BWLegal £800 fine

Coupon-mad

I don't think the Judge will read any of that bit, so don't focus on that.

The Judge will look at whether the signs were clear, whether there was a contract with the driver, was it fair, was there a breach, are there other facts specific to this case to consider, and did the C have landowner authority.

If they've done their WS this early then you probably have the same deadline as them?  Done your WS and evidence yet?

LDast

Was CPR 16.4 fully complied with in the particulars of claim? Highly unlikely which is why the defendant should simply point out that the PoC fail to address all the requirements of the Civil Procedure Rules.

Hence the short defence which simply tells the judge that it is impossible to properly defend based on the sparse and incomplete facts in the poorly pleaded particulars. Tell the judge that you need all the facts that are required in the attached draft order and for the claimant to provide further particulars that comply with the order otherwise the case should be struck out.

Maybe @Johnersh could provide a professional opinion on the "short" defence and draft order as advised by a long serving district judge who believes that the template, long defence, is regarded as a boilerplate "one size fits all" and is rarely read by most judges. This judge is very aware of the abuse of process by the roboclaimers with their poorly pleaded claims and uses the order to get them to fully comply with CPR 16.4, which to date, none have been able to do.

Short defence third person

Draft order for the short defence

The "short" defence does not require anything from the defendant at this stage and provides the judge with a ready made order. Understandably, @Coupon-mad does not agree as she feels that there is a high risk that the judge would not agree and would assign it to a hearing, which would mean that the defendant had no defence at all. The judge who has given me all the advice on the short defence says that even if that were the case, it would still be possible to request that the order be served by attaching it to the DQ.

Coupon-mad

LDast said:

Understandably, @Coupon-mad does not agree as she feels that there is a high risk that the judge would not agree and would assign it to a hearing, which would mean that the defendant had no defence at all.

The judge who has given me all the advice on the short defence says that even if that were the case, it would still be possible to request that the order be served by attaching it to the DQ.

But it can't, because the DQ comes weeks/months before allocation and Hearing Directions.

Johnersh

Thoughts on the short defence...

I'm conflicted. It has the merit of clarity and avoiding points that are superfluous to a number of cases, which is my reservation with quite how long the current template has got.  I agree that lengthy recitations of Hansard and the like add little in the context of a DJ simply trying to root out the facts of a case. However, my biggest beef with this new revision is that it focuses wholly on technical points and doesn't address any of the facts/circumstances at all.  If, for example, your residential property has a registered parking bay specific to you and registered with the land registry, why not say that?  This will be hit with the same criticisms that it is too generic.

Being practical, if this were to be used as a new template, there might perhaps be a prompt to include relevant background facts and key argument before asserting the right to re-plead the defence where the particulars are inadequate. 

Turning to the points (these are my views and I don't seek to advise anyone what to put in their claim):

1. This is a bare denial. It is superfluous if the defence adequately responds to the pleaded case on a point by point basis. Also be mindful that to deny liability, the onus is on D to have the proof that the claim must fail.  Strictly speaking there is a difference between a denial and putting C to proof.  Better in my view is to put them to proof or deny each of the specific elements as you deal with them - who was driving, the date, the charge etc.

2. I think that is a reasonable point for the cases where no supplemental PoC is served and, in particular, the PoC are provided some time after the event. However, I have been in front of a DJ who disagreed with me on this point exactly, so it's no "get out of jail free" card.

3.(a) This is incorrectly expressed.  It appears that the reference should be to CPR PD 16 7.3. (contracts formed by written agreement). However, this submission overlooks the provisions specific to MCOL at CPR PD7C 5.2A which provides a specific exemption to append documents to the particulars *unless* the supplemental POC are served rather than PoC wholly submitted via MOCL. 

That said, since the contract was formed by conduct it is correct that CPR PD16 7.5 does apply so the PoC need to satisfy the requirements - the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done. This is the point that is potentially addressed in 3(d).

3(b) I agree that this is commonly the case.  Although some PoC are potentially specific enough (eg. to record specifically that there was an overstay and by how long).

3(c) See above. This is necessarily fact specific, but it is clearly expressed for applicable cases. Some PoC do expressly state eg that there was no permit displayed and that this is considered a breach of contract.

3(d) See above. This is necessarily fact specific, but it is clearly expressed for applicable cases. 

3(e) Most of the cases I see do state how interest is calculated.  The calculation is usually wrong (not least because interest is applied on the whole sum but the additional charges are applied at a later stage (so there is a need to either apply 2 rates or adjust to a combined median single rate).  If you know the calculation is wrong why not specifically say so and challenge it. Above all else, interest is discretionary and not an absolute entitlement.

3(f) Again, fact specific, but this will will be relevant to most cases.  I would be more explicit insofar as stating that even if, which is denied, the PCN were to be recoverable pursuant to the terms of any contract, it is by no means clear that enhanced sums which appear to have been applied at a later stage are. 

3(g) I disagree with this. It is to misunderstand a pleading which is drafted in the alternative, which is perfectly permissible. I quite often make multiple allegations in particulars of claim aware that some, but possibly not all, will be made out.  In most of the PoC I read on the claim form, the intention appears to plead in the alternative and is adequately drafted so as to do that. That is to say that the claim is against D who is the keeper, the driver and, quite possibly, both.  That is not difficult to understand or to respond to.  D can admit being the driver (in the right case that could be helpful), they could deny or put the claimant to proof. If the claimant PPC cannot prove who was driving then they cannot prove the breach of contract, which is why PoFA became law. That permits the claimant to stick the claim with a keeper (but only if the strict limitations are met). 

Grizebeck

I actually think less is more 

Johnersh

@Grizebeck I agree - hence my acknowledgement that the draft that I have critique has some merit.

If you've got 30 points but 3 good ones, go with the 3 so that the good stuff isn't obscured by the more average/poor ones.

Coupon-mad

I don't disagree but am not changing the template defence until the public get a steer from the Labour Govt.

Then we can perhaps get together and all discuss the Template Defence in a bespoke thread and decide what is actually needed.

The reason why things that would normally be saved & argued at WS stage are in the defence, is to cater for the LIP audience.

Whilst we would remember to argue the case law and detail of things we held back at WS stage, a typical newbie wouldn't. Some don't even do a WS and most of those who do, find it hard enough to tell their story let alone factor in clever stuff and case law that wasn't in their defence.

I think more people would throw in the towel if we overloaded expectations at WS stage.

And almost no newbie would be able to explain to a Judge why there are no facts in a very short defence. Didn't plead it? Can't be heard to say or rely on it at a hearing.

What we probably need, once Labour give us a steer, is:

1. - a mid-size defence template. Short enough to put in on MCOL to avoid issues with lost emails.

2. - a template email to go with the DQ, in poorly pleaded claims cases, attaching Chan and Akande and a Draft order

3. - a guide re Mediation, and

4. - a near template WS & evidence guide.

Johnersh

Also, apologies if the posts appeared overly critical. It should be said that of all the opinions flying around, I think we can probably all agree that it would be better if PPCs were made to provide the correct details with the claim form, so defences didn't have to try and preempt later arguments. That change requires some robust DJs.

Nobody should have to run technical legal argument in witness statements weeks later, still not knowing fully each others arguments.

Coupon-mad

Agreed. And you didn't come across as very critical. I know the Template is overly long.

Half the stuff in the long defence is trying to preempt later arguments because newbies wouldn't otherwise tackle the words and cases that typically get used in PPC WS.

I accept we will need a more concise defence by 2025 and I think we need more guidance on mediation now, and some sort of template for WS stage would be ideal.

LDast

Thank you for the opinions. I will pass it back and see what the response is to it. Both of us I agree that the current long defence template is overly long, even with good reason, but is simply considered to be as much of a "boilerplate" as the accusation in it that the PoC are equally so

It is understood that there is no single, ideal solution, as every judge makes their own decision on the facts in a case. This judge uses it regularly where the PoC are deficient, as is the case in most of the claims we see from the PPCs & their solicitors. They don't need to see it pleaded in the defence to issue the order.

It was the opinion that most judges are likely to read a short defence and use a draft order than not. Time will tell. There are a couple of defences using the short defence that have recently been submitted over on the FTLA forum and there is one here, albeit that was submitted through MCOL as a "Hail Mary" due to a missed deadline.

I will pass on the judges remarks to the discussion here.