Wrong registration inputted

Coupon-mad

That's better but you have still missed the extra point for CEL cases which does come up when you do the search I suggested above. I tested it!  I am trying to help you be confident with using the forum search.

You know what to look for in the search results because the search keywords tell you exactly what defence point you are searching for.

5.2 is in the wrong place and needs to be above the images of the CEL v Chan transcript.

Consettbaths

@Coupon-mad  These?

7. There is a further matter negating any cause of action, namely an incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 9 of 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').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. 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 the same day as the alleged event (which it cannot have been) a NTK would be deemed served two working days later.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover' might exist would have been several days later than this Claimant states in their POC. That is, if they are seeking keeper liability under the POFA at all, which the Court and Defendant are being forced to guess.

8.  This appears to be unreasonable conduct, and other similar cases in the public domain demonstrate that this Claimant's in-house legal team are stating a premature 'payment due date' calculation routinely, which inflates the interest as well as breaching the POFA. It is denied that the Defendant became liable for the parking charge on the date shown, or at all.

9.  Further, the POC only pleads for 'a parking charge for breach' yet it says 'charges of GBP170 claimed'.  Under the British Parking Association Code of Practice, parking charges are capped at £100 maximum and it cannot have been £170.  It is denied that exorbitant sum was due, properly incurred and/or displayed as the 'parking charge' on prominent signage. 

Consettbaths

These are the first paragraphs of my defence which are to be followed by the the remainder of the template. I'm planning to email it tomorrow. Any comments or observations?

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. 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.

(followed by copy of CEL v Chan)

4. At the date and time indicated in the POC the Defendant was not driving the vehicle identified (registration XXXXXX). The Defendant was ill on the day in question and had been forced to take a day off work. The Defendant’s spouse attended XXXXXXXX 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.

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. 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.

 

6.1 There is a further matter negating any cause of action, namely an incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 9 of the POFA and the Defendant will raise various issues, including probable non-compliant Notice to Keeper (NTK) wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. 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 the same day as the alleged event (which it cannot have been) a NTK would be deemed served two working days later.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover' might exist would have been several days later than this Claimant states in their POC. That is, if they are seeking keeper liability under the POFA at all, which the Court and Defendant are being forced to guess.

 

6.2  This appears to be unreasonable conduct, and other similar cases in the public domain demonstrate that this Claimant's in-house legal team are stating a premature 'payment due date' calculation routinely, which inflates the interest as well as breaching the POFA. It is denied that the Defendant became liable for the parking charge on the date shown, or at all.

 

6.3  Further, the POC only pleads for 'a parking charge for breach' yet it says 'charges of GBP170 claimed'.  Under the British Parking Association Code of Practice, parking charges are capped at £100 maximum and it cannot have been £170.  It is denied that exorbitant sum was due, properly incurred and/or displayed as the 'parking charge' on prominent signage.

Coupon-mad

Looks good except aren't you missing a paragraph before the Chan images?

Consettbaths

Thanks, yes, I'd managed to misplace a paragraph which seemed to have half merged into another. I've put that right and submitted my defence - I've received an auto acknowledgement from CCBC AQ. Thanks for your help.

Consettbaths

I submitted my defence last week and received an automatic acknowledgement from CCBC AQ but up until now no defence has been recorded on my MCOL page for the claim. Anyone have experience of how long this will take to show? The auto response did say that there were large backlogs  but I'm a little worried on what happens if the defence isn't recorded by next Monday (the last day to lodge my defence).

Coupon-mad

If you got the auto-response then you are done for now.  That's it until the New Year (February maybe) as the Template Defence first 12 steps explains.