CEL Court date confirmed - a little advice on defence statement please

confusedin2014

Hi all


I post a while back about a coop/cel saga when my mum got a letter saying she overstayed by 25mins in may 2012.
All letters from cel/deal ignored, filled in court forms etc and have a court date mid Jan 2015 at local county court.....
Anyway to the point I'm trying get a good defence together for my mum and I've stumbled upon this on parking prankster blog....
Sunday, 30 November 2014

Patrick Troy admits private parking charges are penalties



This article in the Sunday times discusses the appeal services offered by Parkingticketappeals.org.uk The article is also discussed on MSE.

Patrick Troy, CEO of the British Parking Association Limited, expressed his views on the situation.

“There is a danger with these websites because they make people believe that they can get them off parking tickets, but if they did park in the wrong place, then they should pay the penalty."

Under UK Law, only the Government can impose penalties, and herein lies the problem with many private parking charges. The doctrine of penalties in UK Law provides that if a contract is breached, the aggrieved party has a right to be put back in the position they would have been in had no breach occurred. Over the last few years, parking companies have revealed to POPLA and the courts that their average cost per ticket issued is around £20. They are therefore shooting themselves in the foot by charging £100. This immediately establishes the charge is a penalty and therefore makes it unenforceable in law.

This is the basis on which the ParkingTicketAppeals works. Private parking companies can therefore immediately make their charges enforceable by reducing the charges to around £20. This would cause services like ParkingTicketAppeals to go out of business.

The BPA previous required its members to comply with the usual interpretation of the law. Its code of practice stated that all charges must be a genuine pre-estimate of loss. However, most of its members flagrantly disobeyed that requirement. Large numbers of complaints were received from motorists regarding this, but not a single sanction point was issued for breaching this rule. Instead, the BPA changed the code of practice to remove the requirement. The new code requires that charges are 'commercially justified'.

The Parking industry is attempting to get the interpretation of the law changed, and there is a test case due to be held in February 2015 in the court of appeal; ParkingEye v Beavis. The Parking industry will be arguing that there will be parking chaos if the interpretation is not changed, and that although it only costs them around £20 per ticket issued, they must charge £85 to introduce a deterrent.

The Prankster would point the court of appeal to the following facts.

1. £16 appears to be a sufficient deterrent. ParkingTicketAppeals state they get very little repeat business
2. Scotland, where the law is different because only the driver is liable, does not have parking chaos
3. There was not parking chaos in England and Wales before the law changed in October 2012
4. There is not parking chaos in other countries
5. There are parking companies which charge £20 per ticket and who run a thriving business. It is therefore not necessary to charge £85 to have a viable business, and to provide sufficient deterrent to stop motorists transgressing.


Can I use any of this in her defence I need to summit 14days before the court date? Or is irrelevant to her case?


Any comments welcome, thanks again for your time

Coupon-mad

Depends what she put in her defence when she defended the court papers. Can't add completely different stuff now, just before Court. So what was her defence summary at the time?

Umkomaas

Is the court case being pursued by CEL or DEAL? If it's the latter, then Gan, over on PePiPoo, has just published a generic defence statement, which looks extremely comprehensive. Gan has lots of experience in this area.

Even if it is CEL, then there's loads of extremely useful sections in it to help you on your way.

http://forums.pepipoo.com/index.php?showtopic=95325&st=0&#entry1028011

HTH

confusedin2014

Thanks for your replies - it's CEL not DEAL although she did get the letters from Deal but only got a couple of letters from them back in October 2012 and never heard anymore from them.


I was advised my skeleton defence when I filled in the N1 forms I believe was meant to be short and to the point and that a detail defence can be submitted 14 days prior to the court case?


The defence was very short...


I would also assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. The Claimant’s notices do not create any contractual relationship between the Claimant and motorists using the car park.

2. Any consideration flows from the landowner and/or the Coop. The Claimant therefore has no standing to bring claims in their own name.

3. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of the alleged overstay, and their charge of £130 is therefore not recoverable.

4. I am the registered keeper of the car but I was not the driver.


Have I completely cocked this up for her?

Coupon-mad

Nope those headings look fine to expand on - I am relieved to see those points were made, especially no loss, and not the driver (no keeper liability pre-POFA)! So have a look here:

http://forums.moneysavingexpert.com/showpost.php?p=64350600&postcount=5

Defence wording etc., links about what to do when.

CEL almost never show up so start keeping a list of the defendant's costs, to ask the Judge for (usually up to £90 or so is claimable) - AND THE DEFENDANT MUST TURN UP EVEN IF CEL PRETEND THE HEARING IS OFF:

http://parking-prankster.blogspot.co.uk/2014/12/civil-enforcement-limited-try-again-to.html

HTH, she will win but she must attend.

confusedin2014

Wonderful, thank you so much for the advice again coupon mad!
I'm reading through Ashley Cohen's 20 point Witness statement and some of the points he makes seem a bit barmy.


On one point he states the following....


" Further concluding that the sum claimed must be a genuine pre estimation of the loss in an error. Such limitation arises only in respect of penalty clauses, not in respect of the contractually agreed consideration for performance of an obligation"


Am I missing something? Why do they believe that?


On another point the Defendant is acting unreasonably in defending this claim?


How? Should I prepare a comeback for theses statements made by Mr Cohen?


I know deep down CEL won't turn up I just like to be prepared and well equipped just in case they do!


Thanks again

confusedin2014

Thanks for the link, I've read it so will make sure my mum doesn't speak with them on the phone.


If I phoned the court a few days before and they say the case has been dropped then we don't turn up that's ok isn't it?


I read a few posts where Cel don't pay the court fee but don't tell the defendant and basically wastes everyone's time but ultimately the case is dropped due to non payment.


I would have to drag my mum into court lol but as long as I can speak for her she said it will be ok.
Is there anything she would need to do other than be present?

Coupon-mad

No it's all rubbish, has been covered on lots of forum threads such as here on pepipoo where he got the same drivel and now CEL have failed to pay the hearing fee!

http://forums.pepipoo.com/index.php?showtopic=92737&st=0

You can speak for her as her 'lay rep' as long as she's there too and the Judge agrees. To make sure - in case CEL actually turn up and argue the toss - you may have to take along a copy of the Lay Representatives Act 1999, like the Parking Prankster mentions here:

http://parking-prankster.blogspot.co.uk/2014/10/excel-parking-pay-for-failing-to-inform.html

Make sure you also have in the evidence, a copy of CEL v McCafferty from Spring 2014 which is also available in the evidence & exhibits links in the Prankster's blog. Or you can find it - an Appeal case = binding on the lower court - in the link I first gave you in the reply above, in the 'cases won by defendants' link.

confusedin2014

Wow just read the link from pepipoo by hunter28 and the letter is identical so I feel better already.


So my next steps to be clear are to expand on the basic defence I sent a few months ago.


Write up a witness statement.


And gather evidence from the link supplied.

jojo01

confusedin2014 wrote: »

Wow just read the link from pepipoo by hunter28 and the letter is identical so I feel better already.


So my next steps to be clear are to expand on the basic defence I sent a few months ago.


Write up a witness statement.


And gather evidence from the link supplied.

Yes, that's right. And make sure you send a copy to CEL and the Court before the deadline (usually 14 days before the hearing).

I defended a case against CEL last month and, if it helps, I can send you a copy of the witness statement, skeleton defence and evidence bundle index (minus my personal details!) - I also disputed many of CEL's points in their witness statement which was also identical to hunter's, even down to the typos! You could base your documents on these templates, being sure to amend/add/delete where necessary and being sure not to add any additional defence points to your initial defence. If you'd like these, please PM me your email address.

Marktheshark

Who has signed the Court papers, look where it says solicitor and see who's name they have put.