Court Claim Form received - BW legal; help with defence appreciated

OKjim

Coupon-mad said:

No. The POFA doesn't talk about POC.

I am talking about the NTK which happens to share the same “breach” as the POC. Edit: I looked at the wrong paragraph 9 which is only for direct-to-NTK charges, but this one they say had a PCN so it’s the PCN where they had to, according to pofa 7(2)(b) describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable.
I don’t think they stated the “other facts that made them payable” as they only wrote half a term.

I am trawling pofa for NTK violations to make sure I have as many of them as possible. 

It also appears they may not have adequately notified that I can appeal. They did not say that they have the right to recover from the “keeper” (they said “you”), nor did they mention that they would have to satisfy the other conditions or indeed mention POFA at all. They also failed to notify of any discount for prompt payments.

OKjim

This is the Notice to Keeper, I do not think it is POFA compliant, mostly because they do not state they have to satisfy POFA in order to transfer liability. Perhaps one for the NTK pictures thread

OKjim

Here's what I think is going to be my final version of Defence to give in tomorrow with a bit of POFA added. I am a bit worried they are going to decide I become the "driver" as soon as I try to pay for parking thus invalidating my whole POFA argument and making me lose haha

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 was the registered keeper. The Defendant shares use of the car and cannot remember whether he or someone else was driving.

3. It is denied that the central alleged non-action would be sufficient to breach the contract if one were deemed to exist. The alleged breach per the Particulars of Claim is “failure to display a valid ticket/permit”, but it is also possible to pay in other ways like the “Flowbird” app which do not provide a ticket or permit to display. The Defendant avers that no ticket or permit display could be strictly required to avoid breaching the purported contract as alleged in the Particulars of Claim, Notice to Keeper (NTK) and PCN in which the alleged breach is worded similarly.

4. The Defendant did attempt to pay for parking on the occasion, as a Passenger or as the Driver, using the Flowbird app, and presumably a connection error caused the payment not to go through without the Defendant realising.

5. No keeper liability can be claimed due to the NTK and PCN failing POFA 2012 Schedule 4 compliance on multiple points:

A. The NTK does not mention the Act in any way

B. Both the NTK and PCN failed to describe an alleged breach of a term, rather describing an alleged breach of half a term as mentioned in Paragraph 3 above. This fails to provide the information required in both the NTK (according to POFA Schedule 4 8(2)(c)) and PCN (according to 7(2)b of the same); both notices must “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;”

C. The NTK failed to mention that the creditor must meet all the applicable conditions under Schedule 4 in order to have the right to recover from the keeper, as required in 8(2)(f)

D. The NTK failed to inform the keeper of any discount offered for prompt payment as required by 8(2)(g)

OKjim

Sorry guys I'm getting a bit excited; is it OK for me to add in Chan/Akande since the breach is not specified correctly in the Particulars? I apologise if this version is rough, I will make it more concise tomorrow before sending it:

Preliminary matter: The claim should be struck out

2. 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 draws to the attention of the allocating Judge that there are two persuasive Appeal judgments - by HHJ Murch at Luton and HHJ Evans at Manchester - 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 authorities:

3. Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) 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 Chan case, HHJ Murch held: '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 the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4. 

4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'. Transcripts for both cases are linked below to assist the Court to deal with this failure promptly and the two authorities will also be exhibited later, if the claim is not struck out at allocation stage:

https://www.dropbox.com/scl/fi/v2lrfnk408u2qavuokcej/Chan_Akande.pdf?rlkey=o92ljo06yf0ehhyg1j9ayxla2&st=um09mews&dl=0

The facts known to the Defendant:

5. The facts in this defence come from the Defendant's own knowledge and honest belief. 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. The Defendant shares use of the car and cannot remember whether he or someone else was driving.

6. It is denied that the central alleged non-action would be sufficient to breach the contract if one were deemed to exist. The alleged breach per the Particulars of Claim is “failure to display a valid ticket/permit”, but it is also possible to pay in other ways like the “Flowbird” app which do not provide a ticket or permit to display. The Defendant avers that no ticket or permit display could be strictly required to avoid breaching the purported contract as alleged in the Particulars of Claim, Notice to Keeper (NTK) and PCN in which the alleged breach is worded similarly. Indeed the signage at the site as of March 2025 confirms this assessment with the term “You must display a valid pay & display ticket within the windscreen so all details can be inspected or be in possession of a cashless payment session for the entire parking period.” The Claimant has consistently failed to make an accusation sufficient to constitute a breach of this purported contract. The PCN and NTK are therefore in breach of POFA (2012) Schedule 4, and the Particulars of Claim are in breach of CPR 16.4, 16PD3 and 16PD7.

7. The Defendant did attempt to pay for parking on the occasion, as a Passenger or as the Driver, using the Flowbird app, and presumably a connection error caused the payment not to go through without the Defendant or the Driver realising.

8. No keeper liability can be claimed due to the NTK and PCN failing to comply with POFA (2012) Schedule 4 on multiple points:

A. The NTK does not mention the Act in any way

B. Both the NTK and PCN failed to describe an alleged breach of a term, rather describing an alleged breach of half a term as mentioned in Paragraph 3 above. This fails to provide the information required in both the NTK (according to POFA Schedule 4 8(2)(c)) and PCN (according to 7(2)b of the same); both notices must “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;”

C. The NTK failed to mention that the creditor must meet all the applicable conditions under Schedule 4 in order to have the right to recover from the keeper, as required in 8(2)(f)

D. The NTK failed to inform the keeper of any discount offered for prompt payment as required by 8(2)(g)

Le_Kirk

OKjim said:

Sorry guys I'm getting a bit excited; is it OK for me to add in Chan/Akande since the breach is not specified correctly in the Particulars? I apologise if this version is rough, I will make it more concise tomorrow before sending it:

No, as the POC states "failure to display a valid ticket/permit".

OKjim

Le_Kirk said:

OKjim said:

Sorry guys I'm getting a bit excited; is it OK for me to add in Chan/Akande since the breach is not specified correctly in the Particulars? I apologise if this version is rough, I will make it more concise tomorrow before sending it:

No, as the POC states "failure to display a valid ticket/permit".

Thanks for reading, so as long as they accuse some particular action and say it is a breach we cannot rely on chan akande, I will revert to earlier version thanks again.

Le_Kirk

If you read the Chan/Akande judgments you will see it is because the POC were sparse and did not detail the actual reason why the defendant is being pursued, often just stating breached the terms.  In your case there was a reason given.

OKjim

Yes I thought that the "reason" not being sufficient to contravene the term of the "contract" might mean I could use Chan/Akande. No worries, I've sent it without Chan/Akande, got my confirmation email; let's see what happens, more fun to be had.

Coupon-mad

I've added this POFA para 8 version of an Armtrac NTK to the NTK pictures thread, thanks.

I think it's a little tenuous to say it doesn't comply with Schedule 4 on the basis that your defence says (they don't have to reference the POFA by name, rather they have to state what the POFA says in Schedule 4 paragraph 8). They don't have to offer a discount with a paragraph 8 NTK either.

But one thing you missed, I think (unless I missed it in their NTK): Armtrac omit the phrase 'and pass the notice to them' which is a POFA breach, if my skim-read of it is right, But that won't stop them proceeding and trying to assume you were driving.

OKjim

Update: I just came off mediation call. They offered £190 which of course I declined. Hopefully that is way above what they would be able to claim in court even if judge rules in their favour.