PCN from PCM

RV44

Hopefully the final version. Thank you for your builds thus far.

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DEFENCE

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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 31st 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 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 31st May 2022, the claim date, the Defendant had parked their vehicle in the appropriate bay, 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. 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

Very good!

RV44

I have emailed CCBAC and have received an ack promptly. Many thanks to the forumites for help, support and guidance so far. Will post on this thread when I have the relevant information at the next stage.

RV44

An update to forumites, I have now received an ack receipt of the defence from HM Courts and Tribunals Service, CNBC, Northampton

"I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

Coupon-mad

RV44 said:

An update to forumites, I have now received an ack receipt of the defence from HM Courts and Tribunals Service, CNBC, Northampton

"I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

Yup, as seen already in the first 12 steps of the Template Defence thread.  There's no need to show, quote or ask about the first letters or DQ because the first 12 steps (originally created by KeithP) attempts to prevent the need & cut us regulars a bit of slack, as well as informing you.

See you in a few months at WS stage.

RV44

Hi Forumites,

I have a concern. I received the DQ and filed it promptly within the date via email to CCBCAQ@justice.gov.uk cc Gladstones on 26/02/2024 without any knowledge that mailboxes were going to change. Today I discovered an unopened mail dated 7th March asking me to file the DQ within 7 days to a different email address. We live in a busy household and I'm usually good at organising my mail, but this one somehow slipped. I did some research on the forum and found that mailboxes had changed from 28/02/2024. Upon visiting MCOL website to see the claim status, I see the below. Is there a reason to worry?

CLAIM STATUS
 - A claim was issued against you on 18/12/2023
 - Your acknowledgment of service was submitted on 02/01/2024
 - Your acknowledgment of service was received on 02/01/2024
 - Your defence was received on 25/01/2024
 - DQ sent to you on 09/02/2024
 - DQ filed by claimant on 09/02/2024
 - General sanctions order was made on 07/03/2024
 - You filed a DQ on 11/03/2024
 - Your claim was transferred to Hertford on 11/03/2024

As you can see, although the DQ was submitted on 26/02, the records indicate it has been submitted on the 11/03 (perhaps as a reconciliation of the old mailboxes). I'm hoping this is still in order as the claim was transferred to my local court?

Thanks in advance for your help.

Coupon-mad

Yes that's fine.  It's back on track.

RV44

Coupon-mad said:

Yes that's fine.  It's back on track.

Thank you. Waiting for a date now, will start on my defence.

Castle

RV44 said:

Coupon-mad said:

Yes that's fine.  It's back on track.

Thank you. Waiting for a date now, will start on my defence.

Witness Statement I hope; your defence has already been filed.