UKPC/DCB Legal PCN - CNBC Claim - Defence assistance please

procrastinationstation

Hi all, thank you to all the regulars on here that have put together these information filled threads.

Here is a run down of where I am at:

- Claim Form (Civil National Business Centre) issue date 21 Mar 2024. (Arrived while I was on holiday)
- DCB Legal representing UKPC
- AoS submitted via MCOL 4/4/24, Received 5/4/24.
- Nothing else done on MCOL, treating as read-only.
- My calculations tell me I have until 23/4 to submit my defense, using the new email address.
- I have spent many hours reading the threads on here, utilised the templates made available and have drafted my defence.
- Am I right in using CEL vs Chan in this defense? I have added it after a lot of reading other threads.

I have never attempted anything like this so would really appreciate some feedback please, I have added the PoC and relevant parts of my defence (I will not upload the parts we are advised to add after our edited paragraphs)

I would like to ideally submit during working hours tomorrow or by Monday.

Please let me know if I have redacted too much, or any further info is needed.

1-4 is from Hharry100's thread, my paragraphs are 5-8 with a little change made to 9.

Thank you all in advance.

PoC: 
Particulars of Claim 1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charge issued to vehicle XXXXXXX at XXXXXX Car Park.

2. The PCN(s) were issued on XX/XX/2022
3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason:Parked For Longer Than Permitted
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule  4.
AND THE CLAIMANT CLAIMS
1. £170 being the total of the PCN(s) and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £.02 until judgment or sooner payment.
3. Costs and court fees

Defence draft: (With personal details redacted)


IN THE COUNTY COURT

Claim No.:  *********

Between

UK Parking Control Limited

(Claimant) 

- and -  

XXXXXXX                        

 (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. 

(4 pages inserted of CEL vs 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. The defendant’s car was parked in XXXXXXX  on 10/08/2022 as noted by the claimant. The defendant parked to visit “The (redacted) pub" (The rear entrance of which is in the XXXXXX car park). The PCN alleges the vehicle was on site for 2 hours and 39 minutes, which according to the claimant was in excess of the standard amount of time allowed for parking. 

6. The pub has a bar mounted touch screen machine to allow patrons 10 extra hours parking time within XXXXXX car park. The defendant attempted to use the touch screen inside the pub to enter the vehicle's registration, making the defendant exempt from a parking penalty for the time stayed. The device was out of service at this time so the defendant was unable to enter the registration, the defendant was informed by the frustrated bar staff that this was a common occurrence and that they would make a note of the defendant's vehicle registration instead.

7. The seemingly regular issue with the touch screen parking device not working, was reported by the defendant to the claimant, as a challenge to the initial PCN. The claimant chose to decide that the PCN had still been correctly issued, despite their faulty equipment. 

8. The defendant maintains the correct procedure was followed to allow for extended parking, and it can not be the fault of the defendant that the touch screen device inside of the pub was out of service. The vehicle left the facility well within the allowed extended parking time.  As the claimant cannot confirm the extended parking procedure was not followed, they do not have valid proof the defendant overstayed and thus terms and conditions were breached. 

9. Notwithstanding paragraph 3, 4, 5 and 6, in relation to the charges, the defendant would like to point out that the proposed parking charge is inflated, as no financial loss has arisen for the claimant. 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.

Then "Exaggerated Claim and 'market failure' currently being addressed by UK Government" onward has all been used from Coupon-Mads "Template Defense thread". All of it, including the links.

KeithP

Looks like you are doing everything correctly so far and to confirm that your are right with your Defence filing deadline.

I do not think that you need the Chan paragraphs in your Defence because the POC does clearly state the allegation - 'Reason: Parked For Longer Than Permitted'.
The fact that you then go on to address that reason in your Defence supports the view that the POC is adequate,

procrastinationstation

KeithP said:

Looks like you are doing everything correctly so far and to confirm that your are right with your Defence filing deadline.

I do not think that you need the Chan paragraphs in your Defence because the POC does clearly state the allegation - 'Reason: Parked For Longer Than Permitted'.
The fact that you then go on to address that reason in your Defence supports the view that the POC is adequate,

Thank you for the swift feedback. 

I had quite a few drafts before adding Chan, as I was not sure myself. But I then thought I read another thread stating Chan should be used in all DCB legal cases at the moment? I can not find it now so perhaps I misread something.

Coupon-mad

Nope.

That was 6 months ago before DCB Legal realised and added a 'reason' to their POC.

procrastinationstation

Coupon-mad said:

Nope.

That was 6 months ago before DCB Legal realised and added a 'reason' to their POC.

Ok thank you for confirming

procrastinationstation

New draft here without the Chan argument. I will be submitting this (In full of course, and signed electronically using Docusign) tomorrow, unless anyone has any words of wisdom to add?



IN THE COUNTY COURT

Claim No.:  *********

Between

UK Parking Control Limited

(Claimant) 

- and -  

XXXXXXX                        

 (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').

The facts known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle at the material time, but liability is denied, and any breach of terms is also denied. 

3. The defendant’s car was parked in XXXXXXX  on 10/08/2022 as noted by the claimant. The defendant parked to visit “The (redacted) pub" (The rear entrance of which is in the XXXXXX car park). The PCN alleges the vehicle was on site for 2 hours and 39 minutes, which according to the claimant was in excess of the standard amount of time allowed for parking. 

4. The pub has a bar mounted touch screen machine to allow patrons 10 extra hours parking time within XXXXXX car park. The defendant attempted to use the touch screen inside the pub to enter the vehicle's registration, making the defendant exempt from a parking penalty for the time stayed. The device was out of service at this time so the defendant was unable to enter the registration, the defendant was informed by the frustrated bar staff that this was a common occurrence and that they would make a note of the defendant's vehicle registration instead.

5. The seemingly regular issue with the touch screen parking device not working, was reported by the defendant to the claimant, as a challenge to the initial PCN. The claimant chose to decide that the PCN had still been correctly issued, despite their faulty equipment. 

6. The defendant maintains the correct procedure was followed to allow for extended parking, and it can not be the fault of the defendant that the touch screen device inside of the pub was out of service. The vehicle left the facility well within the allowed extended parking time.  As the claimant cannot confirm the extended parking procedure was not followed, they do not have valid proof the defendant overstayed and thus terms and conditions were breached. 

7. Notwithstanding paragraph 3, 4, 5 and 6, in relation to the charges, the defendant would like to point out that the proposed parking charge is inflated, as no financial loss has arisen for the claimant. 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.

8. 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.

Then remaining paragraphs from Exaggerated Claim and 'market failure' currently being addressed by UK Government onward has all been used from Coupon-Mads "Template Defense thread". All of it, including the links.

Coupon-mad

Looks good to me.

procrastinationstation

Thank you all again for your assistance, I submitted my defence by email this morning and received a generic, automated response back.

procrastinationstation

Quick and easy question, and possibly a stupid one. Should I be able to see in MCOL that I have submitted my defense by email? Does it show in there?
I got the automated reply back around 11am this morning.

KeithP

procrastinationstation said:

Quick and easy question, and possibly a stupid one. Should I be able to see in MCOL that I have submitted my defense by email? Does it show in there?
I got the automated reply back around 11am this morning.

A Defence submitted by email will only show up on MCOL when a person in the CNBC gets around dealing with it.
Could take several working days but nothing to worry about as you have the automated receipt.

procrastinationstation

KeithP said:

procrastinationstation said:

Quick and easy question, and possibly a stupid one. Should I be able to see in MCOL that I have submitted my defense by email? Does it show in there?
I got the automated reply back around 11am this morning.

A Defence submitted by email will only show up on MCOL when a person in the CNBC gets around dealing with it.
Could take several working days but nothing to worry about as you have the automated receipt.

Much appreciated, thanks again.