CEL MCOL Defence

dinkmack

Hopefully this is the post you were directing me too 

Claim Number: xxxxxxx

Between

Civil Enforcement Ltd

(Claimant) 

- and -  

Defendant's name                        

 (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 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 draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment involving the same Claimant as this case, which supports striking out the claim without a hearing.

3.  The Defendant believes that dismissing this poorly-pleaded claim is the correct course, with the Overriding Objective in mind.  Bulk litigators like this Claimant (which has an in-house legal team and barrister) 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, this Claimant in particular should not be surprised when courts continue to strike out their claims, based in the following persuasive authority.

3. Civil Enforcement Limited v Chan (Ref. E7GM9W44) holds that 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. 

In the alternative,

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 Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s), what heads of cost are being pursued and how/why the Defendant is being held liable, making it difficult to respond. The vehicle is recognised, as is the shopping park location. In any event, the Equality Act 2010 applies to protect the driver/passenger, and any fixed policy term that may cause detriment to disabled persons 'at large' is illegal (indirect discrimination) under that legislation. 

5. The defendant and their partner were shopping at Wyndham Way Retail Park. The defendant had to assist their partner in a few shops because of mental health disabilities and had to be with them at all times for support. When returning to the car there was no windscreen PCN and neither were aware of any supposed parking terms or restrictions  

7.  The Defendant does not believe that the Claimant complied with the strict requirements of the Protection of Freedoms Act 2012 (the POFA) in terms of 'adequate notice' of the parking charge and in terms of serving a compliant Notice to Keeper ('NTK').  The POC is unhelpfully silent about the supposed basis of liability. It does not state whether the Defendant is being pursued under the POFA nor where/how they obtained his data, nor does it even state (as parking claims usually do) that they are pursuing the Defendant as keeper/driver.  These POC seem even more defective than seen from this same Claimant in the Chan case.

8.  There is a further matter negating any cause of action, namely an incorrect 'payment due date' in the POC.  This point relies on Schedule 4 paragraph 9 of the POFA and the Defendant will raise various issues, including probable non-compliant NTK wording and an apparently incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date').  This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days or even weeks, which has had the additional unreasonable effect of backdating interest incorrectly.  Even if posted 1st class on the same day as the alleged event (which it cannot have been) a NTK would be deemed served two working days later.  Adding the POFA's statutory 28 days starting with the day after service of the NTK, the soonest that the 'right to recover' might exist would have been several days later than this Claimant states in their POC. That is, if they are seeking keeper liability under the POFA at all, which the Court and Defendant are being forced to guess.

9.  This appears to be unreasonable conduct, and other similar cases in the public domain demonstrate that this Claimant's in-house legal team are stating a premature 'payment due date' calculation routinely, which inflates the interest as well as breaching the POFA. It is denied that the Defendant became liable for the parking charge on the date shown, or at all.

10.  Further, the POC only pleads for 'a parking charge for breach' yet it says 'charges of GBP170 claimed'.  Under the British Parking Association Code of Practice, parking charges are capped at £100 maximum and it cannot have been £170.  It is denied that exorbitant sum was due, properly incurred and/or displayed as the 'parking charge' on prominent signage. 

11.  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' ...

dinkmack

Sorry Para 5 was supposed to say

5. The defendant and their partner were shopping at Wyndham Way Retail Park. The defendant had to assist their partner in a few shops because of mental health disabilities and had to be with them at all times for support. The defendant is a full time carer for her partner who qualifies for a Blue Badge. When returning to the car there was no windscreen PCN and neither were aware of any supposed parking terms or restrictions.

Coupon-mad

Yes!  See how much you can learn from other threads? Always read a few at every stage; never just sit in your own thread.

Just missing a paragraph 6.

And of course, you will have the whole of the rest of the Template Defence taking it to 30-something paragraphs (but don't show us that bit).  Read the first 12 steps in the Template Defence thread too. 

dinkmack

Thank you @Coupon-mad 🙂

dinkmack

Para 6 from the other post was talking about not knowing who was driving so I left it out.
Should I just renumber them or should it still be there? Thanks.

Coupon-mad

Renumber it all (the rest of the Template).

dinkmack

Hi Coupon-mad, I'm just about to email my defence.
There were 37 Paras in total.
Do you know if it's possible to request a telephone hearing?
It will be difficult to do a F2F because I'm a full time carer.

Thank you for all your help.

Coupon-mad

Put that in your DQ (see the first 12 steps).

dinkmack

Coupon-mad said:

Put that in your DQ (see the first 12 steps).

I've checked the first 12 steps and there's no mention of adding a telephone hearing request.
Would I add it at the bottom of my defence?

Coupon-mad

No. Like I said.  Put it in your DQ.