Secure parking solutions and DCB legal

Eagle229

Good afternoon everyone,

Firstly, just wanted to say thanks for all the amazing help posted on this forum - an amazing resource to help newbs like me in fighting these types of claims. 

I’m currently drafting my defence and I’m unsure which route to go through. Do I use the MET parking example stated in the template defence ( @hharry100) or the Gladstones/UKCPM on (@Rinches19)? 

Some background for my specific case. 

I parked on Pentos drive where other vehicles had parked as well. There’s a lack of available street parking spaces on the residential street Formans Road.  

 

The Pentos drive street is adjacent to a carpet shop and a gym and loads of other shops in one direction and houses in the other direction.

There’s a big green gate (open) a few yards into the Pentos drive which appears to be private land but cars were parked there as well. However I parked before the big green gate where there was a space and other vehicles were there too. I asked the carpet shop if parking was okay and they confirmed it was fine and that everyone parks there. 

If you see the image below, you can clearly see other vehicles parked on the street. 

And there’s only one sign, with no clear parking terms..

any help would be appreciated. 

Coupon-mad

I think the Rinches one is a bit old isn't it, and doesn't include Chan or the latest DLUHC draft IA revelation that the parking industry had told the Government that debt recovery 'work' (LOL) costs <£9.

Eagle229

AOS submitted…. Now working on the defence..

Eagle229

Here's my first draft of my first ever defence... which I have stitched together from the great defence letters I have seen on MSE Forum, fantastic work!
please see my defence below

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 judgement 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 judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. 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 judgement, 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 and driver.

5. The Defendant vaguely remembers on the day in question he and his family were visiting family in the residential area and parked on Pentos drive amongst other vehicles. There was a big green gate a few yards into the street which appeared to be private land. However The Defendant parked prior to the gates, where other vehicles were also parked. Upon asking the local Carpet shop “Heritage Carpets” if parking in this location was appropriate, the Defendant parked after receiving confirmation that the location was suitable. Upon returning to his vehicle the defendant noticed there was NO Parking Charge Notice (PCN) on the vehicle.

6. The Defendant had not noticed any signage close to the where he had parked 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 obscure signage which was impossible to read from where the defendant had parked. The small signage was not suitable to alert motorists. Due to the age of the alleged breach of contract which is nearly 1 years old the Defendant is unable to recall the exact reason for the PCN(s). 

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.

Coupon-mad

Good. I'd change this:

"Upon returning to his vehicle the defendant noticed there was NO Parking Charge Notice (PCN) on the vehicle."

to this:

There was no Parking Charge Notice (PCN) on the vehicle, and no reason to think any breach had occurred. Certainly no contract was agreed except the verbal one with the carpet retailer. 

And change para 6 to:

6. The Defendant's case is that there was no signage capable of forming a parking contract in the area close to where he had parked his vehicle and no terms were seen or agreed. In the vicinity, it was noticed that there were two prohibitive notices with no caveats, contractual terms or company names. These instructed: 'No Parking' and 'No Fly Tipping' which is why the Defendant took the reasonable step of checking with the retailer that parking where he did was permissible. On the material date, he was confident he had parked with permission and no consumer notice (either in the form of a sign or in the form of a windscreen PCN from the Claimant) informed him otherwise.

LDast

I'd suggest adding this after the CEL v Chan transcripts as para #4, before the "facts know to the defendant" subheading:

Additionally 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.

Just more ammo for the allocating judge to consider.

Eagle229

Thank you for the feedback, I've made the amendments and added that paragraph as well.... 

Eagle229

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 judgement 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 judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. 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 judgement, the Court should strike out the claim, using its powers pursuant to CPR 3.4

4. Additionally 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:

5. 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.

6. The Defendant vaguely remembers on the day in question he and his family were visiting family in the residential area and parked on Pentos drive amongst other vehicles. There was a big green gate a few yards into the street which appeared to be private land. However The Defendant parked prior to the gates, where other vehicles were also parked. Upon asking the local Carpet shop “Heritage Carpets” if parking in this location was appropriate, the Defendant parked after receiving confirmation that the location was suitable. There was no Parking Charge Notice (PCN) on the vehicle, and no reason to think any breach had occurred. Certainly no contract was agreed except the verbal one with the carpet retailer. 

7. The Defendant's case is that there was no signage capable of forming a parking contract in the area close to where he had parked his vehicle and no terms were seen or agreed. In the vicinity, it was noticed that there were two prohibitive notices with no caveats, contractual terms or company names. These instructed: 'No Parking' and 'No Fly Tipping' which is why the Defendant took the reasonable step of checking with the retailer that parking where he did was permissible. On the material date, he was confident he had parked with permission and no consumer notice (either in the form of a sign or in the form of a windscreen PCN from the Claimant) informed him otherwise.

8.  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.

Coupon-mad

You can't have that paragraph 4 and 5 together.  It's one or the other.

Para 4 only works in a case where the keeper wasn't driving. The POFA means nothing to an admitted driver as you admit in 5.

Eagle229

Okay I’ve fixed that. Is the defence good to go now? Or is it too soon to send it?