Wrong registration inputted

Consettbaths

Yeah, I'd prepared a redacted version then posted the wrong one in a hurry. Changed now. 

1505grandad

What does the PoC say the actual breach of t & c's is?  -  this is what you are defending against.

Consettbaths

I've posted a picture of the PoC further up the thread - basically breach of contract/terms/conditions. There's nothing specific in there. 

1505grandad

Exactly  -  I saw the posted PoC so wondered why you are giving so much detail about something that is not stated.

Consettbaths

Because the Claimant already has that information? Is there any advantage to being vague? 

KeithP

Consettbaths said:

Is there any advantage to being vague? 

Yes there is.

You are defending yourself against the claim that has been made, not against what the Claimant may have said or written elsewhere.

Have a read of this post made earlier this afternoon...
forums.moneysavingexpert.com/discussion/comment/80444136/#Comment_80444136

Coupon-mad

As seen in the Template Defence, you'll see that Defences are written in the third person. Not 'I' or 'my' or 'me'.

I can see that you haven't done the search because the draft doesn't yet include the extra words that I was advising you to add to the hharry version of defence for cases where the POC do not plead the breach.

Consettbaths

Thanks, I realise I need to make the amendments. Thank you for the advice.
I did try searching the words you gave me - the first thread to appear was this one. Below that I wasn't sure what I was looking for.
To be honest I'm not really feeling like I should ask any more questions after the way the thread has gone today.  I'm sure no one means to talk down but that's the general feel. It's a bit demoralising. 

Coupon-mad

Try this search instead:

payment due date Claimant keeper liability prematurely

Consettbaths

Thanks. I've posted my first 6 paragraphs below. I'm still not confident that I'm finding the relevant sections in the search and the more examples I read the less confident I am. Any advice would be welcome.

 

DEFENCE

 

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 but not the driver at the time of the alleged breach.

3. Preliminary matter: The claim should be struck out

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.

Copy of CEL v Chan to be inserted

4. At the date and time indicated in the POC the Defendant was not driving the vehicle identified (registration XXXX). The Defendant was ill on the day in question and had been forced to take a day off work. The Defendant’s spouse attended Queens Road Surgery in order to purchase medication from John Low Pharmacy situated within the surgery and was driving the vehicle described in the POC. The Defendant can confirm that her spouse made a purchase at the Pharmacy within the time period indicated in the POC and attempted to register their visit within the surgery. To the best of the Defendant’s knowledge there is no fee attached to the use of the car park.

Whilst the nature of the alleged breach of contract is not made clear in the POC the Defendant believes that their spouse acted in good faith and was using the car park in the manner that it was intended to be used, i.e., to access the services of the surgery.

4.1 In so far as it is possible to ascertain from the POC, the terms have been complied with or substantially complied with and the Claimant will concede that no financial loss has arisen. The charge imposed, in all the circumstances is a penalty (notwithstanding ParkingEye v Beavis) and the sums claimed are exaggerated and the interest miscalculated on the whole enhanced sum from day one. The parking charge is punitive in nature. In these circumstances there is an unfair imbalance of contractual position (ref: Consumer Rights Act 2015).

 5.1  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.

5.2 The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgement 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 on the following persuasive authority.