op.coop asking her to confirm in case that it is also true.

The_Deep

They have chickened again

http://forums.pepipoo.com/index.php?showtopic=92019