DEAL have got so many cases being heard in Birmingham tomorrow, the court have had to allocate two rooms.
The cases are all being heard at 2pm. DEAL have not been known to turn up to these hearings, but may make an exception for 11 cases in one day.
The Prankster hopes the defendants have done their research and their defence follows the lines of that set out by Gan on pepipoo:
III : Remove if CEL has not assigned debt to DEAL
Para 2 : If you know you definitely weren't the driver, state it
Para 4 : Omit if CEL has not assigned the debt to DEAL
Para 9 : Check the actual title of the original Parking Notice
Para 11 : Remove sentence "The defendant has previously..." if a draft claim was not received from DEAL
Para 12 : Remove "that is no longer a party to the matter" and "The Defendant also refers the court to the Claimant’s bad faith by stating that it was no longer involved with the alleged debt before launching legal proceedings without warning." if debt was not assigned to DEAL
Claim Number : *******
Civil Enforcement Limited v ******
Statement of Defence
1. The Defendant denies any liability 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 identified the driver
II. The Claimant had no capacity to form a contract with the motorist
III. Even if a debt had ever been owed to the Claimant, it was assigned to a Third Party and the Claimant is now a stranger to the matter
IV. The Claimant did not offer a genuine contract and the amount claimed was intended as a penalty.
V. Even if the Claimant did have the capacity to form a contract, it would be void under the Unfair Terms in Consumer Contracts Regulations
VI. Even if a debt had existed, it would be due to the Co-operative Society, not the Claimant
VII. The Claimant has disclosed no cause of action
2. The Defendant neither admits nor denies that he was driver. The Defendant is in no position to identify who visited a supermarket three years ago. The parking event took place before the introduction of the Protection of Freedoms Act and the Claimant cannot use it to hold the registered keeper liable if it cannot identify the driver.
3. The Claimant states that the company managed the car park. The Claimant has confirmed to the Defendant that the car park was actually managed by one of two other named companies although the Claimant was authorised to issue Parking Notices.
As a mere sub-contractor, the Claimant cannot possibly be entitled to damages for trespass as claimed in Alternative #3. The Claimant is also put to proof that it has 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. As a third party agent, the Claimant may not pursue any charge.
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.
The Defendant notes that the letter that the Claimant presents as its authority to operate was written by the Co-operative Society solicitor in response to questions about the Claimant’s legal capacity. The Defendant submits that, if the Claimant had such capacity, the letter would have stated the fact and the omission is deliberate.
4. The Claimant sent a Notice of Assignment Letter to the Defendant in January 2014 stating that it had assigned 87.5% of the disputed debt to a third party, Debt Enforcement & Action Ltd. The letter stated that the remaining 12.5% might be due to the Co-operative Society and not the Claimant. The Claimant therefore no longer has any privity in the matter and may not bring a claim. The Claimant launched the claim without warning or any other indication that Debt Enforcement & Action Ltd had returned the assignment.
5. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant denies that signs were clear and visible. The Defendant was unaware of any signs until alerted to them by the Claimant’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. This was absent. 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.
6. The Defendant is in no position to confirm or deny the Claimant’s timings. Neither can the Defendant understand why they are relevant. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage.
7. The Particulars of Claim state that is a claim for “contractual fees due alternatively as damages for breach of contract arising from the non-payment of the fees, or as damages for trespass”. The Claimant therefore appears not to know on what basis the claim is brought. The Defendant is unable to defend the claim properly without knowing which of the three possible heads for action actually applies.
The Claimant has only stated that, as a result of the Defendant’s conduct, a charge was incurred. The Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no definite cause of action.
8. 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.
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 Claimant’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).
9. The court is invited to consider whether a document titled Parking Enforcement Notice would ever be sent between the parties to a genuine contract. The Claimant’s alternative 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.
The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. The Defendant is aware that this case is currently under consideration by the Supreme Court. The Defendant is also aware that the facts in the present case including the Claimant’s interest in the land differ significantly from Beavis in a number of important details.
10. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa  3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance
arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.
11. The Defendant disputes that the Claimant has incurred £50 solicitor cost to prepare the claim. The Defendant has previously received a draft Particulars of Claim from the third party to which the alleged debt was assigned and that included the same solicitor’s name, missing only his signature.
The Defendant refers the court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.
The Defendant has the reasonable belief that the named solicitor did not prepare the claim and did not therefore charge the stated amount.
12. The Claimant that is no longer a party to the matter has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed.
The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing. The Defendant is also aware that Trading Standards are currently pursuing a criminal prosecution against the Claimant in Aberdeen (Civil Enforcement Ltd SCS/2015-025464 AB14012607) for counts of operating a fraudulent scheme and a number of counts under the Consumer Contract Regulations.
The court is invited to strike out the claim as having no prospect of success. The Defendant also refers the court to the Claimant’s bad faith by stating that it was no longer involved with the alleged debt before launching legal proceedings without warning.
I believe the facts stated in this defence are true
(Name) (Signature) (Date)