Help with defence for court

Reggie79

Great thank you, I will keep reading. I have found the CEL v Chan case which seems to be exactly how the PoC are written on my form. No mention of what I did to the breach the contract. 
Felt very anxious at the start of the week but feeling more confident already

Reggie79

Thanks again. I also notice from reading other posts that not only have they started charging interest from the wrong date, they haven't even included said interest in the amount claimed. Just thought you guys would be interested to know for collecting info about this things

Reggie79

Hi all, this is what i have so far. Hopefully I have used the right draft version - it includes CEL v Chan and the wrongly claimed interest. 
I have kept paragraph 5 very brief as no info was given in the POC but please let me know if I need to include more.
Is it worth also including a second paragraph that I did not recieve the initial letter? And didn't see the second until late because I was working away from home? Or should I just leave that out? Thanks!

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 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 in the following persuasive authority.

3. 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 and Practice Direction Part 16. 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

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 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. 

5. The Defendant vaguely remembers on the day in question she went shopping at Crown Point Shopping Park and had parked in a regular bay in the car park. The Defendant was not aware of any restrictions that applied in the car park due to obscure signage, which was impossible to read from where the defendant had parked. 

6.  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.  Further, the Claimant's incoherent POC attempts to charge interest on the whole inflated £170 starting from the day before the alleged breach.  The day before the parking event!  It is denied that any sum was due at all, let alone the day before the supposed breach (which is denied).  Even if interest were to apply, it could only start from when a PCN is deemed 'overdue' and in fact, the sum of the parking charge was £60 in the first 14 days and £100 thereafter (not agreed by the Defendant in any event).  To attempt to claim interest on a wholly improper basis, from a date before the car was even there and on a sum that was not due, is reason enough in itself to dismiss the claim.

7. 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, in addition to evidence there must also 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.

8. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


Exaggerated Claim and 'market failure' currently being addressed by UK Government

9. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

10. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

11. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

12. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

13. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

14. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

Coupon-mad

That Defence looks fine as long as you add the rest of the template defence and the CEL v Chan images.

Is it worth also including a second paragraph that I did not receive the initial letter? And didn't see the second until late because I was working away from home? 

Save that for WS stage.

Reggie79

Hi all, just an update. 
I submitted my defence back in December. 
I recieved a 'Reply to Defence' from the parking firm lawyer in Feb (it was a very long document!) but haven't had anything from the court. None of the letters described in the newbies thread. 
I was getting a bit worried I had missed something so I logged into my MCOL account and it has an update saying Case Stay Lifted on X date in February. 
What does this mean? And should I be doing anything else at this point? 
I've just been waiting it out and checking every letter that comes through the door making sure I don't miss anything!

KeithP

If your MCOL Claim History has a line like...
Your defence was received on dd/12/2023 
...then I don't think you have anything to worry about.

You also have an email receipt from the time you filed your Defence don't you?

If you want, you could query the situation with the CCBC - phone number on your Claim Form.

Reggie79

Hi Keith, Yep I have the line saying defence recieved on X date and also have the confirmation email from submitting. Is it likely there's just a big backlog of cases? Been just over 4 months since I submitted my defense. 
Do you think it's worth giving them a ring just incase? And is the stay lifted relevent at all? From some quick googling I can't really see why it would have been stayed in the first place 

Coupon-mad

I would download a DQ like the Template Defence first 12 steps says.

Beware - all the CNBC emails have changed since you emailed your defence.  Our advice threads tell you the right ones including the new email for sending a DQ.