ECP / DCB Legal court claim

gavino76

here you go keith 

gavino76

AOS complete 15.53 aug 7th

Coupon-mad

Coupon-mad said:

This is great!  The keeper did it just in time and ABSOLUTELY CANNOT be held liable because they transferred liability before court action commenced.

That needs to be in paragraph 3 of the keeper's template defence.

This one will be easy.

The keeper could even do a counterclaim for compensatory damages for abuse of their data (due to transferring liability) so the claim was indisputably issued to the wrong person, but that is more complicated and would force the case to a hearing (that otherwise won't happen, we are sure).

  

As above really. Use the Template Defence.

gavino76

doing plenty of reading. I would find it a little difficult to complete para 2+3 as an overstay has happened, and the signage is adequate.

will it suffice to use the fact that the keeper had transferred liability?

Coupon-mad

The signage is not adequate.

You need both. 

gavino76

The facts known to the Defendant:

2. 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 although it is admitted that the Defendant was the registered keeper, the Defendant was not the driver.



3. After naming the driver to dcbl, the defendant then received a letter from DCBL dated 9th july, asking for 3rd party details.  This was completed by the keeper, and returned back via email 19th july.  However, a claim form then arrived dated 30th jul addressed to the registered keeper.


will this be ok for 2+3? 

gavino76

OR THIS:

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 - which includes DCB Legal - 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 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 and
the Practice direction to 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 judgment, the Court should strike out the claim, using its powers pursuant to CPR
3.4. The Defendant asserts that this Claim is based upon an agreement by
conduct. The Defendant asserts that the Claimant has failed to specify how Contract
terms have been breached by the conduct of the Defendant in the POC. 


4. The Defendant does not recall being served with a compliant Notice to Keeper for
these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording
prescribed in Schedule 4. Outwith the POFA, parking firms cannot invoke 'keeper
liability'. This legal point has already been tested on appeal (twice) in private parking
cases and the transcripts will be adduced in evidence:

(i) In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on
appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned
an error by a District Judge and pointed out that, where the registered keeper was not
shown to have been driving (or was not driving) such a Defendant cannot be held liable
outwith the POFA. Nor is there any merit in a twisted interpretation of the law of agency
(if that was a remedy then the POFA Schedule 4 legislation would not have been
needed at all). HHJ Smith admonished Excel for attempting to rely on a bare
assumption that the Defendant was driving or that the driver was acting 'on behalf of' the
keeper, which was without merit. Excel could have used the POFA but did not. Mr
Smith's appeal was allowed and Excel's claim was dismissed.

(ii) In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court
(on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a
registered keeper cannot be assumed to have been driving. Nor could any adverse
inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to
nominate the driver, because the POFA does not invoke any such obligation. HHJ
Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important
general freedom from being required to give information, absent a legal duty upon you to
do so; and it is consistent with the appropriate probability analysis whereby simply
because somebody is a registered keeper, it does not mean on the balance of
probability they were driving on this occasion..." Mr Edward's appeal succeeded and the
Claim was dismissed.

5. The Particulars of Claim ('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 is being pursued. The POC are entirely inadequate, in that they fail
to particularise:
(a) the contractual term(s) relied upon;
(b) the details of any alleged breach of contract;
(c) the time when the alleged conduct occurred and
(d) how the purported added £340 'damages' arose - a sum which never features on any
EURO CAR PARKS LTD sign, so is not based upon contract. It is loosely described as
damages but the woeful POC fail to make any case to support it.

(i) 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.

gavino76

understand 2+3 need to be adapted then filed.
understand you guys don't want to read yet another. 
I just need to be sure im doing the right thing, no matter what i think i understand i just need confirmation its correct.

Coupon-mad

gavino76 said:

The facts known to the Defendant:

2. 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 although it is admitted that the Defendant was the registered keeper, the Defendant was not the driver and the Claimant knew this before litigation.

3. This claim has been improperly made against the wrong person. Paragraphs 3 and 4 of the POC are denied. There can be no lawful pursuit of this Defendant as driver or as keeper.  There is no possible argument alleging 'keeper liability' because during the pre-action stage in July 2024, the Defendant gave the driver's details (full details, furnished by email) to the Claimant's solicitors. However, a claim form then arrived in August, dated weeks after the Transfer of Liability.

4.  Paragraph 4 of Schedule 4 of the 

Protection of Freedoms Act 2012 ('the POFA') disallows pursuit of a registered keeper in cases where the driver's details are known to the creditor before court action commences. Explanatory Note 221 gives further detail: "Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor [...] may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. [...] The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5))."

Use the above version, with edits as shown and REMOVE the standard para 4 from the Template defence because there is an arguable loss in a PDT car park and the above makes more sense for your case.

gavino76

The facts known to the Defendant:

2. 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 although it is admitted that the Defendant was the registered keeper, the Defendant was not the driver and the Claimant knew this before litigation.

3. This claim has been improperly made against the wrong person. Paragraphs 3 and 4 of the POC are denied. There can be no lawful pursuit of this Defendant as driver or as keeper. There is no possible argument alleging 'keeper liability' because during the pre-action stage in July 2024, the Defendant gave the driver's details (full details, furnished by email) to the Claimant's solicitors. However, a claim form then arrived in August, dated weeks after the Transfer of Liability.

4. Paragraph 4 of Schedule 4 of the protection of Freedoms Act 2012 ('the POFA') disallows pursuit of a registered keeper in cases where the driver's details are known to the creditor before court action commences. Explanatory Note 221 gives further detail: "Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity.  The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5))."

5. The Particulars of Claim ('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 is being pursued. The POC are entirely inadequate, in that they fail
to particularise:
(a) the contractual term(s) relied upon;
(b) the details of any alleged breach of contract;
(c) the time when the alleged conduct occurred and
(d) how the purported added £340 'damages' arose - a sum which never features on any
EURO CAR PARKS LTD sign, so is not based upon contract. It is loosely described as
damages but the woeful POC fail to make any case to support it.


this is all i have changed.

so:

1-30
sign and scan pdf
send to email