Defence helped needed - Received a LOC from Civil National Business Court

rorschach57

It's actually virtual, not in-person. Is it worth asking the court if I can be on the call with him? I wasn't named anywhere. So if he asked who was the driver if not yourself, I suppose all he can say is 'my son'.

I'll look into mckenzie friend. 

1505grandad

For what it's worth  -  reply received when I asked that question by email to my local court a few years ago:-

"A claimant cannot be represented by anyone one(sic) other than a solicitor/barrister, or a litigation friend if they are a minor or have been certified as lacking the capacity to conduct their own affairs. A witness providing a statement in support of a claimant does not have right of audience to address a judge on the claimant’s behalf. 

Yours faithfully, 

Civil Section

The County Court at Oxford"

rorschach57

Ok so I suppose the same applies to the Defendant. It'll just be my father and the solicitor on the otherwise + judge. 

Gr1pr

rorschach57 said:

Thanks a lot for adding the additional info for me. Here's my updated defence in full:

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(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. 

Images of Chan case.

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 but was not the driver.

5. On the day in question, the driver parked the vehicle in a designated bay outside B&Q. The driver was with an elderly passenger, who is a blue badge holder. The passenger has a long-term leg injury and therefore had the lawful and rightful entitlement to utilise the parking bay in question.

6. Upon returning to the vehicle, the driver noticed an employee or 'self-ticketer' of the parking firm near the vehicle. At no point did they make any attempt to warn the driver of any breach allegation and no parking charge notice was affixed to the vehicle.  No consumer notice was served on the day.  The Claimant is put to strict proof of the notes made/uploaded by the ticketer and the Defendant expects that person to attend any hearing to be questioned as a witness. Importantly, the employee saw the disabled passenger prior to PCN issuance, could see her mobility needs yet still uploaded their predatory photos of the car (which must have been already taken) for a 'bounty' payment from this Claimant. The Defendant avers that the actions of the Claimant were direct discrimination (defined in the Equality Act 2010) and that the Claimant remained liable at all times for the conduct of their employee or registered 'self-ticketer'. Till now, the Claimant is yet to present clear evidence of the alleged breach in question.

7.  Moreover, the Claimant's incoherent Particulars of Claim seek to impose interest on the entire inflated £170, starting from the day preceding the alleged violation—specifically, the day prior to the parking incident. It is refuted that any amount was owed at that time, let alone before the alleged breach (which is also denied). Even if interest were deemed applicable, it could only commence from the point when a Penalty Charge Notice (PCN) is considered 'overdue.' Furthermore, the actual parking charge amounted to £60 within the initial 14 days and £100 thereafter (a fact not conceded by the Defendant in any case). Attempting to claim interest under such a flawed premise, dating back to a time before the vehicle was even present and, on an amount not legitimately owed, constitutes sufficient grounds in itself to reject the claim.

8. The claim has been initiated through Money Claims Online, and consequently, it is bound by a character limit for the Particulars of Claim section in the Claim Form. The usage of generic language has obstructed any clarity in the claim. The Defendant believes that the court will concur that a claim presented in such general terms lacks the necessary specifics and should have been appropriately detailed within 14 days, as per 16PD.3. However, no such detailed document has been provided.

The only bit i've added is what's in bold. From 8. onwards it's the same as the original template. Am I good to go?

Just to reiterate the defence from back in the mists of time,  above 

A short skeleton crib sheet below,  the main points 


The defendant was not the driver,  a witness statement has been provided to the court and to the claimants lawyers

The defendants son was the driver who parked the vehicle in a blue badge bay , a witness whose statement has been submitted along with the defendants witness statement to the court and the claimants lawyers 

A passenger in the vehicle was a blue badge holder and also qualified for reasonable adjustment under the Equality Act 2010,  plus the lawful use of the bay under that law

The alleged breach was not displaying a blue badge,  the claimant has been told that a passenger did have one,  so should have cancelled the pcn 

The PCN was a Parking Charge Notice,  not a Penalty Notice ( PN  )


In any case,  print off the skeleton above and let your father use it on the call, where necessary,  as a crib sheet 

rorschach57

Appreciate that @Gr1pr, thank you. 

Coupon-mad

rorschach57 said:

It's actually virtual, not in-person. Is it worth asking the court if I can be on the call with him? I wasn't named anywhere. So if he asked who was the driver if not yourself, I suppose all he can say is 'my son'.

You are named if you put in a WS.  Of course you can attend with him if you are a witness.

A witness cannot also be a Mckenzie friend. 

rorschach57

Now I'm wondering if submitting my own WS was a mistake. As my father will say 'I was not the driver' as his defence, but I'll be sitting right next to him....

Gr1pr

The opposite,  its clear that all the submitted paperwork says that he was not the driver,  he can actually speak and say so if needed,  as can you if asked by the court 

I doubt that it matters,  the allegation is about not displaying the blue badge,  not about who was driving 

Either your father is liable,  or not liable,  either he owes them money,  or he doesn't 

Leave it for the judge to decide,  take a chill pill and stop overthinking it,  its not your case,  not your problem 

If he loses,  I believe that you should pay it on his behalf,  because the driver is in charge of the vehicle and should ensure that everything is done,  seat belts,  note the signs,  park properly, display permits etc

I gave you a crib sheet for him for good reason,  because I understand the situation and you never have 

Coupon-mad

rorschach57 said:

Now I'm wondering if submitting my own WS was a mistake. As my father will say 'I was not the driver' as his defence, but I'll be sitting right next to him....

Yep - all good - and as witnesses, you can both be cross examined and can both talk freely.

Be open and honest. Do not refuse to answer questions in front of a Judge.  It's not that scary. Think job interview.

rorschach57

Ok nice, thanks both, doesn't sound too bad. Btw I've just received another letter with the the claimants WS again. The one I received before Christmas said the hearing will be done virtually (posted it here). This one just says they won't be present in person. Does that mean not at all?