Claim defence

completelyfubar

Thank you Castle, that does bolster my assertions to the validity of the 'agreement'.
I'll put reference to this and indeed Section 44 of the Companies Act 2006.
Thanks again

completelyfubar

This SA is getting bigger... need to try and keep it concise!
Am I right in saying that I can bring the SA and cost schedule to the hearing or should I drop a copy off at the courts beforehand?

claxtome

Am I right in saying that I can bring the SA and cost schedule to the hearing or should I drop a copy off at the courts beforehand?

My opinion / knowledge from my appearance at court and what I have read:

1) Your costs schedule should go to the court and Claimant at least 24 hours before the hearing.

2) The SA is also best to go to the court before the hearing. (Also email to Claimant is best but not mandatory. If not sent hand a copy to them on the day)

You are the defendant in a small claims so the rules should be more relaxed

nosferatu1001

SA shoudl be no more than a page of A4, or so. Its a summary

Send to court and claimant 3 days before
Costs send at least 24 hours before.

completelyfubar

Thanks for the reply, does that mean post 3 days before to ensure delivery on-time or to get there 3 days before? If the latter then I need to drop the SA off tonight or tomorrow.

nosferatu1001

Get there 3 days before

Email is fine. Its one page.

completelyfubar

Damn, 3 working days before is today
and I am still two pages in size....

nosferatu1001

I did not say 3 working days
I said 3 days.

completelyfubar

Sorry, my mistake, thanks for the clarification ... phew!
I will put the two page SA up asap in the hope that I can reduce it's size.

completelyfubar

In the County Court
between
UK Car Park Management Ltd
vs
Me

D1GF3Q4F Hearing: 16th Jan 2018 10:30am
________________________________________
Skeleton Argument of ******** (defendant)
________________________________________
Opening statement - Keeper Liability
I, ********, was not the driver of the vehicle ******** at the time of the alleged incident and therefore defend this claim as the registered keeper under the Protection of Freedom Act 2012 (POFA).
The claimants Witness Statement (GSL1) (9) states: “The defendant avers that they were not the driver” then references “The criminal case of Elliot v Loake 1983”. This is not a criminal case therefore the claimant can only pursue the Registered Keeper under the strict rules of POFA. I draw to the courts attention the written words of Sir Henry Greenslade, chief adjudicator POPLA annual report 2015:
“there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort"

SUMMARY OF PRIMARY DEFENCE POINTS
1. No Valid Contract/Agreement – No enforcement Authority
GSL1 (5) states: “my company is not obliged to provide the defendant with the contract”.
This is incorrect and contrary to the Practice Direction 16 7.3(1) which states:
“a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing” .
GSL1 (15) also states: “the agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate/manage the relevant land on the behalf of the Landowner”
The ‘agreement’ evidenced has the ‘leaseholder’ blanked out and only one signature, again, partially blanked out. This is not a legally binding document as Section 44 of the Companies Act 2006 states:
“(2) A document is validly executed by a company if it is signed on behalf of the company—
(a)by two authorised signatories, or
(b)by a director of the company in the presence of a witness who attests the signature.”
I challenge that the lone signatory (client) on that document is not even the Landowner or Landlord for the carpark area and that UK Car Park Management (UKCPM) do not have any authority at all.
I also challenge that UKCPM do not conduct any due diligence on clients using their ‘i-ticket’ phone application; to confirm they have the legal right to enforce parking terms.

2. Non-Compliant Signage – No Contract with Driver.
GSL1 states (15): “The contract is between my Company and the defendant” and again (31): “The defendant decided to park, having read the sign”.
These statements are false as I was not the driver. Any contract (if read and accepted) could only be between UKCPM and the driver; further they state (19):
“My Company relies on the case of ParkingEye v Beavis 2015” and that “a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein”. Also (20): “The signs on the land are clear and unambiguous”.
The IPC & BPA Code of Practice (CoP) requires any signs to clearly display the terms and conditions (T&C’s); my defence and photographs clearly show that the sign is high up on the wall and the lettering of the T&C’s is far too small to read even when standing in front of it and impossible to see/read if sat in a vehicle. The signage was (and still is) woefully inadequate & non-compliant with IPC & BPA CoP.
There is however a ‘prominent’ & ‘clear’ contradicting sign only a short distance away that has been in existence for many years.
Further, under IPC & BPA CoP and reinforced by Sir Henry Greenslade in the POPLA annual report 2015;
“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action”
I contend that 29 seconds (time difference between the claimant’s two photographs) is an inadequate grace period.

3. No Evidence/Proof the Vehicle was Parked.
GSL1 states: “The defendant alleges he was waiting not parked”. This is a false claim as I, the defendant, was not the driver and have never made this statement. GSL1 (8) follows with the definition:
“‘To Park’ is to place or leave a vehicle at a certain location for a period of time”.
I will use this statement in my defence. The two photographs are only 29 seconds apart and show only the rear of the vehicle and obscure the driver’s seat. The driver could easily have been in the vehicle waiting for a parking space to be vacated or giving way to cars or pedestrians. This is a very busy yet small carpark and is regularly at full capacity due to Tesco and other retail shoppers.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.
Signed:
Date:

---

I'm torn with how to reduce this in size without loosing the impact of the 3 main defence points. I have opened with the Keeper liability but maybe don't need to? I have see some SA's that must be 4 pages or more and basically tear down the claimants WS, this is only 2 pages and I have plenty more to say 'verbally' that rebuts their WS.