Defending Parking Debt Claim and recovering costs after successful set-aside

Somerset1990

Thanks for reply. Yes the UKPC solicitors we're cc'd. In the iterim I also received an email from UKPC the charge was now with DCB Legal so I sent it to them aswell. The set aside order gave dates 3rd Apr for claim form, which I actually received on the 18th March and 17th April for defence submission (which I submitted today to the *correct* email address).

See claim below.

IN THE COUNTY COURT

Claim No.:  XXXXXX

Between

UK PARKING CONTROL LIMITED

(Claimant) 

- and -  

XXXXXXX     

 (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. 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 are now two persuasive Appeal judgment (figure 1 and 2) 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.  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. A recent persuasive appeal judgment (figure 1) 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. 

Figure 1: CHAN Appeal 

4. The second recent persuasive appeal judgment (figure 2) in Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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'. The same is true in this case and in view of the Akande judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

 

Figure 2. AKANDE Appeal

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. On the date stated in the POC 06/09/2023, the Defendant used the carpark in the Houndstone Retail Park from approximately 8:39PM to 9:59PM because he was using the PureGym Yeovil Gym as a member of the gym and customer of the retail park. As a PureGym Yeovil Member the Defendant is entitled to use the carpark due to an agreement between Puregym Ltd and the Claimant and can provide an access log and email from PureGym Member services as evidence of the Defendants permissible use of the parking facilities.

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:

(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.

8. 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.

Signed

Defendant

Coupon-mad

Neither Chan nor Akande are relevant to a DCB Legal UKPC claim. Wrong defence used and the entire template has been missed.

Not sure how this happened but you're stuck with it now.

So all you've got is in paragraphs 1, 6, 7 & 8 which hugely limits you.

And it's not even signed under a statement of truth so you'd better add that sharpish and resubmit to both recipients (not the CNBC).

You are in danger of that being struck out within days, if there's no statement of truth.

Somerset1990

Thank you for heads-up - I have resubmitted with statement of truth.

Lesson learnt if in doubt better to ask.

This happened as there were 3-4 recent threads for claims and PoCs similar (but not exactly the same due to direct UKPC claim and defending after a set-aside to an "original" re-issued claim) to mine with similar defence responses from the forum which used the CHAN AKANDE defence but didn't stipulate clearly that the rest of the defence template needed to be used. I'm still unclear how CHAN cannot be helpful to my defence as from the PoC I still have not got enough information to know with certainty what terms were apparently breached and how these are still breached in my circumstance of being a valid user of the carpark.

Is it still possible to make a persuasive view of the facts in my witness statement showing maps/pictures and letters as these are part of para 6?

Coupon-mad

Yes. You are stuck with only that, but it could win because PureGym patrons are offered more time.

Get photos of the PureGym banner offering 3 hours(?) next to the VRM keypad, to prove that there was an 'alternative contract' and UKPC's signs are probably out of date and say 'no parking after Xpm'?

I still don't understand why you didn't just use the Template Defence thread which links you to the version with Chan and Akande, explains exactly which cases that version is for (i.e. not your POC) and clearly says that the rest of the 30 para template defence must be used. 

This is what the Announcement threads are at the top for. You don't just bypass the sticky threads, open up someone's random thread and copy their facts section (thinking that's the entire defence and not even putting a Statement of Truth in).  If it was that simple we wouldn't need a Template Defence thread.

So sorry. I don't know how the advice thread was missed. I hope you can rescue it at WS and final hearing stage.

Somerset1990

Ultimately I wasn’t thorough enough but was thrown off course by the dates of posts and assumed that the CHAN etc defences were a recent successful method that had overtaken other defence strategies which seemed to be dated from years ago but I now see these posts are edited to keep them up to date with developments. I will keep you posted but will be following the defence process listed more carefully.

RE the signs and vrm yes I have images of this but my witness statement will try to make clear there are way too few signs/too dark to see at night and no mention anywhere except for 1 sign tucked to the side inside 2 layers of security doors inside the gym that 10pm or later requires validation. The parking signs do not give guidance on that so they are potentially creating an impossible contract for a 24 hour gym user. In my favour (I hope) is that PureGym support my position and its clearly not in their interests as sole business beneficiary of the carpark operating past 10pm and generally unfair to chase its customers who are unaware of the hours restrictions due to minimal/obscure and confusing signage (ie a full carpark with after 10 pm restrictions and no immediate indication of how to circumvent the restrictions)… will see how this goes but it’s a learning experience at least!

Coupon-mad

The parking signs do not give guidance on that so they are potentially creating an impossible contract for a 24 hour gym user. 

Very very good point. As are the rest of the points you say. Pics of signs obscured or in the dark are lapped up by Judges who love an easy case with poor signage. No contract agreed and even if it was a term on a sign it's void for impossibility for gym patrons!