AOS acknowledged – advice required for defence statement

cordsandcag

I’m looking for some advice / help for preparing a defence statement. I’ve had a look through the newbies thread and also searched for a few cases that may be similar to mine – I found one but I'm unable to post a link as a new user.

I initially ignored letters from the PPC and their legal firm (I realise that the advice to ignore from friends etc is now out of date), but have now received a court claim which I have acknowledged in order to give me 28 days.

I’m aware that PPC’s can look at these forums so I’ll give fairly brief summary of my circumstances:

I received a payment demand for a parking charge at the start of 2016. My car (as the registered keeper, not saying I was driving) was parked for less than 20 minutes on a Sunday and a ticket wasn’t purchased. There was only a couple of other cars in the car park at the time. The car had previously been parked in the car park on a Sunday for a short amount of time and a ticket hadn’t been purchased, and no parking charge was received. There is also a car park next to the one my car was parked in that is free on a Sunday - my car has also been parked in that car park on a Sunday before.

I’m looking for a bit of a steer on which my best line of defence may be:

Can I go down the route of claiming that the PPC cannot identify who was driving the car? From reading some more recent posts this seems like it may be risky (Keeper liability etc). If I went down this route and it end up before a judge, could they compel me to reveal the identity of the driver?

Could I claim that as my car had previously parked in this car park for a similar amount of time, and at a similar time in the day on a Sunday, and no charge / fine had been received, then it was reasonable to expect (or a precedent had been set) that my car could be parked there again without charge or fine i.e. that the person driving my car did not know that they had to pay on a Sunday? On both occasions a visit to one the shops connected to the car park was made.

If I sent a section 18 request to the PPC, would they have to provide details of the other time my car was parked in the car park? Or could they just claim that they don’t / no longer have a record of that? It would have been just within the last 12 months. Generally, are section 18 requests recommended? Asking them provide evidence of the land ownership etc.

My defence has to be submitted in the last week of September, I go away for a week on Friday so if I need to do a section 18 would need to get it sent off before then.

Any advice and / or assistance on this would be gratefully received.

Redx

be better if you tell us the car park location (Peel Centre ?) , PPC and any solicitors dealing (like BW LEGAL or WH ?)

if a judge aske the defendant who was driving, then that person better not commit perjury (it was asked and answered in a recent loss in court reported on here or on pepipoo)

if you were speeding down a road week after week , with others doing it too, then you got caught one particular week, you cannot claim immunity due to "getting away with it" previously, or others doing the same , so no , that is no defence

each case is assessed on the signage in place ON THE DAY , that formed the contract and you unwittingly agreed to when stopping on private land, even if there was none previously

you can ask for INFORMATION in a part 18 request, but they may not reply or may try to "drop" it on you on the day

if this happened in england or wales, if they followed POFA2012 they can hold the keeper liable, so any KEEPER defence will be relying on them failing POFA2012

as for a link to a thread, change the link to a dead link, replacing http with hxxp , we will do the rest

cordsandcag

Ok cheers

It's Excel Parking / BW Legal and the car park is Broomhill in Sheffield.

hxxp://forums.pepipoo.com/index.php?showtopic=106484&st=0&p=1183662&#entry1183662

Above is similar

Redx

here is your clicky link

http://forums.pepipoo.com/index.php?showtopic=106484&st=0&p=1183662&#entry11%2083662

although this thread below is Excel at the Peel Centre, you will see the type of defence you need (and part 18 request) posted around posts #39 and 40 by ho87

learn from it and then proceed with your own draft which may be from both, or not

https://forums.moneysavingexpert.com/discussion/5505546

cordsandcag

Thanks for your help

Coupon-mad

I know you've found at least one, but do read every defence to BW Legal claims that you can find, going back 20 pages or so (really! Not just looking for the same car park, ANY BW Legal ones will do, even VCS ones) on pepipoo.com forum:

http://forums.pepipoo.com/index.php?showforum=60

You will see a pattern and you will know how to put together a draft defence. Also read Bargepole's post linked by me in the NEWBIES thread here on mSE (the sticky thread near the top) where I have a heading saying 'Small Claim?'. Bargepole's post tells you what paperwork arrives when and how to complete it, which boxes to tick.

Can I go down the route of claiming that the PPC cannot identify who was driving the car? From reading some more recent posts this seems like it may be risky (Keeper liability etc). If I went down this route and it end up before a judge, could they compel me to reveal the identity of the driver?

Yes you can and should defend as the keeper, stating the claimant has offered no evidence as to who was driving. The point being, Excel do not use the right wording for 'keeper liability' therefore...a keeper can't be held liable. They cannot presume the keeper was the driver either but they will try that.

So, if asked who was driving by the Judge at the hearing (pretty rare but he/she might ask) you can truthfully say that it is not for you to make the claimant's case for them and they've failed to show who the party was who could be potentially liable. In any case this was months ago and your car has more than one possible driver. It could be driven by anyone with fully comp insurance (e.g. me) as well as those specifically named on the insurance, who Excel do NOT KNOW.

Could I claim that as my car had previously parked in this car park for a similar amount of time, and at a similar time in the day on a Sunday, and no charge / fine had been received, then it was reasonable to expect (or a precedent had been set) that my car could be parked there again without charge or fine i.e. that the person driving my car did not know that they had to pay on a Sunday?

I would not run with that. Not getting a PCN on one day does not mean any PCn issued on another day is unfair. You'd be best concentrating on 'no keeper liability' and 'no standing' and 'differences between this and the Beavis case' and 'unclear signs'.

There are shedloads of defences to crib from on here (search this board for 'Excel defence') but as I said, even more on pepipoo forum where we can see you've started to look. Take your time, read lots and then show us your draft & we'll help.

On either forum, a warning:-

DO NOT REPLY to any private message from a poster without THOUSANDS of posts to their name, even if they are ostensibly offering 'help'. You never know who they are/what their agenda is, and on both forums we help on the open threads, not off-forum in secret.

cordsandcag

Many thanks for both of your replies, really helpful

cordsandcag

I've had a look at the defence in the link and will be able to use pretty much all of it. I was planning to change point 6 from:

'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.'

To:

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 Claimant has failed to provide proof that the Defendant was the driver at the relevant time. The Claimant is put to strict proof in this respect.

Does that seem ok?

Also, is it always worth leaving a point about the signage in the defence?

Any advice would be appreciated.

Coupon-mad

Does that seem ok?

I would prefer 'failed to provide proof of the identity of the driver almost a year ago' purely because your version reads like you are trying to hide something (not sure why, it just does, and a Judge might sniff that too and might then ask!).

Also, is it always worth leaving a point about the signage in the defence?

Always, always - that the crux of the alleged contract you MUST debunk. PPC signs very often hide the 'parking charge' £sum in small print, which is in breach of the Consumer Rights Act 2015 re 'transparency' of terms.

cordsandcag

Ok, thanks for the advice