Hi, I have read the forums and This is my defence. I am nerodiverse so please forgive me if its wron

lost_soul_2023

@Coupon-mad i will shorten it and replace 2,3 with these ?

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

Coupon-mad

Yes but as seen in all the other threads, you need the transcript images too.

lost_soul_2023

Thanks for the late reply, it means a lot
you mention you need the transcript images too.
I am not understanding that part, can you kindly link me to them please.

Thanks

lost_soul_2023

@Coupon-mad I think i understand,

Submit the complete transcript as well as the 2,3 adjustments in my defence, Thank you soo much.!


I have attached the PDF link here for anybody else who may find this thread

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

Coupon-mad

You don't attach it.  You embed it as seen in all the other defence threads including the example linked in the Template Defence thread itself.  There is an example right there from last week to show everyone what to do.

UncleThomasCobley

You have to embed the images of the transcript as JPG files. You can't embed a PDF into it and as this is a defence, not a WS, you don't add attachments.

You can easily go find any thread that shows you the transcript and download the images to your computer and re-use them in your defence or, using appropriate software convert/export the PDF pages of the transcript into JPGs. There are 4 pages in the transcript and you'll need a separate JPG for each page.

Did you edit the rest of your paras to reduce the amount of waffle? Your added commentary is more akin to a WS. You don't need anything like that level of detail in a defence. You are answering the allegations in the PoC and I'llbet they don't mention anything of what you have put. Don't do the claimants job for them.

lost_soul_2023

Thank you, I fully understand now.
Any defence I submit has to use legal basis, under current law or prior cases heard.
The WS as you have both said is not relevant, the arguments must support law.
Reasons of fact.must be given, as to why i was there.

Either i am guilty of the PCN or not, there is no mitigation here.

If i wanted to use the basis for a new argument i would have to find a breach in law which would create either a loop hole, a presence for a new argument,

Or a counter claim against the company for not following other laws in which they are bound by,

Such as equality act.

Autism Act.

I will try to find a basis for breach of either of these acts and put the defence for argument which will either be accepted or not.


Thank you all you have taught me a lot of late.

UncleThomasCobley

You can add anything in your own paras but you don't need to go into great detail at this stage. just mentioning the you will be relying on some legislation is enough. You would then be able to expand on that at a later stage when you do your Witness Statement.

In your case, the defence needs to be as follows:

Defence header etc.

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 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

[Embed images of the transcript here]

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 appear to be 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 the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

^EDIT THIS PARAGRAPH If you were driving, add 'and driver' after the word 'keeper'.

OR if the Defendant doesn't know who was driving, say that.

OR deny being the driver if you weren't: ONLY IF TRUE!

3. [EXPLAIN IN YOUR OWN WORDS...NB: defences are written in the THIRD person as 'the Defendant', not 'I did this' nor 'my/me']. 

Say why the car was there - if you know - but don't answer to details that are not stated in the PARTICULARS OF CLAIM. If you didn't get any letters or it was years ago & you can't recall if you were driving, say that.  ONLY IF TRUE.

Most claims do not even state the alleged breach (QDR claims excepted). If yours doesn't state the breach, add the paragraphs and judgments seen in the defence by @hharry100 here:

https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627

and change the paragraph numbering.

If this was a residential site where the driver lives/was a permitted visitor, state those parking rights.

Older residential defence examples are in the NEWBIES thread.  CRIB SOME PARAGRAPHS BUT USE THIS TEMPLATE AS YOUR BASE.

We recommend you continue with this wording  (yes, all of it. Paragraphs suitably re-numbered to allow for the above).

Coupon-mad

Either i am guilty of the PCN or not, there is no mitigation here.

Not correct.

There is no 'innocent' or 'guilty' in a civil court about contract law and there are dozens of  reasons why a Defendant who technically breached a term WILL NOT be ordered to pay a parking charge by a Judge.  Mitigation, fairness and prominence of the terms are all considered, as well as how the claim was pleaded.  And the Equality Act 2010 is relevant.

But your Witness Statement comes later.

lost_soul_2023

Got it! At this stage it's just a preliminary statement of defence.

Thank you to you both, I fully understand

Use the above statement with the argument at this stage to dismiss the case points 2,3

then state why I was there, which would be the event

the argument for dismissal is based on this:

generic auto-fill unspecific wording

Particulars of Claim
Claim for money relating to a Parking Charge
for breach of contract terms/conditions(TCs)
for parking in private car park (CP) managed
by Claimant. Drivers may only park pursuant
to TCs of use displayed in CP and agreed upon
entry/parking. ANPR cameras or manual patrols
monitor vehicles entering/exiting the CP and
TC breaches.




I got it now.


Thank you all once again