Time Sensitive - Alleged Overstay, ECP, 2 PCNs, Defence Drafted, Request for Feedback

Ronald157

Hi All,

I do apologise for posting this at a rather unsavoury time of day and within 14 hours of the 28 + 5 day limit to file a defence.

If someone could be ever so kind as to offer a little feedback as to the validity of the defence and whether there is anything else that could be included/excluded, I would be exceptionally grateful.

To keep it brief:

- AOS filed 06/03, claim date 22/02

- Breach: alleged overstay on two occasions filed as one claim by ECP/QDR, no info on entry/exit times or length of overstay

- At the time the defendant was using the gym situated within the retail park and was entirely unaware of the 3-hour free parking limit until PCNs received in post, no easily observable signs at entrance to car park besides opening times. 

- All debt collection letters avoided, attempt to resolve with owner of retail park with no success, verbal complaint made to retail facility with no success. 

-  Circa £500 claimed

Defence from paragraph 3 onwards:

3. Neither the Letter Before Claim nor the supposedly 'detailed Particulars Of Claim' has specified the purported overstay in either duration or entry and exit times. It is suggested that these could be instances of a ‘double dip’ ANPR error, especially in consideration of the time of day when the ANPR images were taken (20:06 and 22:08) where visibility was low. This is known in the industry as an inherent and well-documented likely flaw of ANPR, which cannot be relied upon to sign off a PCN without human checks.  AOS members are required to carry out manual checks to discount the possibility of 'orphan images' in the middle, denoting two visits within 24 hours, wrongly read as one period of parking (for example to return something, or to purchase a forgotten item). Given that ANPR defaults to 'first in, last out' images, the Claimant is put to strict proof of all ANPR captures of the vehicle onsite that day and of their documented human checks before this PCN was issued. The Claimant is also to put strict proof of the prominence of the contractual signage, as well as evidence of the alleged breaches, and is further required to address the inconsistencies in their POC which states that the Defendant had visited multiple “Sites”, a statement that conflicts with the facts known to the Defendant and the Claimant’s (the alleged breach could only have taken place the “Site” stated in paragraph 1 of the) POC.

4. The Defendant is unable to recall the specific details that led to the alleged breach of contract and associated ‘parking charges’ issued, as the dates in question are each unremarkable from 15 months ago. However, the Defendant at the time had been recovering from the complications of three lower-limb surgical interventions and administering physiotherapy and light exercise to ameliorate pain and suffering endured. Consequently, the Defendant was necessitated by way of maintaining mental and physical health to routinely make use of the most suitable health and wellness facilities within a reasonable distance of the Defendant’s residence. To be deprived of the full use of these facilities at the time of the alleged breach would constitute further deterioration and potential damage to the mental health of the Defendant.

 

*Defence continued as recommended in template*

Please help if you can!

Ronald157

Here are the POC:

Coupon-mad

I'd add that it is denied that any 'contractual charges' were incurred or paid by this Claimant and there is also no evidence of 'damages'.  Further, the detailed POC are utterly incoherent and having used a cut & paste template, QDR has a table saying both PCNs were for 'overstay' yet paragraph 5 contradicts this and says the breaches were for parking 'without a valid permit' which is a completely different allegation.  These POC are wholly inadequate and should be struck out for a failure to comply with CPR 16 (Statements of Case), as has been held in multiple cases in this link:

Judgments

Under CPR 3.4(2)(c) - and as seen in those judgments which (apart from the 'lead' persuasive appeal case of Civil Enforcement v Chan shown first) required no application by the Defendants - the court may strike out a statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or court order. The court may determine to strike out a statement of case of its own initiative.

Castle

Para 7(a) refers to a singular parking charge of £180 and only one breach of contract.

Coupon-mad

Wow it's a mess isn't it?!

Castle

Written by a "Chatbot" perhaps?

Ronald157

Thank you @Coupon-mad, you're a lifesaver. And @Castle, much appreciated, I will bring that up in the hearing (if it ever gets there of course)!

Will update the thread in due course.

Thanks again

Ronald157

HI @Coupon-mad @Castle , I have an update:

In June of this year I was, due to a number of circumstances, left with no option but to leave my accommodation by the start of August and and relocate to a different part of the country. All CNBC and court correspondence was tied to that address. 

By August 5th, I'd still heard nothing from the CNBC at my prior address and the last document I'd received from the CNBC was mid-March. By the time I'd left my residence, court proceedings were the last thing on my mind as I hauled my possessions from one place to another.

After entering into various unsecure tenancy arrangements (as my immediate family refused to house me), I moved to a more permanent address. I disclosed this to the CNBC on Friday, September 6th. At the time of sending notification of change of address to the CNBC, I was not aware that I should have sent any other party my change of address.

I subsequently received an email back from the CNBC on Thursday, November 14th, stating that my case had been passed to the County Court in Manchester, as was intended. I then called the court's customer service centre to clarify what had happened to my case.

Little did I know, there had been both a preliminary hearing on October 15th and a main hearing on November 12th.

As soon as I heard this from the operator, I immediately emailed the court and explored my options through various forums. The operator made it clear that I'd likely had an order made against me for non-attendance.

The order was delivered to my new address on Tuesday, 26th November.

This week I will be sending in an N244 to apply for the judgement to be set aside. It costs £300 which is not what I can really afford to spend but if it puts me back to being in a position to attend the hearing now that Manchester County Court have my new address, I'm willing to take the risk.

For reference, the order has been made out at about £750 for the claimant, ECP (£430 in costs, £320 in the 2 x £160 original tickets).

Please advise.

Coupon-mad

Wow. Ouch! If only you'd asked us...

We'd never have told you to send your new address to the CNBC (originating gateway) admin centre, who took only an early role and haven't been involved in the case for almost a year.

You had nominated Manchester court months ago, when you filled in your N180.  The case was with them.  Your address change had to go to them, with QDR cc'd in.

One email would have saved you £303.

But onwards and upwards! You have no choice now but to apply using form N244.

I hope you've read a few cases and know how to word your witness statement, what case law to cite and what evidence to attach, along with a Draft Order?

It's all here already.

Ronald157

Hi,

I've been very busy these last few days piecing together a DO and WS. I'll be collecting exhibits this evening at a similar time to the prior PCNs so as to support my exisiting defence .

Please see my DO below. As I'm entirely at fault here, I'll not be ordering that the claimant reimburse the fee on an indemnity basis and I'll instead get help for fees due to low income. Will this be sufficient?

Euro Car Parks Limited                                                                                                 (Claimant)

 

                                                                                            -and-

Mr XXXXXXXXXXX                                                                                                 (Defendant)

 

 

 BY CONSENT ORDER

 

UPON the application of the Defendant to set aside a default judgment dated 12/11/2024, received on 26/11/2024 at an updated address.

 

IT IS ORDERED THAT:

 

1. The judgment dated 12/11/2024 be set aside.

2. All enforcement be put on hold pending the outcome of the application.

 

Dated this 2nd day of December 2024

 

Signed ………………….………………….		Signed ………………….………………….
For and on behalf of the Claimant		The Defendant

Ronald157

So far as I'm aware, I'd meet the criteria for a set aside as information of hearing dates went to a prior address and this is a good reason for the set aside.

However, is my defence likely to succeed. "Your vehicle was parked longer than the maximum period allowed" stated in schedule 1 sounds like a breach, despite Paragraph 4 and 5 stating another unrelated breach of the terms and conditions. I guess I'll find out the exact terms this evening when I go to the retail park and actually read them for the first time and gather pictures of the car park.