Defence mitigating circumstances

nosferatu1001

Part 18 s request for info, and us not included in your defence. Do that after writing your defence.

Lamilad

They are claiming the case vine vs London borough of Waltham, can I counter this with beavis?

You counter by stating that case actually assists the defence....

This was a victory for the motorist who, like you, was in a distressed state, in need of medical attention.

The appeal judge found that, as she did not see the signs she could not have consented to the risk of being clamped.

Staceyplindfield

as I am collecting all my info, it appears the date they claim to of issued me a pcn is not actually the day the vehicle was there! (im just awaiting confirmation of this by the hospital), the incorrect date is actually on the particulars claim form too, could this be a major help to my defence? In which case most of the paper work is incorrect? Also can anyone clarify for me please....my defence im currently writing, with all details I send to the courts, or send bullet points of my defence then use my full defence in court with image's etc. Slightly confused as seen threads about skeleton defence?

Staceyplindfield

Can anyone read so far for please....


I am the defendant (name) and reside at (address)
It is admitted that I was the driver and registered keeper of vehicle (registration)
I deny any liability to the claimant on the following basis.

1) Mitigating Circumstances
a) My 6 year old daughter attended Accident and emergency department for urgent medical attention as she was in a distress I parked in a lay by.

2) No Standing
a) This distinguishes this case from the Beavis case, (parking firm) do not hold a legitimate contract at this car park, but as an agent. The claimant has no legal right to bring such a claim, which should be in the name of Landowner.

b) The Beavis case confirmed that it is a matter of a Trespass (not breach of contract). A parking firm charge has no standing as a non-landowner to pursue nominal damages.

c) Fairlie v Fenton establishes the situation regarding agency.
I) If theagent is acting on behalf of an undisclosed principal, they cannot sue
ii) if the agent is acting on behalf of a named principal, they cannot sue
iii)if the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk I've if they cannot be sued if they fail to uphold their part of bargain

3) Signage does not offer a contract with the motorist
a) The claim is for breach of contract however is denied any contract existed
b) The claimant states the signage on the land make it 'clear that vehicles must be authorised to park' but this is not agreed, the necessary elements of offer and acceptance to form a contract was not present. Although the claimant has not provided a signage map in the development, the signs are positioned where they are not clearly visual
c) The insufficient signs are placed high on a lamppost with foliage and a further sign placed on a side of brick wall - not facing the vehicles
d) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case as signs are illegible and non compliant with font and positioning, the charge not prominent or large lettering.

4) The provision is a penalty and not a genuine pre-estimate of loss for the following reasons
a) The claimant is not the landowner and suffers no loss as a result of a vehicle parking at the location in question.
b) The amount claimed is a charge and disproportionate to any loss suffered by the claimant and is therefore unconscionable.
c) The claimant has not provided copies of the alleged contract in the letter before claim or particulars of claim.
d) The claimant has not provided an explanation how the sum has been calculated, or how it has risen from £100 to £160, this appears to be added cost with no clarification and an attempt to double recovery which Protection Of Freedom Act schedule 4 specifically disallows and states the maximum sum that may be recovered.
e) The claimant has sent threatening and misleading demands which stated that further debt recovery action action would be taken to recover what is owed.

I believe the facts stated in this defence are true.

[Deleted User]

Start again.

Your initial paragraph should say background to the parking event NOT mitigation. By definition, mitigation is extenuating circumstances after an admission of guilt. Since you wish to deny any entitlement to ticket, that wording is best avoided.

Despite a distressing experience you haven't really gone to town on it, have you? Whilst I appreciate you will serve a witness statement, The particulars will have no detail of the roads, layby etc so you do need to paint the picture a little. You should set out all of that information, why you stopped, when you got to A&E and what the condition, if any, was. This is in fact much more important than recitation of case law only to dismiss it.

Naturally, your primary case will go on to be that you were waiting not parked.

Then, you take each one of the arguments in the particulars and deal with it, like an onion, layer by layer. Anything related to pre-estimates of loss needs to go where this is clearly a penalty and that is unlikely to be disputed.

Staceyplindfield

OK excellent thank you, il work on it today and repost. Can I ask is it 33 days from the claim date or date I acknowledged? And once the correct draft is done send that by email/ post? il repost draft first.

[Deleted User]

Read the response pack that arrived with the claim form. That sets out the relevant requirements clearly.

Further, since noone on the forum has seen your claim form or the covering letter it would be ill-advised to give you an exact date or steer on this.

Timings are calculated from date of service, which will be usually be slightly later than the date on the big stamp on the claim form.

Staceyplindfield

It has now been confirmed that the day I was at the hospital is not the date the pcn was issued, do I still go with all points raised above too or just the incorrect date?

Coupon-mad

Remove the entire paragraph 4, not sire where this old template came from:

4) The provision is a penalty and not a genuine pre-estimate of loss for the following reasons
a) The claimant is not the landowner and suffers no loss as a result of a vehicle parking at the location in question.
b) The amount claimed is a charge and disproportionate to any loss suffered by the claimant and is therefore unconscionable.
c) The claimant has not provided copies of the alleged contract in the letter before claim or particulars of claim.
d) The claimant has not provided an explanation how the sum has been calculated, or how it has risen from £100 to £160, this appears to be added cost with no clarification and an attempt to double recovery which Protection Of Freedom Act schedule 4 specifically disallows and states the maximum sum that may be recovered.
e) The claimant has sent threatening and misleading demands which stated that further debt recovery action action would be taken to recover what is owed.

You have such a short defence that it doesn't look as though you've read other ones from the NEWBIES thread; you haven't even denied liability for the added costs.

b) The Beavis case confirmed that it is a matter of a Trespass (not breach of contract).

No it didn't...not sure where this has come from?

Please have another look at the example defences linked in post #2 of the NEWBIES thread and adapt one.

Staceyplindfield

Apologies I have had another attempt, please check through , hopefully I can send it off today ......

I am the defendant (name) and was the registered keeper of vehicle (reg) at the time of the alleged offence.
I deny I am liable for the entirety of the claim.

Preliminary Matters
The defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the defendants vehicle was parked due to receiving medical attention at the hospital for my young daughter and was unaware of being parked within a private road.

It is denied that the vehicle was parked at (location) on (date) which can be proved.

The claimant has failed to include a copy of their written contract and no indication is given as to the claimants contractual authority to operate at (location)

Inadequate signage meaning no contract has been formed between driver/landowner

Defence Statement

1) My six year old daughter unfortunately had an earring stud enter her earlobe, which was swollen and painful. I immediately took her to the general practitioner who confirmed she needed urgent medical attention and reffered us to (hospital name /location) due to having 4 operations on this particular ear previously, (at a different location) my daughter became very stressed and was crying and scared as well as being in a lot of pain, whilst we were commuting to the hospital which is an approximate 20minutes drive.

As I was entering the road which leads to the hospital (name of road) on the left was a lay by, I parked in the space available and continued by foot to hospital via the one way system.
During this stressful time for both defendant and daughter, the parking signs did not stand out enough to believe I was parked what was otherwise thought of as a lay by on a residential road. I believed it was residential due to the homes being occupied.

The particulars of claim form issued on (date) by (company) has stated the vehicle incurred a parking charge notice on (date) for breaching the terms of parking on private land.

a) This date was incorrect as the vehicle was not at (location) on this date and can be proved by actual 'whereabouts'.

2) The driver did not enter any agreement of the charge and no consideration flowed between the parties and no contract was established.

a) The defendant denies that the claimant has the authority to bring a claim. The claimant does not own the land where the vehicle was parked, therefore lacks the capacity to offer parking.

b) The claimant has failed to provide strict proof of contracts leading from the landowner to the claimant.

c) Fairlie v Fenton establishes the situation regarding agency
I) If the agent is acting on behalf of an undisclosed principal they can sue and be sued
ii)If the agent is acting on behalf of a named principal they cannot sue
iii)If the agent acting on behalf of a principal whose name is not disclosed,then they can only sue if they assume the risk I.e if they can be sued if they fail to uphold their part of the bargain.

d) The claimant states the signage on the land make 'it clear' that vehicles must be authorised to park, but this is not agreed, the necessary elements of offer and acceptance to form a contract was not present

e) The claimant has not provided a signage map within the development.


3) The signage was inadequate to form a contract with the motorist and is barely legible making it difficult to read.

a) This distinguishes this case from the Beavis case as signs are illegible and non compliant with font and positioning, the charge not prominent or large lettering.

b)in the absence of 'adequate notice' of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of schedule 4 of the Protection Of Freedoms Act

c) The sign when entering the road are set high on a lamppost with foliage therefore not prominent and obstructing.

d) Further signage is attached to the side of a brick wall and and not obvious to the driver when entering the road as the signs do not face the direction or within eyeline view.

4) The claimants are known to be a serial issuer of generic claims similar to this one. HM courts service has identified over 1000 similar claims, I believe the terms for such behaviour is 'robo claims' and as such is against public interest.

a)The claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a local recovery agent which suggested to the defendant "subsequent potential enforcement is likely"

b)The claimant has added further additional charges which they haven given no evidence to how this charge has been calculated.

c) The defendant also disputes that the claimant has incurred £50 solicitor costs, not withstanding the defendants belief, the costs are in any case not recoverable.

d) The Protection Of Freedom Act paragraph 4(5) states the maximum sum that may be recovered from the keeper is the charge stated on the notice to keeper.


I believe the facts stated in this defence are true