Should I just give in and pay (details in post)

Beehj84

nosferatu1001 wrote: »

Yeah, it was a weekend.
Not eveyrone is around on a weekend

Why are you feeling concerned? Given this is YOUR defence, you need to be comfortable with it. I doubt if you are concerned it i sabout every element, so be specific. Noones going to go through a whole defence to work out what we think you might have an issue with. Waste of time.

Thanks for the reply - I realised that people might not be around, but I thought I would add comments across a timeline anyway, just in case. I didn't expect people to reply immediately of course, and I appreciate any response and help.

I'm concerned because it feels thin, and small, and I'm not confident that merely changing some details on the template and adding in point 7 is sufficient.

I'm also concerned that the template includes arguments which the claimant has already rebutted in their POPLA package, and whether I should be adding more detail to respond to all of those points, or whether to simplify the argument down to a specific point (considering the rest all "waffle" as IamEmanresu said).

I'm not confident with "legal-ese" and I'm worried that I'm not covering things conclusively enough, leaving gaps for these litigious sharks to attack. And I'm thus really concerned that I'm going to lose based on legal technicalities, even though any reasonable and justice-minded analysis would dismiss this off-hand. The sheer amount of legal arguments they used against me in the POPLA appeal were overwhelming, and gave the impression of "brute-forcing" the issue, covering every conceivable angle to paint me as culpable ...

... which all helps to make me, the defendant, forget that they're actually arguing for their right to fine me over and above and despite me paying their entire daily charge for parking on the day.

nosferatu1001

As you have identified the driver, point 9 *cannot* apply. It provides protection only to a Keeper-defendant, not a driver defendant

It covers standing, signage and that the full amount was paid as soon as was reasonably practicable, and before a charge notice was discovered on the vehcile / sent through the post. As such no ill intent can be construed, and any breach is de minimis and should not have been brought to court.

Beehj84

nosferatu1001 wrote: »

As you have identified the driver, point 9 *cannot* apply. It provides protection only to a Keeper-defendant, not a driver defendant

It covers standing, signage and that the full amount was paid as soon as was reasonably practicable, and before a charge notice was discovered on the vehcile / sent through the post. As such no ill intent can be construed, and any breach is de minimis and should not have been brought to court.

Thank you very much. I've made some amendments - does that look sufficient? Is it a mistake to add the bit about MPs in point 9?

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was parked on the material date in a marked bay at XXXX, and had a valid permit to be parked in that bay.

3. The Particulars of Claim state that the Defendant XXXXXXX was the registered keeper and/or the driver of the vehicle XXXXXXX;. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The Defendant attempted to pay but was frustrated by the Claimant’s payment system, which was unreachable by the Defendant at the time of entry. Further, no alternative payment methods like the obvious cash-based pay and display system were available for use within the facility. The full daily rate for the vehicle in question was paid a matter of hours after entry regardless – no attempt to avoid responsibility of payment occurred.

8. Given the full daily rate was paid as soon as was reasonably practical by the defendant, and before any charge notice was sent through the post, no such ill intent can be construed and any breach is therefore de minimis and should not have been brought to court at all.

9. That this case has been brought to the court at all is evidence of what MPs in Parliament concerning the unregulated parking industry in February 2018 referred to as “rip-offs from car park cowboys” which “must stop”, including “unfair treatment, signage deliberately confusing to ensure a PCN is issued” and “years of abuse by rogue parking companies” which resulted in a unanimous conclusion; “we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this”.

10.The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Beehj84

Also, when I put through the defence through MCOL, will I need to include my evidence then, or am I correct in thinking (as per the Newbies thread) that I need to wait for the court response to enter my evidence and witness statement and the like?

Will a locked .pdf copy of the above defence note (once finalised) be sufficient at this time to lodge my defence?

Weasel_Watcher

Have you investigated the matter of Landowner Authority at all? Doesn't seem to be anything about that in your defence. You should put the operator to strict proof of full compliance with the BPA code of practice.



You said in one of your earlier posts that the car park was near to a railway. Is it possible that the land is owned by a ToC?

Beehj84

Weasel_Watcher wrote: »

Have you investigated the matter of Landowner Authority at all? Doesn't seem to be anything about that in your defence. You should put the operator to strict proof of full compliance with the BPA code of practice.

You said in one of your earlier posts that the car park was near to a railway. Is it possible that the land is owned by a ToC?

Hi Weasel_Watcher - great name! Thanks for the reply too.

I'm not sure of the Landowner Authority, but doesn't point 10 in the defence cover that? I'm not sure who owns the land or how to find out. I see here: (https://www.gov.uk/get-information-about-property-and-land/search-the-index-map) that you can chase this down, though it takes a week and I really need to submit the defence before EoD today.

The car park in question is next to Crawley station, but separate from the parking actually "attached" to the Station (it's hard to explain, because there are 3 separate ones around the station - this one is the furthest away, and cheapest ... at least until they start pulling all of this behaviour).

Re: "You should put the operator to strict proof of full compliance with the BPA code of practice" - I'm not sure what you mean exactly. Is that another point I should be adding to the defence list?

Is it even worth it? Seems to me that POPLA and BPA and all of these systems in place allegedly to support the consumer are simply tools for abuse by these cowboys. I couldn't possibly believe that POPLA are operating under anything BUT a conflict of interest given they're paid for by the parking companies they're supposedly helping regulate/oversee.

KeithP

Beehj84 wrote: »

Also, when I put through the defence through MCOL...

Defence through MCOL?
Please re-read post #18 above.

Beehj84 wrote: »

...will I need to include my evidence then, or am I correct in thinking (as per the Newbies thread) that I need to wait for the court response to enter my evidence and witness statement and the like?

As per the NEWBIES thread, Witness Statement and evidence comes later.

Beehj84 wrote: »

Will a locked .pdf copy of the above defence note (once finalised) be sufficient at this time to lodge my defence?

Yes - as per post #18 above.

Beehj84

KeithP wrote: »

Defence through MCOL?
Please re-read post #18 above.

As per the NEWBIES thread, Witness Statement and evidence comes later.

Yes - as per post #18 above.

Thank you for the clarifications - I will be sure to send through the defence as per your instructions in Post #18.

Given the submission date is tomorrow at 4pm, I will be attempting to email the defence ASAP now. I will email it through and then be checking to ensure it was received throughout the day, and will call after lunch if necessary.

Beehj84

Since we're now focusing on the method of submission, am I correct in inferring that the defence as outlined above in Post #34 is now ready?

Beehj84

Also (not to get side tracked) - is it imperative that I print out the defence, sign it, then scan it back in and send that copy? Because I don't have a printer/scanner on hand, and will need to make a trip this evening to do so.