Pre PoFA PCN : Court Case

chopperpilot

Hi All

After digesting all the info i've gleaned from your wonderful forum and Parking Pranksters site, I just wanted to confirm my understanding before going to court, as my particular case is rather historical in nature and therefore doesnt quite fit the latest advice.

My own PCN was issued in April 2012 - a full 6 months BEFORE the Protection of Freedoms Act 2012 came into force (1/10/2012).

I understand it is the driver of the car that is assumed to have agreed to the implied contract for parking rather than the registered keeper (me), but crucially in my case, since the PoFA act was not yet in force,I'm not obligated to reveal who the driver was. Is this correct?

I've been ignoring the various bully-boy letters CEL have been sending me thus far, but this week I have received a 'solicitors' letter saying court papers will be with me within 7 days and quoting the recent Beavis ruling etc.

So my queries are

- is my understanding about not being obligated to reveal the driver correct since the PoFA didnt exist at the time of the incident?

- should I respond to CEL directly now by letter, before court proceedings begin, stating this fact, or should i wait for court papers to appear and bring it up in my defense (i'm concerned about the perception of being 'unreasonable' waiting for them to file court papers when i could have told them now and save all this rigmarole)

This also assumes the fallout from the CO-OP/CEL disagreement is resolved (my PCN was from a Co-op carpark run by CPS/CEL).

They've also said they will rely on the recent Beavis case, but in my mind that only 'proves' the level of charges are ok, and not whether they are fair in the first place (this is my contention with regards my own PCN due to lack of signage).

p.s. interestingly one of the letters i received was a 'Reminder before Action' rather than a 'Letter before Action' - does this imply they know themselves that this case is un-winable?

Any advice gratefully received.

and keep up the good work. :beer:

Redx

yes its correct

read the specific CEL section advice in post #5 of the NEWBIES sticky thread

also bear in mind that the COOP have ongoing CEL/DEAL cases as well as Barry Beavis , the coop cases are soon I believe, , Barry Beavis case is in 2.5 weeks time but the decision is not expected for several months

have a read through other recent CEL/DEAL threads where people have won in court (CEL/DEAL rarely turn up so dont let them trap you into not going, always ring the court and check)

if its the LBC, stage, keep chipping away by letter and keep copies and free certificates of posting, trying to stop the court case, or to put it off as long as possible

if you do get an MCOL, check its valid

they are trying it on hoping to bully you into paying, dont fall for it , as RK you cannot be held liable and no you dont have to reveal any drivers details either as its pre POFA 2012

Marktheshark

Some people have done very well out of these CEL cases.
Have a full list of every hour spent dealing with this case and lost it at £18 per hour.
Do not spare the horses.
If they dont turn up, take the judge to task firmly and demand they allow you the expenses under the special rules designed to be used with claimants who bring cases that waste the defendants and courts time.
Contact the prankster to see if he can let you have some case examples of where they have done the same stunt to others.
This might persuade the judge to teach them a lesson.

If they send a letter saying they have stopped the action, take it to court and show the judge to prove how they behave, as other said they send letters trying to get you not to turn up.

Redx

a few threads you can read (using the forum search)

https://forums.moneysavingexpert.com/discussion/5257601

https://forums.moneysavingexpert.com/discussion/5252499

https://forums.moneysavingexpert.com/discussion/5249317

https://forums.moneysavingexpert.com/discussion/5129824

https://forums.moneysavingexpert.com/discussion/5158133

https://forums.moneysavingexpert.com/discussion/5131560

and

http://www.parkingticketsfines.com/cel-court-case-next-week.html

and

http://parking-prankster.blogspot.co.uk/2015_01_01_archive.html

and

https://www.youtube.com/watch?v=JEH8notIAqY&feature=youtu.be&a

chopperpilot

MCOL papers arrived this morning from the usual claimaint (Ashley Cohen) and I also note Mr Schwartz has finally rememebered how to spell his own name. ;-)

I'm going to Acknowledge the Service online later today, and then sort out my defense based on some of the links you pointed me at - cheers for that.

:beer:

bazster

chopperpilot wrote: »

MCOL papers arrived this morning from the usual claimaint (Ashley Cohen) and I also note Mr Schwartz has finally rememebered how to spell his own name. ;-)

I'm going to Acknowledge the Service online later today, and then sort out my defense based on some of the links you pointed me at - cheers for that.

:beer:

You sure these are real papers, from the court, and not the fake ones they are in the habit of sending out?

If you've done your homework you must be aware that far-and-away the most likely outcome is either they will drop the case just before the hearing, or they will lie to you claiming they've dropped the case, in the hope that you will not show up and will get a default judgment against you.

So you need to defend, turn up, and have your own cost schedule to hand for when they fail to show.

chopperpilot

The MCOL website recognises the claim number and password supplied so I'm fairly sure they are genuine.

Still doing my homework, but I will be ready just in case they want to be daft and go all the way.

chopperpilot

I've filed my AoS online. I'm just putting together a defence to send in. This is what I've come up with for my PrePOFA2012 case. Thoughts?

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 :
a. The Operator did not identify the driver and since the incident occurred prior to the Protection of Freedoms Act 2012 there can be no Keeper Liability
b. The Operator is not the land owner and therefore has no standing
c. The Operator had no capacity to offer a contract with the Defendant
d. The signage did not offer a contract with the Defendant
e. No consideration passed from either the Operator or the Defendant
f. The Claimant has disclosed no cause of action to give rise to any debt
g. The charge is not a genuine pre-estimate of a loss, and therefore an unenforceable penalty
h. Even if a debt had existed, it would be due to the Co-operative Society, not the Claimant

2. The Defendant neither admits nor denies that he was driver. The incident occurred before the Protection of Freedoms Act 2012 and therefore there can be no 'keeper liability'. The Operator therefore has no right to pursue the Registered Keeper for payment when it cannot identify the driver; the Defendant is also under no obligation to disclose who was the driver even if the Defendant could recollect who was driving on a particular day more than three years ago..

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. Since the Claimant is not the landowner, it has no standing to file for damages.
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 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 three years ago and doubts that the Operator is either. 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.

5. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. Notwithstanding that the Defendant does not know if he was 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.

6. 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.

7. 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 driver 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.

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

9. 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).

10. 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.

11. 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.

12. 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 :

13. 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.

14. 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.

15. The Claim is for 'contractual fees' which amount to a 'payment for service', and as such is liable to a VAT charge. There is no breakdown of VAT charges on the claim and this therefore constitutes a breach of VAT Regulations which should be prosecutable by HMRC.

16. 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.

The_Slithy_Tove

As an adjunct to point 3, the Co-op had a contract with Creative Parking, not CEL (even though they are sister companies), so CEL have no authority from the principal (Co-op). You'll need to do some searching here or Pepipoo/Legal Beagles for the details.

Also do you know if there was a Notice of Assignment from CEL to DEAL (quite common) which also scuppers their case. Again lots of examples if you search.

chopperpilot

That did occur to me as I seem to recall in the dim and distant past all the letters (including one assigning a percentage to another company as you mention) were all from CPS. However, I only glanced at them during their airborne transit to the open-topped cicular filing cabinet beneath my desk so can't check.

worth a mention though.

Thanks.

chopperpilot

MCOL defense submitted. Found a note from Gan on pepipoo about CEL/CPS. Thanks Slithy for the pointer. At least that explains why they suddenly issued court papers 3 years after the fact...

... "Civil Enforcement did not have a Co-op contract
This belonged to Creative parking Ltd, a sister company
CEL was a sub-contractor

When they lost the Coop contract a couple of years ago, CEL issued a blizzard of claims, digging up cases that were years old
Coop's stupid response was to pay claims if customers complained
CEL must have thought it was Christmas and issued thousands more. "...

full link (add www to the beginning)
.pepipoo.com/forums/lofiversion/index.php/t99127.html