Excel Parking Court Summons - for cheque laterly cancelled as not a 'legal' parking charge - **WON**

[testament1uk]

In late 2010 I parked my car in a shopping centre car park and later recieved a penalty notice.

 

Without thinking and due to being placed under considerable duress by the threatening nature of the letters I sent a cheque for the demanded amount.

 

I later considered my actions and decided to cancel the cheque with my bank and notified excel that I had done this becuase I did not believe this was a legitimate charge.

 

They responded by stating that I had entered into a promise to pay by sending a cheque.

 

I responded by stating that my cheque was sent as a result of deceptive and threatening mail.

 

They have now issued a summons for county court for "dishonoured cheque" and have placed this with the Sheffield County Court.

 

I had already written to them stating that any action in the County Court should take place in the Birmingham area to enable me to continue providing care for my son who is severely disabled.

 

I would like to contest Jurisdiction due to the inappropriate venue and that the penalty notice was given in Birmingham and therefore should be dealt with there.

 

Is this a reasonable response.

 

I will defend the action in county court and hope that by sending a cheque I haven't wrecked my chances of defending this matter.

 

I have been advised that my only grounds for defending the dishonoured cheque are that I sent it under duress which was in fact the case.

Edited March 4, 2011 by testament1uk

[silverfox1961]

Hi and welcome to CAG

 

I have moved your post to the Parking forum although it may need a move to the Legal Issues section if appropriate.

 

Hopefully, one of the guys will be along to help soon

[honeybee13]

The rats! They must be desperate. As you say, you haven't done the ideal thing by sending a cheque, but I'm sure the guys will be along with helpful comments later. I believe I've seen on another thread that you can ask for a different court, but it was a while back and I can't remember if it was a county court.

 

Someone will know more than I do.

 

My best, HB

[sailor sam]

OK a few questions; have you still got the 'penalty notice' or a copy of it? Have you kept all correspondence from them and is there any wording anywhere which states either 'FINE' or 'PENALTY'? Also have you kept copies of all correspondence which you have sent them?

 

It is interestiong that they have chosen to make a claim about a "dishonoured cheque" rather than non-payment of a parking charge. The reason being is that you probably did not give them enough proof that you were driving the car because any claim under contractual law is made against the person making use of 'their' facility which is not necessarily the RK of the vehicle. Unfortunately by sending them a cheque in the first place does give them an avenue to persue in respect of the charge BUT if there is any mention that the charge(s) relates to either a FINE or a PENALTY then the judge will dismiss the claim because the plaintiff does not have any legal standing to issue a fine or penalty so thiose words are important. Part of your defence will be how much the charge was. They will have to argue how they have calculated it. I'm guessing it is in excess of £80 so they will have to provide evidence that any losses or damages come to that amount. Your possible ace card in this will be the letter you wrote explaining the reasons why you cancelled the cheque so I hope you have a copy of this. In my opinion (and it is just that) by notifying them in writing your reasons for stopping the cheque will cover any 'intention to dis-honour' issues although ultimately it will be for the judge to decide that point.

 

So enter your defence accordingly and request that the case is transferred to your local court giving your reassons. I think you will find that it will be done.

 

Please keep us well and truly posted as this is an interesting one!

[Al27]

You will be able to choose the court venue when the court sends the Allocation Questionnaire.

 

It is possible to sue on a cancelled cheque if the service or job was completed.

 

If you send a cheque in response to a[edited], the game changes. Similarly, if you send a cheque before receipt of goods and then the goods don't arrive, the seller can't rely on the cheque if it is cancelled because the contract has been breached.

 

Anyway, this case will still require all the usual private parking defences. PM sent.

Edited March 4, 2011 by silverfox1961
please refrain from using the s word :)

[testament1uk]

Thank you for the supporting posts. I have completed my defence form and requested a change of court venue. Excel have basically written to me to advise me that they are not suing me for the parking but only for dishonouring a cheque. In my defence I am reliant on the issue of fear and force as mentioned in the Bills and exchange act 1882 ch61 30 (2) - I am arguing (and truthfully) that the letters sent were designed to create fear and intimidate thus resulting in forcing me to write a cheque for the amount demanded. I have referred to Hetherington-Jakeman case in which the judge said that "it is payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly" - In essesnce this is in fact the case. I have kept all paperwork sent or recieved including the original notices.

[stifle]

The suggestion that you had made a promise to pay by sending a cheque is a nonsense and carries no weight in England or Wales (but in Scotland, it does!). Carry on ignoring.

[DBC]

The suggestion that you had made a promise to pay by sending a cheque is a nonsense and carries no weight in England or Wales (but in Scotland, it does!). Carry on ignoring.

The OP can't just ignore, it's going to court.

[lamma]

They can sue on the cheque in England and Wales I believe.

Bills of Exchange Act.

 

The facts of the parking may not even enter into the case unless the defendant can lead them.

 

Looks like Excel are desperate for a newspaper story.

[Al27]

You're going to find it hard to win if you come up a skeleton defence on your own and get a poor judge.

 

See PM.

[sailor sam]

They can sue on the cheque in England and Wales I believe.

Bills of Exchange Act.

 

The facts of the parking may not even enter into the case unless the defendant can lead them.

 

Looks like Excel are desperate for a newspaper story.

 

It will because it is the reason for the payment so it will be relevant. I agree that the OP will have to tread carefully though but with a little preperation, the case is defendable.

[Famous bean]

Yes you can move the case to another court, this also seems to have a chance that the case might be dropped because of the extra costs according to some.

 

See post29

h t t p : / / forums [dot] pepipo [dot]com/index.php?showtopic=58529&st=20

 

Just remove the [dot]'s and the spaces

 

You might want to post at pepipoo as well for some different opinions.

[testament1uk]

You're going to find it hard to win if you come up a skeleton defence on your own and get a poor judge.

 

See PM.

 

My defence has included a schedule of evidence which includes the relevant cases and is based on the defence that the cheque was written as a direct result of communications from excel which caused me to respond out of fear and force. This seems to be the only defence that is available for a dishonoured cheque and as this is the case it is in fact the truth. The cheque was cancelled by my bank at my request before they could submit to their bank and my letter advising them that I had cancelled the cheque was sent to them on the monday following the Saturday when the cheque was posted. I have included letters to prove this. I have also submitted evidence of my position and a carer for my son who has severe autism which due to the stresses of care has a direct impact on my ability to cope with threats from Excel. Any advice is welcome.

Edited March 4, 2011 by testament1uk

[lamma]

It will because it is the reason for the payment so it will be relevant. I agree that the OP will have to tread carefully though but with a little preperation, the case is defendable.

 

 

I agree - that was the 'unless the defendant can lead them' bit.

[testament1uk]

It will because it is the reason for the payment so it will be relevant. I agree that the OP will have to tread carefully though but with a little preperation, the case is defendable.

 

Do you think I should just stick with my defence or counterclaim at the same time for the same amount plus costs?

 

Thanks for the advice

[diskmandave]

I am arguing (and truthfully) that the letters sent were designed to create fear and intimidate thus resulting in forcing me to write a cheque for the amount demanded. I have referred to Hetherington-Jakeman case in which the judge said that "it is payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly" - In essesnce this is in fact the case. I have kept all paperwork sent or recieved including the original notices.

 

Also, check out s.40 The Administration of Justice Act 1970.

http://www.debthelpuk.co.uk/administration-of-justice-act-1970.html

[testament1uk]

Also, check out s.40 The Administration of Justice Act 1970.

 

Excellent - I need to revise my defence - do you think my defence is sound I am considering a counter claim but unsure.

[nero12]

I would argue that the origional claim contravenes the unfair terms regulations , it constitues a penalty charge persuant to of Excel Parking Services v Hetherington-Jakeman, Mansfield County Court where they lost, that they had no right to make a claim under contract or trespass against you, and as a consumer you had every right to cancel this cheque as it had been sent in error.

Simply put its an invalid levy for which they have no claim upon.

 

Diskman dave's link is sopt on.

Edited March 5, 2011 by nero12

[sailor sam]

Do you think I should just stick with my defence or counterclaim at the same time for the same amount plus costs?

 

Thanks for the advice

 

What would your counter claim be?

[nero12]

could we see the particulars of the claim ??

[Al27]

What would your counter claim be?

 

The unenforceability of the contract and all the usual PPC stuff. There will be overlap in the defence and the counterclaim.

 

Remember the judge could just say the words "Bills of Exchange Act 1882" and find for Excel in 2 seconds flat. The counterclaim is necessary.

[testament1uk]

could we see the particulars of the claim ??

 

The particulars of the claim consist of two words

 

"dishonoured Cheque"

 

no other detial.

[nero12]

have been advised that my only grounds for defending the dishonoured check are that I sent it under duress which was in fact the case.

 

who told you this. ?

[testament1uk]

What would your counter claim be?

 

 

I presume that if I counter claim for the charge £120 which is the amount of the cheque and costs equaly to the costs of the claim. That my counter claim would be for return of a charge unlawfully

taken by the Parking Company which was in effect a penalty, which they had no legal right to claim.

 

If my defence is successful this would have implications for other cases were the cheque has been cancelled

 

If my defence fails and the counter claim succeeds then this would have implications on claims for past charges that others may wish to sue for.

 

I think its worth doing just for the possibility of the above results.

[dw190]

I presume that if I counter claim for the charge £120 which is the amount of the cheque and costs equaly to the costs of the claim. That my counter claim would be for return of a charge unlawfully

taken by the Parking Company which was in effect a penalty, which they had no legal right to claim.

 

If my defence is successful this would have implications for other cases were the cheque has been cancelled

 

If my defence fails and the counter claim succeeds then this would have implications on claims for past charges that others may wish to sue for.

 

I think its worth doing just for the possibility of the above results.

 

 

Dont know if this will help but it does mention "demanded from him with no right in law" (which is what a punative demand would be)

 

Maskell v Horner [1915] 3 KB 106

Toll money was taken from the plaintiff under a threat to close down his market stall and to seize his goods if he did not pay. These tolls were, in fact, demanded from him with no right in law. The Court of Appeal allowed the plaintiff to recover all the toll money paid, even though the payments had been made over a considerable period of time. Lord Reading CJ stated that if a person pays money, which he is not bound to pay, under a compulsion of urgent and pressing necessity or of seizure, he can recover it as money had and received under the law of restitution

.

 

http://www.a-level-law.com/contract/vitiating_factors/duress_cases.htm