Parking dispute help. County Court Claim issued, my DEFENCE in post #63

nosferatu1001

Complain to the ICO now
They had ONE month not two to respond, and they havent included everything - you know this because...

They had 30 days to give you all documents OR explain why they cant. IF they diddnt pick one, then theyre already out of time .Of course they ignored your response. They dont HAVe to respond to a SAR response

Mention it again above. State that as per your letter of x, their SAR of Y date is not just incomplete but it is misleading as it states POFA is relevant when they are vcompletely aware this is land owned by a traffic authority (X council) and so can NEVER be relevant land.

neopl

Hello again,

Looks like this is the end of the line I received the Claim Form from the County Court. EDIT: the claim Issue Date is 15 FEB 2019 Following the NEWBIES thread, I completed the online Acknowledgment of Service and set out my defense. My defense is for my own space, and so I modified the defense written by Johnersh, it can be found here https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032
Unfortunately, I never signed a tenancy agreement for the place where I currently live, so I cannot rely on it fully. Pleas see my defense below, I will be extremely grateful if some kind soul would help me ensure that everything is as it should. Please note, the text in green is what i my self have added. The bold text, are my comments/questions which I hope someone could help me clarify. Also, should I state anywhere in my defense that no grace periods have been observed? VCS is an IPC member so I don't think the grace periods apply to them?





[FONT=&quot]DEFENCE[/FONT][FONT=&quot]

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant’s pre-action correspondence, namely, response to The Defendant’s Subject Access Request has been incomplete, and deliberately misleading. The Claimant’s stated their reliance on Schedule 4 of the Protection of Freedoms Act 2012. The Claimant cannot rely on Schedule 4 of the Protection of Freedoms Act 2012 as the land on which the car was parked on is not relevant land under the POFA definition due to it being council owned. The Defendant's requests for clarification have been ignored. Further to the above, the disclosure of documents by The Claimant has been a month late, which goes against section 5.2 of the Pre-Action Protocol for Debt Claims, which states that the documents must be provided within 30 days of the request.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXYY which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it. There are no named drivers on the policy, but anyone with insurance in the UK can legally drive the car -should I state this?

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof. [/FONT]
[FONT=&quot]
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA") [/FONT]
[FONT=&quot]
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements. [/FONT]
[FONT=&quot]

[/FONT]
[FONT=&quot]
5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.[/FONT]
[FONT=&quot]Should I leave 5.1, 5.2, 5.2.1, 5.2.2, and 5.3 in? They all refer to POFA, considering the point I made earlier about the land being council owned and therefore not being relevant land under POFA, I’m not sure if I should leave these in, or not?[/FONT][FONT=&quot]

[/FONT]

[FONT=&quot]This entire section below I am not sure about. I do not have a tenancy agreement where I currently live.[/FONT][FONT=&quot] What should I write here instead? Is living at the address and being able to provide documents with my name and address enough? I can provide bank statements, DVLA Car Registration Certificate, Council tax bills.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]Authority to Park and Primacy of Contract[/FONT][FONT=&quot]
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.[/FONT]

KeithP

neopl wrote: »

I received the Claim Form from the County Court.

What is the Issue Date on your Claim Form?

neopl

KeithP wrote: »

What is the Issue Date on your Claim Form?

The issue date is 15 FEB 2019.

KeithP

neopl wrote: »

The issue date is 15 FEB 2019.

With a Claim Issue Date of 15th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 20th March 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence, and good to see that you are not leaving it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

neopl

Many thanks KeithP for the timeline.



Anyone have any thoughts on the my defense from post 63?



I'm a bit worried that this thread is going to be completely overlooked considering the tittle is rather trivial (I made it back when I knew very little and and was silly to of not read the newbie thread!), but unfortunetely I can't seem to change the tittle now.

Le_Kirk

unfortunately I can't seem to change the tittle now

You need to be on a lappy or PC, phones don't work. On your first post, click the edit button and then Go Advanced, scroll down a bit and you can modify or add a title.

neopl

Le_Kirk wrote: »

You need to be on a lappy or PC, phones don't work. On your first post, click the edit button and then Go Advanced, scroll down a bit and you can modify or add a title.

Thanks for the tip, but unfortunately it only changes the title of the first post, but the tittle of the thread on the forum page remains the same I might have to go against the newbies thread and make a new thread. I'll probably do that in a few days if still there are no responses

Coupon-mad

No new thread please. We really won't be able to help you in isolation.

You can ask Crabman to make it possible for you to edit a title, I think, if it's not showing as an option.

neopl

Coupon-mad wrote: »

No new thread please. We really won't be able to help you in isolation.

You can ask Crabman to make it possible for you to edit a title, I think, if it's not showing as an option,=.

(I did message him a day or so ago, no response)
Hello again,

Just hoping against luck that someone will be willing to look at my defence - (post #63). I'm getting pretty resigned to accepting that I am probobly not winning this case... Sad thing is, that as much as I would love to, I do not have unlimited time my self to research everything and become an expert, so I am hoping that what I've done so far, and my pointed questions will be enough to steer me in the right direction.


edit: Actually, I'm just considering paying up. Though probobly not possible anymore as I've done theacknowledgment. Time after time here I've been told on here that even if the case is lost, it will not affect credit history and won't go on my record. Reading the court papers it clearly states that if CCJ goes against you, it will affect credit history as it will go on my record, are the courts lying?