County Court Claim "Gladstones"

KeithP

Point 4. in your Defence totally contradicts the information you have told everyone, including the PPCs, in your opening post on this thread.

At least two respondents have already advised you to edit your opening post.
If you are determined not to take the advice of others, then you cannot deny being the driver.

Remember, perjury has far more serious consequences that a speculative parking invoice.

Azazel

Hello and thank you for the reply, I didn't drive the car on that day, the car was insured on that day with 2 people, this is true, I didn't lie. I ask you if this defence is enough to win the case! and what evidence I have to bring in the Court to prove this?

*What I wrote above in the opening message is what the other person told me what happened on that day.
After I read more defences, I saw that my case fits with one of the "MoneySavingExpert" defences "Not the Driver" and went further with this defence in Court, but later I saw that my case it's on "irrelevant defence" cases.

[Deleted User]

A defence is an argument. The evidence from both sides and (potentially) your oral evidence at a hearing are what is weighed up. There is no magic bullet. Cases do settle/get abandoned without a hearing, but a quick look on this site will show you that many are fought to a hearing of the issues.

Your defence may well be excellent (after all, I drafted most of it) but that doesn't guarantee you a win as of right. Your first post says no signs existed, yet your defence says they did. Similarly the template denies being driver - that is quite different to asking them to prove it.

You need to get all those points clear in your own mind.

hartynoll

Hi Azazel

Your first post says “I parked on the street”. This is what people are referring to.

I did the same thing and have had to defend as the driver. These forums are monitored by PPCs so you either need to amend your defence or run the risk of being found out.

Everyone on here has helped me more than I can ever thank them but you need to be honest and consistent because they’re all doing this in their own times to help people like you an I.

Azazel

Hello, I can prove with papers that the other driver on the insurance had an examination in the area on that day and he was present. He told me that he did not see any sign and did not know that that area is private.
-Where did I write in my defence that they were signs? Do I have to take pictures to prove that there were no signs?
-I'm interested in knowing if this point "NOT THE DRIVER" in my defence is a good defence track to win the case, or do I have to prepare more defences?

PS: Sorry for my English, it's not my first language.

Coupon-mad

I saw that my case fits with one of the "MoneySavingExpert" defences "Not the Driver"

What MSE 'not the driver defence'? Surely not copied from an MSE article.

MSE can't be telling people to defend court claims just saying they were not the driver. Where did you find that defence, can we have a link please?

Azazel

I can't post links!! From this defense I inspired myself:

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.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

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.
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")
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 !!!8216;relevant obligation!!!8217; 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.

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.

Authority to Park and Primacy of Contract
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!!!8217;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.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Coupon-mad

Ah OK, that's a good defence, did you copy that?

Azazel

Not all, only the part Its fits to me!


DEFENCE

1. The Particulars of Claim lack specificity 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. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings. The vehicle was insured at that date with XXXX Insurance with X of named drivers permitted to use it.

3. It is possible that on XXXX/XXXX the Defendant's vehicle was parked at XXXXXXX.

4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

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
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.

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.

6. The Defendant relies upon ParkingEye Ltd v Barry Beavis 2015, UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
6.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
6.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
6.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee, Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
6.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw 1956 EWCA Civ 3.
6.2. 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.

7. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

8. It is denied that the Claimant has any entitlement to the sums sought.

9. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum if awarded, but it is denied that interest is applicable on the total sums claimed by the Claimant.

Coupon-mad

That's fine, you're doing very well, especially with English not being your first language.

Read the summary of 'what happens when' by bargepole, linked in the NEWBIES thread 2nd post. Be ready for each stage.