Received Claim Form - non-POFA compliant defence question

CosmicLanes

There's a 740 character limit so might need do it in more than one part...

I've put a placeholder for the 4 Chan Judgement images.

IN THE COUNTY COURT

Claim No.:  Redacted ClaimNo

Between

Redacted Claimant

(Claimant) 

- and -  

Redacted Defendant

 (Defendant)

_________________

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. 

 

<< CHAN Judgement images go here >>

 

No keeper liability

4. As the Claimant does not know the identity of the driver of the vehicle in question at the time of the breach, it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

5. Keeper liability is denied. The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. Paragraph 3 of Schedule 4 of the POFA states that land is not 'relevant' where byelaws apply. The land entered is land subject to bylaws enacted in the The London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land. POFA cannot be used by the Claimant to recover any unpaid parking charges from the keeper of the vehicle.

6. The Claimant cannot rely on a reasonable assumption that the registered keeper was the driver. Declining to identify the driver does not produce any kind or inference or presumption that the registered keeper was the driver. The Defendant has declined to identify who was driving the vehicle on the date and location detailed in the claimants POC and no inference that the registered keeper was the driver can be inferred - paragraphs 34-36 of VCS v Edward, on appeal [2023] H0KF6C9C.

7. The Claimant cannot infer that the driver was acting on behalf of the registered keeper or that there is any application of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all) and that a Defendant who was not the driver cannot be held liable outwith POFA - Excel v Smith, on appeal [2017] C0DP9C4E.

 

The facts known to the Defendant:

8. 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.

 

9. 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, there must 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.

10. 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.

<< From here is template - "Exaggerated Claim and 'market failure' ...." >>

CosmicLanes

Sorry KeithP and thanks for your patience...I'm trying to go as quick as I can and not having time to think.  Hopefully the above does the trick :-)

Coupon-mad

Yep the first 10 paras is just what we need to review.  Looks good.

I'd remove the sub-heading 'the facts known to the Defendant' as there are none under that bit!

And remove this as it's repetition:

"Declining to identify the driver does not produce any kind or inference or presumption that the registered keeper was the driver."

CosmicLanes

Thanks @Coupon-mad.  Have removed the sub heading so now it just flows 7 to 8.

And in 8, it now reads...
 "8. 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." and so on, having removed the section in quotes you suggested.

Assuming that's all, then I guess I'm good to go.
Will print, get it signed and email off to Northampton Business Centre

CosmicLanes

Hi @Coupon-mad.
 Just had a re-read, and due to copy and pasting, I'm not sure paragraph 5 is correct as in the one I posted above it mentions Stansted Airport, which probably relates specifically to the post I lifted it from 
"The land entered is land subject to bylaws enacted in the The London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land."
Should I remove that line or the whole Paragraph 5?

Also, I'm conscious that I haven't mentioned the dates of their overdue Date of Issue vs their alleged Parking incident.
Does that need to go in?

CosmicLanes

I was thinking something like this...

5. Keeper liability is denied. The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. Section 9 (4) of the Act prescribes that the claimant must deliver the notice within the relevant period of 14 days. As the Parking Charge Notice was issues on <<Redacted Date>>, XX days after the alleged parking date, the claimant has failed to comply with the requirements of the Act.

Coupon-mad

Yes that's fine.  Clearly no copying irrelevant stuff relating to something specific!

I don't think I did suggest changing para 8 at all?

CosmicLanes

Hi @Coupon-mad,  yes you're right, my bad....I changed the right paragraph but quoted the wrong paragraph back to you. It was a long night!

I should have said that 6 now reads...

 "6. The Claimant cannot rely on a reasonable assumption that the registered keeper was the driver. The Defendant has declined to identify who was driving the vehicle on the date and location detailed in the claimants POC and no inference that the registered keeper was the driver can be inferred - paragraphs 34-36 of VCS v Edward, on appeal [2023] H0KF6C9C."

Thanks

CosmicLanes

Just wanted to say thanks again to all who jumped in on this.  Will feed back on how it goes.

Umkomaas

have left this far too late, not for myself but for a member of my family...I said I'd try to help

Please tell us that the Defence is in the name of your family member, not in your name 'on behalf of ...'

Which parking firm and which solicitors are representing them?  Can make a difference to further advice and potential outcome.