CP Plus/ DBCLegal defending as keeper

Gr1pr

No , definitely cannot be compelled, there is no legal requirement to name the driver, so don't 

Chances are that the claim will be struck out or discontinued before any hearing. ( Hundreds are discontinued , see the thread by Umkomaas. )

KeithP

Peek_a_boo_7112 said:

Gr1pr said:

Failing POFA means that the keeper is not liable in law, even if the PCN was correctly issued, so whilst the driver may well be liable, the keeper defendant is not liable 

Its well known that Group Nexus fail POFA compliance, or don't even try to comply 

Is there anyway I can be compelled to name the suspected driver? Whether the matter goes to court or not? I know that I would have to tell the Judge but if it doesn't make that far, can Nexus or DCBL force that information from me or do they not have a right to that information? And should I get conformation of the driver at all? 

There is no way that anyone can be compelled to name the suspected driver.

Even in court, if the Defendant was asked that, the Judge may interpret the Defendant's hesitancy or refusal how they wish and make a judgment 'on the balance of probabilities'. Also of course in a court setting the Judge may decide the Defendant has demonstrated 'unreasonable behaviour' and thus attracts a larger costs award should the matter be decided against them.

Coupon-mad

I'd just change this, as shown:

5. The Defendant received a late Notice to Keeper which failed to comply with the Protection of Freedoms Act 2012 (Schedule 4) and thus cannot be held liable as registered keeper. Further, given the fact that the Defendant was not the driver (was not present in the car on the material date) they cannot be held liable as the driver, either.  The claim has no merit: there is no cause of action and it should be struck out in any case, for failure to specify the driver's conduct which means the POC fails to comply with Part 16.

Peek_a_boo_7112

Coupon-mad said:

I'd just change this, as shown:

5. The Defendant received a late Notice to Keeper which failed to comply with the Protection of Freedoms Act 2012 (Schedule 4) and thus cannot be held liable as registered keeper. Further, given the fact that the Defendant was not the driver (was not present in the car on the material date) they cannot be held liable as the driver, either.  The claim has no merit: there is no cause of action and it should be struck out in any case, for failure to specify the driver's conduct which means the POC fails to comply with Part 16.

Thank You, have added. Should this now be all for my defence? I shall file in the morning if so.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

CP Plus LTD T/A GroupNexus

(Claimant) 

- and -  

(My Name)                          

 (Defendant)

_________________

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 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 (transcript below) 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 of the vehicle in question but was not the driver; liability is denied. 

5. The Defendant received a late Notice to Keeper which failed to comply with the Protection of Freedoms Act 2012 (Schedule 4) and thus cannot be held liable as registered keeper. Further, given the fact that the Defendant was not the driver (was not present in the car on the material date) they cannot be held liable as the driver, either.  The claim has no merit: there is no cause of action and it should be struck out in any case, for failure to specify the driver's conduct which means the POC fails to comply with Part 16.

6. The Defendant received a Letter of Claim from the Claimant's Legal representation which failed to comply with Pre-Action Protocol for Debt Claims 3.1.a.iv, v, viii, 3.1.c & 3.1.d

7. 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: (continued as per Coupon-mad)

Coupon-mad

Yep that'll do.

Peek_a_boo_7112

Coupon-mad said:

Yep that'll do.

Thank you, hopefully I'll only be back with good news.

Le_Kirk

Date of contravention: 28/12/23
NTK issue date: 11/12/23
NTK arrival date: 14/12/23 (although I have no proof of this)

Something wrong with those dates, unless you meant 28/11/23.  They cannot issue a NTK before the alleged contravention date!

Peek_a_boo_7112

Le_Kirk said:

Date of contravention: 28/12/23
NTK issue date: 11/12/23
NTK arrival date: 14/12/23 (although I have no proof of this)

Something wrong with those dates, unless you meant 28/11/23.  They cannot issue a NTK before the alleged contravention date!

yeah, meant 28/11/23

Peek_a_boo_7112

Finally heard back, DCBLegal have taken it further and I'm now at the N180 stage, but confused on how to fill it out as it seems to be different from what I found in the Newbies thread. D1 is about hearing suitability, and I'm not sure what state as the reason for No. I think everything else has just been moved later in the questionnaire 

LDast

I wish to question the Claimant about their evidence at a hearing in person and to expose omissions and any misleading or incorrect evidence or assertions.Given the Claimant is a firm who complete cut & paste parking case paperwork for a living, having this case heard solely on papers would appear to put the Claimant at an unfair advantage, especially as they would no doubt prefer the Defendant not to have the opportunity to expose the issues in the Claimants template submissions or speak as the only true witness to events in question.