Park Watch (Deepdale Preston) County Court Defence Review - "Not Wholly within Bay"

Marshac85

Thanks @B789, much appreciated. The point about the SAR is that, it doesn't matter what I ask for. Im well aware that requesting their evidence of the signs being in place at the timenof the incident was a long shot. But if it's manifestly unfounded, they have to reply to me saying that. I should have received their reply saying why they declined to provode the info and offering me an appeal. That's none compliance surely?

B789

Your original defence should have mentioned the signage if you are relying on it in your WS. Did you use the whole defence template as advised in the Newbies FAQ thread near the top of the forum?

If you did mention signage in your defence then they are obliged to provide that evidence as per PAP (nothing to do with SAR). https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

Marshac85

OK thank you. I'll check the template but thought it was correct. I'll drop the SAR stuff as advised. Pretty sure it was the right template but I'll check. So the whole defense is the signage? Is there no merit in the argument about there being no demonstratable consequential loss to the landowner given that toys r us had ceased trading? Cheers

Marshac85

Sorry, last question...how should I play it if I don't know what signage was present at the time? Does the rest of the WS read OK in that respect? 

Coupon-mad

So the whole defense is the signage?

"defence".  But no, it's not.

 Is there no merit in the argument about there being no demonstratable consequential loss to the landowner given that toys r us had ceased trading?

No.

Johnersh

 Is there no merit in the argument about there being no demonstratable consequential loss to the landowner given that toys r us had ceased trading?

Well, it might do - the rationale in Beavis was both that Parking Eye paid to operate the site and that there was a business interest (of value) in cars not overstaying. 

However isn't the correct question under whose authority they continued to undertake enforcement (and indeed now to litigate) and whether there is the documentary evidence to support that? 

Johnersh

 Is there no merit in the argument about there being no demonstratable consequential loss to the landowner given that toys r us had ceased trading?

Well, it might do - the rationale in Beavis was both that Parking Eye paid to operate the site and that there was a business interest (of value) in cars not overstaying. 

However isn't the correct question under whose authority they continued to undertake enforcement (and indeed now to litigate) and whether there is the documentary evidence to support that? 

B789

Marshac85 said:

Sorry, last question...how should I play it if I don't know what signage was present at the time? Does the rest of the WS read OK in that respect? 

This is why I asked whether you added the rest of the template defence when you submitted it. Aside from the paragraphs that you edited, did you include everything else in the template after those 2 paragraphs?

What you may not have done is include the extra paragraphs as shown in this template defence:

https://www.dropbox.com/s/lkok0eqpfz00vzw/2023 defence.pdf?dl=0 

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. 

The above points would cover your situation where the PoC are not clear and you have not been provided with anything that the claimant is relying on in their case.

GDB2222

Can I ask a truly fatuous question?

The parking conditions usually say that cars must be parked within the marked bays. They don’t say that cars should be parked within a single marked bay. That car was within the marked bays, just not within a single one.  It’s a pedantIc point, I agree.

Is it worth raising that as a defence?

Bear in mind that, in contract law, any ambiguity will be interpreted in favour of the party that did not draft the term.  Contra proferentem.

https://www.allenovery.com/en-gb/global/news-and-insights/publications/limited-role-for-contra-proferentem-rule-in-the-interpretation-of-commercial-contracts

B789

GDB2222 said:

Can I ask a truly fatuous question?

The parking conditions usually say that cars must be parked within the marked bays. They don’t say that cars should be parked within a single marked bay. That car was within the marked bays, just not within a single one.  It’s a pedantIc point, I agree.

Is it worth raising that as a defence?

Interesting... I wonder whether some judges may think it is a bit cheeky but technically you are correct. If the wording on the terms doesn't specifically say "parked within a single marked bay", the contract has an ambiguous meaning and under the CA, if there are two or more possible meanings in a contract then the most favourable should apply for the consumer.

Again, this is why I asked the OP whether they included all of the original template defence, in particular para 17 which precisely covers this "ambiguity" and therefore can be included in the WS.

17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith.

Edited to add... maybe it needs to be specifically added as reference to CRA2015 S69(1):

Consumer Rights Act 2015 (CRA 2015) says at S.69. (1): "If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.