Court Summons issued by Armtrac

[hijkl]

I've mentioned this on one of the stickies but now I've been able to photograph the papers I thought I'd start a new thread. I'd appreciate some help in getting my defence right as I'd hate to let everyone here down by getting beaten in court by these guys.

 

http://img196.imageshack.us/img196/5206/imgp0492s.jpg

 

http://img196.imageshack.us/img196/977/imgp0493k.jpg

Edited June 21, 2009 by hijkl

[hijkl]

To give the background, I was issued the invoice back in January. Its a company car so I contacted the hire company who told me that they always pay any charges on their cars and then pass on the costs to the company. Because of this I initiated contact by following the template on these pages. A number of letters have since been exchanged and despite their not being able to provide proof that the ticket had been overstayed (which is the basis of their charge) they have started court proceedings.

[letsmakeamark]

Defend it also ask for the case to be transferred to your local court.

[hijkl]

I certainly plan to defend it. But I definately want to make sure I don't make any mistakes in my defence. Unfortunately in my initial letter to Armtrac I stated that it was me who parked the car there. I guess this is what makes them confident enough to take the issue to court.

 

The basis of my defence will therefore not be identity of the driver but

a. the fact they have no proof that the ticket was overstayed

b. the signage being insufficient to form a contract

c. the fact that they are charging a 'penatly' for a supposed breach of contract.

 

I believe the case will be transferred to my local court when I reply to the papers. Is this right? Travelling down to Penzance would obviously be a major pain (no coincidence I'm sure)

[crem]

 

I believe the case will be transferred to my local court when I reply to the papers. Is this right? Travelling down to Penzance would obviously be a major pain (no coincidence I'm sure)

 

I believe a defended case is always transferred to the defendants local court automatically.

[hijkl]

I have completed the Acknowledgement of service form which gives me 28 days to submit my defence.

 

Does this have to be a full defence or at this stage can I simply put that - 'I can neither confirm nor deny that the alledged incident occured' and ask for proof from the claimant that it did?

[jkdd77]

I certainly plan to defend it. But I definately want to make sure I don't make any mistakes in my defence. Unfortunately in my initial letter to Armtrac I stated that it was me who parked the car there. I guess this is what makes them confident enough to take the issue to court.

 

The basis of my defence will therefore not be identity of the driver but

a. the fact they have no proof that the ticket was overstayed

b. the signage being insufficient to form a contract

c. the fact that they are charging a 'penatly' for a supposed breach of contract.

 

I believe the case will be transferred to my local court when I reply to the papers. Is this right? Travelling down to Penzance would obviously be a major pain (no coincidence I'm sure)

 

To cut and paste from my post in another thread: you have no chance of losing in court.

 

Re: your point c. PPCs have never won a properly defended case- apart from anything else, the charge bears no relation to their actual loss, and is therefore a penalty charge. Penalty charges are illegal and therefore null and void, as per the House of Lords judgment in Dunlop v New Motor Co (1915).

Recent cases:

Judge says Excel parking fines illegal - Mansfield Chad

Small claims win over parking ticket - Sheffield Telegraph

Excel Parking - FightBack Forums

 

Consequently, they can only claim their actual loss, which is presumably £0 as you paid for a valid ticket, and they cannot prove you overstayed. Even if they can, they could only recover their normal charge for the length of the overstay (eg £1), as anything more is an unlawful penalty charge.

 

Furthermore, they can only pursue the alleged debt under the law of trespass, and if they don't own the land that the vehicle was parked on, they don't have any basis for a claim anyway.

 

Best of luck- and, once you've won don't forget to claim extra costs under Part 27 2(g) of the Civil Procedure Rules on the basis that they have wilfully filed a vexatious claim, in the full knowledge that they have no right to the payment claimed.

 

PS: In retrospect, you too should have simply have completely ignored them, as their alleged contract is with the driver, and you appear to have admitted to being the driver. If you hadn't, then the case would fall, as the identity of the driver is for them to prove, and you are under no obligation to identify the driver in civil cases such as this one.

[letsmakeamark]

Word it as invalid claim.

[nero12]

and if they don't own the land that the vehicle was parked on, they don't have any basis for a claim anyway.

 

I think the term is ''not having suffiecient proprietry rights to claim tresspas or penalties or any other charge they wish to add.''

 

This was brought up by Lamma sometime ago.

 

maybe he could expand on this further mate.

[buzby]

Re: your point c. PPCs have never won a properly defended case.

 

Yes they have. But that is no reason not to challenge. Do make sure this is a genuine summons and not simply a frightener to force you to pay. You might also want to upload the saga to the parking experts forum pepipoo as a central resource of motoring and penalty ticket abuses, this is the place to go.

Edited June 21, 2009 by Rooster-UK
Unauthorised link removed

[jkdd77]

Yes they have. But that is no reason not to challenge. Do make sure this is a genuine summons and not simply a frightener to force you to pay. You might also want to upload the saga to the parking experts forum pepipoo as a central resource of motoring and penalty ticket abuses, this is the place to go.

 

They have never won a properly defended case, that is one making reference to the unlawfulness of penalty charges and quoting the relevant House of Lords judgment. http://www.law-essays-uk.com/contract-law-cases-136.php

"In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

Lord Dunedin laid down rules which are still applied today in these types of cases:

i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable".

ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty."

 

You could also quote the Unfair Contract Terms Regulations 1999 for good measure:

http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf

"Schedule 2, paragraph 1, states that terms may be unfair if

they have the object or effect of:

(e) requiring any consumer who fails to fulfill his obligation to

pay a disproportionately high sum in compensation.

It is unfair to impose disproportionate sanctions for breach of contract. A

requirement to pay more in compensation for a breach than a reasonable

pre-estimate of the loss caused to the supplier is one kind of excessive

penalty. Such a requirement will, in any case, normally be void to the

extent that it amounts to a penalty under English common law."

 

If the letters sent by Armtrac were fraudulent in any way, don't forget to mention this as well.

 

The two recent wins were against dreadful defences, taking advantage of ill-informed district judges who don't know the law. For example, in the Combined Parking Solutions vs Thomas case (2008 ), the defendant stated that the charge was a penalty charge, but did not back this statement up with evidence, by quoting the relevant case law. The transcript of this case shows that the defendant also made several other serious mistakes, in particular admitting to being the driver on a internet forum and then denying being the driver in court (guaranteed to annoy the judge).

 

I do fully agree that it would be a good idea to consult the Pepipoo forum as well, to help construct your defence.

Edited June 21, 2009 by jkdd77
Adding links

[buzby]

You cannot expect to perpetrate the myth of 'nobody loses' based on what you might think, based on that it wasn't a 'proper' defence. On that scenario there would never, ever be a PPC loser because their defence would always be deficient in some way - whereas the 'winners' would have had a 'proper' defence and merit a justified win!

 

COS v Krystov Bortkiew resulted in a win for CPS, and it went to a full Proof Hearing at Paisley Sheriff Court (11/12/09), with Decree granded on 23/1/09. This was properly defended, but the Sheriff felt that the 18 tickets he amassed showed a total disregard to the rights of the landowners and found against him. If it was just 1 ticket, perhaps not.

[jkdd77]

I am fully aware of this case, where Mr. Bortkiew apparently failed to bring up the relevant legislation and case law, instead concentrating on the meaning of the word "fine", as used in CPS literature. Had he done so, he would have won.

 

It is not a matter of what you or I might think, but a matter of what the law says, and the law is entirely clear on the illegality of these charges, as per the above links.

 

The fact is, PPC invoices are entirely illegal, and freak victories over badly prepared defendants with badly informed judges who misapply the law do nothing to change this.

[lamma]

I agree.

[Repulse]

Do you mean 'illegal' or 'invalid'. To me these charging notices are just invoices sent to victims in the knowledge that sufficient of them are going to pay them - which must be the case because they are still in business. On the face of it I see nothing illegal in sending out invoices. However they are certainly invalid because they will not stand up to scrutiny in a properly defended case.

 

To be illegal surely there has to be more about them than just incorrect invoices sent out in the post, if nothing else a criminal intent.

[lamma]

The forms themselves break many statues. just some of which are covered here http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/164651-problems-ppcs-face.html?highlight=problems+ppc+face. also read this Results within legislation - Statute Law Database and pay close attention to the de facto offences.

[My Real Name]

Is there any basis for having the claim struck out, given that there are next to no particulars? What is the legal basis of the claim in the first instance?

[letshelp]

subbing

[buzby]

It is not a matter of what you or I might think, but a matter of what the law says, and the law is entirely clear on the illegality of these charges, as per the above links..

 

However you want to spin it Borkiew went to court, challenged and lost. The Sheriff was the arbiter, and he did not agree - so my concern is the requirement to clarify (for others) that there remains a risk, and it should be noted.

 

I've been unsuccessful in getting the notes of the case, as these were returned to Gebbie & Wilson (CPS's solicitors) and were unavailable for public scrutiny. I was also unable to discover whether Krystof actually paid the decree, although I'm assuming he did not. The whole issue was simply for CPS to bag a 'win'. There is much of this case that is unusual, but it still resulted in a Default Decree, and that remains a fact to consider whatever action is contemplated.

[Gambling Commission Rule]

I don't think you can look at the Combined Parking Solutions cases are "normal" cases. Perky does not do normal - cherry picked, yes, exhibiting strange facts likely never to be repeated, yes, gullible or uninformed defendant, yes, cases from another planet (Planet Perky), yes. But not normal. Combined Parking Solutions v Stephen Thomas is a good case in point. Despite the many lies about the case peddled by Perky the case turned on the defendant posting in this very forum that he was the driver. Perky knows well that is the case, which is why out of embarrassment he removed the said material from the "transcript" he posted up on Pepipoo. The Scottish case involved clearly a foreign defendant who had accumulated many tickets and probably did not defend or even turn up, as he had no intention of paying. So no exception to the rule that a properly defended case invariably wins there either. The Excel cases are far more representative than the CPS hand picked "flukes". Excel do not cherry pick but seem to litigate based on whether you get up their nose enough. They were hammered in Hetherington-Jakeman (the transcript makes interesting reading) and Alan Matthews, as well as Susan Pratt. Claiming £80 for a 10 minute or so overstay, even if Armtrac can prove factually that it occurred (a big if), will be very difficult and it looks like a penalty or will to any decent judge. The OP should take photos of the signage and post these up as they may reveal other weaknesses. For now however Armtrac has not actually stated any cause of action - there is no imtimation how the defendant can be liable for the amount claimed - in contract or otherwise. As such the defendant has a good chance of having the action struck out, and should apply to do so, or at least should put Armtrac on full proof of proving liability. That should also include investigating the position of Armtrac in relation to the car park - if they have no ownership interest they cannot offer parking or enforce parking regulations.

[Repulse]

If you do get it struck out there is nothing to stop them issuing another claim, presumably this time a correct one. To stop any further claims on the same facts you need the judge to find in your favour. They can then only appeal his decision on a point of law. They can not keep issuing claims until the judge 'gets it right' - this is the county court not the EU!

[Al27]

Seems like a fishing expedition claim, hoping to get an undefended win by default. I'd be surprised if they submitted a court bundle.

 

But keep calm and you should see them off.

[buzby]

The Scottish case involved clearly a foreign defendant who had accumulated many tickets and probably did not defend or even turn up, as he had no intention of paying. So no exception to the rule that a properly defended case invariably wins there either. .

 

I've no wish to get into a slanging match - and I'm not supporting the fact that PPC's pursue innocent motorists in the courts, but at least READ the posts in this thread.

 

In the Scottish case - Mr Bortkiew DID appear in court, and the action proceeded to 'Proof' where both sides state their arguments, and the Sheriff decides on the merits of the evidence put before him.

 

The Sheriff decided in favour of CPS, with costs awarded against Bortkiew. Correcting my earlier error, he wasn't awarded a Default Decree, as this action was fully defended.

 

This may be the exception that proves the rule - but whatever, please, let's drop this 'nobody loses' - that's claptrap, and the evidence speaks for itself.

[lamma]

I think the phrase 'colour of law' may be useful.

[Al27]

I've no wish to get into a slanging match - and I'm not supporting the fact that PPC's pursue innocent motorists in the courts, but at least READ the posts in this thread.

 

In the Scottish case - Mr Bortkiew DID appear in court, and the action proceeded to 'Proof' where both sides state their arguments, and the Sheriff decides on the merits of the evidence put before him.

 

The Sheriff decided in favour of CPS, with costs awarded against Bortkiew. Correcting my earlier error, he wasn't awarded a Default Decree, as this action was fully defended.

 

This may be the exception that proves the rule - but whatever, please, let's drop this 'nobody loses' - that's claptrap, and the evidence speaks for itself.

 

Defended as in he turned up though. Who knows what he said on the day?