minster baywatch

Coupon-mad

I will reply later with more to add, if needed, so hang about and don't submit this yet. I can think of more stuff!

We assume you have acknowledge service of the claim within 14 days on MCOL, buying yourself more time?

debs.c

ok thanx, yeah done on 03/01/2017, claim form received on 29/12/2016.

debs.c

hi, any more ideas? i would like to post my reply in the next week, got lots on after that, also, if i have a reply from the courts when im in hospital 21feb-12ish march, and the letter doesnt get read immediately, do u think i would be penalised? Thanx

Coupon-mad

We well have a look, sorry the forum is so busy it slipped down. Your defence can be stronger than that draft so do wait a few more days.

After submitting your defence this month a Directions Questionnaire N180 will arrive in February (ignore the one Gladstone will send you, don't fill that in, do this when you get to that stage:

https://forums.moneysavingexpert.com/discussion/5585598

Post #9 by bargepole there.

Anyway let's work on that defence and if your thread slips down to page two or three again within the next few days, please reply again and remind us!

debs.c

ok, ill check again tomoz, thanx

debs.c

friendly reminder, really want to send the letter this week. there is a chance that the N180 letter will go u-opened on time as i go in hosp in feb, would that be a prob, thanx

Coupon-mad

IN THE COUNTY COURT
Claim No.:
Between
Minster Baywatch Ltd
(Claimant)
-and-
[YOUR NAME]
(Defendant)
_____________________________________________________________________
DEFENCE STATEMENT


1) It is admitted that the Defendant, XXXXXX XXXXX, residing at xx xxxxxxx xxxxxxxxx xxxxx is the registered keeper of the vehicle and was the driver on the day in question.

2) I have a Blue Badge and it is not disputed that this was displayed at all times. This is a Motability vehicle which would have been clear to the Claimant at the outset as this is stated within the data obtained from the DVLA.

3) The vehicle was at all times properly parked with the Pay and Display ticket on display and it is believed this is common ground, along with the fact that it was neither causing an obstruction nor was it unauthorised, nor was payment of the tariff not made.

4) It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.

5) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in a thinly-veiled attempt at double recovery. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

6) The Particulars vaguely state: ''parking charges and indemnity costs if applicable'' which does not give any indication of on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

7) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims.

8) I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

9) As the keeper/driver of the Motability vehicle I would like to explain how this event occurred (facts already known to this claimant as they acknowledged my appeal). This is a local cinema car park and a lady drew my attention to the new parking system. She could see that as a wheelchair user I would be unable to reach the keypad which was mounted too high up. To assist me she inserted my Vehicle registration number (VRN) into the machine. However, a mistake was made and the registration number was entered incorrectly. I was not aware of this at the time, nor was I at fault.

10) The first letter received by me for payment of an astonishing £100 parking penalty was received on 13.08.2015. However, the parking event occurred on 23/06/2015 so the delay made it far more difficult to deal with meaningfully by appeal. This has now reached the disproportionate amount of £239.25 with no explanation nor justification.

11) I immediately responded by email on 13.08.2015 to state that no initial letter was received by me offering a reduced payment of £60. The response from Minster Baywatch, on 14.08.2015 stated that I would receive a reply by email within 10 working days. The Claimant did not respond. No reply was received, no explanation of my appeal decision, nor any further instruction nor any offer of POPLA (Parking on Private Land Appeals).

12) It is averred that this Claimant is in breach of the British Parking Association Code of Practice (BPA CoP) in numerous ways, including but not limited to the arrangements for disabled drivers, the requirement to comply with the Equality Act 2010 (EA), the requirement to deal with appeals in a timely manner and issue a POPLA code, and the requirement for ample, clear and prominent signage. This Claimant is put to strict proof of their full compliance with the BPA CoP in this case.

13) I would like to state that the BPA CoP - Version 6, October 2015 says that ‘providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people'. 27.2 ‘Reasonable adjustments to prevent discrimination could include lowered payment machines.' This has no been adhered to on this occasion and in not doing so is a breach of this Claimant's statutory (not just advisory) duties as defined under the EA Code of Practice for Service Providers. That statute's aims include: ‘harmonising the thresholds for the duty to make reasonable adjustments for disabled people...'

14) In the event that the court finds a contract may exist, I put the claimant to strict proof of a chain of contracts leading from the landowner to this claimant which enables this charge to be pursued in court against a disabled driver.

15) The alleged debt as described in the claim is an unenforceable penalty and discrimination (failure to make reasonable adjustments) as defined under the EA, making this just the sort of 'unconscionable' charge exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case).

16) There is no ‘legitimate interest’ lawfully possible to be argued in a case which comprises discrimination, so this case can be fully distinguished from the 'complex' and completely different Beavis case. Indeed, at the Supreme Court at 107 it was stated: ‘’In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.’’

17) In this case, the punitive charge term arising from the positioning of the keypad being inaccessible for wheelchair users and this Claimant's subsequent unreasonable refusal to cancel the charge on appeal, certainly does ''exclude a right which the consumer may be said to enjoy under the general law or by statute'' - namely my right to reasonable adjustments under the EA which protects me from detriment/harassment arising as a result of a feature of my disability.

18) It is denied that the signs used by this claimant can have created a fair or transparent contract with me as driver in any event. Like the keypad, the signs were also placed extremely high and in fact the terms could not be read. It is averred that there was no sign near the bay where I parked, where a wheelchair user could have read and accepted terms or even learned about the parking charge by which I would later be unfairly bound by unexpected letters weeks later.

19) Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and ”a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically”. Due to frustration of contract, where matters were indisputably outside my control, the contract was never made due to the fault of the Claimant making the keypad inaccessible and the charge should have been cancelled on appeal.

20) In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

21) If pleaded by the Claimant, I would state now that this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers and certainly not unfairly punish a disabled driver who was forced to ask a stranger to input the VRN into a keypad that was out of reach.

22) This claimant cannot save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in applying to simple transaction contracts such as parking cases and that it would be necessary to consider all the facts of any case.

23) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

24) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

25) On this occasion I ask the court to use its case management powers under CPR Part 3 to strike out the claim for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16. This was a parking ticket claim, struck out without a hearing due to Gladstones' template particulars being 'incoherent', failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.

I believe the facts stated in this Defence Statement are true.




…………………………………. (Defendant)


………………………………… (Date)

Coupon-mad

debs.c wrote: »

friendly reminder, really want to send the letter this week. there is a chance that the N180 letter will go u-opened on time as i go in hosp in feb, would that be a prob, thanx

No, as long as you are not hospitalised for more than a fortnight.

debs.c

thanx, can i just add one point please, in (9).........as a wheelchair user, and a very short person at [/B]4'5",.........( I just wanted to add this as i can stand)
so i send this by post not electronically? shall i include the emails and pics of the payment machine?
ok, i am scheduled to be in hospital for 2 weeks but hopefully it wont be that long, i will be laid up for months following the operation.

debs.c

thanx very much, letter ready to go but not sure bout sending pics?