Civil Enforcement Ltd claim form from back in summer of 2023

womble94

latest revised WS, hopefully this is good to go: https://www.dropbox.com/scl/fi/x1r7nav22cruat3j5gpwf/Witness_Statement.docx?rlkey=9raaip69k034wyn3mhzvu3op4&st=aegz0bmc&dl=0

Coupon-mad

Might be easier to copy & paste your facts section into a reply. You will get more views.

Le_Kirk

In your witness statement you state that there is a persuasive appeal judgment but then go on to cite CEL v Chan AND CPM v Akande, so that would be TWO persuasive appeal judgments.

womble94

Coupon-mad said:

Might be easier to copy & paste your facts section into a reply. You will get more views.

Please see below:

Facts and sequence of events

7. The facts in this defence come from my 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". I am unable, based on 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 I am the registered keeper.

 

8. Date and time of incident Wednesday 1st of June 2022, at approximately 16.00.

On the date of the alleged parking event, I stopped to buy some food shopping. I ensured that my vehicle was parked for the shortest duration necessary to complete this task.

 

9. Due to the age of the alleged breach of contract, which is 24 months old, I am unable to recall the exact reason for the PCN(s).

 

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 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 I do 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.  I, (and court) is reduced to guesswork.

 

11. 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.

 

12. 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.

13. I, denies (i) or (ii) have been met. The charge imposed, in all the circumstances, is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

womble94

Le_Kirk said:

In your witness statement you state that there is a persuasive appeal judgment but then go on to cite CEL v Chan AND CPM v Akande, so that would be TWO persuasive appeal judgments.

Thanks for pointing this out. I've amended this paragraph too:

4. Recent persuasive appeal judgments 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 and multiple similar judgements, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

Does this read better?

Le_Kirk

7. The facts in this defence come from my own knowledge and honest belief.  

I thought it was a witness statement!

womble94

Witness Statement of Defendant

1. I am xxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement I shall refer to (Exhibits 1-4) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Preliminary matter: The claim should be struck out

3. The Defendant draws to the attention of the court 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.

 

4. Recent persuasive appeal judgments 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 and multiple similar judgements, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

 

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. I believe 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.

 

Facts and sequence of events

7. The facts in this witness statement come from my 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". I am unable, based on 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 I am the registered keeper.

 

8. Date and time of incident Wednesday 1st of June 2022, at approximately 16.00.

On the date of the alleged parking event, I stopped to buy some food shopping. I ensured that my vehicle was parked for the shortest duration necessary to complete this task.

 

9. Due to the age of the alleged breach of contract, which is 24 months old, I am unable to recall the exact reason for the PCN(s).

 

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 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 I do 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.  I, (and court) is reduced to guesswork.

 

11. 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.

 

12. 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.

13. I, denies (i) or (ii) have been met. The charge imposed, in all the circumstances, is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

 

womble94

Le_Kirk said:

7. The facts in this defence come from my own knowledge and honest belief.  

I thought it was a witness statement!

I've amended this now, thanks for pointing out.

Coupon-mad

Better, but this is wrong:

"36. With the DLUHC's ban on the false costs"

They are not yet banned.

Discussed on dozens of threads but here's just one from May, where the person changed that wording to make a much-improved final WS (and they won at the hearing):

https://forums.moneysavingexpert.com/discussion/6482152/parking-court-claim/p7

womble94

Changed to:

36. With the DLUHC's proposed ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

All good to go now, you reckon?