Moorside Legal - County Court Claim Notice and Mediation-1

Gr1pr

Supposed to arrive within 5 days, although it might be delayed at this time of year, but should definitely arrive by Xmas eve, regardless,  most likely to be by this Friday 

Fines_suck

Hi MSE,

I have my mediation call Tuesday, I am looking for advice on what to say? I have read the Newbies thread, and hoping someone who has been through this already might be able to provide some useful advice/guidance?

Thanks in advance.

Gr1pr

I have never gone through it, but its fairly straightforward, low offers or no offer

Another member here explained it all ( do not discuss the case, only money. )

https://forums.moneysavingexpert.com/discussion/6627332/smart-parking-dcbl-claim-form-insufficient-paid-time

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/81983793#Comment_81983793

The guidance is already in the Template Defence thread first 8 steps. Three links there about Mediation.

Fines_suck

Hi All, an update on the mediation call:

Had my mediation call yesterday, the mediator explained the process and how the call would go, they would act as a middle man between the two parties and try to resolve without it going to court. The mediator explained that they have spoken with the other party and understand their argument, wanted me to give my side, I provided a very brief explanation, that they had issued me with an invoice for unpaid parking and here we are.

The claim amount is £447.48, for 2 parking claims.

Moorside started with an offer of £300

I replied wit £10

Moorside came back with £200

I went back with £20

Moorside response was best and final £200

I said £30

Moorside came back with £100 per claim and that they couldn't go any lower, so the £200 remains.

The mediator stated I could pay in instalments if that works better for me, I stated I'm not willing to pay more that what's been offered.

The mediator stated it will progress to court then and explained this would be documented and issued to both parties via email and passed to the court which could take 6-9 months to close out.

I received an email within 5 minutes from SCMS (small claims mediation service) MEDIATION NOT SETTLED.

I'll wait o receive the court papers…..

Car1980

Fair enough.

Other options include "My offer is zero and I look forward to seeing them in court. Goodbye."

DodIkir

[Image removed by Forum Team]

I have just received HMCTS claim against me by Moorside Legal below. I have looked through the forum for assistance and have put this defence together.

It's my first time. I know we have eagle-eyed people here. I need some sharp eyes to look at this for me please. Correct me anywhere am wrong basically please!

Defence Draft:

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper and driver.

3. The incident according to the claimant happened nearly a year ago. Parking was free in the park and there were no ticket machines in the car park. I saw no sign because they were sparsely placed and hardly legible. I was out with my wife who has serious back problem and mobility issues. She was involved in a serious road traffic accident where she was hit from the back about 2 years ago. She attended hospital, had investigation and physiotherapy sessions. Her back problem has persisted ever since. Her GP just sent her for another X-ray about a year ago just prior to the Parking issue. I appealed with evidence of the accident, recent Xray and that my wife had a sudden pain attack or spasm in the back and needed a little more time to get to the car, I couldn’t leave her alone in pain. I appealed with evidence, asked for compassion for this mitigating factor not to add insult to our injury and even offered to pay for loss from unclear alleged lateness but they refused.

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'.

Gr1pr

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