The defence is going to be short and to the point. Unlike so long defences, which district judges do not like, there is only on paragraph that needs adjusting. The only other requirement is to edit the claimants name, the defendants name, the claim number and then sign by typing the defendants name and dating it. There is nothing to edit in the draft defence.
IN THE COUNTY COURT
Claim No: [Claim Number]
BETWEEN:
[Claimant's Full Name]
Claimant
- and -
[Defendant's Full Name]
Defendant
DEFENCE
1. The Defendant denies any liability for this claim.
2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not comply with CPR 16.4
3. The Defendant is unable to plead properly to the PoC because:
(a) The PoC do not comply with CPR 16.4(1)(a) and CPR 16 PD 7.5, as they fail to provide specific details of the conduct or the contractual terms allegedly breached. This lack of particularity leaves the Defendant unable to recall the event, given the significant passage of time, and prevents a proper defence from being pleaded;
(b)The contract referred to is not detailed or attached to the PoC in accordance with CPR 16 PD 7.5;
(c) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;
(d) The PoC do not set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts);
(e) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;
(f) The PoC do not state exactly how the claim for statutory interest is calculated;
(g) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(h) The PoC states that the Claimant is suing the defendant as the driver or the keeper. The claimant obviously knows whether the defendant is being sued as the driver or the keeper and should not be permitted to plead alternative causes of action.
4. The Defendant has attached to this defence a copy of an order made at another court which the allocating judge ought to make at this stage so that the Defendant can then know and understand the case which they face and can then respond properly to the claim.
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:
Date:
Here is the Draft Order:
Of the Court's own initiative and upon reading the Particulars of Claim and the defence
AND the court being of the view that there is a lack of precise detail in the Particulars of Claim in respect of the factual and legal allegations made against the Defendant such that the Particulars of Claim do not comply with CPR 16.4.
It is Ordered that:
1. Unless the Claimant do, within 14 days of service of this order, file and serve at court a further Particulars of Claim supported by a statement of truth which complies with CPR 16.4 and which sets out:
(i) the precise and concise factual allegations it makes against the Defendant and
(ii) the factual or legal [or both] basis of its claim and
(iii) the evidence relied on that the Defendant was the driver;
(iv) the evidence relied on that all the requirements of PoFA 14(2)(a) were complied with; and
(v) exactly how its claim is calculated (if there is a claim for a fixed sum)
then the claim shall be struck out.
2. For the avoidance of doubt the further Particulars of Claim must:
(a) refer to and have attached to them (clearly marked "A") a copy of the contract (or contracts) between the claimant and defendant relied on.
(b) set out the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is (or are) relied on.
(c) have attached to them (clearly marked "B") a copy of each of the PCNs which forms the basis of this claim.
(d) must state by what method each of the PCNs was first brought to the attention of the defendant. For example, attaching it to the defendant's vehicle.
(e) in respect of each alleged breach of contract, set out the reason (or reasons) why the claimant asserts that the defendant was in breach of contract.
(f) in respect of each alleged breach of contract, set out (i) the full postal address of where the breach took place and (ii) the precise date and time of the alleged breach and (iii) exactly how long it is alleged that the vehicle was parked before the parking charge was incurred.
(g) in respect of each alleged breach of contract, must state whether the defendant is sued as the driver of the vehicle or the keeper or the hirer of the vehicle.
(h) not plead that the defendant is sued in the alternative as the driver of the vehicle or as the keeper of the vehicle.
(i) state clearly whether the claim is brought under the Protection of Freedoms Act 2012, and specify whether the defendant is pursued as the hirer or keeper of the vehicle.
(j) must explain the factual or legal (or both) basis of the claim for damages.
(k) set out a precise calculation of the claim for statutory interest up to the date of issue to include the date interest started running.
3. Permission to either party to apply to set aside, vary or stay this order by an application on notice which must be filed at this Court no more than 5 days after service of this order, failing which no such application may be made.
When done, they should be saved as PDF files and attached to an email that is sent to claimresponses.cnbc@justice.gov.uk and CC'd to yourself. You should receive an auto response from the CNBC almost instantly and certainly within a few minutes.
Here is a list of the main defence points that will be relied on:
1. Failure to include key details of the contract:
CPR 16.4(1)(a) requires that a claim based on a contract must state the terms of the contract. In this case, the PoC do not include any details about the specific terms of the contract that the defendant is alleged to have breached, such as what terms were displayed on the signs at the car park, or how the driver’s failure to pay was a breach of the terms.
2. Failure to sufficiently detail the terms of the contract formed by signage (PD 16.7.5):
CPR 16 PD 7.5 states that where a claim is based on a contract formed by conduct (such as a parking contract formed by entering a site and being bound by the terms on the signs), the PoC must either include the wording of the signs or attach the full terms relied on.
The PoC here simply allege a breach of terms without providing the exact wording of the signs that supposedly formed the contract. The court will expect a clearer explanation of what terms were on the signs, how they were displayed, and how they were breached. There is no mention of what specific terms the defendant allegedly breached beyond "Without A Valid Pay BY Phone Transaction," which is insufficiently detailed.
3. No Clear Explanation of the Breach:
The PoC do not adequately explain how the driver breached the contract. While it is alleged that the vehicle was "parked without a valid Pay BY Phone transaction," no further details are provided. For example, the PoC do not explain whether the driver made an attempt to pay, whether the payment system malfunctioned, or whether any communication was made regarding payment issues.
4. Interest Calculations are Insufficiently Explained:
The PoC claim interest “at a rate of 8% per annum” pursuant to Section 69 of the County Courts Act 1984. However, the PoC do not provide a breakdown of how this interest was calculated, nor do they specify the date from which the interest accrues.
5. Failure to Specify the Amount for the PCN and Damages Separately:
The PoC claim £170, stating this is the "total of the PCN(s) and damages." However, the PoC fail to break down this amount to specify:
How much of the £170 is attributed to the original Parking Charge Notice (PCN), and
How much is attributed to "damages". Without this breakdown, the defendant cannot understand the individual components of the claim. CPR 16.4 requires that claims set out how the total claimed amount is calculated, including any additional sums being claimed beyond the original charge.
6. Failure to Provide the Factual or Legal Basis for Claiming "Damages":
The PoC do not specify the factual or legal basis on which the claimant is seeking damages. If the claim is simply for an unpaid parking charge, it is unclear what additional damages are being sought and on what grounds. For example:
There is no indication of what specific loss or damage the claimant has allegedly suffered beyond the unpaid parking charge.
There is no reference to any contractual or legal provision entitling the claimant to damages on top of the parking charge.
A claim for damages requires a clear explanation of both the factual circumstances (i.e., what losses the claimant suffered) and the legal basis (i.e., whether the contract terms allow for such damages). The lack of such an explanation makes the PoC deficient.
7. Ambiguity Regarding Keeper Liability under PoFA:
The PoC attempt to hold the defendant liable as the keeper under Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. However, based on the provided NtK, the following issues may affect keeper liability:
Failure to Identify the Creditor: The NtK must identify the creditor entitled to recover the charge. The notice does not explicitly name Euro Car Parks as the creditor; however, it may be implied from the context. Explicit identification is preferred, and failure to clearly identify the creditor may be seen as a breach. This failure could prevent the claimant from holding the keeper liable.
No Period of Parking Specified: Under Paragraph 9(2)(a), the NtK must specify the period during which the vehicle was parked. The NtK only includes ANPR-captured entry and exit times, which do not necessarily represent the time the vehicle was actually parked. This is another non-compliance that weakens the claimant's reliance on PoFA.
As a result, the PoC should have addressed how the NtK complies with PoFA, but it does not. The claimant has not established keeper liability under PoFA due to these deficiencies. Partial or even substantial compliance is not sufficient.
Conclusion:
The PoC are vague and deficient in many areas, particularly in terms of detailing the contract, explaining the breach, and establishing keeper liability under PoFA. These deficiencies form the basis of a strong defence and the defendant will be applying for the claim to be struck out for failing to comply with CPR 16.4. A draft order will be sent with the defence for the court to order the claimant to provide further and better particulars to clarify the claim before submitting a formal defence. No claimant has managed to satisfy the order to date.