Unfortunate revelation after receiving CC claim letter !

Gondolier88

Thanks @LDast I have included these items within the preliminary matter section under paras 4 and 5

Is this almost looking in an acceptable state to submit (including the rest of the template defence from para 11) ?

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* 

4.     Further, 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.

5. Lastly, 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.

The facts known to the Defendant:

6. 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.

7.  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.

8. The Defendant had not noticed any signage close to the where he dropped off the guests of the hotel in his vehicle, showing the terms and conditions for use, and 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 motorists of the terms and conditions for use. 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 the location at a later date, the defendant found large and visible signage at the entrance to the carpark stating ‘customers only’, with no underlying terms and conditions on this signage, which would have provided no indication of a contravention in the context of a drop off of hotel guests.  No other signs were visible from a driving position at the entrance to the carpark.

9.  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.

10.     Per the related preliminary matter raised, a further matter negating any cause of action is the 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, 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.

11. 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. 

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

1505grandad

".... incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date – 25th December 2022')."

Just checking  -  does it actually state Christmas Day as payment due in POC? (POC shown in a previous post has date redacted}

Coupon-mad

Yes that's good.  I do think posters need the full wording (in your para 10) otherwise I can't see anyone being able to explain why the date is premature. My paragraph attempts to explain why the 28 days is counted prematurely.

Gondolier88

1505grandad said:

".... incorrect statement in the POC regarding what appears to be the alleged date of keeper liability ('payment due date – 25th December 2022')."

Just checking  -  does it actually state Christmas Day as payment due in POC? (POC shown in a previous post has date redacted}

Correct it does state this date

Gondolier88

Coupon-mad said:

Yes that's good.  I do think posters need the full wording (in your para 10) otherwise I can't see anyone being able to explain why the date is premature. My paragraph attempts to explain why the 28 days is counted prematurely.

Thank you I will be submitting my Defence today

Gondolier88

Hi @Coupon-mad and MSE forumites

I am returning my N180 form to the court today via the e-mail address DQ.CNBC@justice.gov.uk

I have downloaded the online version here: *N180 Directions questionnaire (Small Claims Track) (publishing.service.gov.uk)

I am struggling with 2 things

Firstly this version of the form does not have a Yes / No option around mediation but simply informs that Mediation must be considered

Secondly - how am I supposed to serve this document to the other party? Does this need to be done by post and does the same deadline apply?

Thanks

KeithP

Gondolier88 said:

Firstly this version of the form does not have a Yes / No option around mediation but simply informs that Mediation must be considered.

That's right - a recent change.

Gondolier88 said:

Secondly - how am I supposed to serve this document to the other party? Does this need to be done by post and does the same deadline apply?

There is guidance on that in item 10 on that checklist you are following.

Coupon-mad

The new N180 and Compulsory Mediation is new & is discussed on several threads in July.

Gondolier88

Thanks both

I've reviewed those threads

Q'nare now sent off to the court and CEL