County Court Claim form defence

MissA123

I dont really know what to say il be honest 

Coupon-mad

MissA123 said:

The one linked is this The facts known to the Defendant:

4.  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 Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s), what heads of cost are being pursued and how/why the Defendant is being held liable, making it difficult to respond. The vehicle is recognised, as is the shopping park location, but it is not known who was driving. It is a 50/50 chance that it was either the Defendant or his wife and the Defendant expressly denies any 'violation' (the Claimant's word, which they should know is banned under the incoming Statutory Code of Practice linked later in this defence).  In any event, the Equality Act 2010 applies to protect the driver/passenger, and any fixed policy term that may cause detriment to disabled persons 'at large' is illegal (indirect discrimination) under that legislation. 

5.   Due to the age of the alleged parking event - which is nearly 18 months old - and the fact there was no windscreen PCN, the Defendant is unable to recall the circumstances of an unremarkable day.  The Defendant and his wife are both elderly and vulnerable (qualifying for a Blue Badge) and both use this vehicle.  Both occasionally used this local retail site for food shopping around that time and neither were aware of any supposed parking terms or restrictions, despite both visiting the location fairly regularly. The uncertainty about who was driving that day is important because the Defendant takes the point that there can be no 'keeper liability'.

6.  The Defendant will rely upon the persuasive appeal case of Vehicle Control Services Ltd v Ian Edward.  In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.

Yes - but that's the paragraphs that I already advised you NOT to copy:

Coupon-mad said:

I suggest that you use the linked one if it's the one about the dates (I haven't looked but I trust @Castle to know what I meant). 

Obviously you aren't copying irrelevant stuff (as in their paras 4, 5, 6 which is not what I was directing you to say)

MissA123

Yeah i didnt copy them ones i removed adjusted one paragraph a little. Do i even mention what happened on the day, i dont know what to even say if what in writing isnt right. Is my version of events just too much info or not written correctly?

Coupon-mad

But you didn't use the paragraph I told you to look for.  

MissA123

Im sorry i know i sound super stupid, but which one do i use? Arent these the ones that are not part of the template x

Coupon-mad

Read more of that defence and go back and read what I said I wished I could search for.

MissA123

 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.

Sorry i thought these were part of the template ive copied all these accross to my defence it was all the ones in regard to disability i removed and changed to about me, do i leave my whple explanation out and just use these instead?

Coupon-mad

Please show us your new draft so we know what you now have. Of course you need some concise/vague facts too.

Coupon-mad

Please show us your latest draft including that paragraph, and the CEL v Chan case, as seen in the link in the Template Defence.

And your facts of course but not responding to an allegation that isn't stated in the POC.

Finally, please don't show us the entire second half of the Template Defence here.  Obviously you are going to be using it all in your document, but it astonishes us that so many people keep expecting us, every day, to read the template...right to the end.

  

MissA123

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').

Preliminary matter: The claim should be struck out

2. 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 draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment involving the same Claimant as this case, which supports striking out the claim without a hearing.

3.  The Defendant believes that dismissing this poorly-pleaded claim is the correct course, with the Overriding Objective in mind.  Bulk litigators like this Claimant (which has an in-house legal team and barrister) 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, this Claimant in particular should not be surprised when courts continue to strike out their claims, based in the following persuasive authority.

3. Civil Enforcement Limited v Chan (Ref. E7GM9W44) holds that 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. 

**INSERT ALL THE PICS HERE** 

In the alternative,

The facts known to the Defendant:

4.  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 Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s), what heads of cost are being pursued and how/why the Defendant is being held liable, making it difficult to respond. The vehicle is recognised, as is the location.

5. The Defendant advises, they had visited the site regularly that week. The defendant parked in the car park Mon-Thurs and entered the registration plate on all 4 days. 

The claimant is unable to provide CCTV evidence or supporting evidence that an attempt to enter the car registration was not made, or any evidence to dispute a system error/fault.

Purchase receipt from the swimming baths for lessons had been sent to the claimant.

6.  The Defendant does not believe that the Claimant complied with the strict requirements of the Protection of Freedoms Act 2012 (the POFA) in terms of 'adequate notice' of the parking charge and in terms of serving a compliant Notice to Keeper ('NTK').  The POC is unhelpfully silent about the supposed basis of liability. It does not state whether the Defendant is being pursued under the POFA nor where/how they obtained his data, nor does it even state (as parking claims usually do) that they are pursuing the Defendant as keeper/driver.  These POC seem even more defective than seen from this same Claimant in the Chan case.

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.