Court papers received

Redx

the original NTK went to the hire company , correct , as they are the RK

so Excel can show an NTK went out

the hire co failed under POFA2012 to notify Excel of the details of the lessee/hirer, instead they passed it on to your husband according to your previous thread

this does not meet the BVRLA guidelines issued in jan 2014 , which protects the hire co in the event of a lawsuit

you or your hubby appealed this pcn which was rejected, but Excel should have issued an NTK and whatever edna says about these matters as he/she deals with these a lot

but excel fail POFA anyway which will form part of your defence

those BW LEGAL letters were in effect an LBC, even if they failed compliancy (another defence point) , but the LETTER OF CLAIM is probably their version of an LBC

I wont be commenting on your defence or part 18 as I am not qualified to do so , they seem reasonable to my untrained eye but I would wait for any other comments if you have the time, but do not miss the deadlines either

this forum is MSE, not legal beagles

Kayleighb1

So just for my clarification, the PCN and an NTK are one and the same?
The hire co did pass it on to us and I have the document saying so. They may have notified excel, I don't know. I have ample time for deadlines.

Thank you for pointing out the forum is MSE, I actually thought I was on mumsnet!

Redx

a Notice To Keeper is a Postal (Parking) Charge Notification which goes to the keeper, in this case the hire co

once this is appealed (or the hirers details are given) Excel are supposed to issue a new NTK to the Keeper, in this case , your hubby , , in his name at his address, if they wish to comply with POFA2012, which they dont until court , lol

my point is that this isnt a legal forum , its an advice forum , yet people expect lawyers to frequent here and help them with court cases free of charge , lol

legal beagles is a legal forum (obviously)

Kayleighb1

Oh no I don't expect anyone here to be a lawyer. But you guys are experts at this! Once I've revised the drafts here and on pepipoo, I'm going to send them to bmpa

Redx

trust me , I am no expert , never been to court at all

I read a lot and used to be a troubleshooter in manchester so get an idea of what is good or bad, same as I am no chef but can recognise a good meal that tastes good when I see and eat it

cant fly a plane either , but know when the people are doing their job well

BobJameson

It may be worth your while contacting BMPA, of which several here are members (I'm not) who might be able to assist you with/in court.

parkingwoes_2

Skimming the thread you appear to be answering this for the defendant.

Quick points of references to note:

Spell Defence correctly

1.You are not the registered keeper if this is a hire car so that needs rewording.

2, 4 (b) and 9 slightly contradictory. - Go with 4 (b)

Cut out GPEOL completely

You don't need to quote the paragraphs from Beavis at this stage.

HO87

With respect the Part 18 is far too long, too wide-ranging and unfocussed. A Part 18 is about information - as soon as you ask for copies of anything then you are asking for evidence not information.

You could try the following:

[FONT=&quot]1. Please identify the head or heads of action in which this claim is based?[/FONT]
[FONT=&quot]a). If not the principal, in what capacity does the Claimant purport to act?[/FONT]
[FONT=&quot]b). Please identify the landowner[/FONT]

[FONT=&quot]2. Please confirm that the Claimant can demonstrate a clear chain of authority from the landowner either by way of a written authority contract, deed or lease?[/FONT]
[FONT=&quot] a). That this/these document(s) is/are in the Claimant’s possession or if not when they will be.[/FONT]
[FONT=&quot] b). That such document(s) are available for inspection and if not when they will be.[/FONT]
[FONT=&quot] c). That copies of the document(s) can be provided and that the originals will be available at court.[/FONT]

[FONT=&quot]3. If it is [FONT=&quot]the Claimant[/FONT]’s case that their claim is based in contract and that such a contract was conveyed by way of signs displayed at the location please confirm the following:[/FONT]
[FONT=&quot] a). That the Claimant is able to produce a copy of all the various signs at the location indicating the various text point sizes together with a contemporaneous map or plan showing where they are deployed on site.[/FONT]
[FONT=&quot]b). A contemporaneous schedule of works/maintenance showing how and when such signs [FONT=&quot]on-site[/FONT] were repaired, replaced and cleaned etc.[/FONT]

[FONT=&quot]4. Please confirm whether it is the Claimant’s intention to adduce photographs and or video footage of the relevant event and:[/FONT]
[FONT=&quot] a). That such photographs and/or footage is in the Claimant’s possession and if not when it will be?[/FONT]
[FONT=&quot] b). That such photographs and/or footage are available for inspection and if not when they will be?[/FONT]
[FONT=&quot] c). That copies of the photographs and/or footage can be provided and that all the originals will be available at court.[/FONT]

[FONT=&quot]5. Please confirm that the Claimant has in his possession an analysis of the costs incurred that [FONT=&quot]form[/FONT] the additional charges [FONT=&quot]included in[/FONT] the claim and:[/FONT]
[FONT=&quot] a). That copies of such an analysis and other attendant documents upon which the analysis is based are available for inspection and if not when they will be?[/FONT]
[FONT=&quot] b). That copies can be provided of the analysis and attendant documents and that all original documents upon which the Claimant might seek to rely on in this respect will be available at court.[/FONT]

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU. SERVICE WILL BE DEEMED TO HAVE BEEN EFFECTED ON THE SECOND BUSINESS DAY AFTER POSTING.

Don't give them too much of a heads-up about specific issues and very often less is more. I would never look for there to be more than 5 - 6 questions. And a Part 18 is about the issues - not anything else. You do not use them to make evidential or procedural points - they are for letters and/or defences or applications.

I'll try to have a look at the defence later.

HO87

This is not the best version I've produced but it will cover most of Excel's arguments. Others are welcome to critique/edit it.

The system allows you to make a final submission late in the process and so this is intended just to lay down the foundations of a final version. For that very same reason I suggest that not too many facts are disclosed at this stage on which Excel can then base their case.

See what you think:

[FONT=&quot]Statement of Defence

I am XXXXX, defendant in this matter.[/FONT]

[FONT=&quot]1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the parking of a <insert colour> <insert make> <insert model> motor vehicle registration number AB12 CDE on <insert date> at <insert location> that in turn resulted in the issue of a parking charge notice by the[/FONT]
[FONT=&quot]Claimant.[/FONT]

[FONT=&quot]2. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.[/FONT]

[FONT=&quot]3. I deny any liability in respect of the claim.[/FONT]

[FONT=&quot]3. In his Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.[/FONT]

[FONT=&quot]4. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.[/FONT]

[FONT=&quot]5. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.

6. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.

[/FONT]
[FONT=&quot]7. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.[/FONT]

[FONT=&quot]8. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.[/FONT]

[FONT=&quot]9. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.[/FONT]

[FONT=&quot]10. If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. The Claimant is put to strict proof that such a “relevant obligation” existed.[/FONT]

[FONT=&quot]11. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” the court is invited to strike the matter out.[/FONT]

[FONT=&quot]12. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.[/FONT]

[FONT=&quot]13. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.[/FONT]

[FONT=&quot]14. The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.[/FONT]

[FONT=&quot]15. I will seek to argue a more detailed rebuttal should the Claimant plead the case cited but in any event submit that the case cited be disregarded.[/FONT]

[FONT=&quot]16. If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution and wording to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.[/FONT]

[FONT=&quot]17. In due course I will ask the court to consider the frequently overlooked test established by Roskill LJ in the matter of Vine –v- London Borough of Waltham Forest insofar as it relates to the display of signage in conveying an obligation.[/FONT]

[FONT=&quot]18. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.[/FONT]

[FONT=&quot]19. I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.[/FONT]

[FONT=&quot]20. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.[/FONT]

[FONT=&quot]21. It is further anticipated that the Claimant may seek to rely on the recent Supreme Court ruling in the case of ParkingEye –v- Beavis. In due course I will seek to demonstrate that the instant matter may be distinguished from that case.[/FONT]

[FONT=&quot]22. The Claimant is put to strict proof of all his assertions.[/FONT]

[FONT=&quot]23. In the above circumstances I respectfully ask that the court dismiss the claim[/FONT]

All the above should be double-spaced and a statement of truth include at the end.

Umkomaas

@OP - HO87 is a well respected and trusted contributor here on MSE and on PePiPoo (Hotel Oscar 87) and can be relied on without hesitation.