Tweet
Below is what I have drafted so far. Could you please confirm this is okay?
I'm confused about what to write in the Defendant’s liability as the keeper in section 2 about the NTK and also what amount I need to put in the next section too.
Hopefully, the other text I have added as the defence, is written suitably.
Many thanks.
Draft below...
Civil Enforcement Limited vs XXXXXXX Claim Number XXXXXX
APPLICABLE LAW
8 The Claimant asserts the reason the PCN was issued was " breach of contract terms/conditions”.
On the date of the incident (17/7/23) the defendant was accompanying his wife to an appointment and, on entering the car park, was unable to find a parking space, and so remained in the car while his wife attended the appointment. The defendant carried out occasional circuits to find an available space, without success. The defendant could not leave the car parked outside a space as that would trigger an exorbitant charge. Therefore, the parking company did not offer the ability for the defendant to park on this occasion.
.Defendant’s liability as the keeper
Suggest you compare the NTK with the requirements of PoFA2012 Schedule 4 (sec 9 onwards is the most relevant part) When you have finished that exercise you can state that as the NTK does not comply with mandated conditions of PoFA2012 the claimant cannot transfer liability for unpaid charges from driver to keeper
Recovery of Claimant’s unspecified charges
17 If the Defendant is being sued as Keeper the Claimant is only entitled to recover the Parking charge as Schedule 4 condition 4(5) of POFA 2012 provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper, being £xxx. Therefore, any associated charges as claimed in incurred by the Claimant in connection with the PCN are not recoverable.
18 Alternatively, if the defendant is being sued as the driver, it is noted that the amount claimed is £155,
19 There is no explanation for this inflation but, the Defendant notes the Penalty (it cannot be a parking charge) is £85 from the signage photo supplied by the Claimant
21 The Defendant notes the Parking sign states “additional costs/recovery charges will be incurred….”(but the font size of the term is small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible)
22 the Defendant asserts the term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
23 Section 68 of the Consumer Rights Act 2015.( CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
21 The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional costs.
24 It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14)
25 Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the CRA2015)
26 In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. the S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
27 In this claim unspecified charges additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b) )
28 Whilst not binding on this court, the Defendant respectfully refers to the following case: G4QZ465V (Excel Parking Services Ltd vs Wilkinson - 1st July 2020) where District Judge Jackson considered a similar claim to be an abuse of process under the The Consumer Rights Act 2015 (Sch 2 and section 61/ 61(1)/ 67). He found that striking out the claim was the only appropriate manner in which the disapproval of the court could be shown.
Furthermore, The Claimant had previously sent correspondence from XXXXX XXXXX of Direct Collection Baliffs Ltd on 20/6/24 stating the following:
“Dear XXXXX,
“We write further to your recent email. Please note, our client has instructed us to close this case and as such, DCBL will not be pursuing this balance further. Any future correspondence relating to this matter should be sent to our client directly.
“Thank you for your co-operation,
“Kind regards, XXXXXXX XXXXX, Correspondence Associate, Direct Collection Baliffs Ltd.”
This matter was then left dormant by The Claimant until 13/8/25 when they re-opened correspondence with The Defendant by sending a “Letter Before Action – Claim For Debt” letter requesting the amount of £155.00. Leaving this matter dormant for such a lengthy period of time seems to be an unreasonable way of inflating the claim by way of adding the statutory interest. It also seems unreasonable to re-open a case having previously sent correspondence informing The Defendant of the instruction to “close this case” and that The Claimant “will not be pursuing this balance further.”
29 The Defendant denies that the claimant is entitled to the relief as claimed or at all
STATEMENT OF TRUTH
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
SIGNED …………………………………………..
Dated
I'm confused about what to write in the Defendant’s liability as the keeper in section 2 about the NTK and also what amount I need to put in the next section too.
Hopefully, the other text I have added as the defence, is written suitably.
Many thanks.
Draft below...
Civil Enforcement Limited vs XXXXXXX Claim Number XXXXXX
- The Defendant received the claim XXXXX from CEL Ltd on 28/4/26
- Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
- The defendant avers the Claimant's statement of case firstly fails to give adequate information to enable the Defendant to properly assess the Defendant's position with regards the claim and secondly has failed to properly plead its case in accordance with
CPR 16.4(1)(a)
Specifically the Particulars of Claim:
i. state that the claim is for a breach of contract and refers to a Parking Charge Notice
ii. Does not state how the Defendant is liable for the charges claimed
iii. Does not state how the amount claimed is calculated - It is well established that the Claimant must provide adequate pleadings and include all essential ingredients of the cause of action so as to enable the Defendant to understand the case against them. The Particulars of Claim, as drafted, are inadequate which makes it difficult for the Defendant to respond as he does not know or understand the basis of the Claimant’s case.
Further, the Defendant is surprised by the poor drafting of the particulars given that the Claimant is well versed in court procedure and so the lack of compliance with the CPR 16.4(1)(a) to formulate proper particulars cannot be excused. Accordingly, the court is invited to consider its general case management powers pursuant to CPR 3.1 to: - make an order that unless the Claimant (i) files and re-serves an amended Particulars of Claim compliant with CPR 16.4(1)(a) and (ii) provide the necessary documentation in order for The Defendant to fully plead his case within 14 days of said order, then the claim shall be struck out and judgment entered in favour of the Defendant;
- If the Claimant should comply with such an order , the Defendant will then be in a position to amend his defence, and would ask that the Claimant bears the costs of the amendment.
- if the court considers it appropriate, to strike out the claim in whole or in part, as the basis that the claim discloses no reasonable grounds for a cause of action; and
- exercise any other case management powers the court sees fit
- Without prejudice to the foregoing paragraphs, the Defendant intends to respond to the allegations raised in the Particulars of Claim as best he is able.
APPLICABLE LAW
- Section 56 together with Schedule 4 of The Protection of Freedoms Act 2012 (“POFA”) provides landowners with powers to manage parking on their land. Paragraph 4 of Schedule 4 of POFA stipulates that the liability for an unpaid parking charge may only be transferred from the driver to the registered keeper of the vehicle if certain conditions as prescribed in Schedule 4 are met.
Defendant’s liability as the driver of the vehicle - In the Particulars of Claim, the Claimant does not state how the Defendant is liable for any alleged unpaid parking charges so it is fair to assume is ignorant of the driver's identity and his allegations are nothing more than a fishing expedition
8 The Claimant asserts the reason the PCN was issued was " breach of contract terms/conditions”.
On the date of the incident (17/7/23) the defendant was accompanying his wife to an appointment and, on entering the car park, was unable to find a parking space, and so remained in the car while his wife attended the appointment. The defendant carried out occasional circuits to find an available space, without success. The defendant could not leave the car parked outside a space as that would trigger an exorbitant charge. Therefore, the parking company did not offer the ability for the defendant to park on this occasion.
.Defendant’s liability as the keeper
- It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle. The Defendant repeats paragraphs 6 to 8 (inclusive) of this Defence.
Further and alternatively, the Defendant contends that the Claimant has failed to comply with the mandatory conditions under POFA 2012 in order for the registered keeper to be held liable for the Parking Charge:- Contrary to condition Schedule 4 5(1)(a) of POFA 2012, the Claimant has failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has failed to supply:
- a copy of the written contract setting out the Claimant’s authority to enforce and/or pursue the Parking Charge against the driver; and
- what (if any) conditions may be attached as regards the recovery of the Parking Charge.
- Contrary to condition Schedule 4 5(1)(a) of POFA 2012, the Claimant has failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has failed to supply:
Suggest you compare the NTK with the requirements of PoFA2012 Schedule 4 (sec 9 onwards is the most relevant part) When you have finished that exercise you can state that as the NTK does not comply with mandated conditions of PoFA2012 the claimant cannot transfer liability for unpaid charges from driver to keeper
Recovery of Claimant’s unspecified charges
17 If the Defendant is being sued as Keeper the Claimant is only entitled to recover the Parking charge as Schedule 4 condition 4(5) of POFA 2012 provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper, being £xxx. Therefore, any associated charges as claimed in incurred by the Claimant in connection with the PCN are not recoverable.
18 Alternatively, if the defendant is being sued as the driver, it is noted that the amount claimed is £155,
19 There is no explanation for this inflation but, the Defendant notes the Penalty (it cannot be a parking charge) is £85 from the signage photo supplied by the Claimant
21 The Defendant notes the Parking sign states “additional costs/recovery charges will be incurred….”(but the font size of the term is small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible)
22 the Defendant asserts the term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
23 Section 68 of the Consumer Rights Act 2015.( CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
21 The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional costs.
24 It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14)
25 Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the CRA2015)
26 In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. the S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
27 In this claim unspecified charges additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b) )
28 Whilst not binding on this court, the Defendant respectfully refers to the following case: G4QZ465V (Excel Parking Services Ltd vs Wilkinson - 1st July 2020) where District Judge Jackson considered a similar claim to be an abuse of process under the The Consumer Rights Act 2015 (Sch 2 and section 61/ 61(1)/ 67). He found that striking out the claim was the only appropriate manner in which the disapproval of the court could be shown.
Furthermore, The Claimant had previously sent correspondence from XXXXX XXXXX of Direct Collection Baliffs Ltd on 20/6/24 stating the following:
“Dear XXXXX,
“We write further to your recent email. Please note, our client has instructed us to close this case and as such, DCBL will not be pursuing this balance further. Any future correspondence relating to this matter should be sent to our client directly.
“Thank you for your co-operation,
“Kind regards, XXXXXXX XXXXX, Correspondence Associate, Direct Collection Baliffs Ltd.”
This matter was then left dormant by The Claimant until 13/8/25 when they re-opened correspondence with The Defendant by sending a “Letter Before Action – Claim For Debt” letter requesting the amount of £155.00. Leaving this matter dormant for such a lengthy period of time seems to be an unreasonable way of inflating the claim by way of adding the statutory interest. It also seems unreasonable to re-open a case having previously sent correspondence informing The Defendant of the instruction to “close this case” and that The Claimant “will not be pursuing this balance further.”
29 The Defendant denies that the claimant is entitled to the relief as claimed or at all
STATEMENT OF TRUTH
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
SIGNED …………………………………………..
Dated
Comment