JD Gym/Jardines Parking - Milton Keynes

Burnt_Roti116

Thanks for the above, please see my first stab of my defence below. I have on purpose not copied bullets 7 onwards as they are from the defence template which I have not touched and I'm sure you guys don't want to review it again.
----------------

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 and driver.

5. The defendant has regularly parked in this car park since the opening of JD Gyms and its predecessor Excercise4Less. Every parking spot that surrounds the gym was marked with a JD gym sign on the ground as seen below:

 

The defendant used to frequently park in the bays highlighted by the blue circle. No advanced warning had been provided by either JD Gyms nor Jardines pharmacy that a number of allocated parking spots had been taken over by Jardines Pharmacy under the eye of Euro Parking Services Limited. Therefore, the defendant was unaware of any parking changes.

The Defendant had not noticed any signs of a new signage installed; 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 small signage was not suitable to alert motorists especially when the defendant had parked at the site in question around 11pm in a poorly lit carpark.

The below signage recently put up by Euro Parking Services Limited states that all visitors must input their vehicle details in the kiosk inside the premises and all cars must be parked within the confines of a marked bay.

It is unclear what the defendant is being charged for as the vehicle was parked well within the confines of the marked bays and Jardine Pharmacy head office closes at 6pm making it impossible for visitors to input their vehicle information after this time due to the premises being shut and locked.

6. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

Burnt_Roti116

just realised the images did not copy across. Just for reference the first image after the chan images is the birdseye view of the car park and second image after chan cases is an up close shot of the new signage.

1505grandad

https://forums.moneysavingexpert.com/discussion/comment/81101084/#Comment_81101084

Please re-read above post by C-m re TWO court cases. Evidence re para 5 goes in WS later.

Coupon-mad

Yep looks good but remove the photo evidence, which comes much later.

And add Akande as well as Chan.

Le_Kirk

Coupon-mad said:

 You will use the alternative hharry100 defence linked in the Template Defence itself. 

You can also go the whole hog and add the CPMS v Akande transcript too or maybe the whole 'judgments' link posted by @Le_Kirk which has both of those cases. 

@Coupon-mad Maybe it's time to adjust the wording in the template to include Akande.

Burnt_Roti116

thanks again all. I am a bit of a newb when it comes to MSE, is there a quick search function for the below? 
"You can also go the whole hog and add the CPMS v Akande transcript too or maybe the whole 'judgments' link posted by @Le_Kirk which has both of those cases. "

When I click on Le_Kirk link it takes me to his profile but unable to see his posts.

I will continue to trawl through the forum for this case and will add in once found.

Burnt_Roti116

ignore my previous comments about Akande, found it

Burnt_Roti116

how does this read now? I have removed the images I had added and have left the Chan & Akande images in. Bullet point 8 onwards is the wording from the defence template which I have not changed or added in here.

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 Car Park Management Service Limited v Charles Akande (Ref. K0DP5J30) indicates that this POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 10th May 2024, in this cited case, HHJ Evans is quoted that ‘Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim. The Defendant cannot possibly plead his Defence because he does not know what the contractual term is said to be that he has breached and he does not know how he is said to have breached it..’ This is the same case where the particulars of claim fails to mention which part of the contract is breached. Another quote from HHJ Evans is that ‘This is a parking claim. The Particulars of Claim plead in the short form online document that there was a PCN for a contractual breach. It gave the date and the place and the registration number of the vehicle, and it said that the driver had failed to comply with the terms and conditions displayed.’ Again, the particulars of the claim for the defendant refers to a contractual breach displaying the date and the place and the registration number of the vehicle but fails to mention which contractual term is breached. Given the similarities in the appeal, the court should strike out the claim using its powers pursuant to CPR 3.4

4. Another 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:

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 has regularly parked in this car park since the opening of JD Gyms and its predecessor Excercise4Less. Every parking spot that surrounds the gym was marked with a JD gym sign, which is where the defendant used to frequently park.

No advanced warning had been provided by either JD Gyms nor Jardines pharmacy that a number of allocated parking spots had been taken over by Jardines Pharmacy under the eye of Euro Parking Services Limited. Therefore, the defendant was unaware of any parking changes.

The Defendant had not noticed any signs of a new signage installed; 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 small signage was not suitable to alert motorists especially when the defendant had parked at the site in question around 11pm in a poorly lit carpark.

The signage recently put up by Euro Parking Services Limited states that all visitors must input their vehicle details in the kiosk inside the premises and all cars must be parked within the confines of a marked bay.

It is unclear what the defendant is being charged for as the vehicle was parked well within the confines of the marked bays and Jardine Pharmacy head office closes at 6pm making it impossible for visitors to input their vehicle information after this time due to the premises being shut and locked.

7. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

Coupon-mad

there is now a persuasive Appeal judgment

Nope there are two!

Copy the defence by @FluffySocks25 and look more closely at profiles. They DO show Threads!

Burnt_Roti116

Have swapped Chan and Akande around to match @FluffySocks25's defence and have changed the wording to the below:

3. Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and CPMS v Akande would indicate the POC fails to comply with 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. 

<CHAN CASE>

4. The second recent persuasive appeal judgment Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Part 16. On the 10 May 2024, in the cited case, HHJ Evans held that 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim' (transcript below).

<AKANDE CASE>

5. remains the same as before