County court letter assistance

Logblahar

Just to clarify, should I be including in my revised defence the Rebuttal points on their woeful particulars as pointed out in post 56 in a new opening paragraph about the new PoC and leaving the rest of my old defence as is?
Or do I need to adjust my old defence points in reaction to their POC. ( pointing out all faults in their POC)

Logblahar

https://www.dropbox.com/s/d7o6g002x1z2bcn/scanjob_20180405161123.pdf?dl=0

Sorry these were still in the scanner. Oops

Logblahar

I have started to put together an amended defence. Am I going along the right lines or should I be doing it differently. I appreciate all assistance.

Defendant

Amended Statement of Defence.

The claimants have been ordered to submit further and better particulars and, as a serial litigant represented by a professional firm of solicitors, this clearly highlights their unreasonable conduct of this litigation for which costs will be sought pursuant to CPR 27.

In response to a General Form of Judgment or order from District Judge Wright at the county court Skipton, the claimant served amended particulars of claim that were to address matters required by CPR 1998 PD 16.7 and the legal basis on which it claims the defendant is liable to it.

The Particulars of claim failed to comply with the order in that they have not established any legal basis on which the defendant may be liable for any charge.

It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. Specifically that the claimant are not relying on PoFA in order to invoke keeper liability and have not provided any evidence of who was driving, therefore there is no legal basis to the claim that the defendant is liable for. Pursuant to the order of judge wright, and due to their failure to comply the case should stand struck out. With costs awarded due to the Claimants unreasonable behavior.

2. The Defendant was not the driver of the vehicle on the date in question. The Claimant is put to strict proof and to date no proof has been offered. (defendant has CCTV evidence that on said date and time of event they were elsewhere).

3. The claimant has no right to assert that the defendant is liable based on reasonable assumption 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"(2015).

3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant suggests that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and 4.2.2. 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.
3.3. 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.

4. The defendant also denies that the keeper should be held liable for the actions of the driver.
A person is not generally liable in law for the actions of somebody they have allowed somebody else to use. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.
CPS v AJH Films is only applicable in an employee/employer situation. This was not such a situation as there was no contractual relationship.
The case Elliott v Loake Crim LR 36 is a criminal case and not the same as this case.

Coupon-mad

Pursuant to the order of judge wright,

Please give her capital initials.

Elliot v loak

Look up the case to spell it correctly and get the case number.

[Deleted User]

Look up the case to spell it correctly and get the case number.

and read it too (it's short). It'll help you understand just why the judge found in that case that the keeper was the driver (and why your case is likely to be different)

bargepole

And stop using a mobile phone to post on here, resulting in all those !!!8217; symbols appearing in the text.

Phones are for making phone calls.

Laptops and PCs are for online browsing and posting.

Logblahar

I only have an iPad sorry. Don't have a PC.

Umkomaas

Logblahar wrote: »

I only have an iPad sorry. Don't have a PC.

In which case, please follow this to avoid the gobbledygook:

Please switch off your 'Smart Punctuation' on your iPhone/iPad to avoid clogging up your posts with !!!!8820; and the like. Posts become difficult to read as every apostrophe used converts to exclamation marks and numbers.

Go to 'General' > 'Keyboard' > 'Smart Punctuation' and flick the switch off.

Switching off seems to have no negative affect on any other use of the keyboard.

Logblahar

Great. Thanks for the assistance.

Logblahar

Looking back at Post 23 and my original defence. Do I still keep points 1 and 2 or take them out now I have received new POC from claimant?