Moorside Legal defence template check/help...Please!

confused_sunshine

Evening, I firstly apologise as I've read so many threads I've completely lost my mind with what I am actually supposed to do, before I just give up and pay the fine, is this the simple Chan/Akande template defence everyone mentions? I found the third paragraph linked by CouponMad, is this the main body I was supposed to put it into? I have read on other posts about it being 30 points long, but this is only 10. Are the more specifics for later stages? Any help would be very gratefully received I have now spent 3 hours going round in circles trying to make sure I have the most up to date version that is likely to work. I have a week left to submit so hopefully time to sort this out.

For some context it's the standard Moorside letter, doesn't have specifics just I exceeded the length of stay. I think it was by about 12 minutes from what I recall, I just ignored the letter at the time as it seemed ridiculous and we were queueing to get out for ages as it was nearly Christmas at a shopping complex. (I appreciate in hindsight I could maybe should have done something back then)

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper.

The Defendant, has little recollection of events considering this was more than a year ago, and has little to add other than admitting that they were the registered keeper and not driver, so questions whether the Notice to Keeper was even POFA compliant.

3. With regards to the POC in question, 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. 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'."

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'.

Coupon-mad

Welcome! Show us a pic of the POC.

confused_sunshine

I don't have the original, (from 2023) it had the times and an anpr photo on it does that help?

Coupon-mad

That's not what I asked for. Read some claim threads!

Le_Kirk

Have you actually received a N1SDT claim form? If so, what is the date of issue? From that claim form, we need to see the particulars of claim, as that is what you will be defending against in your paragraph #3 and posting it into the standard defence template.

confused_sunshine

[Image removed by Forum Team]

Thankyou for responding

confused_sunshine

Thankyou, I googled poc and it said parking charge notice so that's what I thought you meant, i've noticed the date was over a week before I actually recieved it so I don't think I have much time now. Thankyou for responding.

Coupon-mad

I really hope you did the AOS in April because that's dated 14th April and you had to acknowledge it to extend the time to 28 days from service.

I disagree that Chan and Akande apply. They don't. So remove your para 3 and instead make this para 3:

3. The Defendant, has little recollection of events considering this was more than a year ago, and has little to add other than admitting that they were the registered keeper and not driver, so questions whether the Notice to Keeper was even POFA compliant.

..but you need to also expand that and respond to the allegation 'exceeded maximum stay' if you know what happened that day, so you need to admit or deny that allegation. What happened? Delayed? Signs hidden in corners/trees? No idea there was a time limit? Disabled person in the vehicle?

And are you telling the truth that you weren't driving? Why did you put that? Do you know for sure?

It looks like you just copied someone else's defence that isn't relevant because it's not merely 'more than a year ago', it's almost 3 years ago.

confused_sunshine

Thankyou, I did the AOS on the 25th I think the day I received it through the post.

It was clear from the photo sent on the original that a man was driving the car I was in the vehicle, but not driving.

I did copy bits from other peoples as I thought this stage didn't need specifics, but I was clearly wrong.

We were essentially late leaving due to a combination of the car park being really busy so there were long queues to get out and my son needing the toilet so halfway out of the carpark my husband lingered outside another store on the retail park so he could run in and go to the toilet. Can I put that as I know I could have let him have an accident in the car and have been within the grace period?

Coupon-mad

Please show both sides of the NTK.

confused_sunshine

I don't have it, it's been misplaced over the years. I just remember thinking you can clearly see my husband is driving and my coat was visible in the passenger seat and we weren't many minutes over the time as I know if my son hadn't needed the toilet we should have scraped out under 10 minutes late. Sorry I'm not able to be more helpful.