Received Claim Form but not a PCN

tiger_stripes

Hi, sorry for the long 'comment'. Back from holiday, I'm hoping to email my defence before the end of this Friday. Here is a final draft which I think is in the order advised.

Some parts mention 'on the original PCN...'  'the amount of £100' - I did not receive a PCN (maybe due to postal service putting it through a neighbours door in error, I don't know). If this wording is implying I did receive a PCN, there isn't a part of my defence where I contradict this is there?  

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 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 judgment, 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. It is denied that the Claimant can pursue the registered keeper pursuant to the POFA 2012 because this Claimant's consumer notices fail to comply with Schedule 4 and the sum pursued exceeds the 'maximum sum' that Act sets.

5.1. 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).

5.2. 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. The Defendant 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.

5.3. As the claim (fully disputed in any event) should only be for the amount of £100 as stated on the original PCN, the interest calculated should only be on that amount. By also calculating interest on the added £70 "damages" which are, in themselves, an abuse of process, the claimant has not only acted unreasonably but also abused the courts process and breached the following CPRs:

CPR Breaches and Abuse of Process:

·        CPR 1.1 - The Overriding Objective:

·        The claim is not being dealt with justly or proportionately. The excessive amount claimed puts the defendant at a disadvantage, increases unnecessary costs, and is disproportionate to the original charge.

·        CPR 3.4 - Power to Strike Out:

·        CPR 3.4(2)(a): The claim for £170 has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA 4(5).

·        CPR 3.4(2)(b): The claim represents an abuse of the court’s process by attempting to claim an amount not legally recoverable, thus obstructing the just disposal of proceedings.

·        CPR 27.14 - Costs on the Small Claims Track:

·        CPR 27.14(2)(g): The claimant’s behaviour in pursuing an excessive and unlawful amount is unreasonable, warranting the claim to be struck out (and costs awarded to the Defendant, if incurred).

6. It is further denied that any breach of any (prominently advertised) term occurred and the Claimant is put to strict proof. The allegation is incoherent, to say the least. The Claim fails to unambiguously specify the alleged breach and relies instead on a wholly inappropriate phrase for POC: 'either/or'.  

6.1. No sum of money relating to the parking tariff is specified in the POC but the Claimant knows that there are no parking charges outstanding. This relates to an unremarkable date in 2023 (regarding a car park used daily around that time). The Defendant - and the court - is unable to understand whether the allegation is 'failure to pay (at all)'? Or maybe it is alleging: 'failure to pay in full'? Perhaps: 'failure to pay for the correct VRM (a keypad error)'? Could it be 'failure to display a ticket'? Or is it the "either/or" alternative: 'failure to pay in time' (no time has been specified). All are denied.

7.  The Defendant knows and will say and can evidence that they paid for their parking on this date, as they did every time they visited this site. The operator obtained the payment it sought for the hours parked; there was no loss and this inflated charge is an unrecoverable penalty.


No legitimate interest (the ParkingEye v Beavis case is fully distinguished)

8.  There is no legitimate interest in pursuing a Defendant who paid in full, and this Claimant knows this full well. Last week in a judgment dated 10th June 2024, His Honour Judge Pema (sitting at the County Court at Bradford) refused Excel Parking Services Ltd's attempt to appeal the decision in Case no K4QZ4Y21 which the Defendant had won in similar circumstances to the extant claim, which involves the same Claimant

Insert the remaining template (re-numbered)

Coupon-mad

Just add a comment if the PCN was never received and that the D is having to assume it was £100. Alter it to suit. It's not set in stone.

tiger_stripes

I've slightly re-worded it. (Changes are in bold)

"5.2. 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 not received by the Defendant, however, the claimant's current claim is for “£170 being the total of the PCN(s) and damages”. The claim stating an added cost of “damages” therefore exceeds the amount of the unpaid parking charges which the Defendant can only assume was 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. The Defendant 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.

5.3. As the claim (fully disputed in any event) should only be for the amount stated on the original PCN, the interest calculated should only be on that amount. By also calculating interest on the added cost of (removed '£70') "damages" which are, in themselves, an abuse of process, the claimant has not only acted unreasonably but also abused the courts process and breached the following CPRs: ....."

I'm thinking maybe I should NOT include "which the Defendant can only assume was stated in the original notice." ?

Thank you very much

Coupon-mad

Why not just refer to the industry-wide £100 cap?  It cannot have exceeded £100. 

tiger_stripes

Please help! I emailed my defence to the claim responses email address on 10th July And received an auto-reply.
Now I have received a letter through the post (supposedly) from the court saying I did not reply to the claim form and I must pay the claimant.. 

Gr1pr

Complain about it to the CNBC in Northampton with proof of the auto reply and quoting the date, because their tardiness is creating these issues for numerous people recently 

But before you do the complaint, login to MCOL and copy and paste your claim history below, just in case they have corrected the error. ( Like one we saw on here a few days ago , link below. )

https://forums.moneysavingexpert.com/discussion/6538828/i-received-a-letter-from-the-civil-national-business-centre-from-dcb-legal-ltd/p3

So claim history First, complaint after

tiger_stripes

Thank you. I have just checked, it shows claim history

"An application to set aside (remove) judgment was submitted to the court on 24/07/2024.

The application to set aside (remove) judgment was granted on 24/07/2024.

Your defence was received on 24/07/2024."   

With that 2nd point, does that mean the court has already dismissed the claim?

Gr1pr

No , it means that the default judgment was set aside, ( it's been removed like they said. ) and they logged the defence like they should have done in the First place, so it's not dismissed, it's now progressing like it should, so file the letter and keep your eye on the claim history, say twice a week 

The 12 steps should now be followed because it's back on track ( its like it never happened. )

Lastly, you should email a complaint about it to the CNBC because it was their error. ( Lateness. ) in logging your defence that allowed this to happen , same as in this recent case too, they should either speed things up, work overtime, whatever, or put a reasonable delay into their systems to disable the request judgment button for say one week after the mandatory deadline to prevent the Claimant pressing the 24/7 nuclear button too quickly for their delays

https://forums.moneysavingexpert.com/discussion/6538828/i-received-a-letter-from-the-civil-national-business-centre-from-dcb-legal-ltd/p3

The system is not fit for purpose, they should really allow a defence to be uploaded as a pdf attachment to MCOL in a new additional section that logs it onto the system, same as filling in the defence box does. !

Another change could be changing the maximum characters allowed to maybe double what it is currently 

Even better would be adding characters to the reference number and having a new online section for parking company claims, with higher character counts and the ability to upload documents like a pdf defence, so different sections for different claims with unique identifiers to differentiate different types of claims, the changes in email addresses was a good Idea but requires people so only useful on business days 

tiger_stripes

Great, thank you so much for the info and advice

LDast

If you received the CCJ order, irrespective of whether the CCJ has been set aside, you should complain to the CNBC and tell them you expect to be compensated for the stress and anxiety caused due to the receipt of that letter.

It would appear that the normal compensation level for that kind of screw up on their part is ~£250.