*UPDATE* Received CEL Claim form prior to Letter Before Action - Advice?

RobotDevil

Hi all, 

I've been working on the defence letter and I want some advice on whether or not it is acceptable to send. We returned to the car park in question yesterday to take pictures of the signs. They've actually removed some of them since the incident so there's less signage there now. There are signs along the wall near the shops, but you'd never notice these as all the parking bays are on the opposite side of the car park and most people wouldn't see them unless they walked over. None of these signs were present outside the shop my fiancé entered. Should I include this?

Also, I really struggled to find examples of CEL unreasonable conduct mentioned above. I have looked through many threads but couldn't find anything, though I admit I have been distracted lately with work and the amount of threads have doubled since I made this post. I have attempted to add a paragraph about it myself so please do tell me if this needs work.

The 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. 

(Images of transcript removed for brevity)

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 driver.

5. The defendant pulled into the car park to receive a manager hand over at their new place of work. It was the defendants first time using the car park in an area they weren’t familiar with. There is only one entry and exit to the car park with a single notice attached to the wall. This was difficult to see due the defendant entering the car park from the left and the signage being on a wall to the far right, located by a side street that few people would drive down. The signage inside the car park was on tall poles with several paragraphs of small writing that made them difficult to read. The sings were angled awkwardly due to collision damage making the text even more unclear. 

6. The defendant did not receive any communication prior to receiving their county court claim. The Court Claim was delivered prior to receiving a Letter Before Action. The claim form was dated two days prior to the date on the Letter Before Action. This suggests the claimant breached Pre-Action Protocol as seen in section 3 of the PAP guide:

·        3.2. The Letter of Claim should be clearly dated toward the top of the first page. It should be posted either on the day it is dated or, if that is not reasonably possible, the following day.

 

·       3.4 If the debtor does not reply to the Letter of Claim within 30 days of the date at the top of the letter, the creditor may start court proceedings, subject to any remaining obligations the creditor may have to the debtor (for example, under the Financial Conduct Authority’s Handbook). Account should be taken of the possibility that a reply was posted towards the end of the 30-day period.

7. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity. The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

Thanks in advance, I'm not the best at putting things into words.

Coupon-mad

Looks good except there's no such thing as a 'registered driver'.

But you should only mention details of where signs are, by stating that the Defendant saw no supposedly contractual parking signs on the material date, so they returned to the site to narrow the issues for this defence. It was noted that ...  (do NOT say they've removed signs or there are less now!).  Just say what you observed NOW - a distinct lack of properly placed signs, thus it is unsurprising that the Defendant was unaware of any terms.  As such, there was no fair or prominent contract on offer, let alone formed, agreed or breached. 

RobotDevil

Thank you, I didn't notice the "registered" bit. I have now removed.

I have abbreviated part 5 to avoid mentioning anything relating to the position of signs other than the one at the entrance. Is this better?

5. The defendant pulled into the car park to receive a manager hand over at their new place of work. It was the defendants first time using the car park in an area they weren’t familiar with. There is only one entry and exit to the car park. The defendant saw no supposedly contractual parking signs on the material date so returned at a later date to narrow the issues for their defence. It is noted that the only sign displayed upon entry to the car park is on a wall to the far right of the entrance, which is easily missed if you enter the car park from the left. The defendant observed that the car park had a distinct lack of properly placed signs, thus it is unsurprising that the Defendant was unaware of any terms. As such, there was no fair or prominent contract on offer, let alone formed, agreed or breached. 

Coupon-mad

That'll do.

RobotDevil

Hi all,

Just to let you know CEL discontinued the case, so thanks for all the advice. 

It was right down to the wire, his hearing was supposed to be tomorrow but he hadn't received any further correspondence regarding their defence so I told him to ring the court.

Turns out they discontinued at the last minute. The court hadn't even had time to draft a letter. 

So once again, thank you! All your help has been much appreciated.

Coupon-mad

RobotDevil said:

Hi all,

Just to let you know CEL discontinued the case, so thanks for all the advice. 

It was right down to the wire, his hearing was supposed to be tomorrow but he hadn't received any further correspondence regarding their defence so I told him to ring the court.

Turns out they discontinued at the last minute. The court hadn't even had time to draft a letter. 

So once again, thank you! All your help has been much appreciated.

He could email the court to ask for costs if he has incurred any (or loss of leave by being forced to take a day off work or miss out on work for the hearing).

This is shown in the BlueToffee thread link in the second post of the NEWBIES thread and is about arguing that such a last minute discontinuance is wholly unreasonable ad per the annotation in the White Book about late discontinuance.

Anyway, costs or not, he won! Congrats!

ANOTHER ONE BITES THE DUST!

RobotDevil

Thank you, I will be sure to read that and let him know.