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nosferatu1001

Your defence does NOT, unles syou are EXPLICITLY told otherwise, include any documents such as photos. It is just the text of the defence

You need to point out that it isnt unreasonable to not name a driver as if Parliament thought tos, when drafting POFA they could have compelled a keeper to do jus ttha t- same as is in place with S172 of the RTA. Having authority to drive a vehicle does not mean the driver had autority to enter any number of unknown contracts with terms unknown ot the kepeer, on the keepers behalf, and this is clearly the claimant struggling to come up with a cause of action when they have chosen not to use POFA2012. The claimant is put to strict proof that the driver was authorised to enter contracts on the keeper behalf.

You should also point out that these PoC are clearly from another claim, and you are embarassed to have to respond to them.

Lastly, this is an AMENDED defence. You take your original defence, cross out anything you are removing, and add in say RED anything you are adding.

muth

Thank you. I've tried putting a tracked change version up but couldn't get it to work. I'm getting confused between what should go in a defence and a witness statement. I've been holding further detail back to put in the witness statement to keep the defence as brief as possible. Is this not the right thing to do?

nosferatu1001

A defence is a set of LEGAL ARGUMENTS as to why you are not liable

The Witness Statement is a set of FACTS known to you, or reasonab;ly known to you, abou the events surrounding the claim, plus other evidence to back up your assertions about what happened

So a defence says "The D is not liable because no valid Notice to Keeepr was ever served, which is a requirement to engage keeper liability under..." and a Witness Statement would say "I never received a NtK, despite having been registered at this address for X years and having no known postal issues"

muth

Hi
I've tried all sorts to try and keep the tracked changes in the document to no avail. I've spoken to the court and there is a backlog of two weeks, although my request for an extension has been submitted to the judge. So I'm gong to email this to them now with a note to say that, if the judge does allow me an extension, I would like to be able to make changes to it.

Here is the amended defence version 2. Thanks for your help.

IN THE COUNTY COURT AT SKIPTON CLAIM NO


BETWEEN: EXCEL PARKING SERVICES LIMITED Claimant

and

Defendant


AMENDED DEFENCE



1. It is admitted that Defendant is the registered keeper of the
vehicle in question.

2. The Defendant cannot remember who was driving the car, but whoever it was, would not have deliberately failed to pay and display a ticket.

2.1. It is not a car park that the various drivers of that car regularly use, so it is quite possible that a genuine oversight occurred in a failure to pay and display a valid ticket at a cost of £0.50. If this was the case it would have been a genuine human error that cannot be punished by a disproportionate penalty.

2.2. With regard to punitive parking charges which engage and breach the 'penalty rule', the Defendant relies upon the Consumer Rights Act 2015, the Consumer Protection from Unfair Trading Regulations 2008, and the Supreme Court's findings about penalties/punitive charges and the application of the penalty rule in most parking charge cases, unlike the rare decision they came to in ParkingEye v Beavis [2015] UKSC 67 (Beavis) which, far from assisting the Claimant, positively condemns its charge as unrecoverable.

3. The Claimant has provided insufficient evidence to demonstrate that it has/had sufficient authority to issue parking charges and enforcement proceedings in its own name, and has not demonstrated a clear chain of authority from the landowner. The extract of the lease annexed to the Particulars does not do this, and, the Defendant submits that, a witness statement, signed by a director of the Claimant, which refers to the demised premises as “Cavendish Retail Park” rather than “Car Park at Cavendish Retail Park”, is dated after the lease has expired, purports to give the leaseholder the same rights (with limited exceptions) over the land as the Landowner, and has the same point repeated at 5 and 6 is hardly reliable evidence.

4. 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 in the Protection of Freedoms Act 2012 (POFA), yet the Claimant states in the Particulars of Claim (point 2) that it does not intend to rely on Registered Keeper liability under the POFA.

4.1. Notwithstanding the above, it is not admitted that the Claimant has complied with the relevant statutory requirements therefore there is no keeper liability under the POFA.

4.2. The Claimant has submitted that the keeper was the driver, and the Defendant expressly denies that there is any reasonable presumption in law that the keeper is the driver. (Michael Greenslade 2015.) The Claimant also submits that the keeper, if she was not the driver, is being unreasonable in not identifying the driver. The Defendant submits that, when drafting the POFA, Parliament could have compelled the keeper to name the driver if it thought it was unreasonable not to as they did in Section 172 of the Road Traffic Act 1988.

4.3. The Defendant submits that the Claimant is wrong to suggest that having authority to drive a vehicle gives the driver authority to enter into any number of unknown contracts with terms unknown to the keeper on the keeper’s behalf. This is clearly the Claimant struggling to come up with a cause of action when it has chosen not to rely on POFA. The Claimant is put to strict proof that the driver was authorised to enter into contracts on the keeper’s behalf.

4.4. The Claimant is known to seek to rely on the case of Elliott v Loake [1983] Crim LR 36, in order to mislead the court that this case created a purported precedent that amounts to a presumption that the registered keeper is the driver. In that case, the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil contractual matter, as decided in several county court decisions where the Judges dismissed Elliott v Loake as not applicable.

5. The claimant may seek to rely on the Beavis case. This claim can be easily distinguished from Beavis, which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the unusually compelling legitimate interests of the landowner (at that location only) in encouraging a turnover of free parking spaces. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the admitted driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case, and the Supreme Court was at pains to state that each parking charge case would necessitate individual consideration of the facts, and that the penalty rule was certainly engaged in such cases.
4.1. Further, in Beavis at the Court of Appeal stage, the Judges held the case of a free licence to park under certain conditions, was 'entirely different' from most ordinary economic transactional disputes. Parking charges cannot exist merely to punish drivers, and this Claimant has failed to show any comparable 'legitimate interest' to save its charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found were still a relevant and adequate test in less complex cases.

6. The Claimant's solicitor, BW Legal, is a notorious, serial 'robo-claim' firm, whose cosy relationship with various rogue parking companies, and unacceptable conduct in pursuing unjustified and inflated parking charges was recently 'named and shamed' in a Parliamentary Second Reading of the Private Parking Code of Practice Bill, where one MP revealed he had reported this firm to the Solicitors' Regulation Authority to investigate. The Claimants themselves have also been named and shamed by MPs on several occasions, regarding their predatory and aggressive business practices, woeful signage and lack of evidence of any agreed contract.

6.1. The revised Particulars of Claim in this case, submitted further to the order dated, 1 May 2018 in themselves are evidence of the Claimant’s and BW Legal’s lack of respect for the court process. They are obviously lifted from another claim; point 29 refers to an unsuccessful appeal by the Defendant and a copy of a response annexed to the Particulars. The Defendant has not made an appeal to the Claimant and it is embarrassing to have to respond to this. Also annexed to the Particulars is a “Leaseholder witness statement”, signed by the Commercial Director of the Claimant and dated in 2018 to the effect that the “site” is leased to the Claimant. It is the Defendant’s belief that the Claimant’s lease on the car park expired in July 2017. This is not the only error in this document.

6.2. The issuing of this claim appears to be an attempt to intimidate the Defendant into paying a punitive and disproportionate 'charge' for which the Defendant is not legally liable. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by making an extortionate and unjustified demand for £243.32 for an alleged failure to pay £0.50 on the day in question.


7. The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The Claimant was also formerly a member of the BPA, whose requirements it also did not follow. Therefore no contract was been formed with the driver to pay £100, or any additional fees or legal costs charged if unpaid within 28 days.

6.1. As a member of the British Parking Association (BPA) in 2012, this Claimant was banned by the DVLA for several months for 'a significant breach' of the Code of Practice.

6.2. This ban was reported by the DVLA in a Freedom of Information reply in the public domain, as relating to unacceptable and misleading wording on its signs, which attempted to suggest a registered keeper could be liable, before the POFA was enacted. Implying that a keeper could be liable/responsible for the actions of a driver was identified by the DVLA as so serious a matter that the Claimant was banned from obtaining registered keeper data for three months.

8. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

7.1. It is averred that this Claimant has failed to make reasonable efforts to make the terms and conditions in any of its car parks clear and prominent. It cannot be assumed that anyone entering the car park in question was aware of or agreed to any 'parking charge' terms. The Claimant is put to strict proof that the driver (an unidentified party) saw, read and agreed to a contract upon which the Claimant is relying.

7.2. The court's attention is drawn to the words of Simon Renshaw-Smith (previously known as 'Captain Clampit') in Excel v Cutts (2011, Stockport County Court), where Excel's signage was held to be deliberately misleading and deceptive, hiding any 'contractual charge' in the smallest lettering.

7.3. The unclear signage used universally by the Claimant was exposed in an article by the Plain Language Commission, which reported that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne, ''The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts''. It is averred that this Claimant continues to demonstrate a complete lack of respect for the court process, and a disregard for the rights of registered keepers in 2018. What is plain is that the repeated exposure in Parliamentary debates condemning this Claimant and its solicitor is wholly justified.

9. The Claimant is attempting to claim additional charges such as legal costs of £50 and “contractual costs” of £60. This sum of £60 has, in earlier correspondence to the Defendant from BW Legal been referred to as “initial legal fees”. The Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred.

10. If the driver on the date of the event was considered to be a trespasser, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum. The Claimant has not produced evidence of failure to “pay and display” by the driver.

11. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts claimed. In the absence of strict proof capable of rebutting the above points of defence, the Defendant submits that the Claimant has no cause of action whatsoever against the Defendant registered keeper, and the Defendant invites the court to exercise its case management powers to strike the claim out without a hearing, since it has no prospects of success.


I believe that the facts stated in this Statement of defence, dated …….2018 are true.

Coupon-mad

Make sure you also email a copy to Excel, of course. Do it NOW, stop delaying.

muth

Do you think it's ok as it is then without any further amendments, CM?

Coupon-mad

It's Skipton, you have it nailed!

muth

Thanks I hope so. !!!128522;

Coupon-mad

Can you still do an advanced edit on your first post and change the title?

I would. The single word: ''help'' tells us nothing and is lost in the thread list.

muth

Ok I'll try, bit as you might have realised I'm not that up to speed on techy things.