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BW Legal / Excel - Court Defence
aiantyla
Posts: 1 Newbie
Hello
I received court papers at the end of August in relation to a PCN from January 2015. I did my acknowledgement of service and I was finalising my defence on the pepipoo forums to get it ready to submit / email today but unfortunately they have been down since yesterday.
I have been through a lot of threads here and at pepipoo and have my defence pretty much completed but I was just hoping if anybody here could give it a quick once over to make sure I have not missed anything or made any errors.
This is based on HO87's holding defence posted in another thread here with a few tweaks for my situation.
I am XXXXXXXX, defendant in this matter.
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 <Car> motor vehicle registration number <No Plate> on <Date> at <Location> that in turn resulted in the issue of a parking charge notice by the Claimant.
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.
3. I deny any liability in respect of the claim.
4. 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.
5. 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.
6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.
7. 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.
8. 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.
9. The Claimant is therefore put to strict proof that at the time of the alleged event they were 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.
10. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
11. 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.
12. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.
13. The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.
14. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.
15. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgement 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.
16. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
17. 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.
18. 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.
19. 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, wording and lighting 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.
20. In due course I will ask the court to consider the frequently overlooked test established by Roch 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.
21. 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.
22. 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”.
23. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
24. 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.
25. As the site in question is a Pay and Display car park the penalty clause is still in effect as was established in ParkingEye -v- Cargius.
26. It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
27. The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
28. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
29. The Claimant is put to strict proof of all his assertions.
30. In the above circumstances I respectfully ask that the court dismiss the claim
I thank you for taking the time to read this and I thank you again for any advice you can provide.
I received court papers at the end of August in relation to a PCN from January 2015. I did my acknowledgement of service and I was finalising my defence on the pepipoo forums to get it ready to submit / email today but unfortunately they have been down since yesterday.
I have been through a lot of threads here and at pepipoo and have my defence pretty much completed but I was just hoping if anybody here could give it a quick once over to make sure I have not missed anything or made any errors.
This is based on HO87's holding defence posted in another thread here with a few tweaks for my situation.
I am XXXXXXXX, defendant in this matter.
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 <Car> motor vehicle registration number <No Plate> on <Date> at <Location> that in turn resulted in the issue of a parking charge notice by the Claimant.
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.
3. I deny any liability in respect of the claim.
4. 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.
5. 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.
6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.
7. 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.
8. 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.
9. The Claimant is therefore put to strict proof that at the time of the alleged event they were 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.
10. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.
11. 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.
12. Further the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.
13. The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.
14. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.
15. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgement 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.
16. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.
17. 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.
18. 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.
19. 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, wording and lighting 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.
20. In due course I will ask the court to consider the frequently overlooked test established by Roch 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.
21. 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.
22. 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”.
23. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
24. 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.
25. As the site in question is a Pay and Display car park the penalty clause is still in effect as was established in ParkingEye -v- Cargius.
26. It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs.
27. The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
28. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
29. The Claimant is put to strict proof of all his assertions.
30. In the above circumstances I respectfully ask that the court dismiss the claim
I thank you for taking the time to read this and I thank you again for any advice you can provide.
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