Civil Enforcement EW - POPLA DECLINED- Court Claim Filed

massop

I think removing that sentence is best, thanks so much for your help on this.

Here is the defence I will go with (ill add the full defence from template when submitting)

IN THE COUNTY COURT

 

Claim No.:  xxxxxx

 

Between

CIVIL ENFORCEMENT LIMITED

(Claimant) 

- and -  

xxx

 (Defendant)

_________________

DEFENCE

 

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.

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

8. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

9. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

10.  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 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.

Coupon-mad

I saw from your first post that you've seen the landowner agreement (Feb).

Add to point 7:


The Defendant discovered at Parking on Private Land Appeals ('POPLA') stage that these unexpected new rules only started mere weeks before this event. As further proof of the inadequacy of 'extra signage' required at the entrance and within the site, the Claimant was in breach of paragraph 19.10 of the British Parking Association Code of Practice ('the BPA CoP') which says:

19.10

(quote it from here):
https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

massop

Coupon-mad said:

I saw from your first post that you've seen the landowner agreement (Feb).

Add to point 7:


The Defendant discovered at Parking on Private Land Appeals ('POPLA') stage that these unexpected new rules only started mere weeks before this event. As further proof of the inadequacy of 'extra signage' required at the entrance and within the site, the Claimant was in breach of paragraph 19.10 of the British Parking Association Code of Practice ('the BPA CoP') which says:

19.10

(quote it from here):
https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

Is this ok? Also shall I also add the link to the pdf file in the quoted text?

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.

The Defendant discovered at Parking on Private Land Appeals ('POPLA') stage that these unexpected new rules only started mere weeks before this event. As further proof of the inadequacy of 'extra signage' required at the entrance and within the site, the Claimant was in breach of paragraph 19.10 of the British Parking Association Code of Practice ('the BPA CoP') which says: Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such

changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes.

Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

Coupon-mad

Yes if you put that in inverted commas of course. And all your paragraphs need a number.

Le_Kirk

You will, of course be adding the four pages of the CEL v Chan judgment!

massop

IN THE COUNTY COURT

 

Claim No.:  xxxxxx

 

Between

CIVIL ENFORCEMENT LIMITED

(Claimant) 

- and -  

xxx

 (Defendant)

_________________

DEFENCE

 

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 (and this is the same Claimant, who are simply ignoring the Appeal decision and still churning out the same generic POC to obtain 90% default CCJs. This looks like a possible case of contempt of court to the Defendant).  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.

8. The Defendant discovered at Parking on Private Land Appeals ('POPLA') stage that these unexpected new rules only started mere weeks before this event. As further proof of the inadequacy of 'extra signage' required at the entrance and within the site, the Claimant was in breach of paragraph 19.10 of the British Parking Association Code of Practice ('the BPA CoP') which says: “https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf ” Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

 

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

9. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

10. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

11.  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 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.

Coupon-mad

You are still missing the images shown in the hharry example and we assume you are using the whole template defence (35 paragraphs).

And remove this:

 (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).  

replace with

(and this is the same Claimant, who are simply ignoring the Appeal decision and still churning out the same generic POC to obtain 90% default CCJs. This looks like a possible case of contempt of court to the Defendant).

AND you need the 'further matter' paragraph here. Edited to work out your own dates:

https://forums.moneysavingexpert.com/discussion/comment/80464766/#Comment_80464766

massop

Thanks I have made the changes,

I edited my previous post to save space. And yes I will be using all 35 paragraphs in my submission

In regard to the images, do you mean for point 3 - Civil Enforcement Limited v Chan (Ref. E7GM9W44) and is it these images below that I need to attach?

Coupon-mad

That's not all the images but you know not to 'attach' them and the Template Defence linked example already shows how to embed all 4 pages before your facts paragraph.  Why not just copy that?

massop

I couldn't find how to embed the images like how it was done in the post I found HERE but its ok, I can do this in the final submission myself.

I really appreciate your help on this matter, thanks for your patience.

I will keep this thread updated