Can Driver have CC Claim transferred to them instead of Registered Keeper?

KeithP

consumer0130 said:

...it's then due the next business day, Monday 16th October.

Yes, as I stated in the post immediately above yours.

1505grandad

And "Judgment" in this context does not include a middle "e" as in some of your text (see the docs being exhibited).

UncleThomasCobley

As this is a DCB Legal filed claim, you must add the following as your paras #2 and #3 and renumber everything subsequently:

Preliminary matter: The claim should be struck out

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 and Practice Direction 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

consumer0130

Coupon-mad said:

Remove 'offenses' (twice) in 2 & 3. Replace with 'events'.

DONE

Remove the first line of paragraphs 6 which makes me shudder because it reads as if defendants are accepting agreement by conduct took place.

DONE. I assume if it's making you shudder it's definitely no bueno for the judge!

Remove this because evidence comes months later:

See consumer reviews for <link to Secure A Space google maps reviews> 

DONE

Add a section denying liability as keeper because the D has seen no evidence that this Claimant complied with the POFA.  

Like this (obviously needs a paragraph number):

The Defendant does not recall being served ...

DONE

Thank you muchly!

consumer0130

UncleThomasCobley said:

As this is a DCB Legal filed claim, you must add the following as your paras #2 and #3 and renumber everything subsequently:

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge ....

ADDED AS MY POINT 2

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 and Practice Direction 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

I HAD #3 AS POINT 6 W/ IMAGES OF JUDGMENT FOLLOWING; I'VE NOW MOVED TO MY POINT 3.

Thank you!

Coupon-mad

Show us what it looks like now.

consumer0130

Updated version with everyone's feedback incorporated (hopefully as intended!)

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').

Preliminary matter: The claim should be struck out

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 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:

Pictures One through Four – Judgment from Judge Murch

The facts known to the Defendant:

4.        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, filled with incorrect or missing punctuation and improper spacing. The PoC fail to "state all facts necessary for the purpose of formulating a complete cause of action". The POC lacks specific breach allegation(s) (saying only the “vehicle was parked in breach of the Terms on Cs signs” but not stating which terms), making it very difficult to respond as not all facts are known.  However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper, although the Defendant was not driving the car during any of these alleged events and liability is denied.

5.        From the PoC the Claimant alleges that unspecified terms were breached on three occasions in 2019.  The vehicle was shared and the Defendant was not driving the vehicle during any of the alleged events.  The Defendant was not aware of these allegations and thus did not have any chance to appeal.

6.        The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.

7.         As the Defendant is unaware of the exact events leading to the alleged breaches of the unspecified terms, they are unable to remark specifically upon the nature of events during the alleged dates.  However, research done by the Defendant indicates anecdotally that the Claimant has a history of misleading signage, spurious PCNs, a lack of an adequate or fair appeals process, and engages in predatory tactics to get as much money as possible out of scared members of the public.  As such the Defendant seeks to robustly defend this claim and not fund a company whose profit model seems to stem from abusing their power.

8.        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. As the PoC in this matter from Secure-A-Space Limited contain even less detail than the above-referenced case of Civil Enforcement Limited v Chan, 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.

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

Picture Five – Judgment from Judge Robinson

10.        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:

 Picture Six – Judgment from District Judge Sprague

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...(and then continues with the template as-is)

1505grandad

Typo  -  para 6(i)  -  " Excel could have used the POFA but dd not."

Coupon-mad

Nice catch again! My typo. Apologies.

That's a good defence for a keeper who wasn't driving.  If it gets as far as WS stage you'll need the transcripts of Smith and Edward but they are both available.  Make a note not to forget them at WS stage.

This will be discontinued then, I predict.

consumer0130

I do hope you are right and very glad I've managed to cobble together something you think stands a shot!  Thanks to everyone who has provided input.

I'll make a note of Smith and Edward transcripts.  I'm going to ask RK to go ahead and send today.

I will post updates of what happens here.