Minster Baywatch Claim Form Received

Zach20161

I submit an AOS and put the address as my current address.

troublemaker22

Fair enough.  Will you be using the paragraphs I drafted for you?

Zach20161

Most definitely, I think it's more than valid to state the fact that everything after the NTK should have came to my new address provided they had carried out the due diligence.

Zach20161

So I have added these paragraphs alongside the chan case in the preliminary section

troublemaker22

Alongside?  How does that look?

Zach20161

_________________

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.  As a preliminary point the allocating judge is respectfully requested to strike out the Claim as an abuse of the Court's process for the reasons specified in paragraphs 3-7 (inclusive) below.  

3. Rule 6.9(3) provides that 'where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business'.

4. In this case, the Claimant caused the Court to send the Claim Form to the address it received from the DVLA as the Defendant's address in September 2023 and it was to this address that all pre-action correspondence from the Claimant and its representatives was sent.  However, the Defendant moved home during September 2023 and duly updated the vehicle's registered address at DVLA shortly after the Claimant obtained their prior address from the DVLA.

5.  As a result of the facts specified in paragraph 4 above, the Defendant did not receive or respond to any of the pre-action correspondence from the Claimant and its representatives and it is probable that some (if not all) of this correspondence was returned to the sender by the relevant mail carrier.  Regardless of whether such correspondence was returned, it is common knowledge that people move home from time to time and the fact that the Defendant did not respond to any such correspondence in and of itself gave the Claimant reason to believe that the Defendant no longer resided at their old address.

6.  The Claimant could at minimal expense have performed a 'soft trace' to ascertain the Defendant's current address before issuing proceedings.  However, it is common practice for private parking companies to defer performing soft traces in cases such as this one until after judgment has been obtained in flagrant defiance of the obligation in CPR 6.(9)(3).

7. The claim form has not been validly served by reason of the Claimant’s abuse of the Court’s process and the allocating judge is respectfully invited to strike out the Claim as an abuse of the process of the Court using the Court’s powers pursuant to Civil Procedure Rule 3.4 and to do so as the Claim is for a very small amount, well within the small claims limit, without granting permission to the Claimant to re-serve the claim. 

8. 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.

9. 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. 

troublemaker22

I couldn't have put it better myself! Or maybe I could.  I suggest adding "(and should)" immediately after "could" in the first line of what is now paragraph 6.

Also I suggest a new heading before paragraph 9:

Abuse of the Court’s process by way by way of deficient particulars of claim

and inserting "Further and in the alternative," at the start of paragraph 9 

Zach20161

Great thank you, all amended. I will look to submit tomorrow! Does the length not concern you at all? I worry that a judge may overlook crucial points if it's 13 pages for a parking ticket!

Zach20161

I also have no experience in courts, I only have experience with HMRC!

troublemaker22

I defer to the MSE experts who created the forum defence. But it seems to work  if it ain’t broke, don’t fix it