OVERSTAY IN ASDA CAR PARK PARKING EYE

Metaphysicist

KeithP said:

With a Claim Issue Date of 28th February, you had until Monday 18th March to file an Acknowledgment of Service.

For the moment I 'll assume you met that deadline - please confirm.

If your MCOL Claim History shows your Acknowledgment of Service has been accepted and no Judgment has yet been made, then you have until 4pm on Tuesday 2nd April 2024 to file your Defence.

That's nearly two weeks away. 

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Excellent. Once I finish the defence I will post it on here. 

Regards 

KeithP

Point 3 in those Particulars of Claim are pretty vague, aren't they?

Firstly it says "The Defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract)".

It goes on to say "Reason: Vehicle Remained On Private Property in Breach Of The Prominently Displayed Terms And Conditions".

Can anyone tell me what the second sentence there adds?
And why do most words in that hastily added sentence start with a capital letter?

Le_Kirk

Metaphysicist said:

Once I finish the defence I will post it on here. 

But please post only the paragraphs that you edit or add; we don't need to critique the template.

Metaphysicist

Hi Guys,

Here is paragraphs I have edited or added. Please share your thoughts?

Regards 

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').

The facts known to the Defendant:

2. 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 appears 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 of the vehicle but does not know who was driving as this is a shared vehicle. 

Preliminary matter: The claim should be struck out.

From the PoC the Claimant alleges that unspecified terms were breached on one occasion in 2022. The vehicle was shared and the Defendant was not driving the vehicle during any of the alleged events.  The Defendant was not aware of these allegations and thus did not have any chance to appeal.

The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4. Out with the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal Re Claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.

3. As the Defendant is unaware of the exact events leading to the alleged breaches of the unspecified terms, they are unable to remark specifically upon the nature of events during the alleged dates.  However, research done by the Defendant indicates anecdotally that the Claimant has a history of misleading signage, spurious PCNs, a lack of an adequate or fair appeals process, and engages in predatory tactics to get as much money as possible out of scared members of the public.  As such the Defendant seeks to robustly defend this claim and not fund a company whose profit model seems to stem from abusing their power.

4. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. As the PoC in this matter from Secure-A-Space Limited contain even less detail than the above-referenced case of Civil Enforcement Limited v Chan, the Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

5. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgement 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 on the following persuasive authority.

6. A recent persuasive appeal judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. 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 judgement, the Court should strike out the claim, using its powers pursuant to CPR 3.4

7. 7. The POC highlights the “Reason” for the claim as “Failure TO Pay For The Duration Of The Stay” but does not highlight what the duration of the stay was and when it was from until, making it impossible for the Defendant to determine who was driving and therefore provide a more detailed defence. However, the defendant acknowledges that he does use the vehicle at weekends to transport his family and his elderly parents.

Coupon-mad

You should be using the hharry version.  I am wondering what is unclear in the third para of the Template Defence where I provide that linked version?  People don't seem to spot it.

1505grandad

"4. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. As the PoC in this matter from Secure-A-Space Limited ...."?

Also when using c & p without checking it is actually relevant.

Metaphysicist

Coupon-mad said:

You should be using the hharry version.  I am wondering what is unclear in the third para of the Template Defence where I provide that linked version?  People don't seem to spot it.

Hi,

Not sure how I missed it I will search again. Thanks

Metaphysicist

1505grandad said:

"4. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. As the PoC in this matter from Secure-A-Space Limited ...."?

Also when using c & p without checking it is actually relevant.

Thanks for the input will rectify.

Regards

KeithP

@Metaphysicist, did you manage to file a Defence?

What happened next?

Metaphysicist

@KeithP Hi,

I apologise for the lack of updates on the forum. I have submitted my defense and am currently awaiting a response.