Gladstones Claim form

Quentin

You cannot be forced to name the driver!

Lee1000

Do you think that using a parking spot not matching the permit because no valid parking spots were available is a reasonable defence? If not, How can I justify the vehicle being in the wrong parking spot?

Quentin

Lee1000 wrote: »

Do you think that using a parking spot not matching the permit because no valid parking spots were available is a reasonable defence? If not, How can I justify the vehicle being in the wrong parking spot?

See #18 .

Lee1000

Okay. Thank you

Lee1000

Revised defence based on the comments above


Preliminary

1. The Particulars of Claim lack specificity to the point where the Defendant is prejudiced and unable to prepare a full and complete Defence. Accordingly, the Defendant reserves the right to seek from the Court permission to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Defendant notes the Claimant's failure to engage in meaningful pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark [xxxxxx] which is the subject of these proceedings. The vehicle was insured with a number of family members being permitted to use it.

4. It is admitted that on [xxxxx] the Defendant's vehicle was parked in allocated space number marked xxx at the [Address xxxxxx].

5. It is not admitted that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6. 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")
6.1 Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.1.1 there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort
6.1.2. It has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
6.1.3 The Defendant avers that the Claimant has not complied with the relevant statutory requirements.
6.1.4 This case can be distinguished from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.
6.1.5 PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

7) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the British Parking Association (“BPA”) Code of Practice (“CoP”) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. The charge was judged necessary to avoid overstaying. None of this applies in this case. The charge is an unenforceable penalty based upon a lack of commercial justification.

Failure to set out clear parking terms

8. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.
8.1 At the time of the material events the signage and lighting were too deficient to reasonably convey a contractual obligation.
8.1.1 The car park surface was strewn with paper and empty coffee cups, making identification of specific parking bays difficult to identify
8.1.2 In a covered car park which was badly lit, the driver has mistaken a parking bay marked xx with a parkinbg bay marked xy
8.4 The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory.
8.5 The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

Authority to Park and Primacy of Contract

9. 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.
Accordingly it is denied that:
9.1 There was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2 The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

10. 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.
HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
The Defendant believes 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.

11) In light of the foregoing, it is submitted that the Claimant has no cause of action, and has no evidence that the Defendant was in breach of any contractual terms, whether expressly, by conduct, or at all.

[Standard statement of truth and sign off etc]

claxtome

Others may have other comments.
Here are mine:

You mention both IPC CoP and BPA CoP.
The PPC can't be in both.
If it is UK CPM then it is IPC.
http://www.bmpa.eu/company_guide_t_to_z.html

Check for spelling mistakes in your defence. "parkinbg" for instance.
Maybe others.

HTH

Lee1000

Thank you for your comments.

I have mentioned that there was litter and empty coffee cups on the car park floor. This is what the driver told me, but I was not there. Is it okay for me to put that in my defence?

claxtome

I have mentioned that there was litter and empty coffee cups on the car park floor. This is what the driver told me, but I was not there. Is it okay for me to put that in my defence?

I would leave it in OR leave for your Witness Statement up to you.

Lee1000

I'm a bit confused about the witness statement. I wasn't there, so what can I say?

Quentin

#2 in the Newbies FAQ thread covers the witness statement

And do a forum Search to see lots set out in threads to give you more insight