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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20083
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Hi,Im back with the same topic. Parking charges and fraud.Thankfully

Resolved Question:

Hi,

Im back with the same topic. Parking charges and fraud.

Thankfully the CPS decided that this was indeed a civil case. The claimant request the money, i offered £70(cost of parking had i paid) they refused to accept.

The Claimant made a claim for £5000 via the County Court Money Claims Centre at the following address: CCMCC, PO Box 527, Salford, M5 0BY.

The claim form was not delivered by the postal service as the address supplied by the claimant did not exist. As this all occured without my knowledge i did not act on it. The claimant requested a default judgement which the court has now issued.

I am considering requesting a set aside and stay of enforecment application. N244
I need advise on the following:

1. Should i send a N244 form on the grounds that the address given was incorrect and thus did not conform to the rules.

2. Or, should i make a formal defence in respect of the parking charges.

As i suspect this will go to a hearing should a prepare a defence for this hearing for a set aside or should i wait for another hearing where the defence will be heard.

What are the defences against the claim. If you could list these with case law references i will try and find the judgement transcripts to issue the court.

I would like to send you a draft of the N244 i have so far prepared.

Thanks
Submitted: 1 year ago.
Category: UK Law
Expert:  Jo C. replied 1 year ago.
Hi

Thank you for your question and welcome to Just Answer. My name is XXXXX XXXXX I will try to help with this.

Can you remind me of the facts ?
Customer: replied 1 year ago.


It should be on the previous threads about this case.


 


I worked in salisbury hospital. Parked in the staff carpark. Ran up 69 parking tickets. Was initially accused of fraud and asked to attend a paces interview which i declined. The CPS decided it was a civil case and not a fraud case.


 


The claimaint has used the CCMCC to gain a judgement for £5000.

Expert:  Jo C. replied 1 year ago.
Yes, I've got them now. Its good that CPS refused charge.

Aren't they claiming that there were a large number of incidents?
Customer: replied 1 year ago.


Yes they are claiming that there were 69 seperate instances of parking wihout displaying a ticket.


 


I have offered the full cost of parking on each of those instances whihc would amount to £70 (rounded up).


 


They have refused and go via a small claims court to get the money.


 


 

Expert:  Jo C. replied 1 year ago.
Thanks.

Ultimately this is a breach of contract and they are entitled to claim their losses from you. That would amount to the sum of parking and any administration costs that they have covered.

you can take the point that it went to the wrong address but there's no point really. You got the claim and they will just amend it anyway.

You may as well contest this on the substantive matters. The case law is generally against you I'm afraid. This is not an incorrect claim. Its just a claim that is hard to enforce. The defences mostly are inadequate signing, that the claim exceeds the sum of the loss etc.

This is just a factual challenge really.

Can I help further?

Jo
Customer: replied 1 year ago.


Hi,


 


I am not completely clear on your answer.


 


What i wanted to do is to first use the wrong address issue to buy time so i can prepare a proper defence. Will the court give me another hearing to explain my defence or will it want to have both issues dealt with at the same hearing.


 


Also there are atleast 3 cases of private parking companies being denied breach of contract verdicts, as under uk law, contracts with penalty clauses for breaches are not considered valid.


 


You say the case law is against me but what i wanted is a list of cases that would support my position, do you know of any?


 


In terms of signage what is the law in respect of this. Do the signs that mandate a contract, need to be placed in each parking bay for them to be considered valid?


 


I really dont want to have to hired a lawyer for this and would really appreciate some concrete guidance.


 


 

Expert:  Jo C. replied 1 year ago.
1. If you mean that you got the papers late and so have been disadvantaged then thats a proper application.
2. Its not that I don't know of any. None exist. The case law is against you but its still hard to enforce. There are lots of cases where they lose on facts but those are not appealed and so not binding law
Customer: replied 1 year ago.


I didnt get them late i never got them. They were returned by Royal mail as the address and post code had no geographical locality associated with it.


 


In respect of case law i have seen the case of OBS v Thurlow which was won by the defendant on appeal, would that not count?


 


Also the case of Perera v Aintree Hospital Trust was again determined in favour of the defendant.


 


There are others cases as mentioned on the website http://www.penaltychargenotice.co.uk/private-land-enforcement/court-cases/court-cases-for-private-parking-tickets/


 


Please advise what your view on these are and if i can use these in my defence.

Expert:  Jo C. replied 1 year ago.
These cases were decided upon different grounds.

There is clearly a contract here as it is part of your employment contract
Customer: replied 1 year ago.


I dont see your reasoning. There being a contract is not relevant. The issue if of penalty clauses whoch would negate that contract.


 


The case of Perera v NHS Aintree is almost identical. He was an employee and parked in the carpark and got tickets which he ignored. He won the case.


 


I feel your not addressing what has occured in these cases as they are almost the same as mine.


 


 

Expert:  Jo C. replied 1 year ago.
I'll opt out for others as I can add no more.
Customer: replied 1 year ago.


Ok how does that work. I dont feel ive got any forward with this.


 

Expert:  Wendy-Mod replied 1 year ago.
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Customer: replied 1 year ago.
Yes I would like another lawyer. If that is not possible I wish to have my credit to the account refunded

Thanks
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Expert:  Stuart J replied 1 year ago.




I have
been asked to look at this for you. At present, this is not a parking issue.
This is a County Court judgement issue. They appear to have a judgement against
you because you did not get the various papers. In which case, you need to make
a court application to set the judgement aside so that you have time to defend
it. In order to get the judgement set aside, you have to have a reasonable
defence. The general defence to parking charges is that the signage was not
sufficient.

You
will be aware that the authority you cite of Perera, is no longer applicable
because the law changed in October 2012 to make these private land "fines" (they
are not fines they are actually contractual charges) enforceable under the
Protection of Freedoms Act. Statute has taken over case law.



So you
may have a defence to any charges which have been levied but it would be that
there was not sufficient signage in the car park for you to realise that there
was a charge. However, that defence fails after the first or second ticket when
you were then advised that you are being charged for parking.



I'm
afraid that this is one that I would not be taking to court with any hope of
success. I think you will probably get the judgement set aside but if the car
park people decide to pursue this, I do not think that you are good ground.
Take comfort from the fact that although the amount claimed is substantial,
because it is small claims, they will not get their legal costs back even if
they win.



You
have another possible defence (which I also do not think will work) and that is
that these are 69 separate contracts which just all happen to be based upon the
same facts and therefore should be 69 separate hearings. To be honest, if you
were to run that all you will do is alienate the judge because he will think
that you are being a smarty-pants and I think it would fail in any event. I
mention it for completeness in case it crossed your mind.



I
appreciate this is not the answer you wanted but there is no point in me
misleading you. I have a duty to advise you truthfully and honestly even if
that answer is unfavourable.



Customer: replied 1 year ago.
Hi

Thank you for your reply.

Theses parking fines predate the October 2012 inactment, can I thus still use the defences as I previously mentioned.?


Expert:  Stuart J replied 1 year ago.




They
were always enforceable against the driver in contract subject to the signage
issue which we are all aware of..

The
reason that they never went to court was quite simply because for one or two
parking offences it was simply not financially viable proposition.



However
for 69 tickets it can be financially viable proposition if they win. What they
also want is to set an example and to stop people driving a coach and horses
through their (unfair in my opinion) parking charges. They treat this as a
little cash cow hoping that people will simply be intimidated and pay up. It is
a pity that everyone does not take your stance because if they did, the courts would
be overloaded and the legislation would be repealed. Unfortunately, people are
like sheep!



What
has happened is that statute has reinforced the fact that these charges are
enforceable in contract but what it is also done (and in my mind completely
unfairly) is made the charges enforceable against the registered keeper.



Parking
charges (Public and Private) are the only offence where the person who is not
committed the offence is culpable. It is almost like someone steals your car,
they commit an armed robbery using the car as a getaway and you get charged
with the offence of aiding and abetting because you are the registered keeper!
Absolutely bizarre.



I
would certainly run your defences using the previous case law and what I would
say is that the only thing that statute has done is added culpability of the
registered keeper and therefore, the previous authorities still apply. It is a
very thin defence but I think it is worth going for. Remember, that even if you
lose, you will have the satisfaction of knowing that they have spent a shed
load of time and money in legal costs.



There
is one thing that I have not checked in detail and that is just to confirm that
legal costs are not payable/recoverable under the Protection of Freedoms Act
and that the matter is treated in the same way as a small claim (under £10,000
since 1 April 2013). My understanding is that they are costs are not
recoverable but you need to check that act in minute detail just to be sure. The
last thing you would want is to lose and then be stung for £10,000 worth of
legal costs.



I am
actually going to have a look myself for my own satisfaction and will post up
in due course. It is particularly busy today for me to do research but I might
get 20 minutes later on.



Expert:  Stuart J replied 1 year ago.

Right, I have more.





I have read through
the act and it is silent on legal costs however the court may decide that it is
covered in "parking charges".

In which case, if
the signage says that legal costs of enforcing the Parking charges are
recoverable as Parking charges and says what those charges are then there is a
risk that the court will say that even though it is small claims, the costs are
recoverable.





Customer: replied 1 year ago.

What about the issue of penalities in contracts being against english law


 


the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd has been successfully used in at least 3 cases i have seen the transcripts of.


 


Does the new regulation of Oct 2012 negate this? and also can the COtber 2012 change be used retrospectivly?

Expert:  Stuart J replied 1 year ago.

It isn't a penalty. It is the contractual fee you agreed to pay by parking there.

However it flies in the face of you cannot accept by silence, Felthouse V Bindley. I dont make the law, I just regurgitate it.

The court have found that it isn't silence, you agree by parking.

I don't agree but they don't listen to me!

Customer: replied 1 year ago.
Yes thanks you have been very helpful

One last clarification

The payment for parking was 1pound per day. The 'parking charge' is essentially a penalty for not paying the one pound. Because its worded differently just makes it an disguised penalty.

I have been reading the unfair contracts law. In the financial penalties section it's clear that such contracts are unfair and thus not enforceable

The fact is the parking charge is not a charge it is in effect a penalty for not obeying the supposed contract of 1 pound. I have offered the full cost of parking had I paid initially which amount 69 pound. The 5000 pounds is surely a disproportionate claim.
Expert:  Stuart J replied 1 year ago.




It is no different
than the extra charge in the Late Payment of Commercial Debts (Regulations) or
the same Interest Act.

The courts have deemed
that it is a contractual charge that you agreed to by parking there and not
punitive. By all means plead it differently but you will have to take it to the
House of Lords to get the previous decisions overturned.



I don't agree with
the decision but I didn't make it, I am just bound by it.



It is not £5000. It
is 69×72 quid.



I know exactly what
you're coming from and many others have tried before you but I am afraid that
statute and case law is not on your side.



Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20083
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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