Help QDR solicitor claim on behalf of euro car parks limited

Coupon-mad

Neverafine said:

Just adding the POC above again, so we can all see that this is a QDR claim with the breach stated.

I think you could add:

As such, the allegation 'no valid pay and display permit was purchased' is neither admitted nor denied.  However that is a particularly vague allegation and - if the Claim is not struck out at allocation stage (see below persuasive authority) - the Claimant is put to strict proof of 'keeper liability' and evidence of breach (including the machine logs that day) and must establish whether they are aware of any - or none - of the following scenarios that the Defendant has been reduced to guessing, due to the brief and generic POC:

(a). A permit was purchased but a keying error or machine error failed to record the full numberplate (a burden that should not fall upon the driver and that the Government is banning as a reason to pursue a private PCN), or

(b). A permit was purchased but perhaps did not fully cover the parking time (the Defendant avers that a fair grace period must apply), or

(c). The machine was perhaps not functioning properly (no permit could be purchased?) in which case PCNs are unfair and any alleged contract void for impossibility, or

(d). The permit slipped off the dashboard, or no permit was purchased because there were no parking spaces and/or the vehicle was only there briefly (e.g. for passenger pick up, which is exempt) or something else?


4.  This is the Claimant's claim to prove, including:

(i)  the basis upon which they are pursuing the registered keeper (not an automatic right and not possible in many cases if the parking operator did not comply with mandatory 'keeper liability' requirements) and

(ii)  the prominence and visibility of the signs and payment machine at the material time compared with where the car stopped (if it did), and

(iii) that they carried out human checks of images and compared those to VRMs (including partial or unmatched VRMs) on the machine logs, before taking the onerous step of obtaining the Defendant's DVLA data and issuing a PCN, and

(iv). that this was a single 'period of parking' as opposed to time spent by a driver looking for a space, or two visits wrongly combined by the well-known 'first in last out' image default flaw of car park ANPR systems, and

(v) given that July 2020 was at the height of the pandemic, the Claimant must demonstrate that the rules at this presumed car park were not relaxed or suspended by their client landowner at the material time, and

(vi) where this happened and that it was in fact private land. 'Norton Street Manchester' is by definition a street; a public highway, and

(v) how the purported 'parking charges' arose, how the driver could have agreed to further (unspecified) 'contractual charges' and whether these costs were actually incurred/paid to a debt collector (given the failure to collect) and the breakdown of the quantum. 

5.  The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

6.  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 circumstances of poorly pleaded private parking cases.  Whilst in this case a generic 'reason' for breach has been stated, it hides a very large list of possible breach scenarios and the extant POC have left the Defendant - who was not driving - having to guess how to respond. The conduct which amounted to the alleged breach is not stated.  The period of parking is not stated.  Whether the Claimant is able to rely upon and complied with 'keeper liability' legislation is not stated; thus the legal basis for pursuing the keeper is absent.

7.  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 same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

(Image of the CEL v Chan transcript)*

8.  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 above persuasive authority.

9.
(rest of the Template Defence, re-numbered.  You'll have about 40 paragraphs).


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* literally seen in EVERY defence thread this past month! Go grab it.

Make sure you email this signed defence AFTER the expiry of at least 14 days past the issuance of the Claim Form.  Then they can't quickly send better POC!

Neverafine

Amazing thank you

Coupon-mad

I surprised myself that I managed to argue the HHJ Murch judgment into a QDR case!

Their POC do miss out the 'period of parking' (minutes or hours, who knows?)  and whether they are relying on the POFA for keeper liability.

Neverafine

Hello again this has now progressed to setting a court date. It has been set for the 29th of May. I have until the 9th May to complete a witness statement. Any advice would be much appreciated. I realise I have left it late however it's been a very busy period. Thank in advance. 

Coupon-mad

You just follow the Newbies thread.

  

Neverafine

So an update on this, I produced a defence as per the newbies thread and I sent it to the court/QDR solicitors. I received a few interesting things back in the post on the deadline which was the 9th of May. 

They have requested to strike out the entirety of the initial claim form and have attached an amended claim form with a new particulars of claim. This has accompanied requests from the court to allow more time to defend and resend witness statements etc. 

The particulars of claim are:

The claimant is a parking operator who has a claim for an outstanding parking charge notice against the Defendant. At all material times the Claimant was authorised by its parent company ECP (Holdings) PLC to cary out parking enforcement services at Norton Street Manchester, M3 7NW ('The site"). The Site is private land and is split into 2 distinct plots of land which are both wholly owned by ECP (Holdings) PLC. The official register of the ("OCE") notes the address of the plot of land annexed at Appendix B as being Land on the South Side of Greengate Salford. The OCE notes the address for the plot of land annexed Appendix C as being Greengate and 2 Norton street Salford. The Claimant operates parking facilities on behalf of ECP (Holdings) PLC across all the land.

The Defendant is being pursued as registered keeper in accordance to Schedule 4 of the Protection of Freedom Act 2012 ("the Act") of the vehicle with the number plate... ("the vehicle")

This is the start of their claimant bundle if you like which also contains photos of the vehicle and other information they believe proves the above. 

They have also sent a new claim form to the civil national business centre and a N244 application form. Finally they have a draft order for the court with an 8 point plan essentially which is as follows- abbreviated below:

1. Permission for the claimant to amend the initial claim form
2. The claimant to file and serve an amended claim form and particulars of claim within 7 days of this order
3. Permission for the defendant to amend the defence
4. The defendant to file and serve an amended defence within 14 days of the date of the service of an amedned claim form anf particulars of claim
5. Witness statements to be filed and served within 14 days of the service of an amended defence
6. The hearing listed for 28th May be adjourned
7. The claim to be listed for Trial on the first open date after 1 August 2024 
8. No order of costs

My questions are

1. Do I need to do anything at this point? Do I need to respond to their solicitors?
2. Is it in my interest to accept the above?
3. Is this an expected response?

Many more but that's a start

I plan to search the forum this morning, please point me in the right direction if there is similar as above. 

Coupon-mad

There is. I'll send you a pm.

You mean you sent your WS bundle (not defence).

Did you get their Application and other guff before or after 4pm on 9th May?

Coupon-mad

OK now you are talking. If it was dated 9th and sent by post it can't have been served on 9th. Anyway see my pm.

Coupon-mad

Can you show us the WS and evidence you sent to QDR and the local court last week?

Secondly: in September did they file & serve separate POC by post, or was the only POC in your case the very short one you showed us (on the claim form)?

Thirdly, you said the hearing was listed for 29th May but what you've typed from the Claimant says 28th. Which is right?

Neverafine

Sure, how do I upload it without having to take multiple photographs? 

In September I did not receive a separate POC by post. Yes the only POC was the very short one that you have already seen. 

Apologies I have made an error with the listing. It is on the 28th of May not the 29th. I unfortunately have placed the wrong date in my witness bundle.