Excel parking fine - Help needed to review my CCJ set aside application documents

UncleThomasCobley

Be careful with para #6 which cites the HHJ Murch appeal judgment. In your SWS, it states at para #6:

6.  There is now a persuasive Appeal judgment to support striking out the claim, in circumstances of poorly pleaded private parking cases. What did I do wrong?  Given I received no letters because the Claimant did not bother to trace my address (a breach of the IPC Code of Practice) I know nothing about this and the PCN is disputed.  It is unclear because my parking time was paid for.  In addition, the period of parking is not stated (there is no 'time of breach' at all in the POC) so I don't know if I am being accused of the first ticket payment expiring, or the second one.  I don't know how long the Claimants are saying I was parked for, nor even how long they are suggesting I was parked after expiry. In short, whilst in this case a generic 'reason' for breach has been stated, the POC fails to specify when the breach occurred. Nor does the POC state the conduct which amounted to the alleged breach.

According to the PoC you showed us:

 THE CLAIM IS FOR A BREACH OF CONTRACT FOR BREACHING THE TERMS AND CONDITIONS SET ON PRIVATE LAND. THE DEFENDANT'S VEHICLE, VXXXXXX, WAS IDENTIFIED IN THE BRISTOL ROAD SOUTH, NORTHFIELD ON THE XX/XX/2022 IN BREACHOF THE ADVERTISED TERMS AND CONDITIONS; NAMELY PARKED AFTER THE EXPIRY OF THE TIME PURCHASED. AT ALL MATERIAL TIMES THE DEFENDANT WAS THE REGISTERED KEEPER AND/OR DRIVER. THE TERMS AND CONDITIONS UPON ENTERING PRIVATE LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE AND IN PROMINENT LOCATIONS. THE SIGN WAS THE OFFER AND THE ACT OF ENTERING PRIVATE LAND WAS THE ACCEPTANCE OF THE OFFER HEREBY ENTERING INTO A CONTRACT BY CONDUCT. THE SIGNS SPECIFICALLY DETAIL THE TERMS AND CONDITIONS AND THE CONSEQUENCES OF FAILURE TO COMPLY, NAMELY A PARKING CHARGE NOTICE WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY. THE CLAIMANT SEEKS THE RECOVERY OF THE PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.

As you can see, whilst the PoC are woeful, they have, in this instance, stated the conduct which amounted to the alleged breach.

Coupon-mad

Coupon-mad said:

Put something like this INSTEAD of your para 3:

3.  See exhibit Xxxx - this photograph shows the purported contractual sign at the location.  The red & white sign listing terms and conditions and a 'Parking Charge of £100' identifies Vehicle Control Services Ltd (a different legal entity, not this Claimant).  As such, the contract was not offered by this Claimant, who is a stranger to the bargain.  They are separate legal entities, being separate Ltd companies. The claim must fail on this point immediately.

4. See exhibit Xxxx - bank statements showing that I paid for two parking sessions that day and the Claimant knows this.  I purchased another ticket to extend my parking. Luckily, I paid by card and have no idea why the allegation in the Particulars of Claim ('POC') - which I obtained for the first time only today from the CNBC at Northampton - accuses me of being: 'PARKED AFTER THE EXPIRY OF THE TIME PURCHASED.' This will be robustly denied in my defence, if the Court orders me to produce one and allows this meritless claim to continue, but I believe these facts (in this paragraph and the preceding one) are enough to see the claim struck out.  If not, then further and in the alternative:

5.  The claim was issued via Money Claims Online and, as a result, was 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. I trust that the court will agree at my application hearing, that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served nor was attempted to be served at the old address.  

6.  There is now a persuasive Appeal judgment to support striking out the claim, in circumstances of poorly pleaded private parking cases. What did I do wrong?  Given I received no letters because the Claimant did not bother to trace my address (a breach of the IPC Code of Practice) I know nothing about this and the PCN is disputed.  It is unclear because my parking time was paid for.  In addition, the period of parking is not stated (there is no 'time of breach' at all in the POC) so I don't know if I am being accused of the first ticket payment expiring, or the second one.  I don't know how long the Claimants are saying I was parked for, nor even how long they are suggesting I was parked after expiry. In short, whilst in this case a generic 'reason' for breach has been stated, the POC fails to specify when the breach occurred. Nor does the POC state the conduct which amounted to the alleged breach. 

7.  See Exhibit xxxx -  A recent persuasive appeal judgment in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  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 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).


8.  I believe 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 and not bothering to check a Defendant's last recorded address before litigation, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

I disagree. It's explained in para 6. 🤨

noubee

@UncleThomasCobley please correct me if i'm wrong, but when I read "parked after the expiry of the time purchased", it doesn't tell me if they are referring to the 1st ticket I initially paid for or the 2nd ticket I purchased to extend my parking session. This is what @Coupon-mad has elaborated in the body of paragraoh 6. What do you think?
Are you recommending that the whoe of paragraph 6 be removed or just the line which states "Nor does the POC state the conduct which amounted to the alleged breach."?

UncleThomasCobley

Point taken. Leave as is. I hadn't read the WS fully and didn't realise that this was for two separate payments.

noubee

Here is the email and supplementary witness statement that I plan to respond with. Kindly advise if any modifications need to be made.

----------

Dear Sir/Madam

The Defendant would like to submit a supplementary witness statement in response to this email.

Yours faithfully
Bxxxxxxxxxxy

----------

Witness Statement

In the Birmingham County Court

Claim no.: KXXXXXXX

Between:

Excel Parking Services Limited

Claimant

--- and ---

Bxxxxxxxxxxy

Defendant

 

Witness Statement

I, Bxxxxxxxxxxy of [Birmingham address], am the Defendant in this matter.

This is a supplementary witness statement in support of my application for an order to set aside the judgment dated xx/05/2023.

1.          I would like to note that prior to receiving the Claimant's email which was sent on 28/09/2023 with an attachment titled 'CONSENT ORDER', I had never seen the attached document sent by the Claimant.'. In fact, it is my opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. I have never seen this document before and as such would like to reject it.

2.          I would like to reiterate that I have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

3.          A photograph (attached in Appendix A) obtained from the Google Streetview of the car park shows the purported contractual sign at the location. The red and white sign listing terms and conditions and a 'Parking Charge of £100' identifies Vehicle Control Services Ltd (a different legal entity, not this Claimant).  As such, the contract was not offered by this Claimant, who is a stranger to the bargain.  They are separate legal entities, being separate Ltd companies. The claim must fail on this point immediately.

4.         Bank statements (attached in Appendix B) indicate that I paid for two parking sessions that day and the Claimant knows this.  I purchased another ticket to extend my parking. Luckily, I paid by card and have no idea why the allegation in the Particulars of Claim ('POC') - which I obtained via email for the first time on 03/10/2023 from the CNBC at Northampton - accuses me of being: 'PARKED AFTER THE EXPIRY OF THE TIME PURCHASED.' This will be robustly denied in my defence, if the Court orders me to produce one and allows this meritless claim to continue, but I believe these facts (in this paragraph and the preceding one) are enough to see the claim struck out.  If not, then further and in the alternative:

5.        The claim was issued via Money Claims Online and, as a result, was 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. I trust that the court will agree at my application hearing, that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served nor was attempted to be served at the old address.

6.        There is now a persuasive Appeal judgment to support striking out the claim, in circumstances of poorly pleaded private parking cases. What did I do wrong?  Given I received no letters because the Claimant did not bother to trace my address (a breach of the IPC Code of Practice) I know nothing about this and the PCN is disputed.  It is unclear because my parking time was paid for.  In addition, the period of parking is not stated (there is no 'time of breach' at all in the POC) so I don't know if I am being accused of the first ticket payment expiring, or the second one.  I don't know how long the Claimants are saying I was parked for, nor even how long they are suggesting I was parked after expiry. In short, whilst in this case a generic 'reason' for breach has been stated, the POC fails to specify when the breach occurred. Nor does the POC state the conduct which amounted to the alleged breach.

7.        A recent persuasive appeal judgment (attached in Appendix C) in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  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 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).

8.        I believe 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 and not bothering to check a Defendant's last recorded address before litigation, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

Statement of truth: I, Bxxxxxxxxxxy, believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date: xx/10/2023

----------

For reference, here is the original Google Streetview image obtained from a computer. It shows that the image was captured on August 2018

Le_Kirk

They are separate legal entities, being separate Ltd companies. The claim must fail on this point immediately.

Better written as: -

They are separate legal entities and, being separate Limited companies, the claim must fail on this point immediately.

1505grandad

A read of the following thread might be enlightening:-

https://forums.moneysavingexpert.com/discussion/6440887/update-i-won-at-small-claims-court-at-dq-stage-with-gladstones-on-behalf-of-minster-baywatch/p2

noubee

Cheers @Le_Kirk this has been updated below.

Here is the email and supplementary witness statement that I plan to respond with. Kindly advise if any modifications need to be made.

----------

Dear Sir/Madam

The Defendant would like to submit a supplementary witness statement in response to this email.

Yours faithfully
Bxxxxxxxxxxy

----------

Witness Statement

In the Birmingham County Court

Claim no.: KXXXXXXX

Between:

Excel Parking Services Limited

Claimant

--- and ---

Bxxxxxxxxxxy

Defendant

 

Witness Statement

I, Bxxxxxxxxxxy of [Birmingham address], am the Defendant in this matter.

This is a supplementary witness statement in support of my application for an order to set aside the judgment dated xx/05/2023.

1.          I would like to note that prior to receiving the Claimant's email which was sent on 28/09/2023 with an attachment titled 'CONSENT ORDER', I had never seen the attached document sent by the Claimant.'. In fact, it is my opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. I have never seen this document before and as such would like to reject it.

2.          I would like to reiterate that I have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

3.          A photograph (attached in Appendix A) obtained from the Google Streetview of the car park shows the purported contractual sign at the location. The red and white sign listing terms and conditions and a 'Parking Charge of £100' identifies Vehicle Control Services Ltd (a different legal entity, not this Claimant).  As such, the contract was not offered by this Claimant, who is a stranger to the bargain.  They are separate legal entities, being separate Limited companies. The claim must fail on this point immediately.

4.         Bank statements (attached in Appendix B) indicate that I paid for two parking sessions that day and the Claimant knows this.  I purchased another ticket to extend my parking. Luckily, I paid by card and have no idea why the allegation in the Particulars of Claim ('POC') - which I obtained via email for the first time on 03/10/2023 from the CNBC at Northampton - accuses me of being: 'PARKED AFTER THE EXPIRY OF THE TIME PURCHASED.' This will be robustly denied in my defence, if the Court orders me to produce one and allows this meritless claim to continue, but I believe these facts (in this paragraph and the preceding one) are enough to see the claim struck out.  If not, then further and in the alternative:

5.        The claim was issued via Money Claims Online and, as a result, was 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. I trust that the court will agree at my application hearing, that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served nor was attempted to be served at the old address.

6.        There is now a persuasive Appeal judgment to support striking out the claim, in circumstances of poorly pleaded private parking cases. What did I do wrong?  Given I received no letters because the Claimant did not bother to trace my address (a breach of the IPC Code of Practice) I know nothing about this and the PCN is disputed.  It is unclear because my parking time was paid for.  In addition, the period of parking is not stated (there is no 'time of breach' at all in the POC) so I don't know if I am being accused of the first ticket payment expiring, or the second one.  I don't know how long the Claimants are saying I was parked for, nor even how long they are suggesting I was parked after expiry. In short, whilst in this case a generic 'reason' for breach has been stated, the POC fails to specify when the breach occurred. Nor does the POC state the conduct which amounted to the alleged breach.

7.        A recent persuasive appeal judgment (attached in Appendix C) in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  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 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).

8.        I believe 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 and not bothering to check a Defendant's last recorded address before litigation, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

Statement of truth: I, Bxxxxxxxxxxy, believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date: xx/10/2023

----------

noubee

Thanks @1505grandad that thread is definitely eye opening

noubee

Just an update to say I have now submitted the supplementary witness statement as above. I was able to return to the car park and obtain clear up-to-date photos of the signs which I submitted along with the images from Google Streetview. I also used the suggestion of taking the photos with an iphone, and then taking a screenshot showing the timestamp of each photo. I will update this thread if I get any response from Excel/ELMS. Thank you.