Civil Enforcement, Parking paid, PCN received - HEARING SCHEDULED

Le_Kirk

You could also add CPMS v Akande, see link following https://forums.moneysavingexpert.com/discussion/comment/80939024/#Comment_80939024
and within that post, the Judgments link

SMus

Fruitcake said:

The PoC are woefully inadequate and do not define a specific cause for the claim. Whilst it states, Payment not made in accordance with notified terms, it does not specified what those notified terms were, nor which one or ones was allegedly breached.
For example, was payment not made for parking, or not made for standing on one leg whist singing I am Australian, or not made for buying an ice cream ... or what?

Use the whole of the defence template, including the CEL v Chan case as per the hharry100 defence, linked from the template defence sticky Announcement, then show us only the parts of the template that you have amended.
Personally, I would add that since the claimant is CEL, they should be perfectly aware that the PoC in your case are inadequate as they were in CEL v Chan, and this failure to provide detailed particulars as required by the CPR is at best negligent, and is therefore unreasonable behaviour. CEL should know better than to continue to produce claims with inadequate particulars.

haha thank you for your energy @Fruitcake and for your message,

They mentioned in some email that I paid the parking 12 minutes after my arrival when the limit was 10 minutes. 
The machine wasn't accepting cards and only cash and the queue was very long. Not counting I had to find changes in the local shop before I was able to pay the parking ticket (which I still have).
I'm wondering how many people they've scammed that day...

I'm going to start work on the template, the you for your help. 

how many details I should add about the fact I was late for my payment because of the machine?

Thank you all!

Coupon-mad

I don't think Chan and Akande apply here and I think that muddies very clear waters.

The Defendant knows that they are being penalised for the heinous crime of taking 12 minutes to navigate through CEL's own delaying system of various non-functioning payment methods.

I think in this case that should be in para 3. Use the normal Template Defence. Not Chan.

This situation is similar to another thread that @Bazarius quoted from today: the refusal of a Circuit Judge to allow Excel to appeal.

The judgment refusing the parking firm's application to appeal was by HHJ Pema and (although it is about a 'keying error') it can be useful in any case where the parking fee was in fact paid:

https://forums.moneysavingexpert.com/discussion/comment/81187184/#Comment_81187184

The point being that a term imposing an unnecessary burden on a consumer to do more than their core obligation to pay for parking (the PPC hiding behind the excuse 'we use ANPR so we can't see on the ground what the driver is doing, so we have to impose other hoops for the driver to jump through') is an unfair burden and not a legitimate reason to generate £100 PCNs to paying patrons.

The Circuit Judge held that the first Judge was correct: these are frivolous PCNs, 'de minimis' matters based on unfair rules (e.g. issued for keying errors or 'taking too long to pay').

 A Judge will never let this claim succeed.

SMus

Thank you everyone, thank you @Coupon-mad. I started drafting my defence only now as I was travelling. Here it is. I didn't include 'chan' and left the rest as is from the template. 

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').

The facts known to the Defendant:

2. 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 appears 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 and driver.

3. The Defendant was the registered keeper of the vehicle at the time of the alleged incident, which occurred at the car park located at 237-259 Greenwich High Road, London, SE10 8NB. On the day in question, the Defendant ensured that the parking fee was fully paid, and they have retained the parking ticket as evidence of this payment, which can be provided to the court if required. The Claimant's assertion of a breach is based on a supposed delay of four minutes in completing the payment, yet the terms of the car park clearly allow for a grace period of 10 minutes after entry to complete payment. The Defendant’s payment was delayed by issues with the payment machine, which was not accepting card payments and created a queue at the machine, ultimately causing a delay in completing the transaction. Despite these circumstances, the Defendant acted in good faith to make the necessary payment as quickly as possible, and it was paid in full.

Given that the delay was minor, the Defendant believes that the situation falls under the de minimis principle, which the courts have consistently applied in cases where the breach does not result in financial harm. The Defendant’s payment was fully completed and no loss was suffered by the Claimant. Therefore, the imposition of a penalty charge is disproportionate and unjustifiable. Moreover, the Defendant did not receive any initial Parking Charge Notice offering a reduced payment. The first correspondence received was a demand for a higher payment, which came after the 28-day period for making an appeal had already expired. This deprived the Defendant of an opportunity to challenge the charge in a timely manner, further undermining the Claimant’s case.

The Defendant also wishes to draw the court’s attention to legal precedents, such as Excel Parking Services Ltd v. Wilkinson [2020] and the refusal of an appeal in Excel v. Smith (HHJ Pema, 2022), where the courts ruled that penalties based on trivial issues, such as minor delays, were not enforceable. The Defendant asserts that the Claimant's conduct in imposing this penalty constitutes an unfair term under the Consumer Rights Act 2015, specifically Section 62, which prohibits terms that unfairly disadvantage the consumer. In light of these facts, the Defendant requests that the court strike out this claim, as it is unjustified, disproportionate, and lacking in merit.

Coupon-mad

Your final paragraph in that draft needs removing, as neither Excel Parking Services Ltd v. Wilkinson [2020] or Excel v. Smith were "cases where the courts ruled that penalties based on trivial issues, such as minor delays, were not enforceable."

You've conflated 3 completely different appeal judgments. By all means quote HHJ Pema but do not mix up Wilkinson or Smith into it!

SMus

Thank you everyone, thank you @Coupon-mad
I'm going to edit and send this today. I wanted to ask I should include any photographic evidence in my email (like the paid ticket receipt) ? Or is this useful only in-court?

I Understand I shouldn't file my defence on the MCOL website and use it as 'only read' resource but I'm struggling to understand which email address I should use from the list to send my signed defence.
EDITED I think it's this one? ClaimResponses.CNBC@justice.gov.uk

I read I have to include my phone number in the email I sent to them. is it necessary?

Thank you everyone for your help , despite the outcome of this, I'm grateful for the support received by so many altruistic forum members.

Le_Kirk

If you are sending a defence you do not include any evidence with it. You can make reference to it in your defence along the lines of "the defendant can provide evidence at the appropriate stage". The email is in the template defence thread but that looks right. Why not include a phone number in case CNBC need to contact you?

SMus

Hi everyone, thank you again for your support.
I prepared and sent my defence and received confirmation by CNBC.

Today I received a call by DCBLegal asking if I wanted to have a without prejudice settling conversation and I refused the offer. I hope I'm doing the right thing!
This message is for both ask you if I did the right thing and to renew my gratitude to give me the courage to do this.

Coupon-mad

Yes you did exactly the right thing! DCB Legal will try this throughout. Just say no!

Castle

OP

You may want to have a read of this new thread:-
News on the "5 minute rule" — MoneySavingExpert Forum