Unfortunate revelation after receiving CC claim letter !

Fruitcake

I suggest you tell your ex-friend you won't be giving them any more lifts.

It's still not too late for Plan A, a complaint to the gastropub/hotel owner/manager/CEO, and your MP.

Can you get photos of the site and signage? If not, are there any useful images to be found on Google Streetview? Where did the alleged event take place? It may have cropped up here before.

You should also include Jopson v Homeguard, case number B9GF0A9E, where the judge stated that dropping off/picking up is not parking. This was an appeal case and is therefore persuasive on the lower courts.

Gondolier88

Really helpful thanks, I'll be using a recent defence as my template exactly like you say

Coupon-mad said:

Gondolier88 said:

Thank you, looks like a great source for a defence template in my case given the POC. Yes they have added the fee!

Standard  CEL claim. Easy to beat.

we should be telling everyone to just copy & adapt another recent 2024 CEL defence that has the extra bit about the Payment Due Date being premature.

Then you don't even have to think about it because all the recent ones already include that extra bit and CEL v Chan.  Just copy!

Coupon-mad

Someone posted theirs today.  It's in my comments today (my replies) under my profile.

Gondolier88

Hello again @Coupon-mad., @KeithP. Please see my defence below. Everything after the ellipsis at the end follows the standard template. Any feedback is very welcome.

As a specific question, should I be including Jopson v Homeguard 'parking is not drop off' references after para 7, or am I better off focusing only on the inadequate POC?

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 Screenshots* 

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 does recall visiting the hotel on 26 November 2022 (The Crown Hotel Woodbridge) to drop off some hotel guests. The guests were friends with whom the defendant was attending an event in the local area later that day.

6. The Defendant had not noticed any signage close to the where he dropped off the guests of the hotel his vehicle, showing the terms and conditions for use, the Defendant was not aware of any restrictions that applied in the car park due to signage which was not possible to read from where the defendant had parked. The small signage was not suitable to alert a motorists. Due to the age of the alleged breach of contract which is over 18 months years old the Defendant is unable to recall the exact reason for the PCN(s). On reviewing signage at a later date, the defendant noted simple signage low down on a wall (so low as to be below windscreen height) at the entrance to the carpark. This signage indicated parking for hotel guests. While this signage is not readily visible to a driver, moreover it does not have provide any indication of a contravention in the case of a vehicle dropping off guests of the hotel.

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.

8. The Claimant will concede that no financial loss has arisen…

Coupon-mad

Where's the extra point I said to find in other CEL defence threads? I stated the keywords to look for.  Specific to CEL cases.

There was a CEL defence thread yesterday which included it.

BikingBud

Para 6 surely "where the defendant had stopped" not parked.

Gondolier88

Coupon-mad said:

Where's the extra point I said to find in other CEL defence threads? I stated the keywords to look for.  Specific to CEL cases.

There was a CEL defence thread yesterday which included it.

Apologies, I did research this but forgot to include. I have now added an additional para 8.

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 Screenshots* 

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 does recall visiting the hotel on 26 November 2022 (The Crown Hotel Woodbridge) to drop off some guests with whom he was attending an event later that day.

6. The Defendant had not noticed any signage close to the where he dropped off the guests of the hotel his vehicle, showing the terms and conditions for use, the Defendant was not aware of any restrictions that applied in the car park due to signage which was not possible to read from where the defendant had stopped. The small signage was not suitable to alert a motorists. Due to the age of the alleged breach of contract which is nearly 18 months years old the Defendant is unable to recall the exact reason for the PCN(s). On reviewing signage at a later date, the defendant found large and visible signage at the entrance to the carpark stating ‘customers only’, which would have provided no indication of a contravention in the context of a customer drop off. No other signs were visible from a driving position at the entrance to the carpark.

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.

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 – 25th December 2022').  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. 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 relevant signage. 

 

10. The Claimant will concede that no financial loss..

Gondolier88

BikingBud said:

Para 6 surely "where the defendant had stopped" not parked.

Amended thank you

LDast

Para #8 regarding the incorrect payment due date is quite serious and probably be included as another preliminary matter for the following reasons:

Where the Claimant has provided an incorrect 'payment due date' in the PoC, several Civil Procedure Rules (CPRs) have been breached. These breaches could be argued as contributing to the abuse of process, negating the cause of action. Key CPRs that have been breached include:

1. CPR 1.1 - The Overriding Objective:

   • Purpose: Ensures cases are dealt with justly and fairly.
   • Breach: Providing incorrect information in the PoC and attempting to allege keeper liability earlier than allowed could be seen as failing to deal with the case justly, fairly, and proportionately.

2. CPR 16.4 - Contents of the Particulars of Claim:

   • Purpose: Requires that the PoC contains a concise statement of the facts on which the claimant relies.
   • Breach: Incorrect 'payment due date' and potentially misleading information about the right to recover under PoFA result in the PoC not accurately representing the facts.

3. CPR 22.1 - Statements of Truth:

   • Purpose: Requires a statement of truth for every statement of case, verifying the accuracy of the information provided.
   • Breach: If the PoC contains incorrect dates and misleading statements, the statement of truth is falsely certifying the accuracy of incorrect information, breaching this rule.

4. CPR 27.14 - Unreasonable Behaviour in the Small Claims Track:

   • Purpose: Provides for the awarding of costs where a party has behaved unreasonably.
   • Breach: Attempting to enforce keeper liability prematurely and incorrectly calculating interest should be viewed as unreasonable behaviour, justifying an award of costs against the Claimant.

5. CPR 3.4 - Power to Strike Out a Statement of Case:

   • Purpose: Allows the court to strike out a statement of case if it discloses no reasonable grounds for bringing or defending the claim, or if it is an abuse of the court’s process.
   • Breach: The incorrect dates and potential non-compliance with statutory requirements mean the PoC disclose no reasonable grounds for bringing the claim and should be seen as an abuse of process, justifying striking out the claim.

6. CPR 32.14 - False Statements:

• Purpose: Penalises making false statements in documents verified by a statement of truth.
• Breach: If the Claimant has knowingly included incorrect dates or misleading information in the PoC, they breach this rule.

The para would need a slight rewrite in order to include it as an additional preliminary matter.

There is also the additional preliminary matter of the claim being for more than £100:

Preliminary Matter. The claim should be struck out

#. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. I respectfully request the allocating judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.

LDast

A suggestion for maybe using the incorrect payment due date as a preliminary matter for strike out:

#. As an additional preliminary matter, the Defendant asserts that the Claimant's entire claim should be struck out due to multiple breaches of the Civil Procedure Rules (CPR), including CPR 1.1 (the overriding objective), CPR 16.4 (contents of the Particulars of Claim (PoC)), CPR 22.1 (statements of truth), and CPR 3.4 (power to strike out a statement of case). The PoC contains an incorrect 'payment due date' of 25th December 2022, which unreasonably shortens the statutory 28-day period prescribed by Schedule 4, paragraph 9 of the Protection of Freedoms Act 2012 (PoFA), thereby misleadingly alleging keeper liability prematurely. This constitutes an abuse of process, backdating interest incorrectly and resulting in the claim disclosing no reasonable grounds while failing to meet the requirements for accurate and truthful pleadings.