Capital car park / DCB Legal Claim form - Parking at Business Leased space

Coupon-mad

Remove your paragraph 5 and replace with that fact then.

  

Brightlinks

Final 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').

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 it is admitted that the Defendant is the registered keeper.

3.            It is admitted that at all material times the defendant is the registered keeper of vehicle registration mark xxx which is the subject of these proceedings. The vehicle is insured with Avia Zero Car Insurance with 2 of the named drivers permitted to use it.

4.         Defendant’s husband is a company director and has a Parking License from the Superior Lease Holder at the location described in the Claim Form. Property Management did not provide the Parking permit due to Corona virus Pandemic but displayed the business name and address on windscreen.

5.         It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the lawful user permitting the above-mentioned vehicle to be parked by the current lease holder, whose parking licence agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

6.         Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by lease holders and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. Accordingly, it is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant. It is denied there was any obligation (at all) to display a permit, and that the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

7.         The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

8.         Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

Brightlinks

Hi All

Looking forward for suggestions on final Defence ? 
Due date 20/11

Coupon-mad

Coupon-mad said:

Remove your paragraph 5 and replace with that fact then.

  

Again, my suggestions were not added?

Typo 'License' (no such noun).

Remove 7 and 8 because the POC are clear.

Brightlinks

Thanks @Coupon-mad just saw other thread where you suggested to keep Chan case in Defence. which is similar to my POC by DCB Legal.

Coupon-mad said:

Coupon-mad said:

Remove your paragraph 5 and replace with that fact then.

  

Again, my suggestions were not added?

Typo 'License' (no such noun).

Remove 7 and 8 because the POC are clear.

will update and remove 7 & 8.

Brightlinks

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.    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 is the registered keeper.

5.            It is admitted that at all material times the defendant is the registered keeper of vehicle registration mark xxx which is the subject of these proceedings. The vehicle is insured with Avia Zero Car Insurance with 2 of the named drivers permitted to use it.

6.         Defendant’s husband is a company director and has a Parking Licence from the Superior Lease Holder at the location described in the Claim Form. Property Management did not provide the Parking permit due to Corona virus Pandemic but the driver displayed the business name and address on windscreen to avoid any confusion.

7.         It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the lawful user permitting the above-mentioned vehicle to be parked by the current lease holder, whose parking licence agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

8.         Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by lease holders and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. Accordingly, it is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant. It is denied there was any obligation (at all) to display a permit, and that the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

1505grandad

https://forums.moneysavingexpert.com/discussion/comment/81064373/#Comment_81064373

"And the Chan case doesn't apply to these POC, so just use the Template defence"

Sorry I am getting more and more confused with this thread.

Brightlinks

1505grandad said:

https://forums.moneysavingexpert.com/discussion/comment/81064373/#Comment_81064373

"And the Chan case doesn't apply to these POC, so just use the Template defence"

Sorry I am getting more and more confused with this thread.

Thanks will remove it from the defence.

is rest of the defence now good to submit ?

Coupon-mad

I am utterly confused with unadvised wholesale massive paragraph changes every time we look, yet ignoring what you were advised to add.  My last thing that said you should add has still been ignored.

KeithP

Why have you now added back in the two paragraphs referring to Chan?
They rightly didn't appear in your post Today at 12:52PM, but have suddenly reappeared.