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

[testament1uk]

who told you this. ?

 

no one official just a friend who has some law experience. Told me that I have very little chance of a successful defence and that they will probably get summary judgement hence the need to counter claim.

[diskmandave]

The particulars of the claim consist of two words

 

"dishonoured Cheque"

 

no other detail.

 

A "dishonoured cheque" is a cheque that has not been paid because there aren't funds

to cover payment.. What we have here is a CANCELLED CHEQUE for a sum of money

that is the subject of a dispute regarding a penalty fee for Breach of Contract.

 

The Defendant cancelled the cheque because he/they learned that Penalty Charges in

Contract Law are unenforceable, thus the Claimant needs to be put to proof of what

the sum claimed is for..

 

I would say that the initial approach would be that the Claim shown does not give

any cause for action, and that the Court either strike out the Claim, or order that a

detailed PoC be provided within a specified time frame..

 

I do think that the OP needs to scan & post the Court papers ASAP so we

can decide where to go with this...

 

Regards, Dave, DMD.

[mightymouse_69]

I am a bit confused by the talk of making a counter claim.

 

What is the cause of action which is allowing the OP to make a counter-claim and what damages will he be demanding?

 

Surely this is a case where the OP will just be defending?

[testament1uk]

Interesting a cheque can be dishonoured were there is "no consideration" and contract law states that a "contract cannot exist without

consideration" If there is no contract but only a penalty - is there any consideration?

 

I have found this on the HMRC web site in respect of VAT

 

Excess charges for car parking.

 

In determining whether excess charges are to be treated as further consideration for a taxable supply of services, it is as important to consider the contractual relationship between the parties as well as the statutory regime under which the services were supplied.

A key Tribunal case was that of Bristol City Council (LON/99/261). This concerned the imposition of excess charges in the Council’s off-street car parks under sections 35 and 46 of the Road Traffic Regulation Act 1984 and designation orders made pursuant to the Act. The Tribunal concluded that excess charges levied in the Council’s off-street car parks, under the 1984 Road Traffic Regulation Act, were not part of the contract between the driver and the Council: they were statutory penalties of which warning was given on the car park signs. Accordingly, the excess charges were not consideration for a supply of parking and so were outside the scope of VAT.

 

 

DOES THIS MEAN NO CONSIDERATION ?????

Edited March 5, 2011 by testament1uk

[testament1uk]

The Defendant cancelled the cheque because he/they learned that Penalty Charges in

Contract Law are unenforceable, thus the Claimant needs to be put to proof of what

the sum claimed is for..

 

Regards, Dave, DMD.

 

I agree and my lastest research indicates that there is "no consideration" involved in a penalty for parking - see my post on HMRC VAT rules - Therefore no contract and no consideration so cheque can be cancelled!

[dw190]

Getting back to the first post, there is no mention as to why the ticket was issued. I would say the paper chase needs scrutinising to establish what the original ticket was for.

[testament1uk]

Getting back to the first post, there is no mention as to why the ticket was issued. I would say the paper chase needs scrutinising to establish what the original ticket was for.

 

Parking longer than two hours - car recorded by APNR system

[dw190]

Parking longer than two hours - car recorded by APNR system

 

Was you Disabled son with you at the time?

[testament1uk]

Was you Disabled son with you at the time?

 

No - I realise that would have been an issue with the time but that wasn' the case

[dw190]

I've just been reading one of Excel's Notice to Owner which is probably what you received. I can understand the fear it puts to those receiving it.

 

First thing is the NtO states "NOTICE TO OWNER" and underneath " OF INTENT TO ISSUE COURT PROCEDINGS"

 

Then it further states "LIABILITY FOR THE PARKING CHARGE NOTICE (PCN) LIES WITH THE DRIVER OF THE VEHICLE" (Rather Confusing)

 

To me the threat of court to the "owner" is enough to make someone vunerable send a cheque out of fear.

 

I have also seen a car park sign they put up with the "Parking is limited to 2 hours maximum stay" FAILURE TO COMPLY imo is a breach and falls outside any contract for the consideration.

 

If you indicate your intention to defend the entire claim it should automatically be transferred to you local Court.

[diskmandave]

 

I do think that the OP needs to scan & post the Court papers ASAP so we

can decide where to go with this...

 

OP - Are you going to scan/post the Court papers?? We can't really help you

any more without seeing what we're trying to help you with!!

[diskmandave]

Surely this is a case where the OP will just be defending?

 

I'd be wanting costs for this too..

[mightymouse_69]

I'd be wanting costs for this too..

 

Yes - if the OP wins he will likely get them.

 

Still not sure what the cause of action for a counter claim is though.

[sailor sam]

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.

 

How can you claim for something you havn't paid? You can submit a claim for costs and possibly 'inconvienence' but I can't see what else.

[mightymouse_69]

How can you claim for something you havn't paid? You can submit a claim for costs and possibly 'inconvienence' but I can't see what else.

 

Exactly.

 

From what I can see, there is no basis for a claim here at all.

[testament1uk]

Exactly.

 

From what I can see, there is no basis for a claim here at all.

 

I have taken some advice from a solicitor who has made it clear that I can counter claim with a request that the counter claim be heard in the event of the judgement being found against me in the case of the dishonoured cheque. he has also said that the defence may actually succeed on the grounds of "no consideration" and will, although not setting a precedent have influence on other cases of cheques cancelled for "parking fines" but not "parking charges"

Edited March 6, 2011 by testament1uk

[testament1uk]

OP - Are you going to scan/post the Court papers?? We can't really help you

any more without seeing what we're trying to help you with!!

 

It's pointless scanning papers that ony say "dishonoured cheque" - that is the brief description of the claim. The papers say nothing else and make no reference to the PCN or anything else. They are attempting to get summary judgement and that is why a counter claim is essential.

 

The reason is that in the case of dishonoured cheques the sueing party normally wins without having to make reference too the reason for the cheque.

[sailor sam]

I have taken some advice from a solicitor who has made it clear that I can counter claim with a request that the counter claim be heard in the event of the judgement being found against me in the case of the dishonoured cheque. he has also said that the defence may actually succeed on the grounds of "no consideration" and will, although not setting a precedent have influence on other cases of cheques cancelled for "parking fines" but not "parking charges"

 

I agree that you have a good defense. I do not consider a cancelled cheque under these circumstances to be 'dishonoured' the reasons for which I have already explained in my earlier post (#4).

However, I would be interested to know on what basis your solicitor thinks you have grounds for a counter claim. You can indeed ask for costs (travel/time off work ect to attend the hearing) and perhaps ask the judge to consider additional 'inconveiniences' such as for stress ect, the latter being the only basis for a counter claim imho. As I see it atm, you have suffered no financial loss.

 

What I will say is that I think I speak for every other Cagger on here, that we certainly DO hope that your case goes in your favour as it will set some sort of precedent.

[dw190]

However, I would be interested to know on what basis your solicitor thinks you have grounds for a counter claim. You can indeed ask for costs (travel/time off work ect to attend the hearing) and perhaps ask the judge to consider additional 'inconveiniences' such as for stress ect, the latter being the only basis for a counter claim imho. As I see it atm, you have suffered no financial loss.

 

I think the solicitor is covering if the CC Judge considers the case won without hearing and passes Judgement for the Claimant. If a Counterclaim is involved it would be classed as a separate claim and a hearing for it should be allowed. A lot of this depends on the Judge on the day.

[sailor sam]

I think the solicitor is covering if the CC Judge considers the case won without hearing and passes Judgement for the Claimant. If a Counterclaim is involved it would be classed as a separate claim and a hearing for it should be allowed. A lot of this depends on the Judge on the day.

 

Can't see that happening without a hearing can you? The case revolves around an alledged 'dishonoured cheque'. The court will need to hear the circumstances otherwise the defendant will have grounds to appeal.

[BankFodder]

I hope that you win - but the judge will be hardpressed to find against you on a dishonoured cheque.

I would suggest that to stand any chance at all you will have to put in a counterclaim for the value and your argument will have to be that there was no contract etc - but we would have to know more about the circs and the documentation.

 

I think that if you just put in a defence then you are most likely to lose. Put in a counterclaim for the value of the cheque. It will be a bit odd because the money is not actually paid over but it will give the judge something to hook on to. You can be pretty sure thatthe judge will not be happy about making you pay a parking penalty.

Give him a fighting chance with a counterclaim, then he might find a way to award on the cheque but then to square things by allowing your counterclaim.

 

Beware here because although it is small claim, they are allowed to claim reasonable cost of travel if they win.

 

I think that you need to let us see the documentation - including the ticket, pics of the parking signs etc and any correspondence

[dw190]

Can't see that happening without a hearing can you? The case revolves around an alledged 'dishonoured cheque'. The court will need to hear the circumstances otherwise the defendant will have grounds to appeal.

 

After reading up on the subject of "Dishonoured Cheque" on the net there is a possibility the Judge could pass Summary Judgement without a hearing.

[BankFodder]

After reading up on the subject of "Dishonoured Cheque" on the net there is a possibility the Judge could pass Summary Judgement without a hearing.

Rare. The claimant would have to make an application for summary judgment. However, I agree that for a cheque action, the chances are that they could win.

[dw190]

The Civil Procedure Rules

 

Part 20 of the Civil Procedure Rules (CPR) contains the rules governing counterclaims. The defendant will usually be able to start the counterclaim when he defends the claim. In most types of cases the defendant does not need the court’s permission to do this. A defendant might decide to bring a counterclaim against the claimant in a case where he says that, whether or not what the claimant says is correct, it should be set off against something that the claimant has done.

[lamma]

see S.27

http://www.legislation.gov.uk/ukpga/Vict/45-46/61/section/47

 

the cheque is dishonoured