Defence due 4pm Monday 20th Aug

Trabar

with respect

YES , DEFINITELY YES , I did read this thread all the way through before replying , plus i saw that you got good replies from several regulars and that the advice given was rarely acted upon

the thread title was not changed despite people telling you

no SAR seems to have been asked for until very recently (if at all)

you were told 3 weeks ago when your deadline was and the things that needed to be done once the defence was finished

you were told to use the forum search box by CM and she suggested keywords

and I also read it through from start to finish a few days ago before I replied on the 17th

there are a lot of threads on here that arrive daily, plus those ongoing threads

the point is that its a DIY job unless you pay hundreds of pounds out for a Nick "Mr Loophole" Freeman type of solicitor to do this all for you

until you post your draft , you wont get comments about it, that is how it works on here and you only have to look at that NHS one that bargepole replied to this morning (twice) in order to see how he honed that defence

so with respect, HAVE YOU READ HIS REPLIES in that thread ?

or have you read any other ones that he has honed this year ?

or any that coupon mad has honed recently or this year ?


or done any decent searches ? (bearing in mind it is not our job to teach you how to use this forum (you agreed that you knew how to use this forum on signup)


I do not think so

This seems to me to be quite an angry response that is uncalled for. If a person is genuinely struggling to get very far using searches and struggling to assimilate the info they are coming across, then what else are they supposed to do other than ask further questions? To be met with a generic stonewalling response 'nobody is going to write your defence for you' (or similar) is not really that helpful to somebody who is struggling to find results with the search facility. I'm not asking for somebody to write my defence for me - unless you can point out where I have?

And furthermore, I did try to follow the advice I was given and I did try to alter the thread title using instructions. I did read and re-read the relevant newbies section over and over. I also carried out many many searches.

KeithP

Trabar, I really think you are expending your effort in the wrong direction.

You have a Defence to produce - by 4pm tomorrow.

Redx

you quoted my post from 2 days ago and complained you have less than a day to sort out your defence, nobody should be leaving it until the day before and so both KeithP and myself have pointed out what YOU need to do in order to move this forward

due to your responses I have endeavoured to give you chapter and verse on how this forum works because you do not seem to understand how it works

you post your draft appeal , or draft popla appeal, or in this case DRAFT DEFENCE , then people can reply with suggestions or edits or additions , like BARGEPOLE did earlier today (which will also happen with the WS later on)

4 or 5 people with legal experience have posted on here today, not one has posted in this thread, because no draft defence has been posted yet and the thread title remains unchanged , despite crabman having done some forum changes for various people on here today too (including tidying up the NEWBIES FAW sticky thread for me)

even the thread title doesnt say its an MCOL and that it needs checking urgently (which is why people told you what to do 4 weeks ago)

when I read it through (twice) , it seemed to me to be like trying to push water uphill , with little movement in the right directon - it still seems that way

Trabar

Trabar, I really think you are expending your effort in the wrong direction.

You have a Defence to produce - by 4pm tomorrow.

Yes I understand and will post it soon, thanks. I have previously tried to change the thread title but for some reason, it only works after you have clicked on the original thread title, which wont change (if that makes sense).

Redx

so pm crabman or soolin to get it changed and give them the new thread title (should have been done weeks ago, sorry to say)

Trabar

so pm crabman or soolin to get it changed and give them the new thread title (should have been done weeks ago, sorry to say)

I was warned off PM's. I'v also sent PM's that got no response (but not to the two members you mention).

Redx

those 2 members are staff members, volunteers who are board guides and their names are at the bottom right of this forum and listed as board guides

its their job to assist in minor forum matters , they volunteered for it

the warnings you received were about ordinary forum members (especially new members, who may have their own agenda or work for parking companies or debt collectors etc)

you can trust soolin and crabman to do as you ask, they wont want anything from you and wont assist you in your topic, only in its thread title etc (and merging threads or tidying up threads , or correcting mistakes etc- general forum work)

Trabar

I've pm'd both members as advised. Prior to posting draft defence, one final question if I may.. Should the defence posted-up on forum include the site location? Or is it better to omit?

Redx

there is no reason to hide the location etc because the PPC will see the defence after you have emailed it to the CCBC in Northampton

I would not reveal personal details , like name , address , references , VRM details , actual dates, the drivers details etc , which is why its called a draft defence , those details are filled in just prior to the scenario posted by KeithP on page one, just before submission

keeping the location secret, or the name of the PPC wont help


if you study the recently honed defences by bargepole , coupon-mad and LOC123 as well as a few others of note, you will get the idea about how a defence should look


LAMILAD has beaten EXCEL on several occasions , so read his posts too

Trabar

OK, sorry if this seems jumbled. And I'm at a loss as to how to effectively include / refer to POFA. But can do more searches tomorrow, as advised today.

[1] It is admitted that the Defendant was the Registered Keeper of the
vehicle in question on [DATE].

[1.1]. During pre-action correspondence, The Claimant has implied the Registered Keeper was the Driver, despite having provided no evidence this was the case. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

[1.2] 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.

[1.3] The Defendant genuinely cannot recall who the Driver of the vehicle was on [DATE]. Nor in any event is the Defendant 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 includes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988: currently used 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.

[2] Later inspection of the vehicle by the Defendant revealed a ticket had been purchased on [DATE] within the same car park, but from a Middlesbrough Council ticket machine. The ticket was labelled !!!8216;France Street!!!8217; (located immediately to the right of !!!8216;protected area!!!8217; in the aerial image provided by the Claimant in the pre-action correspondence). The expiry time on the purchased council ticket comfortably exceeded the four-hour limit in the bay relating to the Claimant!!!8217;s action.

[2.1] To the defendant!!!8217;s knowledge, it is not a car park that the various drivers of the vehicle regularly use. It is therefore highly probable that a genuine oversight must have occurred, with the Driver mistakenly parking in a bay officiated by Excel Parking Services, instead of the adjacent bays officiated by Middlesbrough Council, for which the ticket had been purchased.

[2.2] This type of genuine error committed by a ticket-paying driver should not attract such a disproportionate financial penalty. 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.


[3] During a visit to the site to take photographs, the Defendant discovered that the two separate car parks merge within the same site, sharing the same entrance and exit points. The Defendant discovered a plethora of different signage within the car park: road signs; retail signs; council car park signs; council pay machine signs; and Excel Parking Services signs. In the main, the latter were faded, dilapidated and peeling; bearing little resemblance to the bold / bright print-outs provided by the Claimant in pre-action correspondence. In-particular the Defendant also discovered Middlesbrough Council!!!8217;s pay machine signs are almost identical in colour scheme as-well-as similar in design to the Excel Parking Service signs. Such similarities must be a contributing factor in erroneous parking.

[3.1] The Claimant was formerly a member of the BPA but did not adhere to BPA!!!8217;s Code of Practice requirements on signage. The Claimant was a member of the IPC at the time of this parking charge and therefore committed to follow its Code of Practice requirements on signage. Much of the text on the signage in and around the site in question was/is small, unclear, not prominent and therefore did not meet the IPC!!!8217;s Code of Practice requirements. With-regard to-these failings, no contract was formed with the Driver to pay either the £100 charge, and/or any additional fees or legal costs charged.

[3.2] 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 judgement 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 is wholly justified.

[3.3] The court's attention is also 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. 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.

[4] As an alternative to POFA 2012, the Claimant may seek to rely upon the Law of Agency: arguing, that in forming a contractual relationship with the Claimant, the Driver acted as an authorised agent of the Registered Keeper, thereby making the Defendant liable for any parking charges incurred by the Driver.

[4.1] 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 on the keeper!!!8217;s behalf, with terms unknown to the keeper. This is clearly the Claimant struggling to come up with a cause of action in the event of not relying upon POFA. The Claimant is put to strict proof that the Driver was authorised to enter into contracts on the Keeper!!!8217;s behalf.

[4.2] 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: 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.

[4.3] 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.

[5] Despite the Defendant having requested all photographic evidence during the pre-action correspondence (which may have displayed the purchased ticket), the Claimant refused to provide such evidence. The Defendant submits this is a breach of the pre-action protocol.

[6] 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, demonstrating the failure of the Claimant to attempt to mitigate losses, by making an extortionate and unjustified demand for £100 against the Defendant; because the Driver exceeded the Grace Period to exit the car park by less than 5 minutes.

[6.1] The Claimant is attempting to claim additional charges such as !!!8216;Debt Management Company £60!!!8217;. 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 been incurred.

Haven't yet worked out closing statement.