CEL/coop speculative invoice. CLAIMFORM - HELP REQUIRED **Dis-continued**

[angers]

Hi,

 

 

Ive got a case similar to the thread relating to' Civil Enforcement LTD now have court docs'.

 

I'm was wondering if anyone would be able to help me through the process. I'm trying to get through pranksters guide etc.

 

 

I'm wondering how I go about getting the info about who is the landowner etc??

 

 

Thanks

[dx100uk]

just to check

 

 

you just have the speculative invoice

 

 

and NOT a court claimform?

 

 

dx

[angers]

Definitely the claimform. I'm a bit further down the line. Have down AOS, sent off the initial defence, had a date for court but had to get an adjournment due to illness. Now I need the big defence.

[renegadeimp]

What defence did you send? You only need to use GPEOL. Guaranteed win unless you get a stupid judge.

[angers]

Can I post that on here or pm it??

 

 

I worry as I read many threads that people are taking wads of evidence with them.

Edited October 7, 2014 by angers

[honeybee13]

Hello there.

 

Would you be able to post up the particulars of claim [POCs] please, minus any identifiable details? That way the guys can advise you on which approach to take.

 

HB

[dx100uk]

yes post your stuff up

 

 

just remove anything that can ID you

 

 

inc barcodes etc too

 

 

dx

[angers]

my initial defence:

1. The Defendant denies any liability whatsoever to the Claimant.

 

2. The Claimant alleges in the Particulars of Claim (Para 3) that the signs that were displayed in the car park constituted an offer to drivers that the Defendant accepted. The Defendant denies that she accepted any contract with the Claimant.

 

3. 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 asserts that were no signs at the entrance to the car park. The British Parking Association Code of Practice issued only one month after the alleged event states that entrance signs must be present. The Defendant has the reasonable belief that, as a member of the association, the Claimant would have already been aware of this requirement. The Defendant further asserts that the car park was dark and unlit. Any other signs were not visible and, in any case, would have been illegible. The Defendant refers the court to Excel Parking Services Ltd v Cutts that was decided in favour of the Defendant because the content relied on by the Claimant could not be read by a driver entering the car park.

 

4. The Claimant states that the company is contracted to manage the car park. As a mere 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) and (ParkingEye v Rickard 3JD10678 Aylesbury County Court).

 

5. Even if any contract had existed, the Claimant sent a Notice of Assignment letter dated 22 January stating that it had assigned all but £16-25 of the alleged debt to Debt Enforcement & Action Ltd who would recover the full sum. The Claimant itself cannot therefore recover any payment from the Defendant

 

6. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. The Claimant has not however given any indication of the nature of the conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action to enable the Defendant to understand how a charge might have arisen.

 

7. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies that she would have agreed to pay £130 to perform the alleged but undisclosed conduct.

 

The Defendant refers the court to the Unfair Terms in Consumer Contracts Regulations 1999 and, in particular :

 

Schedule 2(1)(e) Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Regulation 5(1) 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 under the contract, to the detriment of the consumer.

The Defendant refers the court to the European Unfair Terms Directive 93/13/EEC for guidance how the regulation should be interpreted

 

8. The Defendant disputes the Claimant’s statement that any sign 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 Civil Enforcement Ltd v McCafferty (Luton court appeal) that was decided by Mr Recorder Gibson QC in almost identical words.

 

9. The Claimant’s claim for Breach of Contract and Damages confirm that the sum is not a contractual term or 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 decisions involving similar facts to the present case :

O.B. Services v Thurlow (Worcester County Court 2011)

Excel Parking Services v Hetherington-Jakeman (2008)

 

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 draws the court’s attention to S.34(6) that a sum larger than £100 requires its approval. The Defendant puts the Claimant to proof that the Association approved the sum. ParkingEye v Heggie 3JD04791 (Barnsley County Court) has ruled that even this amount is not a genuine pre-estimate of a loss.

The Defendant asserts that the Claimant has also ignored the clear 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.

 

VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs.

 

The Defendant submits that the amount demanded (£130) cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has provided no explanation how the sum has been calculated or the conduct that gave rise to it.

 

10. The Claimant has disclosed no cause of action and has previously confirmed that it has assigned the alleged debt to a third party. The Claimant has also acted in bad faith by bringing the claim with no warning. The Defendant has the reasonable belief that the claim is vexatious and has no purpose other than to alarm the Defendant into making a payment that is not owed. The Defendant invites the court to strike out the claim as having no prospect of success and order the Claimant to explain its action

[dx100uk]

you'll need to convert the pic to pdf for us to see it please

 

 

dx

[angers]

[ATTACH=CONFIG]53623[/ATTACH]

 

I can't seem to save as a pdf, but this opens a larger picture.

[dx100uk]

yep that's great

 

 

the guys should see it soon and advise

 

 

dx

[ericsbrother]

If this predates the PoFA of oct 2012 start off by stating that you are the RK and not the driver so no basis for claim against you and you cannot identify the driver at the time as too much time has elapsed to rely on memory.

[ericsbrother]

second point, are you a member of the Co-OP? If so, you are the landlord and they cant claim against you anyway as your rights are supreme to any contract they may have with your employees.

[angers]

This was Sept 2012. And sadly not a member of the coop..... is it too late to be one for it to make a difference?

 

 

I already tried approaching coop as they've written so many off, but they offered a small sum.

[ericsbrother]

You can still argue that you are not liable as you are the RK and not the driver, who is the only person who has any liability should it exist.

 

Also, CEL sold off their supposed debts to another company only retaining some 16.5% of the alleged debt.

 

 

That means that they cannot sue you for £130, only about £20

 

 

if they have said £130 in their claim then that is unjust "enrichment".

 

 

You should make this point VERY strongly if it applies and it most likely will.

 

 

The other bunch of bandits sent out begging letters a couple of times

 

 

if you received one of these you know that is it enrichment.

 

 

In the meantime, write to CEL demanding to see the contract between them and the Co-OP that was in force at the time

and proof that no assignment of this alleged debt has occurred.

 

 

This is doen as a request for documents under CPR 31.14. Give them 14 days to respond.

If they fail to comply raise that as a complaint of abuse of process with the court and request that the claim be struck out as having no locus standi.

[angers]

Thanks for the reply. My case has already entered the small claims track and allocated a court,

 

 

how do I get round 31.14 as I understand this can no longer apply?

 

 

Thanks

[angers]

Also, when you say other bunch of bandits, can you be specific, because I did receive a number of letters from 'different' companies.

[renegadeimp]

Can you list the companies and what they said. The only real defence even in court is to use GPEOL. But the more you get them on, the more foolish they look to the judge.

[ericsbrother]

did you receive letters from CEL or any other company telling you that the debt had been assigned? If you did they cant claim the £130. It doent matter who it was assigned to.

31.14 is just discovery, it applies. 31.15 is prior to court action The document is the reason for ther claim, they say they have a contract with the landlord, make them produce it.

[angers]

The other company is Debt recovery plus ltd......... and they assigned debt to DEAL.

 

 

Thanks

[ericsbrother]

CEL cant sue you for the £130 as they only own a small percentage of the debt.

 

 

You had better make sure that the court is aware of this, preferably in your defence paperwork.

 

another document to ask for in your discovery.

 

 

If necessary look at going for CPR 31.16 which is a court order for production of documents if they wont hand them over.

As they are going to lose anyway you will get your costs back from them if there are any for doing this.

 

Generally county courts will allow you to talk through anything you want

but dont like people ambushing the other side with paperwork

 

 

all you need to do if you find out somehting new is to verbally cross-examine,

 

 

make sure you have all of the questions ready if you have missed the boat on the submitted defence.

 

 

They have to prove their case, not the other way round

 

 

your oral evidnce on the day will carry more weight than theirs as a judge will want to know

what they have to support what they say and if they try and produce paperwork to support any new evidence

 

 

they will be asked why they are raising something new and you will be asked of you knew about it.

[ericsbrother]

Dont forget, there will be a dtae set for exchange of documents and that includes copies of case law you want to rely on etc so still time to get yourself sorted out.

[llerah]

Keep going after challenging and submitting my full defence

 

 

I received a letter from the court stating they haven't paid the £25 court fee

and if they don't within another 7 days it is struck out and I can go for them for costs

- keep tabs on all the time and expenses your defence takes

[angers]

They've paid and sent their defence bundle, Which I received to today..... and charging me for all the extra like legal fees..... is that right, can they do that?

[DragonFly1967]

They've paid and sent their defence bundle, Which I received to today..... and charging me for all the extra like legal fees..... is that right, can they do that?

 

They can try to charge you a few extras yes. Legal fees are one, and I think that's capped at £50.

 

Of course, to get it, they've got to actually win first