DCBL PCN Claim form defense support please

initech1979

I cant seem to find the NTK, I'll have a look, is that required, surely the claimant has a copy I could request if necessary?

designeditdesignedit

Is the car park solely b and q? have you spoke to the manager or head office? they may be able to get this cancelled

initech1979

I think it's beyond that, it's a shared carpark https://www.manchesterfort.co.uk/news/parking-changes-at-manchester-fort

Coupon-mad

initech1979 said:

I cant seem to find the NTK, I'll have a look, is that required, surely the claimant has a copy I could request if necessary?

No.         

Gr1pr

At this stage you don't want to know the intricacies, your defence is based on the rubbish POC , which was part of your earlier query, so stay in the dark for now, makes it easier to truthfully use the alternative defence and Chan

As for Manchester Fort, it's a large retail park, with private owners, possibly Nuveen. ? , and managed by Workman LLP, like quite a few of these big retail parks  ( so any B & Q reference is irrelevant to the case. )

As the AOS was done online, crack on with the alternative defence, addressing the useless POC , no investigations are required yet, leave those for later on, no assumptions or trying to fit a story around the case, deal with the poor new paperwork ONLY , so although you could request a copy of the PCN, you shouldn't request it , certainly not yet, plus it won't arrive in time, so for now don't bother, it's better if you don't 

Had you come here for help when the NTK PCN letter arrived, it may have been an easy keeper appeal based on no POFA liability that may have seen it off back then , but statements have been made so hindsight is a wonderful tool, but too late with this case.  In future come here for assistance FIRST, sometimes one simple correctly worded appeal can get these companies to discontinue at an early stage 

We have not seen any evidence of the vehicle being deemed to be outside a bay, dont add stuff that isn't on the paperwork , perhaps be guided by the C P Plus thread below. ?

https://forums.moneysavingexpert.com/discussion/6536434/cp-plus-ltd-t-a-groupnexus-county-court-claim-form-defence/p1

initech1979

This is great support, agree with the approach of building the defence around the poor POC, I'll read over the CP Plus thread and construct something asap, I'll post here for review.

initech1979

Can anyone remind me why I don't submit the defence using MCOL and instead email the defence to claimresponses.cnbc@justice.gov.uk ?

Gr1pr

It messes up the formatting 

It has a low character limit, so not all of the defence template can be submitted 

Its not been improved for over 12 years 

Emails are a readily easily accessible method of contacting anyone in this digital age 

They set up the new email response addresses at the beginning of march this year to improve matters 

The email system allows for email pdf attachments to be sent and logged, the online system doesn't 

The email system acknowledges receipt by way of a dated auto response email, confirming delivery 

Pdf document are the typical modern system method of sending and receiving documents, including insurance, holidays, government department's etc 

Solicitors these days are geared up for electronic documents and communications, such as PDFs and email etc

Civil courts these days are geared up for electronic documents and communications, such as PDFs and email etc

The Ombudsman Service ( POPLA ) go even further and accept pdf uploads, the CNBC should allow it too in this modern age, but that service doesn't apply for your case, too late for Popla or the IAS, the CNBC doesn't have that option 

I could go on , but that is my starter for 10 answer. 🤔👺

initech1979

I didnt read past the first 3, much appreciated, SMTP it is

initech1979

Having read through the thread provided I've adjusted mainly paragraph 6 to add my personal defence and changed paragraph one to specify 'unauthorised parking'.

I plan to post the below 6 paragraphs to open, then copy and paste everything from your template from para #4 onwards and renumber the paragraphs, 

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 'Unauthorised Parking', 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.  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.

4 images of the CEL v Chan transcript.

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 £[INSERT ORIGINAL COST]. The claimant's current claim is for £176.88, 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 as 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 remembers on the day in question

The Defendant received a generically wording PCN on 2/12/2023, it stated 'unauthorised parking', this was not sufficiently descriptive.

 The Defendant had come to B&Q, this is located at Manchester Fort Shopping Park to collect 2 very oversized items. It was 2 large Christmas trees, one of which was for his elderly mother, who is not mobile enough to collect her own (Defendant has a receipt if they need to produce in court)

The parking spaces are too small to assure the free and unobstructed exit and entry on the vehicle should an adjacent space become occupied while in the store. To be able to load the oversized goods, which required them to open doors on near and offside (to drag the trees forward once entered through the rear tailgate) as they needed sufficient room either side of the vehicle, this was with the full authority of the staff at the store, agreed for the purposes of loading.

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 terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and are in such positions that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract and the Defendant denies any agreement to pay £[INSERT ORIGINAL COST] or any sum at all. The signs in this car park are not at all prominent, clear or legible from all parking spaces. It is therefore possible to park and not be able to see any clear signage which complies with BPA requirements.