Defence review - not parking wholly in bay

Coupon-mad

Yes of course. There's a whole thread this week on this new case, telling everyone to use it!

It's not just the statement.  You can see there that he added four transcript images into his defence and wrote much more than just one bare statement.

baggiesingh

B789 said:

You could go back to the car park, park your large car in a bay and take photos showing that the bay is too short. That would allow you to prove that the PPC has frustrated the contract.

Yes good idea, I will do that thanks

baggiesingh

Coupon-mad said:

Yes of course. There's a whole thread this week on this new case, telling everyone to use it!

It's not just the statement.  You can see there that he added four transcript images into his defence and wrote much more than just one bare statement.

Apologies being a bit dim but can’t find that thread, could you post a link.
presumably I just add that on to the existing template defence ?

B789

Have a read of this:

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

baggiesingh

@Coupon-mad, @B789, @KeithP

Thanks for the advice. Have read the recent threads re Murch, Wakefield etc and amended defence accordingly. Will include Para 4 onwards from the template too (and renumber accordingly). Appreciate if you could review this draft:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

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 is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the registered keeper and driver of the vehicle.

3. The Defendant’s vehicle was parked within the lines of single marked bay as far as was practicably possible given that the bay was only 14ft in length thus not sufficient to wholly accommodate the defendants vehicle, a normal UK car, of 16ft in length; hence it was impossible to comply with the terms and conditions.

4. The signage depicting a breach of this condition shows a vehicle breaching the side markings of the bay but makes no reference to overhang of the end of the bay.

5. The footprint of the Defendant’s vehicle was parked wholly within the bay.

6. As this is not a barrier car park, traffic is continuously moving and it would be impossible, not only for the Defendant but anyone to read a small sign that is supposed to have all the prominent terms. Therefore, no contract could be formed.

7. Moreover, there were not adequately prominent signs communicating the terms and conditions near many of the spaces inside the car park. Most of the signage across the carpark makes no reference to a condition of parking wholly within a bay. It would be unreasonable for the Defendant or any other patron of the car park to assume this signage is incomplete and look for signage detailing further terms and conditions.

 

8, In addition to these facts, 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 and the Practice direction to Part 16. 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 Defendant asserts that this Claim is 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.

 will insert these three images 

https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf

8,. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing:

will insert image from here:

https://forums.moneysavingexpert.com/discussion/6368024/8-pcns-from-premier-park-passed-to-rdp/p2

9.  Furthermore, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning:

will insert image from here

https://forums.moneysavingexpert.com/discussion/6368024/8-pcns-from-premier-park-passed-to-rdp/p2

10. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

11. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

 

 

 

Coupon-mad

There's another judgment from Manchester court.  Add that too!  As seen in the thread by @xavian1234

I'd make this shorter, as shown:

3. The Defendant’s vehicle was parked straight and within the lines of a single marked bay as far as was practicably possible, given that the bay was only 14ft in length thus not sufficient to wholly accommodate the vehicle, a normal UK car of 16ft in length. The wheels of the Defendant’s vehicle were wholly within the bay.  Minimal overhang of the front or back of a car (especially when in a very small bay) is considered 'de minimis' in the local authority parking policy, generating no PCN.  Therefore, the Defendant avers that this private PCN is an unfair consumer notice arising from just the sort of 'pitfall or trap' that the Supreme Court held would not lead to an enforceable charge in a car park.

4. Moreover, there were only sparse, non-prominent signs at this site and - oddly - they differ significantly from each other. The Defendant has now scrutinised the signage, most of which makes no reference (at all) to a term or condition to "park wholly within a bay".  Therefore, that term was not adequately communicated, there was no breach, and the Claimant's allegations are denied. It would be unreasonable for the Defendant or any other patron at this location to be expected to walk round the entire car park comparing signs, to find one with different terms and conditions. Terms cannot be assumed; they must be prominently communicated.  How would a driver know that one t&cs sign is different from another? But they are at this site.

Johnersh

Hang on… do you need to accept being over any lines? The whole of the vehicle is within the visible lines in the image on the forum and, insofar as I can make out, whilst the body of the Volvo may overhang, the axle of the vehicle is likely within the bay. Any technical breach is de minimis and does not impinge upon any access routes or parking bay.

at para 3, inmho the correct submission is that the bpa guidance is that bays should be 4.8m long (15feet) so this is an undersized bay.  One might even suggest it was a trap for the unwary.

baggiesingh

Thanks for feedback will amend as @Coupon-mad suggests and add additional wording to para 3 from @Johnersh
just one final clarification, I can send this by email as a pdf but do I also need to include a scanned copy of the N9B?

B789

Just the defence PDF attached to an email. No need to send the claim form.

baggiesingh

Defence filed by email
and acknowledgement received 
thanks for all your advice