Civil Enforcement Ltd claim form from back in summer of 2023

womble94

Coupon-mad said:

Change 10 to:

10.  There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 30th June 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Weds 1st June 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Friday 3rd June.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been two days later than this Claimant states in their POC.  In fact, it would have been even later in July 2022 because it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

Then swap para 9 and 10 because that will flow better, I think.

Remove 'and driver' from the end of your first facts paragraph.  Remove this from the start of your next paragraph:

The Defendant had not noticed any signage close to the where he had parked his vehicle, showing the terms and conditions for use. 

I don't think this defence should say who was driving.

Move 11 and 12 up to above your facts sub-heading and re-number.

And where you introduce CEL v Chan add a line pointing out that this is the same generic POC, and the same Claimant.

Thanks, I've just copied and pasted the bits that have been changed. Is this good to go now?

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(1)(e) and Practice Direction Part 16.7.5. 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. This is the same generic particulars of claim and the same claimant.

4. 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. See below.

5.  Likewise, 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. See below.

6. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices, As stated in the final image below, the Claimant’s solicitors - DCBLegal - confirmed they would not file an amended POC

7.  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.

8. 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.

The facts known to the Defendant:

9. 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.

10. Due to the age of the alleged breach of contract which is nearly 18 months old the Defendant is unable to recall the exact reason for the PCN(s).

11. There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 30th June 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Weds 1st June 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Friday 3rd June.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been two days later than this Claimant states in their POC.  In fact, it would have been even later in July 2022 because it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

12. The particulars of claim is insufficient, that even the location of where the (unidentified) alleged breach occurred is not identified!  'Bellevue' means nothing to the average person.

13. 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:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'Adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

Castle

Thursday 2nd June and Friday 3rd June 2022 were bank holidays so due date of receipt will be Tuesday 7th June 2022 for a 1st June posting date.

Coupon-mad

Castle said:

Thursday 2nd June and Friday 3rd June 2022 were bank holidays so due date of receipt will be Tuesday 7th June 2022 for a 1st June posting date.

Oh - good spot! 

womble94

Castle said:

Thursday 2nd June and Friday 3rd June 2022 were bank holidays so due date of receipt will be Tuesday 7th June 2022 for a 1st June posting date.

noted thanks will send off the defence tomorrow day time

Coupon-mad

Ok but have you amended the argument accordingly about the other date?

womble94

Coupon-mad said:

Ok but have you amended the argument accordingly about the other date?

I have indeed, please see below the amended paragraph.

11. There is a further matter negating any cause of action, namely a likely defective Notice to Keeper (NTK) and incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 8 or 9 of the Protection of Freedoms Act 2012 (the POFA) and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date - 30th June 2022').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow, even for a case with a compliant NTK. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on Weds 1st June 2022 (the same day as the alleged event, which it cannot have been) a NTK would be deemed served on Tuesday 7th June 2022 as there were bank holidays on the 2nd & 3rd of June.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover from the keeper' might exist would have been six days later than this Claimant states in their POC.  In fact, it would have been even later in July 2022 because it would have been impossible for a postal NTK (which the Defendant does not hold - the Claimant is put to strict proof) to have been dated/posted the same day as the parking event. Further, the generic POC omits whether or not a windscreen PCN was served first; a vital detail which affects liability dates by at least a month and would have clarified whether the Claimant seeks to rely on POFA paragraph 8 or paragraph 9.  The Defendant (and court) is reduced to guesswork.

womble94

I've just received the N180 form in the post.

Looking in the newbies thread, the below info is slightly outdated and I have a few questions:

4. After sending off your Defence, the Northampton Business centre will send a copy to the Claimant, and then send a Directions Questionnaire (form N180) to both Claimant and Defendant. You must complete this by the date given, and send it back to Northampton, with a copy to the other side (or their solicitors if they've nominated one as the address for service). The recommended answers to the questions are as follows:

• A1 = NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you)
• B = fill in all the details, name, address, etc
• C1 = YES to small claims track – this is the limited costs track for claims up to £10,000 in value
• D1 = name of your local County Court – unless you are a Ltd company, the case files will be transferred there
• D2 = NO to expert evidence (this relates to medical negligence cases and suchlike)
• D3 = 1 witness (that’s you) (or more if you are going to get another person to provide a statement)
• D4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one).

Note: Gladstones are currently including a 'request for special directions' asking the Court to hear the case on the papers only, without an oral hearing. You should oppose this, and include the following text in D1: “The Defendant opposes the Claimant’s request for special directions, and requests that the case be listed for an oral hearing at the defendant’s home court, pursuant to CPR 26.2A(3)”.

1. when it says "send it back to Northampton, with a copy to the other side (or their solicitors if they've nominated one as the address for service)" - what does it mean by send a copy to the other side?
2. They've added an additional point in the form which is now D1, I'm assuming I would tick yes on this part?
3. and now the previous D1-D4 is now E1-E4 and E5 is new, but I would just tick no.

Le_Kirk

As per the instructions in the NEWBIE sticky and/or template defence thread, send it back by e-mail to the same address that you used for your defence, send a copy to the claimant or their solicitor if they are using one (details on the claim form) and you tick NO to "without a hearing".

Coupon-mad

The Template Defence thread first 12 steps tells you where to email it x 2.

womble94

Hi all, just an update, hearing is in September. I have written out a WS - can someone check over it, make sure it is ok?

I haven't included any costs incurred as the day the hearing falls on I wouldn't be at work (I do shift work).

https://www.dropbox.com/scl/fi/k6ujnej2tsjlhriwezcy8/Witness-Statement.docx?rlkey=jgsb19omn8x3nw81d0l6orx7h&st=rpipibhr&dl=0

Thanks in advance