Right here we go (Parties etc complete in my original version). most grateful for any thoughts/constructive criticsim:
1. The Defendant denies the claim in its entirety. The Defendant asserts that there is no liability to the Claimant and that no debt is owed. The claim is without merit and does not adequately disclose any comprehensible cause of action.
2. The Defendant does not recall the content of any signage in the vicinity of the car park and the Claimant is put to strict proof as to the existence of any alleged contract, or the terms of such a contract.
3. The Claimant’s case is very poorly particularised and therefore it is impossible for the Defendant to respond properly to. However, to assist the Court the Defendant admits and avers the following facts:
(a.) It is admitted that the Defendant was the driver of the vehicle XXXX XXX (‘the vehicle’) at the time of the alleged contravention and that the vehicle was parked at St Nicholas Street, Weymouth (‘the car park’).
(b.) It is admitted that on 7.5.22 the vehicle was parked in the car park.
(c.) It is the Claimant’s case that the vehicle entered the car park at 10:35:12AM. This is not disputed.
(d.) It is the Claimant’s case that the Defendant purchased a £2 ticket at 10:39:50AM. The Defendant recalls using a ‘pay and display’ machine within the car park. The Defendant’s records confirm such a purchase at 10:39AM.
(e.) The Defendant recalls receiving a ticket from the machine. The Defendant avers that this ticket would have indicated an ‘issue time’ and a required departure time of 2 hours after purchase, i.e. 12:39PM
(f.) It is the Claimant’s case that the Defendant exited the car park at 12:49:25PM. 2 hours, 9m 25s after the ticket was purchased. This is not disputed.
4. The Claimant is a member of the British Parking Association (BPA). To the extent that any contact is established, the Defendant avers that the terms are taken to include the Private Parking Sector Single Code of Practice v1.1.
5. Table 1 of Annex B of this Code of Practice contains the mandatory minimum consideration period and grace periods - 5 minutes, and 10 minutes respectively.
6. As a result, the Defendant avers that a minimum 5 minutes consideration period should apply, and therefore the ticket was purchased within such a period after entry to the car park at 12:35.
7. The mandatory minimum grace period of 10 minutes also applied. For a ticket issued at 10:39:50, the grace period would extent to 10:49:50. It is not in dispute that the Defendant had left the car park by 10:49:25, within the grace period.
8. While the Defendant was within both the minimum consideration period and minimum grace period, and therefore no extenuating circumstances are required to be demonstrated, such extenuating circumstances did exist, and were set out to the Claimant in pre-action correspondence.
9. Taking the above into account, therefore, even to the extent that the Court finds that a contract was established, no breach of contract will be established. The Defendant purchased a ticket within the consideration period. The Defendant exited within the grace period.
10. In the alternative, 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 and 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 (or contracts) which is/are relied on;
(c) The PoC do not adequately set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts)
(d) 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;
(e) The PoC do not state precisely how the sum claimed is calculated, including the basis for any statutory interest, damages, or other charges;
(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(g) The PoC do not provide clarity on whether the Defendant is sued as the driver or the keeper of the vehicle, as the claimant cannot plead alternative causes of action without specificity.
11. The Defendant attaches to this defence a copy of a draft order approved by a district judge at another court. The court struck out the claim of its own initiative after determining that the Particulars of Claim failed to comply with CPR 16.4. The judge noted that the claimant had failed to:
(i) Set out the exact wording of the clause (or clauses) of the terms and conditions relied upon;
(ii) Adequately explain the reasons why the defendant was allegedly in breach of contract;
(iii) Provide separate, detailed Particulars of Claim as permitted under CPR PD 7C.5.2(2).
(iv) The court further observed that, given the modest sum claimed, requiring further case management steps would be disproportionate and contrary to the overriding objective. Accordingly, the judge struck out the claim outright rather than permitting an amendment.
12. The Defendant submits that the same reasoning applies in this case and invites the court to adopt a similar approach by striking out the claim for the Claimant’s failure to comply with CPR 16.4.
Costs
13. The Claimant has throughout the pre-action phase, been unresponsive to communications, has refused to answer multiple requests for clarification in accordance with the pre-action protocol. The Claimant refused to allow the Defendant to discuss the case with a lawyer. Had the Claimant cooperated in such ways, it would have needed to acknowledge the above facts and ought not to have issued the claim. The Defendant therefore respectfully asks that the Court takes this into account and utilises its discretion to award reasonable costs in favour of the Defendant. A draft schedule of costs is attached.
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.
