LBC Received - Robust Response Guidance Appreciated

Fruitcake

It is not a fine.

Do not include a 'phone number.

DinoGal

Good evening all,

So I finally received the claim form for my parking charge, I’ve acknowledged the claim and have pulled together my defence. I was wondering if you could possibly glance an eye over it before I send please? I’ve used the whole template provided but these are the first few paragraphs which I’ve tweaked to suit my claim:

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').

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 and driver.

3. A recent persuasive appeal judgment in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  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 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).

4. The Defendant went to roadway to pick up their son from work (McDonalds). The Defendant briefly stopped at the edge of the roadway to collect passengers as car park was full. No signs were seen and having been back for a look, the Defendant avers that the prominence and legibility of any supposed parking terms is extremely poor at this location, even in good weather.

5. The new statutory Code of Practice (temporarily stalled but it is being reintroduced by the Government after an Impact Assessment in 2023 which will only address monetary issues, not other clauses) also defines 'parking' as not including picking up or setting down passengers. In the statutory definitions, it says at 2.19 (parked/parking) that parking is "an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving (excluding instances where the driver has stopped to enable passengers leave or enter the vehicle)".

6. In Laura Jopson vs Homeguard Securities case number B9GF0A9E, His Honour Judge J Harris QC the judge states "getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration" is not parking. This was an appeal court case and thus persuasive on the lower courts. The court transcript of that hearing and judgment, heard on appeal by HHJ Harris sitting at Oxford Court, will be provided at witness statement stage in support of this defence.

7. The Consumer Rights Act 2015, s.69 (1) states that "If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail." The Defendant avers to the Highway Code as the normal interpretation of stopping on double-yellow lines to drop-off and collect passengers.’

One question I have is regarding the level of detail on the claim form. DCB Legal have included a reason for the breach of contract (Parked on a roadway where prohibited). It’s not a huge amount  of detail but would what I have in para 3 still apply?

KeithP

DinoGal said:

I finally received the claim form for my parking charge, I’ve acknowledged the claim and have pulled together my defence.

What is the Issue Date on your Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

Show us the Particulars of Claim.

DinoGal

The issue date on the claim form is 06 Dec 2023. The acknowledgement was sent on the 10 Dec 2023 (I now realise I jumped the gun here as this is issue date +4 days not +5 days, can’t believe I missed that after the numerous times I’ve read the threads and made notes of what I need to do and when 🤦🏼‍♀️).
Here are the particulars of claim also.

DinoGal

Oh actually I submitted acknowledgement on the 10th but it states received on the 11th so might still be the +5 days?

KeithP

DinoGal said:

The issue date on the claim form is 06 Dec 2023. The acknowledgement was sent on the 10 Dec 2023 (I now realise I jumped the gun here as this is issue date +4 days not +5 days, can’t believe I missed that after the numerous times I’ve read the threads and made notes of what I need to do and when 🤦🏼‍♀️).
Here are the particulars of claim also.

DinoGal said:

Oh actually I submitted acknowledgement on the 10th but it states received on the 11th so might still be the +5 days?

10th December was a Sunday which explains to filing of an Acknowledgment of Service a day later.

With a Claim Issue Date of 6th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 8th January 2024 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

DinoGal

Thank you so much for confirming the dates, I had it as the 8th as well but wasn’t entirely sure. Lol this is hanging over me so definitely didn’t want to leave it! I’ve gone through the thread and have noted down how to produce the defence and the Email address for sending it to also, just need to get the defence locked down now. Thank you again for all of your help!

DinoGal

Good morning all,

My Defence is drafted and awaiting finalisation, I did a bit more tweaking so updated wording for the first few paragraphs is below (and have included the rest from the template within my final copy as per the template):

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').

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 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, 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 and driver.

3.      A recent persuasive appeal judgement in another private parking case: Civil Enforcement Limited v Chan (Ref: E7GM9W44) confirms that where the POC fails to comply with the Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant. 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 judgement, the Court should strike out the claim, using its powers pursuant to CPR 3.4 and award my costs in full, as happened in Chan appeal case.

4.      The Defendant went to a roadway to pick up their son from work.  The Defendant briefly stopped at the edge of the roadway to collect the passenger as the car park was full.  No signs were seen and after having been back for a look, the Defendant avers that the prominence and legibility of any supposed parking terms is extremely poor at this location, even in good weather.

5.      The new statutory Code of Practice temporarily stalled but is being reintroduced by the government after an impact assessment in 2023 which will only address monetary issues, not other clauses) also defines ‘parking’ as not including picking up or setting down passengers. In the statutory definitions, it says at 2.19 (parked/parking) that parking is “an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving (excluding instances where the driver has stopped to enable passengers leave or enter the vehicle)”.

6.      In Laura Jopson vs Homeguard Securities case number B9GF0A9E, His Honour Judge J Harris QC the judge states “getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration” is not parking.  This was an appeal court case and thus persuasive on the lower courts.  The court transcript of that hearing and judgement, heard on appeal by HHJ Harris sitting at Oxford Court, will be providedat witness statement stage in support of this defence.

7.      The Consumer Rights Act 2015, s.69 (1) states that “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.” The Defendant avers to the Highway Code and the definition as given in new statutory Code of Practice (as per paragraph 4) as the normal interpretation of stopping to drop-off and collect passengers.

8.      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.

@Coupon-mad, I'd appreciate your feedback, especially on paragraph 3, as I think DCB Legal have been a little more detailed than they typically are from other POCs I've found on the forum (just my luck lol).  I've added the POC in the thread above. Also, from what I read is the new Code of Practice ‘live’ now after the impact assessment, so I’ll need to amend para 5 if so?

Thanks all!

Coupon-mad

Looks fine except I don't think Chan necessarily applies to your POC.