Dispute Resolution Hearing 26 March @ Huddersfield County Court NPML/Gladstones

skintbutwantstosave

LDast said:

You use the template defence with the added CEL v Chan preliminary matter in the hharry100 link. Show us only the first seven or eight paragraphs before you send it. We don't need to see the rest of the defence as it is unchanged.

1.      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 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 Exhibit 1) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

The facts known to the Defendant:

1.      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.  

No Keeper Liability

2.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023. The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 3.      The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park to which the Hair and Beauty Bar is located and saw the scam signs on approach to a bay, had no wish to be bound by some notorious, unknown ex-clamper rogue parking firm, so the driver rejected the contract without parking, left the land and instead parked on the public highway outside of Downtown.

 4.      The Claimant claims the unpaid penalty charge notice from the Defendant as the driver/keeper. The Defendant  denies being the driver of the vehicle as she was a passenger. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 5.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known.

 6.      The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement and  therefore cannot be considered as “relevant land” for the purposes of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

 7.      Parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases. Further, the registered keeper is not obliged to name the driver to a private parking firm.  Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases and the following 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).  His Honour Judge 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 held liable outwith the POFA and no 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.  His Honour Judge 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.

the numbering is out as I have pasted it direcly from my Defence. I have used similar arguments posted on other threads and incorporated within this Defence. Please let me know if there is anything else you think could be added?

Many thanks

LDast

Where is the first paragraph of the template? Where is the "Preliminary Matter" sub-heading? Where is the rest of the CEL v Chan paragraphs and where are you going to embed the images of the transcript?

skintbutwantstosave

LDast said:

Where is the first paragraph of the template? Where is the "Preliminary Matter" sub-heading? Where is the rest of the CEL v Chan paragraphs and where are you going to embed the images of the transcript?

The full image transcript I have placed as an exhibit at the back of the defence, if you think it is better to be embedded in the main body, I will amend this before it is sent out to Court. 

_________________

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 (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 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. Please see below:

[image to be pasted here]

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.  

No Keeper Liability

5.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023. The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

6.      The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park to which the Hair and Beauty Bar is located and saw the scam signs on approach to a bay, had no wish to be bound by some notorious, unknown ex-clamper rogue parking firm, so the Defendant rejected the contract without parking, left the land and instead parked on the public highway outside of Downtown.

 7.      The Claimant claims the unpaid parking charge notice from the Defendant as the driver/keeper. The Defendant  denies being the driver of the vehicle as she was a passenger. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

8.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known.

 

9.      The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement therefore cannot be considered as “relevant land” for the purposes of POFA as such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

 

10.  Parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases.

 

11.  Further, the registered keeper is not obliged to name the driver to a private parking firm.  Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases and the following 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).  His Honour Judge 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 held liable outwith the POFA and no 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.  His Honour Judge 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.

 

12.  The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

 

(i)                  a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii)                'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

 

13.  The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Le_Kirk

skintbutwantstosave said:

7.      The Claimant claims the unpaid penalty charge notice

Are we sure it is a penalty, was it station car park or was it council?  Maybe it is just a parking charge notice.

skintbutwantstosave

Le_Kirk said:

skintbutwantstosave said:

7.      The Claimant claims the unpaid penalty charge notice

Are we sure it is a penalty, was it station car park or was it council?  Maybe it is just a parking charge notice.

my bad, their POC (Private Parking company) state Parking Charge (PCN) - I will amend my defence. 

They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

LDast

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

skintbutwantstosave

LDast said:

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

The car was never parked on "their land", literally drove in and drove back out. 

LDast

skintbutwantstosave said:

LDast said:

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

The car was never parked on "their land", literally drove in and drove back out. 

Yes, we understand that. However, your para #6 states:

 The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement and  therefore cannot be considered as “relevant land” for the purposes of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

They're not alleging that you parked on the public highway.

skintbutwantstosave

LDast said:

skintbutwantstosave said:

LDast said:

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

The car was never parked on "their land", literally drove in and drove back out. 

Yes, we understand that. However, your para #6 states:

 The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement and  therefore cannot be considered as “relevant land” for the purposes of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

They're not alleging that you parked on the public highway.

So what would you suggest? 

fisherjim

Why are you muddying the waters by even mentioning parking on the road, they haven't mentioned it why are you?

You drove in saw the terms and conditions, decided not to park and immediately left, no parking even took place.

And you need to stop using terminology that is neither quoted or applicable there is no "fine" stated on any PPC signage or paperwork (made up signs by shops don't count), if there was they would be in trouble.