Civil National Business Centre - Claim Form details

davemcc

Questions posed earlier ...

What is the Issue Date on your County Court Claim Form? - 20 November 2023

Have you filed an Acknowledgment of Service? - no
If so, on what date did you do that?
Your MCOL Claim History will have the definitive answer to that last question.

Coupon-mad

The entire Chan case appeal is all about the woeful POC and nothing else. It's linked in the Template Defence for you already, including the words to put above the transcript to introduce it.  It's all there already.

KeithP

davemcc said:

Questions posed earlier ...

What is the Issue Date on your County Court Claim Form? - 20 November 2023

Have you filed an Acknowledgment of Service? - no
If so, on what date did you do that?
Your MCOL Claim History will have the definitive answer to that last question.

You answered those questions earlier but then deleted the post - but not before pertinent information had been retrieved.

davemcc

How do I drop my Defence here?

I've tried as a text (.docx) and as a .pdf but nothing comes into this comment box.

Any suggestions?

davemcc

I may appear to be a bit thick but I really am not.

I have now acknowledged the Money Claim Online process and am trying to find the 'ideal response' using the Civil Enforcement v Ming defence - BUT I cannot find the complete defence anywhere - and I have really tried.

Can somebody please provide a link?

Coupon-mad

It's the Template Defence. Top of the forum.

davemcc

IN THE COUNTY COURT Claim No.: XXXXXXXX Between CAR PARK MANAGEMENT SERVICES (CPMS) LTD (Claimant) - and - (Defendant) ____________________ DEFENCE ____________________ 

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the unspecified location. 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 Defendant draws to the attention of the allocating Judge 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. 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. 

3. A recent persuasive appeal judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the PoC fails to comply with Civil Procedure Rule 16.4(1)(e) and the Practice direction to 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 Defendant asserts that this Claim is based upon an agreement by conduct. The same is true in this case and in view of the Chan judgement (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. (Chan judgement included here) The facts as 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 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. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper. The PoC are entirely inadequate in that they fail to particularise: a) the contractual term(s) relied upon; b) the details of any alleged breach of contract; c) how many ‘PCNs’ are being pursued in this claim, exactly when the alleged conduct occurred (dates and times) and how much each of these charges were; thus, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but liability is denied. 

5. The Defendant was a Leaseholder (tenant) in The Met Apartments Dale Street Buildings 53-57 Dale Street Manchester M1 2BL. The Lease(1) is registered with Land Registry title number MAN103820(2) under a Deed of Covenant dated 24 March 2017(3). The third party to the Lease is Zenith Management Ltd a Right To Manage Company (‘Zenith’) 

6. The Defendant lived at Apartment 6.27 on the 6th Floor of the building which is described in the Particulars Clause 1.2 and defined in The First Schedule Part 1 “The Property” drawing L0005_Sixth_6.27 titled ‘Sixth Floor Demise Plan – Apartment 6.27’(4) 

7. The Car Parking Space is number 45 located on the Upper Basement Level which is described in the Particulars Clause 1.5 and defined in The First Schedule Part 1 “The Property” drawing L0001/ A3 / H(-)_145 titled ‘CARPARKINGDEMISEDSPACE 45’(5) 

8. The Lease grants the exclusive use of the Car Parking Space to the Defendant and title MAN103820 dated 14.12.2007 Section A: Property Register s7 identifies the Car Parking Space which is accessed by a communal lift from the Apartment which is 6 floors above 

9. The Landlord has title to the Freehold of the building under title number GM769427(6). The Apartment and Car Parking Space is itemised within Section C: Charges Register “Schedule of notices of leases” item 130 

10. The Schedule of charges refers to Car Parking Space 53 on the supplementary plan to the title plan(7). At some time the Car Parking Spaces were re-numbered. The location within the Upper Basement Level of Car Parking Space 53 on the supplementary plan is the same location as Car Parking Space 45 on the Lease document in drawing L0001/ A3 / H(-)_145 titled ‘CARPARKINGDEMISEDSPACE 45’ 

11. The Defendant’s rights as a Tenant in this building are set out in the Lease at paragraph 5 DEMISE. 

12. The First Schedule Part II “Rights granted to the Tenant” paragraph 6 and Landlord title GM769427 dated 14 October 2016 Part C s10 set out the right of the Defendant to exclusive use of the Car Parking Space 

13. The right of the Defendant to peaceably hold and enjoy the demised premises and for Quiet Enjoyment of the Property is set out in The Fourth Schedule Landlord’s Covenants paragraph 2 and Landlord title GM769427 dated 14 October 2016 Second Part s(c)(a) 

14. The Defendant is protected against the actions of those who are not party to the Lease by the Fifth Schedule General Provision paragraph 5 Contracts (Rights of Third Parties) Act 

15. The Lease gives the Defendant the right to park on the Estate and it does not say “on condition that the Defendant displays a permit” Pace Recovery and Storage v Mr N [2016] C6GF14F0 16/09/2016 Croydon(8) 

16. The Claimant has not demonstrated any right to impose unilateral terms which vary the terms of the Lease. Any such variation to the Lease if indeed there has been a variation which the Defendant avers there has not been must be approved by at least 75% of the Leaseholders pursuant to s37 of the Landlord & Tenant Act 1987 and the Defendant is not aware of any such vote having been proposed nor passed by the tenants and residents or recorded in the Lease or the Deed of Covenant. 

17. A Leaseholder having exclusive use of a Car Parking Space has a pre-existing right to park. This principle has been addressed in Kettel v Bloomfold Ltd [2012] EWHC 1422 where the easement was granted and it was found that the servient land owner could not unilaterally extinguish the easement 

18. The Claimant has posted Notices in the Car Park(13) which did not at the time of the alleged offences provide the statutory information required by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (regulation 9(1) Schedule 1(c)(14) and Schedule 2(c)(15). The Notice does not provide “the geographical address at which the trader is established”. 

19. The Notice posted by the Claimant is not an ‘Invitation to Park’ and is not an ‘offer’ 

20. The Claimant is purporting to licence parking in the Defendant’s Car Parking Space without permission from the Defendant on a per 24 hours basis 

21. The Claimant is purporting to claim entitlement to licence parking to the Defendant notwithstanding the pre-existing right of the Defendant to park in the Estate 

22. The PoC set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair. 

23. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event. At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims. That case was Excel v Wilkinson [G4QZ465V], heard in July 2020 and leave to appeal was refused and that route was not pursued. The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. 

24. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85. 

25. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point 23 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA'). 

26. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry. The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

continued ...

davemcc

cont ...

27.      Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

28.      Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

29.      Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

30.      The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

31.      The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

32.      Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                    Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                    Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                    Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

33.      Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

34.      In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

35.      (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

36.      The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date:

 

1505grandad

"(understood to have a bare licence as managers) "

I have not read any further but I can tell from the above that you have not copied the latest Defence template which is a sticky announcement at the top of page 1 of the forum.

Coupon-mad

I can tell that as well, because there's nothing to inform the Judge about the DLUHC Code of Practice or the draft Impact Assessment.  The middle of the Template Defence is missing.

However, the info given about the rights for the demised parking space are strong.  Maybe use half the detail though (in the defence) and afterwards, send the C's solicitor a copy by email, and tell them to do one!

Also, you are not a leaseholder, so change this:

17. A Leaseholder having exclusive use 

to

17.  A resident having exclusive use