PCN from PCM

RV44

Coupon-mad said:

Show us the Particulars of Claim.

Claimant: PCM

Solicitor: Gladstones Solicitors Ltd

Particulars of Claim

The driver of the vehicle with registration XX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at [Address], on 31/05/2022 thus incurring the parking charge (the 'PCN'). The PCN was not paid within 28 days of issue. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £70.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with the statutory interest of £19.88 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.04 per day.

Coupon-mad

As I thought.

Confused why you decided not to use the hharry100 defence for claims that don't state the breach.  It's linked right there in paragraph 3 of the Template Defence (I'm amazed some people miss it and really unsure how Ican make that option more obvious than it is).

RV44

Coupon-mad said:

As I thought.

Confused why you decided not to use the hharry100 defence for claims that don't state the breach.  It's linked right there in paragraph 3 of the Template Defence (I'm amazed some people miss it and really unsure how Ican make that option more obvious than it is).

Updated now:

DEFENCE

 

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 the Transcript of Proceedings from Civil Enforcement Limited v Chan]

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.  It is admitted that on 22nd of May 2022 the Defendant's vehicle was almost certainly parked at [location] because this was the defendant’s home, where they were de facto authorised to park a roadworthy vehicle.

Authority to Park and Primacy of Contract

6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

8. It is admitted that the Defendant had successfully obtained a ‘Parking Permit’ from the Claimant with effect from the 1st of March 2022. The Defendant applied and obtained a parking permit from the Claimant in order not to suffer harassment from the Claimants or their agencies even though they were aware that their lease provided them with the right to park. The Defendant avers that the Claimant had all the facts including the registration number of the vehicle, the registered keeper’s ownership document of the vehicle as well as proof of tenancy of the [address] and failed to validate these before issuing the PCN.

9. The Defendant further avers that on the 22nd of May 2022, the date of the claim, the Defendant had parked their vehicle in the appropriate bay, and given the incessant rains on the day, had given preference to escorting their ailing passenger to the safety and comfort of their home rather than displaying the parking permit. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for attending to normal life necessities like parking to unload groceries or setting down passengers, etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances.


10. Accordingly it is denied that:
10.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
10.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
10.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2022.

Coupon-mad

Think I'd move 8 and 9 up and swap them with 6 and 7.  Might flow better.

And sort out the issue that one paragraph talks about being tenants (renting) and another says you have rights under a lease (flat owners).  Choose one or the other and don't say things exist in a lease if in fact they exist in a AST.

You also don't need this as you are admitting to driving:

"or lawful users of his/her vehicle were... "

RV44

Coupon-mad said:

Think I'd move 8 and 9 up and swap them with 6 and 7.  Might flow better.

And sort out the issue that one paragraph talks about being tenants (renting) and another says you have rights under a lease (flat owners).  Choose one or the other and don't say things exist in a lease if in fact they exist in a AST.

You also don't need this as you are admitting to driver:

"or lawful users of his/her vehicle were... "

Thank you for the comments, updated. I will be emailing this over today if there aren't any other comments from forumites. I have also copied the latter part of the defence from the template.

_________________

DEFENCE

_________________

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 the Transcript of Proceedings from Civil Enforcement Limited v Chan]

 

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.              It is admitted that on 22nd of May 2022 the Defendant's vehicle was almost certainly parked at [Address]  because this was the defendant’s home, where they were de facto authorised to park a roadworthy vehicle.

 

Authority to Park and Primacy of Contract

6.              It is admitted that the Defendant had successfully obtained a ‘Parking Permit’ from the Claimant with effect from the 1st of March 2022. The Defendant applied and obtained a parking permit from the Claimant in order not to suffer harassment from the Claimant or their agencies even though they were aware that their tenancy agreement provided them with the right to park. The Defendant avers that the Claimant had all the facts including the registration number of the vehicle, the registered keeper’s ownership document of the vehicle as well as proof of tenancy of the [Address] and failed to validate these before issuing the PCN.

 

7.              The Defendant further avers that on the 22nd of May 2022, the date of the claim, the Defendant had parked their vehicle in the appropriate bay, and given the incessant rains on the day, had given preference to escorting their ailing passenger to the safety and comfort of their home rather than displaying the parking permit. Maintaining the residents' rights to peaceful enjoyment of the property does not include allowing everyone to be unfairly charged by a lurking ex-wheelclamper for attending to normal life necessities like parking to unload groceries or setting down passengers, etc.  Clearly there is no 'legitimate interest' supporting these enhanced parking charges in these circumstances.

8.              It is denied that the Defendant was in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the occupier of [Address] whose assured shorthold tenancy agreement (AST) permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the AST, which cannot be fettered by any alleged parking terms. The AST terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the Assured Shorthold Tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

 9.              The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the AST. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. 10.             Accordingly, it is denied that:
10.1 there was any agreement as between the Defendant or driver of the vehicle and the Claimant
10.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
10.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2022.

Coupon-mad

Looks better but change this:

"and given the incessant rains on the day, had given preference to escorting their ailing passenger to the safety and comfort of their home rather than displaying the parking permit."

to this

and given the incessant rain on the day, had to escort their ailing passenger to the safety and comfort of their home, then returned to display the parking permit, by which time 

* a predatory PCN had been placed on the windscreen

or

* unknown to the Defendant, predatory but blurry photographs had been taken within a minute or two by an known person (often these are self ticketers using a camera phone who allow no grace period and are hoping for s bounty payment).  Weeks later, an unexpected PCN arrived.

1505grandad

"7.              The Defendant further avers that on the 22nd of May 2022, the date of the claim, the Defendant had parked their vehicle in the appropriate bay,..........."

Just checking  -  is that the correct date as you posted earlier:-

"Particulars of Claim

The driver of the vehicle with registration XX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at [Address], on 31/05/2022 thus incurring the parking charge (the 'PCN')......."

Also a pedantic query  -  is the parking event the same as the date of the claim stated above?

Coupon-mad

Also don't put the word 'of' in a date. And it's not 'the date of the claim'.

RV44

1505grandad said:

"7.              The Defendant further avers that on the 22nd of May 2022, the date of the claim, the Defendant had parked their vehicle in the appropriate bay,..........."

Just checking  -  is that the correct date as you posted earlier:-

"Particulars of Claim

The driver of the vehicle with registration XX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at [Address], on 31/05/2022 thus incurring the parking charge (the 'PCN')......."

Also a pedantic query  -  is the parking event the same as the date of the claim stated above?

Thank you for pointing out, the 22/05/2022 should in fact be 31/05/2022

RV44

Coupon-mad said:

Loons better but change this:

"and given the incessant rains on the day, had given preference to escorting their ailing passenger to the safety and comfort of their home rather than displaying the parking permit."

to this

and given the incessant rain on the day, had to escort their ailing passenger to the safety and comfort of their home, then returned to display the parking permit, by which time 

* a predatory PCN had been placed on the windscreen

or

* unknown to the Defendant, predatory but blurry photographs had been taken within a minute or two by an known person (often these are self ticketers using a camera phone who allow no grace period and are hoping for s bounty payment).  Weeks later, an unexpected PCN arrived.

Thank you, will make the change.