Civil Enforcement EW - POPLA DECLINED- Court Claim Filed

massop

Thank you again,

I was barking up the wrong tree entirely. How about this as a point in the defence?

Issue: Erroneous Interest Calculation

The Claimant's Particulars of Claim assert an inaccurate interest calculation, wherein they claim interest on the principal sum of £170 at a rate of 8% per annum for the period from 12/5/23 to 17/11/23, amounting to £21.72. The Defendant contests this calculation, presenting a correct computation based on both simple and compound interest principles.

Simple Interest Calculation:

Using the formula I = P × r × t, where I is the interest, P is the principal, r is the interest rate, and t is the time, the correct simple interest on £170 at 8% per annum for 196 days is £7.25.

Compound Interest Calculation:

Utilizing the compound interest formula A = P(1+r/n)^nt, where A is the future value, P is the principal, r is the annual interest rate, n is the number of times interest is compounded, and t is the time, the correct compounded interest on £170 at 8% per annum for 196 days is £7.82.

The Defendant brings this to the attention of the Court, emphasizing the substantial discrepancy (almost 300%) in the interest calculations presented by the Claimant. The accurate calculations provided herein reflect a stark disparity from the figures asserted in the Claimant's pleadings. The Defendant urges the Court to scrutinize this miscalculation closely and make the necessary adjustments to ensure a fair and accurate representation of the interest claimed.

JerryJ64

But that is not a defence. It is only an argument that the PoC are invalid and so have breached the CPRs.

You can easily do your own research based on the following:

1. CPR Part 16 - Statements of Case:

   • Rule 16.4 requires the Particulars of Claim to include a concise statement of the facts on which the claimant relies.
   • Rule 16.5 specifies the requirements for claims for money.

2. CPR Part 40 - Starting Proceedings:

   • Rule 40.8 outlines the requirements for statements of case.

3. CPR Part 3 - The Court's Case Management Powers:

   • Rule 3.3 deals with the court's power to control the process.

4. CPR Part 17 - Amendment of Statements of Case:

   • Rule 17.1 provides guidance on when the court may allow amendments to statements of case.

In addition to the CPR, you may also want to consider the relevant Practice Directions, particularly:

• PD 16 - Statements of Case:

  • This provides additional guidance on the content and format of statements of case.

• PD 3E - The Court's Case Management Powers:

• This practice direction supplements CPR Part 3 and provides further guidance on case management.
  
  
  Google is your friend

massop

Thanks Jerry

A lot of comments was posted whilst I wrote the other response so your input was missed, I will look into it right now.

I have been searching and googling a lot but its harder to find exactly what I need because I am not familiar with the system. I will continue to search and put it all together.

Thanks

massop

Where do I find the details of a case specifically? I tried googling "Civil Enforcement Limited v Chan (Ref. E7GM9W44)" which may have some helpful information but all I get is forum posts, is there a searchable area on ministry of justice?

Sorry for the newbie questions if its obvious.

Coupon-mad

Yes...it's in the Template Defence as an optional link.  Everything is already there. 

And I don't understand why you are allowing yourself to be distracted and dragged off on an overly complicated tangent about interest by a brand new poster, instead of searching for the (already written) CEL extra defence point I advised you to search for.

Please go back and re-read the advice from those of us with tens of thousands of posts.  Then re-do the search I told you to do, and copy a recent CEL one with that extra point.

massop

Thank you, you are right.

This became way more complex than needed. and I will follow your advice.

Below is my draft (I will include the entire template in actual defence).

I did find the recent forum posts about the interest issue but they are all pointing to the fact of charging interest 1 day before the "Breach" which does not seem to be the case here. the wording used in the POC is "8% pa from due date to 17/11/2023" the due date on POC is12/5/2022 and "Violation date" is 1 month prior so I cant use the point of them charging from 1 day prior.

1.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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

 

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

 

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

 

The facts known to the Defendant:

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The 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". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

5. The Defendants car (Registration xxx) was parked until 19:56 in the evening of 13th April 2022 at xxx for a total duration of 30 minutes. The Defendant was not aware of any restrictions that applied in the car park due to obscure signage, which was impossible to read from where the defendant had parked.

6. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

7. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Coupon-mad

I did find the recent forum posts about the interest issue but they are all pointing to the fact of charging interest 1 day before the "Breach" which does not seem to be the case here. the wording used in the POC is "8% pa from due date to 17/11/2023" the due dateon POC is12/5/2022 and "Violation date" is 1 month prior so I cant use the point of them charging from 1 day prior.

But that's UKPC claims. Irrelevant.

I wasn't telling you to find a point about INTEREST.  I was advising you to search for CEL claims specifically, with the extra defence point everyone is using recently about the payment due date.... 

massop

Coupon-mad said:

I did find the recent forum posts about the interest issue but they are all pointing to the fact of charging interest 1 day before the "Breach" which does not seem to be the case here. the wording used in the POC is "8% pa from due date to 17/11/2023" the due dateon POC is12/5/2022 and "Violation date" is 1 month prior so I cant use the point of them charging from 1 day prior.

But that's UKPC claims. Irrelevant.

I wasn't telling you to find a point about INTEREST.  I was advising you to search for CEL claims specifically, with the extra defence point everyone is using recently about the payment due date.... 

I understand, sorry about that, after hours more of searching I think I found the paragraph which actually makes sense to me, see below

- There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 12th May 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Wednesday 13th April 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Friday 15th April.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been two days later than this Claimant states in their POC.  In fact, it would have been even later in May 2022 because it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

Can you confirm this is indeed the correct one? 

Thanks

JerryJ64

No one has told you to use the "interest argument" as a defence unless you can clearly show how it has breached the CPRs.

Also... far too much use of the following in your long winded paragraph above, such as; "...a likely defective Notice to Keeper (NTK)", "...including probable non-compliant NTK...", "...an apparently incorrect statement...". 

Coupon-mad

massop said:

Coupon-mad said:

I did find the recent forum posts about the interest issue but they are all pointing to the fact of charging interest 1 day before the "Breach" which does not seem to be the case here. the wording used in the POC is "8% pa from due date to 17/11/2023" the due dateon POC is12/5/2022 and "Violation date" is 1 month prior so I cant use the point of them charging from 1 day prior.

But that's UKPC claims. Irrelevant.

I wasn't telling you to find a point about INTEREST.  I was advising you to search for CEL claims specifically, with the extra defence point everyone is using recently about the payment due date.... 

I understand, sorry about that, after hours more of searching I think I found the paragraph which actually makes sense to me, see below

- There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 12th May 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Wednesday 13th April 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Friday 15th April.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been two days later than this Claimant states in their POC.  In fact, it would have been even later in May 2022 because it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

Can you confirm this is indeed the correct one? 

Yes it is. Makes sense to you?

This point is as much about a premature keeper liability date as it is about premature interest.  It's a point based on the law (POFA).

Adjust the dates and slot it in where others have in their CEL cases.

You may decide to remove the final sentence about windscreen PCNs because you appealed to POPLA so you can't pretend you don't know whether para 8 or 9 or of POFA applies because your appeal reveals you know it was a postal PCN.

BUT typing that has made me think you could replace thet final 'Further' sentence with this instead:

Further, the generic POC omits the fact that this case went through the non-independent farce of 'POPLA' during which a PCN is not considered 'overdue'.  That process took two months and the BPA Code of Practice at 24.4 states that even after that, two extra reminder notices were required before a case may be considered 'overdue'.  The 'payment due date' in the PoC is plainly false, prematurely suggesting that the keeper was liable from a date before the case had even reached POPLA and also having the effect of improperly seeking several weeks too much interest.