CCJ from CPM - help please to set aside

Coupon-mad

Jetjet_12 said:

I am writing a draft now. I had a lot of job interviews going on the past few days due to relocation.

That's fine.

Show us first because some of the template defence isn't quite right for a post-set aside case and also, we are expecting an important Government update this month (possibly next week) that we hope will improve defences. 

Don't just email it off without getting our feedback.

Jetjet_12

IN THE COUNTY COURT AT WATFORD                                                                     Claim No.:  XXXX

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant)

- and -

XXXX

(Defendant)

_________________

DEFENCE

1.       The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle. However the Defendant was not the driver at the time of contravention as the Defendant did not have a driving license at that time. The parking charge notices were issued on 4th and 6th February 2020 respectively. The Defendant obtained her driving license on 02 October 2020.

 

3.       The incident date for the parking charge notices were 03 and 04 February 2020 at a residential site where the driver lives. The vehicle was parked on the allocated underground parking space as indicated by the tenancy agreement. However the parking permit had slightly slipped off the dashboard but is still visible. The tenancy agreement did not indicate that a parking permit was needed to be displayed at any time. The car park was operated with a fob for secure entry and exit of the residents. Signage and lighting around the parking area were poor. Appeals were made on 10 February 2020 for both incidences but was denied. The Defendant denies accepting any contract with the third party, UK Car Park Management. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

_________

I will copy the rest of the template 4 - 27 until the statement of truth and my signature. 

Please review my defence and guide me on the changes I can make. Thank you so much. I appreciate all the effort everyone puts in to help us out. 

KeithP

Just a couple of small points...

Para 2: The UK spelling of licence is... licence.

Suggest the second and third sentences of para 3 be replaced with:
The vehicle was parked on the allocated underground parking space as indicated by the tenancy agreement with the parking permit visible.
No need to help the Claimant.   

Coupon-mad

You should add in the extra paragraphs 4-11 in the defence by @Johny86

And your case sounds like the case example linked in the NEWBIES thread about the a residential gated undercroft with key-fob, so I suggest you use some of bargepole's wording as your paragraph 3 instead.

1505grandad

Para 2  -  "contravention"  -  I would use "parking event" instead.

Jetjet_12

Coupon-mad said:

You should add in the extra paragraphs 4-11 in the defence by @Johny86

Is this the right one? Then I carry on with the rest of the sections? 

4. The Defendant avers that the Claimant failed to serve a Notice to Keeper compliant with the Protection of Freedoms Act 2012. Consequently, the claimant cannot transfer liability for this charge to the Defendant as keeper of the vehicle. 

5. The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”. 

6. The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued. 

7. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum. 

8. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3 

9. The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'" 

10. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either. 

11. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out.

Jetjet_12

Coupon-mad said:

 I suggest you use some of bargepole's wording as your paragraph 3 instead.

Will this do?

3. The Particulars refers to the material location as Parking Space No. 43. The Defendant has, since 10th November 2019, held legal right to park under the terms of a lease. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. The incident date for the parking charge notices were 03 and 04 February 2020. The underground car park was operated with a fob for secure entry and exit of the residents. Signage and lighting around the parking area were poor. Appeals were made on 10 February 2020 for both incidences but were denied. The Defendant denies accepting any contract with the third party, UK Car Park Management. The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

@KeithP and @15@1505grandad licence spelling noted and parking event replaced instead of the word contravention on paragraph 2.

Thank you. 

Coupon-mad

All perfect EXCEPT just to check, have you ever seen the POC? Did you get a copy emailed to you by the CCBC?

Jetjet_12

Coupon-mad said:

All perfect EXCEPT just to check, have you ever seen the POC? Did you get a copy emailed to you by the CCBC?

Thank you for getting back to me so quickly.

I have not received anything from the CCBC. After my hearing for the set aside I just left the court without anything and was just instructed to send my defence within 14 days. I also asked the judge as I have moved house to a different area and she told me once I have sent over my defence I can request for the hearing judgment to be conducted at my local court (Oxford) and not go all the way back to Watford. 

Coupon-mad

OK, so you can't comment on the POC so remove Johny's paragraphs then, sorry!  Remove Johny's paragraphs.

In paragraph 2 state that you have since moved to Oxford (full address) and ask Watford to please transfer the case and for Oxford Court to kindly note and avoid your unavailable dates as stated on the attached N180 Directions Questionnaire (download it)  which also requests Oxford. 

Your para 3 is fine!

If this was where you lived at the time and it was almost certainly you driving, it is a far better and more honest defence position to admit that it was likely you who parked the car and remove the bit about the POFA from the end of para 3.

Then don't use the usual para 4 in the Template Defence, instead replace it with reference to the persuasive OXFORD(!) appeal case of Jopson v HomeGuard* which fully supports a defence against predatory immediate ticketing of a vehicle with no evidence that it wasn't simply involved in unloading or that the permit was merely being fetched from the flat.  This is why grace periods are mandatory in all applicable Codes of Practice, including the incoming statutory Private Parking Code that the DLUHC is about to resurrect with an Impact Assessment to finalise the statutory rules this month that were first published in February 2022.

* search the forum for Jopson defence and copy some words someone already wrote, and find the actual Transcript for the case in readiness to use it as an exhibit in your Witness Statement bundle when Oxford send you Directions for the hearing.

In your covering email to Watford court and the Claimant's solicitor, mention the Oxford address again (IN BOLD) and state that you require all parties and courts to erase the old address from records of service addresses.  The ONLY address for service now is (Oxford address) and you await confirmation of Transfer to that court and kindly request that Watford ensure that the attached N180 is included as well as the defence.