Defence advice for retail park overstay using a hire car

UncleThomasCobley

Hopefully, the allocating judge will notice the "preliminary matter" which is now buried in the defence rather than being "preliminary" and your paras #2 and #3 and without the bold sub-heading that is supposed to bring it to the judges attention.

defender809

UncleThomasCobley said:

Hopefully, the allocating judge will notice the "preliminary matter" which is now buried in the defence rather than being "preliminary" and your paras #2 and #3 and without the bold sub-heading that is supposed to bring it to the judges attention.

Thanks buddy.  I did bold it within my actual defence but it did not get translated to the website when i posted it.

defender809

Hi All, there was a problem with the filing of Defence this week so I had to redo it and took all the above points into consideration and here is what the first few paras look like now.  Once again thank you for everyone for their input on this.

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 - which includes DCB Legal - 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 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. 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. See below (insert case image).


4. 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 in June 2017, 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 did 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.

5. The Particulars of Claim ('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 is being pursued. The POC are entirely inadequate, in that they fail

to particularise:

(a) the contractual term(s) relied upon;

(b) the details of any alleged breach of contract;

(c) the time when the alleged conduct occurred and

(d) how the purported added £340 'damages' arose - a sum which never features on any

MET Parking Services sign, so is not based upon contract. It is loosely described as

damages but the woeful POC fail to make any case to support it.

(i) 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.


...and the rest of the template follows.

Umkomaas

Hi All, there was a problem with the filing of Defence this week so I had to redo it

Unusual, can you elaborate please?  You did convert it to a pdf file and attach it to an email to the CNBC (formerly CCBC)?

defender809

Umkomaas said:

Hi All, there was a problem with the filing of Defence this week so I had to redo it

Unusual, can you elaborate please?  You did convert it to a pdf file and attach it to an email to the CNBC (formerly CCBC)?

Yes, I did but I had an error in the claim number so it was rejected and I had to resubmit.  They let me know via email.

Coupon-mad

Ah that's good. Gave you a liitle time.

Your line spacing is strange. Put it back to 1.15 in your word doc.

This is old, so replace it with the newer wording seen in the one I link in the Template defence thread:

3.4. 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. 

And you seem to have removed para 2 from the template completely, which is wrong.  Still needs to follow the above, only re-numbered.

And you've put no details at all about whether you were driving and what happened (or whether it's so long ago you don't know).