Premier Park / Gladstones Small Claim Court - defence BPA grace period - dismissed

KeithP

RileyRileyRileyRiley said:

Date of issue is 15 Aug, putting "day of service" at 20 Aug.
I submitted AOS via MCOL on 1 Sep, the day before the 14 day deadline.
I need to submit defence by 16 Sep if I've calculated correctly.

Almost right but not quite. 

With a Claim Issue Date of 15th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th September 2023 to file your Defence.

That's nearly a week 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'.

RileyRileyRileyRiley

Many thanks all for your pointers. I'll do some reading and prep my defence.

I plan to focus on the grace period but use other relevant parts of the template. I am cautious as I don't want to create a liability for myself where something I cite does not apply but will do my best to read around.

Is there any point in revisiting my complaint to the BPA and/or the landowner?

If I submit SARs I won't have the responses in time for a defence - is it worth having this info anyway?

KeithP

RileyRileyRileyRiley said:

If I submit SARs I won't have the responses in time for a defence - is it worth having this info anyway?

You don't want a SAR response before you file a Defence.
You want to be able to say in your Defence that you know very little about the Claim because their Particulars of Claim are woeful.

Do not send the parking company a SAR until after your Defence is filed. The information returned will be far more useful at Witness Statement and evidence time.

RileyRileyRileyRiley

I'm finding myself somewhat conflicted by the idea that the Defence asserts the PoC is not adequate but also trying to present a full argument of my case. 

My proposed defence which has to be in today (18 Sep) before 4 pm:

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 copy-and-paste, incoherent and sparse statement of case.  The PoC is devoid of any detail and lacks any specific breach allegation, making it very difficult to respond. It is admitted that the Defendant is the registered keeper of the vehicle specified in the PoC ('the vehicle'). It is asserted that the Defendant was not the driver of the vehicle at the time the Claimant implies a Contract was formed. 

3. The Defendant admits that the vehicle was present at the car park specified in the PoC ('Park Lane Car Park') on the date specified in the PoC.  Park Lane Car Park is known to have a free parking period of 90 minutes, for which no ticket is required.  The Defendant recalls the day clearly as they were present on that occasion, as a customer of the shops in the vicinity.  The Defendant also clearly recalls being delayed in driving out of the car park due to congestion at the shared thoroughfare which is both the entry and exit point of Park Lane Car Park.

4. The Claimant will concede that no financial loss has arisen…

I started off by pointing out grace periods, the BPA code of practice, BPA membership, ANPR timings, etc.

In the end I have decided to pare it all back to the facts from my point of view as the Defendant. It's pretty bare-bones, but I think it's simple, accurate and allows me to expand on the points in a later Witness Statement and/or hearing.

So the defence is merely as above for paragraphs 2 & 3, the rest being as the template with my minor tweaks, having read it through and (mostly) understood it.

Thoughts welcome


I also wondered about referencing Gladstones' 10.25% interest, found a reference to it in another defence but it's not in mine as yet.

Also wondered whether to include something about ANPR imagery and timings and automated PCNs being a flawed process, and the PPC having the opportunity to recognise this and refusing.

Something like

The use of CCTV and/or ANPR imagery to log entry and exit times is a flawed method of asserting whether arbitrary terms have been breached. This is especially true in cases where errors in implementation of automated systems have not been accounted for. 

The failure of the Claimant to recognise that an automated system has incorrectly asserted that terms have been breached, despite having clear communication of the facts, should be enough to recognise that the Claimant is engaging in unreasonable behaviour.

But again, not added at this point and won't do so unless others think it's a good idea. Just thought I'd throw it down here as something that might seed ideas for others.

1505grandad

Is this true?:-

"It is asserted that the Defendant was not the driver of the vehicle at the time the Claimant implies a Contract was formed."

RileyRileyRileyRiley

Yes, I'm the registered keeper but did not drive the vehicle into the car park, nor was I in it at the time. As it happens I did drive the vehicle out (because I met my partner that day), but the statement stands and is true. 

Edited to say: this is also supported by the ANPR images

1505grandad

I was just checking because in an earlier post you stated:-

"Not sure if those signs were the ones when I parked but same terms AFAIK"

RileyRileyRileyRiley

Thanks for that, I'll edit the post to clarify. It does conflict - hurried typing / thinking on my part - apologies for the confusion -  I was aware the (my) car was being parked but not in it or around at the time.

B789

RileyRileyRileyRiley said:

Particulars of Claim

The driver of the vehicle with registration XXXXX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at PARK LANE CAR PARK POYNTON (ANPR) - 4 PARK LANE POYNTON CHESHIRE SK12 1RE, on XX/XX/2022 thus incurring the parking charge (the 'PCN'). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £70.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £XX.XX pursuant to s69 of the County Courts Act 1984 at 10.25% per annum, continuing at £0.05 per day.

If these are the PoC, then you have to read this very recent appeal judgment and apply it to your defence as it is persuasive on the court:

https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf?rlkey=304syf9czf5arl3i1u1ircjln&dl=0

Whilst the template defence does mention the woefully inadequate PoC, as you can see in yours, there is no mention of the actual terms that were breached and thus failed to comply with CPR 16.4 and the PD to Part 16. In the words of HHJ Murch who concludes in paragraph 13:

"I am persuaded that the right thing to do in this case is to strike out the claim form. Therefore, I conclude there has been a failure to comply with the rules. The conduct amounting to the breach was not set out; it was open to the respondent (the claimant) either to attach a separate particulars of claim or set out a little less of the detail as to the interests calculations and perhaps in that way set out how it was argued that there had been a breach amounting to conduct in breach of a contract."

RileyRileyRileyRiley

B789 said:

you have to read this very recent appeal judgment and apply it to your defence as it is persuasive on the court:

https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf?rlkey=304syf9czf5arl3i1u1ircjln&dl=0

Whilst the template defence does mention the woefully inadequate PoC, as you can see in yours, there is no mention of the actual terms that were breached and thus failed to comply with CPR 16.4 and the PD to Part 16. In the words of HHJ Murch who concludes in paragraph 13:

"I am persuaded that the right thing to do in this case is to strike out the claim form. Therefore, I conclude there has been a failure to comply with the rules. The conduct amounting to the breach was not set out; it was open to the respondent (the claimant) either to attach a separate particulars of claim or set out a little less of the detail as to the interests calculations and perhaps in that way set out how it was argued that there had been a breach amounting to conduct in breach of a contract."

How does this sound:

Failure to comply with Civil Procedure Rules

#. Recent judgment - Civil Enforcement Limited v Chan (Ref. E7GM9W44) - would indicate that PoC similar to those presented by the Claimant in this case fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. 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 Defendant asserts that this is a claim based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC.