Multiple FCNs from Napier Parking

Coupon-mad

Just use the defence linked in the third paragraph of the Template Defence itself.

All very self explanatory when you read it.

imulsion

Yes, I was planning to. As soon as I read the PoC I felt some sense of relief that it's as incoherent and poorly stated as it is, in that there are grounds for the claim to be struck out. 

I'll edit up my defence in the next couple of days and post the relevant bits here for feedback

Coupon-mad

The POC doesn't even state the times/dates of an alleged two breaches ('between this date and this date' cannot be good enough!).  And as you've seen, there is no breach nor conduct stated in that POC that caused the charge to arise.  Nothing at all!  The breaches could be different. It doesn't even say if they are pursuing you as the keeper under the POFA.  Or as driver. Next to nothing that complies with CPR 16.

KeithP

imulsion said:

- Received a Claim Form from the County Court with a serving date of the 10th of April...
- I have followed the MCOL instructions in the other threads here and have filed my AoS. According to the MCOL website I now have 28 days from the date of service (the 15th of April), which by my calculation is the 13th of May, to file my defence.

You are right with your Defence filing deadline but there might be something useful here...

With a Claim Issue Date of 10th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 13th May 2024 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

imulsion

Here's what I have so far:

5. At the times of the alleged breaches, the Defendant’s girlfriend was employed by the Camp Hopson department store, to which the car park operated by the Claimant is attached. The Defendant entered the land solely to collect his girlfriend after she finished work, and did not exit his vehicle whilst on the land. It is therefore denied that the Defendant knowingly accepted the terms of any contract, and further denied that any such contract was even formed between the two parties by the actions of the Defendant.

I want to add another point about how the PoC say that by entering the car park the driver agrees to the contract, but the typeface on the signs are so small that it is impossible to be aware of the terms and conditions while driving in, and therefore any driver is allegedly agreeing to a contract, the details of which they cannot possibly be aware of. 

I don't know how to phrase this point or even if it's a good legal argument. Any thoughts?

Umkomaas

imulsion said:

Here's what I have so far:

5. At the times of the alleged breaches, the Defendant’s girlfriend was employed by the Camp Hopson department store, to which the car park operated by the Claimant is attached. The Defendant entered the land solely to collect his girlfriend after she finished work, and did not exit his vehicle whilst on the land. It is therefore denied that the Defendant knowingly accepted the terms of any contract, and further denied that any such contract was even formed between the two parties by the actions of the Defendant.

I want to add another point about how the PoC say that by entering the car park the driver agrees to the contract, but the typeface on the signs are so small that it is impossible to be aware of the terms and conditions while driving in, and therefore any driver is allegedly agreeing to a contract, the details of which they cannot possibly be aware of. 

I don't know how to phrase this point or even if it's a good legal argument. Any thoughts?

More often than not, at court level, signage (lack of/illegible/poorly maintained/partly hidden) is a major winning point. You need to get some photographs of the signs which you will add to your Witness Statement (a few months further down the track) to back up your Defence point of 'Inadequate Signage'. 

Coupon-mad

You haven't highlighted what I pointed out about the POC. And as you were collecting a passenger you should quote from the new incoming statutory Code of Practice re the definitions ('parking period', etc) as seen in other defences re collecting passengers).

Fruitcake

Dropping off/picking up is not parking as determined in Jopson v Homeguard, case number B9GF0A9E, transcript available online. This was an appeal case and therefore persuasive on the lower courts. 

imulsion

Hi Coupon-mad, I have already included the two clauses relating to the terrible PoC in the "claim should be struck out" part. I didn't include them in my excerpt because it's just a copy+paste which I'm sure you guys have seen millions of times. Here they are just so you know what I'm talking about

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(1)(e) and Practice Direction Part 16.7.5. On the 15th of 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

Should I add more about the unclear PoC in this part of the Defence too?

Thanks to you, Fruitcake and Umkomaas as well for the other points about picking up a passenger. I will research those cases and add to my arguments 

Coupon-mad

I think it does no harm to say under the Chan transcript:

4. The POC in the extant case are blatantly 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 this POC, to understand with certainty what cause of action, liability basis, allegation(s) and what heads of cost are being pursued, making it difficult to respond to such an incoherently pleaded case.

5.  This claim does not even state the times/dates of (apparently) two breaches.  Saying that two PCNs are owed 'between this date and this date' is as inadequate as just saying 'money owed £' and is nowhere near enough detail.  Further, there is no conduct stated in the POC that supposedly caused the charges to arise on the two unidentified occasions.  The alleged breaches could involve different matters/terms.

The facts known to the Defendant:

6.  If the POC are not struck out at allocation stage, the Defendant denies all liability for the following reasons:

7.  At the times of the alleged breaches, the Defendant’s girlfriend was employed by the Camp Hopson department store, to which the car park operated by the Claimant is attached. The Defendant briefly entered solely to collect his girlfriend after she finished work, and did not exit his vehicle whilst on the land. It is therefore denied that the Defendant knowingly accepted the terms of any 'parking' contract, and further denied that any such contract was even formed between the two parties by the actions of the Defendant.

8.  At no point was the car “parked”. It was at the location for mere minutes to collect a passenger. The Defendant will rely on the persuasive Appeal findings in Jopson v Homeguard [2016] B9GF0A9E (transcript will be supplied later) where His Honour Judge Harris sitting at Oxford court, determined that dropping off, picking up, loading and unloading or stopping for a short duration is not parking.

9.  Parliament agrees.  The Claimant has ignored the The Parking (Code of Practice) Act 2019 first published in February 2022, and due to be finalised this Summer after a Judicial Review delay engineered by the parking industry, who did not object to the following clause which remains unchanged:

10.  The definition of a 'parking period' specifically excludes dropping off/picking up passengers. Clause 2.24 defines a parking period as: "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land."