Welcome. ECP are on a binge at the moment. Probably doing some spring cleaning and digging loads of old PCNs that they forgot about. They can chase these forever but they can only issue a court claim before 6 years. So, four years is no biggie. It can be raised in any defence but this will never get into a court room for a hearing.
The issue of who was driving is irrelevant, as long as the identity of that person is not revealed. Not only named drivers on the insurance policy can drive the car but anyone who holds at least third party liability insurance can drive any car with the owners permission.
What is important is that ECP have no idea who was driving. They have issued the PCN to the Keeper and have asked the Keeper to pass the notice on to the driver. However, they are attempting to rely on PoFA to be able to transfer liability for the charge from the unknown driver to the Keeper. However, they can only do that if they fully comply with all the requirements of PoFA and they haven't. There is no "invitation", not any synonym of the word, for the Keeper to pay the charge in the Notice to Keeper (NtK).
On what date did you post your Acknowledgement of Service (AoS)? It is very important that the AoS is received by the CNBC no later than Monday 16th September. As long as the AoS is received by that date, you then have until 4pm on Monday 30th September to submit your defence.
You didn't have to post the AoS if you couldn't log into MCOL. You could simply have downloaded the N9 form online, completed it and then emailed it as a pdf attachment to an email and sent to to aos.cnbc@justice.gov.uk. Did you get a free "proof of posting" certificate from the post office when you sent the AoS? In fact, because it is such a shambles at the CNBC, you should email a copy now. At least you will know it has been received because you CC in yourself and you also get an auto-response email back from the CNBC.
What is going to happen next is you submit your defence. I know the template defence over on MSE is very long and I also know that many judges do not like it as they consider it a long boilerplate that tries to cover everything, including a lot of detail that isn't necessary.
It really doesn't matter as ECP have used DCB Legal to file the claim. To be honest, you could simply send in a nursery rhyme as your defence and the outcome is likely to be the same... an eventual discontinuation.
So, no matter which defence you use, the long one from MSE or the short one that has been put together by a district judge, the outcome will be the same. As long as the advice is followed, this will eventually discontinued.
Here is the suggested defence with a draft order that I suggest you use. When I say "you", I am referring to the named defendant on the claim form. It doesn't matter if you are doing this for your dad as long as it all in his name. Any documents that require a signature can be signed electronically by simply typing the defendants full name on the forum. There should be no need to print anything off. Everything is sent as a PDF attachment to an email and the claim number should be in the subject of the email. Always CC in yourself as evidence of having sent it.
When adding any defence, you have to assume that you have never had any correspondence about this allegation and the claim form is the first you know about this. With that in mind, think how you would respond to the allegation. The Particulars of Claim are woefully inadequate and fail to fully comply with CPR 16.4.
This short defence has been adapted slightly because there is a mention in the PoC that the reason for the PCN was because "The PandD/permit Purchased Did Not Cover The Date And Time of Parking."
IN THE COUNTY COURT
Claim No: [Claim Number]
BETWEEN:
Euro Car Parks Limited
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 contract referred to is not detailed or attached to the PoC in accordance with CPR PD 16.7.5;
(b) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract which is relied on;
(c) The PoC do not clearly set out the reason why or how the claimant asserts that the defendant has breached the contract;
(d) The PoC do not state with sufficient particularity (i) exactly where the breach occurred, (ii) the exact time when the breach occurred and (iii) how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;
(e) The PoC do not state exactly how the claim for statutory interest is calculated;
(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(g) 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;
(h) In the Notice to Keeper (NtK) received after the claim was issued, the Claimant has failed to fully comply with all the requirements of the Protection of Freedoms Act 2012 (PoFA). Specifically, the Claimant failed to include the required "invitation", or any synonym of the word, for the Keeper to pay the charge as mandated by PoFA paragraph 9(2)(e)(i) and therefore, there can be no Keeper liability.
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 link to the draft order which should also be attached to the email with the defence:
Short Defence Draft OrderAll the defendant has to do is edit their name and the claim number in the defence and type their name for the signature and date it. There is nothing to edit in the Draft Order.
Both documents should be saved in PDF format and attached to the an email addressed to claimresponses.cnbc@justice.gov.uk. Make sure the claim number is in the subject of the email. In the body, simply state that attached is the defence and a draft order for claim number [Claimant name v Defendants name]. Also CC in yourself.
When it is emailed, you must receive an auto-response email back from the CNBC. It should be almost immediate but could take a few minutes. If you do not receive the auto-response, try again and if no luck, try sending from a different email agent.
Please keep us informed if you choose to use the above defence.
