Civil Enforcement Ltd claim form from back in summer of 2023

Coupon-mad

No I meant add that moved sentence at the end of paragraph 7.

Not tacked into the unnumbered paragraph that should be numbered 8.

womble94

Coupon-mad said:

No I meant add that moved sentence at the end of paragraph 7.

Not tacked into the unnumbered paragraph that should be numbered 8.

Hoping this is good to go now?

Preliminary matter: The claim should be struck out

3. 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.

4. I would like to draw 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). I believe 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.

5. 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 judgments, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

6.  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.  I trust 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.

 

 Facts and sequence of events

7. 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. However, the vehicle is recognised, and it is admitted that the I am the registered keeper and driver.

 

8. I saw no parking signs and certainly did not agree to pay £100.  Let alone the inflated sum of £170 which is unexplained and cannot have been the PCN sum. Any such terms or penalty warnings were either not there, not prominently displayed and/or buried on some unintelligible sign in minuscule text, incapable of binding a driver. The Claimant is put to strict proof of their alleged contract, if the case is not struck out due to the Chan appeal case which was about the exact same POC and same Claimant.

 

9. 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.

 

10. 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).

 

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 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.

 

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.

 

KeithP

12. I, denies (i) or (ii) have been met. 

Surely that should be...    12. I deny (i) or (ii) have been met. 

You cannot simply change from third person to first person without at least considering the verb following.

1505grandad

"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')."

Para 11 included in above WS is what was stated in the Defence  -  should the various issues therefore be expanded upon in the WS?

womble94

KeithP said:

12. I, denies (i) or (ii) have been met. 

Surely that should be...    12. I deny (i) or (ii) have been met. 

You cannot simply change from third person to first person without at least considering the verb following.

this has been amended.

Coupon-mad

You could add here:


10. Due to the lack of signs/copy of the alleged contract, woefully inadequate pleaded case and the age of the alleged breach, which is over two years ago, I am unable to recall the exact reason for the PCN. I don't even know what it is that I am accused of and this claim is surely not compliant with Part 16 and is a serial abuse of the MCOL system, as held by HHJ Murch at Luton Court (and more recently confirmed in another similar appeal judgment at Manchester Court, by Her Honour Judge Evans in Car Park Management Services v Akande). 

womble94

Coupon-mad said:

You could add here:


10. Due to the lack of signs/copy of the alleged contract, woefully inadequate pleaded case and the age of the alleged breach, which is over two years ago, I am unable to recall the exact reason for the PCN. I don't even know what it is that I am accused of and this claim is surely not compliant with Part 16 and is a serial abuse of the MCOL system, as held by HHJ Murch at Luton Court (and more recently confirmed in another similar appeal judgment at Manchester Court, by Her Honour Judge Evans in Car Park Management Services v Akande). 

ok thanks added this on, see below. Were the exhibits fine by the way?

3. 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.

4. I would like to draw 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). I believe 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.

5. 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 judgments, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

6.  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.  I trust 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.

 

 

Facts and sequence of events

7. 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. However, the vehicle is recognised, and it is admitted that the I am the registered keeper and driver.

 

8. I saw no parking signs and certainly did not agree to pay £100.  Let alone the inflated sum of £170 which is unexplained and cannot have been the PCN sum. Any such terms or penalty warnings were either not there, not prominently displayed and/or buried on some unintelligible sign in minuscule text, incapable of binding a driver. The Claimant is put to strict proof of their alleged contract, if the case is not struck out due to the Chan appeal case which was about the exact same POC and same Claimant.

 

9. 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.

 

10. Due to the lack of signs/copy of the alleged contract, woefully inadequate pleaded case and the age of the alleged breach, which is over two years ago, I am unable to recall the exact reason for the PCN. I don't even know what it is that I am accused of and this claim is surely not compliant with Part 16 and is a serial abuse of the MCOL system, as held by HHJ Murch at Luton Court (and more recently confirmed in another similar appeal judgment at Manchester Court, by Her Honour Judge Evans in Car Park Management Services v Akande). 

 

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 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.

 

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, deny (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.

 

Coupon-mad

The thread has repeated your WS so many times that we are now on page 10 and I can't find or recall what your exhibits actually are.

I suggest you delete most of the old drafts now, especially removing the unnecessary extra posts showing us the bottom half of the WS several times over!

I don't know what your exhibits are except for CEL v Chan but I would add the transcript of CPMS v Akande as Exhibit 2 and reference that exhibit at the end of para 10. 

womble94

Coupon-mad said:

The thread has repeated your WS so many times that we are now on page 10 and I can't find or recall what your exhibits actually are.

I suggest you delete most of the old drafts now, especially removing the unnecessary extra posts showing us the bottom half of the WS several times over!

I don't know what your exhibits are except for CEL v Chan but I would add the transcript of CPMS v Akande as Exhibit 2 and reference that exhibit at the end of para 10. 

The exhibits are in the dropbox link below. The CPMS v Akande Transcript is part of my exhibit 1, is that ok? If so, ill reference exhibit 1 at the end of para 10

https://www.dropbox.com/scl/fi/x1r7nav22cruat3j5gpwf/Witness_Statement.docx?rlkey=9raaip69k034wyn3mhzvu3op4&st=aegz0bmc&dl=0

Coupon-mad

You need to reference it then, because your WS gives no clue that Akande is also in Exhibit 1.  Yes, reference exhibit 1 at the end of para 10.

Make it simple for the Judge to see what is what.