County Court claim for free parking

nataliek5

Just wanted to add an extra note here to say how mad I am that I have received this claim when parking is FREE to all guests. The hotel and car park itself are based off of a very busy dual carriageway, therefore I believe it is highly unlikely that anyone should use the car park for anything other than access to the hotel. I really don't understand how these parking companies think they can get away with it. 

Coupon-mad

nataliek5 said:

I have now submitted the AOS and started to draft my defence.

Please can you let me know if this would be ok, noting the questions at the end in bold:

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. 

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, but the Defendant does not know who was driving.

5. The violation date was almost 3 years ago, therefore the Defendant does not recall who was driving at the time stated in the Particulars of Claim.

*** Should I mention here that the Defendant does recall visiting a Mercure Hotel on this date for the purpose of using the leisure facilities? NB. Parking is free for hotel and leisure guests, but not sure if I should mention this? The POC does not state which Mercure Hotel the claim is in reference to however I do have a letter (only received after a SAR) which states the exact location of the hotel and shows a picture of the vehicle arriving and leaving the car park.

*** Should I also mention that the driver could have been the partner of the registered keeper or does this not matter?

Thanks again for all of your help.

Yes to the above but you've cropped off the rest of the usual CEL defence points including the extra one about the due date & interest being prematurely calculated.

nataliek5

Yes to the above but you've cropped off the rest of the usual CEL defence points including the extra one about the due date & interest being prematurely calculated.

Do you mean from point 4 until the end? Those will stay as part of my defence but i didnt want to post in here while they would be unchanged... and they will be renumbered as point 6 and so on.. I'm not sure what you mean by "the extra one". Sorry if I'm missing things - I know it must be frustrating if you are repeating yourself

Coupon-mad

Read the other two CEL threads from yesterday.  Or just search the forum.  It's repeated in every CEL defence since last year.

nataliek5

I need to submit my defence by 4pm today.... 
Please can you let me know if I have missed anything? @KeithP @Coupon-mad

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. 

**** CEL v Chan images inserted here ****

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, but the Defendant does not know who was driving.

5.      The Defendant does recall visiting a Mercure Hotel on 23/08/2021 for the purpose of using the leisure facilities with their family, including their partner who regularly drives the vehicle. As the event date was almost 3 years ago, the Defendant does not recall who was driving at the time stated in the Particulars of Claim.

6.     The Defendant was aware that parking was free for hotel and leisure guests on the event date. The Defendant used their debit card to make a payment of £29.50 to the leisure facility on 23/08/2021. The Defendant remembers entering their vehicle registration number into the tablet located at the desk in the entrance to the leisure facility, as prompted by a member of staff.

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 GBP182 claimed'.  Under the British Parking Association Code of Practice, parking charges are capped at £100 maximum and it cannot have been £182.  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................

*** continues to para. 30 from defence template plus statement of truth and digital signature.

Coupon-mad

Great!  Job done for this stage.

This is the sort of CEL defence everyone else should use.

nataliek5

Thank you very much. That is a weight lifted!! 

nataliek5

I have received the following email response:



Thank you for emailing the Claim Responses Team in the Civil National Business Centre. Please expect a response to your enquiry in 10 days

When sending us documents please ensure you comply with the Practice Direction 5B

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05/pd_part05b

Documents not complying will not be accepted, in particular if it is over 10MB or 25 printed pages in size.

Le_Kirk

That is the standard response these days.

nataliek5

I received the following letter from HM Courts & Tribunals Services on 14/05/2024:

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

Please can someone confirm that there is nothing to do until I hear from the claimant again? 

Starting to get anxious as still haven't heard anything.....