Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #1
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    Default Received a Court Claim From A Private parking Speculative invoice?? - How To Deal With It HERE***Updated Aug 2016***

    You have received a claim form for Private Land Parking Enforcement.

    Firstly - read all of this post...then copy this first msg to your thread - and put your answer after each question

    one important point:
    YOU MUST NOT MISS FILING YOUR DEFENCE BY DAY 33 From the date top right of the claimform. [that date being ONE in the count]

    In order for us to help you we require the following information:-

    Name of the Claimant ?
    claimants Solicitors:

    Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to.

    Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total) -

    ^^^^^ NOTE : WHEN CALCULATING THE TIMELINE - PLEASE REMEMBER THAT THE DATE ON THE CLAIMFORM IS ONE IN THE COUNT [example: Issue date 01.03.2014 + 19 days (5 days for service + 14 days to acknowledge) = 19.03.2014 + 14 days to submit defence = 02.04.2014] = 33 days in total

    What is the claim for – the reason they have issued the claim? Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.
    (Particulars of Claim are in the box to left of the N1 page 1)


    **IMPORTANT** WE NEED TO SEE THE FULL POCicon MINUS YOUR PERS DETAILS>> NOT AN ABRIDGED VERSION**THIS MUST INCLUDE THE LOCATION

    What is the value of the claim?

    Has the claim been issued by the Private parking Company or was the PCN assigned and it is the Debt purchaser who has issued the claim ?

    Were you aware the account had been assigned – did you receive a Notice of Assignment?

    -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    What you need to do now.

    Answer the questions above

    Acknowledge service of the claim..this can be done on line by registering to use the MCOL service..your password is already providing on the claim form.
    You have 19 days to do this from the date on the claim form (that being day 1) and state your intended plea.

    If you are not planning on defending for one reason or another – then you will need to complete an Income and Expenditure form and contact the Solicitor with your proposal. The N9a is already enclosed in the claim pack for Admittance which should be sent to the solicitor named on the claim form

    If you are considering making a partial admittance N9b must be completed and returned to the court.
    Please note in most cases a partial admittance will result in an automatic CCJ for the amount admitted.

    Further information on how to defend a claim

    Given the number of claims issued by Private Parking Companies (PPC), we thought it would be useful to add practical information on how you actually go about defending and provide a template Defence.

    Q1) Are these claims valid?

    Most of these claims are very similar. They allege that a parking chargeicon is due under a contract between the driver and a Private Parking Company (PPC), and then seek to use the Protections of Freedom Act 2012 to pursue the registered keeper of the vehicle. Below I set out a short explanation of the main legal grounds for defending these claims.

    - Penalty clauses – Under English law, penalty clauses designed to disproportionately punish a breach of contract are not enforceable. However it is now much more difficult to use this argument after the Supreme Court found that a charge of 85 for overstaying in a supermarket car park was justified. You can still try to claim a charge is a penalty in other environments though, as these have not been fully tested by the courts (for example if you are charged for parking in a residential road).

    - Lack of contract – A recent tax case suggested that a parking company was not capable of entering into a contract with motorists because it did not have authority from the landlord to give the motorists the right to park. The company had authority to manage the car-park generally but this was not enough. Accordingly the Private Parking Company (PPC) should be put to proof that the landowner has given them proper authority to enter into a contract with the motorist.

    - parking chargeicon not incorporated into the contract - This will be applicable where the signage was not clear or was not visible to the motorist until after he parked his car. This argument is based on the case Thornton v Shoe Lane Parking, where it was held that a carpark could not enforce a disclaimer on the back of a parking ticket, since a contract had already been formed before the ticket was provided.

    - Unfair Contract Terms in Consumer Contracts Regulations – This provides that "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" … and if it meets that test it is not enforceable.

    - Failure to comply with POFA - Private Parking Companies (PPC's) typically rely on the Protection of Freedoms Act 2012, which basically allows them to pursue the registered owner of the vehicle for parking charges. Previously they could only chase the person who was driving at the time. The Act sets out a number of requirements before the registered owner may be pursued, contained in paragraphs 4, 5, 6, 11 and 12 of this link:

    http://www.legislation.gov.uk/ukpga/2012/9/schedule/4d.

    - Proof of facts – If a Private Parking Company (PPC) allege that you entered and exited a given carpark at given times, it is their responsibility to prove this. In most cases a PPC tend to provide time stamped photographs, which makes this line of defence redundant.

    Q2) How should I defend?

    Here is a template for a decent Defence. You need to fill in the square-brackets and make any amendments needed to suit your particular case. Please make sure you check the deadlines for filing this, which are explained on the claim form.

    " 1. It is admitted that Defendant is the recorded keeper of [motor vehicle].

    2. It is denied that the Defendant parked in [carpark] at the times mentioned in the Particulars OR the Defendant is unable to admit or deny the precise times he was parked in [carpark] as he has no recollection of this. The Claimant is put to strict proof of the same.

    3. It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012 [set out the specific ways in which the requirements of the paragraphs mentioned above have not been met].

    Only include the above paragraph if you have checked the POFA and can refer to the specific paragraphs which have not been complied with. Otherwise delete it. Do not forget to renumber the remaining paragraphs.

    4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

    5. If there was a contract, it is denied that the parking chargeicon is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant term must be made known before a contract was formed. Here, the charge was not incorporated into the contract because [explain].

    Only include the above paragraph if you have a good reason for saying that the signage was unclear, or that the signage could only be viewed after parking your car. If the signage was clear then delete it. Do not forget to renumber the remaining paragraphs.

    6. The Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all."



    Q3) Will I have to go to court?

    After you have filed a Defence the Private Parking Company (PPC) will need to file a Directions Questionnaire and pay a hearing fee to the court. In several cases the PPC have failed to pay the hearing fee resulting in the claim being struck out before it gets anywhere near a court room.

    If a PPC decide to proceed with the case and pay the hearing fee, then the case will proceed to a hearing in the small claimsicon track. This should be held in your local county courticon. small claimsicon is designed to be used by people who do not have legal training so you should not feel scared or intimidated.

    Q4) If it goes to court will I win?

    The parking company will sometimes win if it is able to prove clear signage and when you entered/left the car park. However these companies often cannot provide proper evidence, they should be challenged if they can't or won't provide it. Many of these companies hope that most people do not know what to do or get scared, and will pay-up without a court claim ever being issued, even if they do not have proper evidence. As with all litigation there are no guarantees because it ultimately comes down to the decision of the judge on the day.

    Q5) What is the risk if I lose?

    If you lose, you will be liable for the parking charge plus 50 fixed costs, plus the 25 issue fee plus the hearing fee, in accordance with Parts 27 and 45 of the Civil Procedureicon Rules. Further legal costs are only awarded for small claimsicon in exceptional circumstances. Once a claim has been issued they will be trying to claim the fixed cost and the issue fee back from you anyway, so I would always advise defending these claims.

    Q6) What else can I do?

    Complain to the landowner. Let them know the damage a Private Parking Companies (PPC's) tactics are causing to their business.

    We could do with some help from you

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    Default Re: Private Parking Court Claims Helpsheet

    Before Printing the PDFicon TIP

    If you DO NOT wish to print Page 1 (Cover Page) of the PDFicon, please ensure to do the following:

    Ensure you go to your Printer Settings and set it to 'Print from Page 2' (this way Page 1 (Cover Page) should not print out).

    Note: This will save you Ink & Paper

    Received a Court Claim From A Private parking Speculative invoice.pdf

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  3. #3
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    Default Re: Private Parking Court Claims Helpsheet

    I've just been reading through this sticky, and have also read the Supreme Court's judgement on ParkingEye v Beavis.

    I'm not a legal professional (as you'd be able to see if you read some of my sometimes nave postings!),
    but I'm concerned that some of the content that you advise people to put in a letter of defence is no longer appropriate,
    particularly in relation to statements about the parking chargeicon being a penalty.

    The SC judgement clearly finds that while it is a deterrent to overstaying, a sum of 85 is in line with protecting the Parking Companies' interests, and is not a penalty.

    I would assume that a District Judge would throw out that ground for defence, and may cause them to think that the Defendant didn't know what they were talking about in other areas too.

    Having said that, the ParkingEye judgement did say that it was for an individual court to determine if another parking chargeicon might be unconscionable, so that may be what you were getting at.

    It's interesting to see that Citizens Advice are still advising people to ignoreicon everything short of actual court action.

    Was the point at which that changed when clever legal people realized that there were frequent non-adherences to POFA2012, I wonder?

    Would you consider CA's advice wrong?
    know someone in the organization who might be able to correct it!

    Cheers


  4. #4
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    Default Re: Received a Court Claim From A Private parking Speculative invoice?? - How To Deal With It HERE***

    Hi and thank you for your interesting post.

    I (and others) will argue otherwise.

    The Beavis case was about one particular car park where parking eyeicon paid the landowner to manage a free car park. In this case it was in PE's interest to be able to charge the 85 quoted.

    It is my understanding that the judges stressed that the judgement was for the one car park and would not necessarily negate other claims. For instance, where a company manages a car park and pays no fee to the landowner, this would be different to the Beavis case. Also, pay and display would not count as a fee would have been paid to park. There are many variables to accurately give the same advice in every case.

    parking eyeicon have still lost cases since the judgement so while I accept what you have mentioned, all is not lost

    If you are asked to deal with any matter via private message, PLEASE report it.
    Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor
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    Default Re: Received a Court Claim From A Private parking Speculative invoice?? - How To Deal With It HERE***

    " It is admitted that the Defendant parked in [carpark] at the times mentioned in the Particulars OR the Defendant is unable to admit or deny the precise times he was parked in [carpark] as he has no recollection of this."

    Should they be admitting the Defendant parked if they are being pursued as Registered Keeper?
    Doesn't this open the door for the PPC to pursue them as driver?

    If this is better in a new threadicon of its own with the link back to
    http://www.consumeractiongroup.c o.uk/forum/showthread.php?465231-Received-a-Court-Claim-From-A-Private-parking-Speculative-invoice-How-To-Deal-With-It-HERE***(1-Viewing)-nbsp
    Feel free to move it.


  6. #6
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    Default Re: Received a Court Claim From A Private parking Speculative invoice?? - How To Deal With It HERE***

    I have temporarily opened this sticky for further opinions as concerns have been raised with regards to the contents of the proposed defence..Once its been finalised and agreed I will remove any posts to a discussion thread.

    Regards

    Andy

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    Default Re: Received a Court Claim From A Private parking Speculative invoice?? - How To Deal With It HERE***

    Hello - I've updated the sticky to take account of the decision in Beavis. The basic message is that it is much more difficult to defend these claims now on the ground that the charge is a penalty, but there are still other challenges which should be made (e.g. if the signage was unclear or the parking company can't prove when you entered/left the car park).

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