BW Legal - County Court DEFENCE needed in 2 WEEKS

KeithP

In paragraph 2 of your Defence - surely it was the driver that purchase valid parking tickets.

Similarly, in para 4 - if anyone breached a contract, it would've been the driver.

TheSquirrel

Overhauled defence -

NAPIER PARKING (Claimant)
-and-
xx (Defendant)

DEFENCE
CLAIM NO: xx
1. The Defendant was the registered keeper of vehicle registration number xx on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant purchased two parking tickets, but only one was made evident in the Claimants strategic evidence. The ‘land’ at the time of the alleged claim, which forms the basis of the current claim consisted of a relatively small number of unmarked parking spaces with absolutely no designated lighting. Given this lack of facilities or information, no contract can be construed from the Claimants signage, under the contra proferentem principle.

3. The Claimant did not leave notice with the vehicle at the time of the alleged incident to allow or afford the defendant any grounds to maintain or pursue evidence in relation to their alleged contravention. The claimant failed to do this and under section 7(4) of the Protection of Freedoms Act 2002 the claimant is responsible to follow notification procedures:
Section 7 / (4) The notice must be given -
(a) Before the vehicle is removed from the relevant land after the period of parking to which the notice relates.
(b) While the vehicle is stationary.
By affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.

The defendant does not acknowledge that any notice was left with the vehicle and that notice was only given by means of a fixed charge notice, received by the defendant by post 8 days after the alleged contravention.

4. It is also the claimants’ responsibility under section 7.2(b) of the Protection of Freedoms Act 2002 that any fixed charge notice should:
7.2(b) Inform the driver of the requirement to pay and describe those charges and the circumstances in which the requirement arose.

Napiers fixed charge notice fails to outline the reasons for the alleged contravention and ambiguously states “Failure to display a valid ticket” which is contrary to the claimants own evidence on their fixed charge notice which has photographs clearly showing a parking ticket. If the Claimant disputes the validity of the ticket, no reasons have been outlined by the Claimant as to why. The validity of the ticket cannot be proven as the Claimant did not follow the correct notifying procedures to allow any evidence to be retained by the defendant.

5. Accordingly, it is denied that the Defendant breached any of the Claimants purported contractual terms, whether express, implied, or by conduct.

6. The defendant denies that the Claimants are able to enforce any action whilst acting as a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the landowner. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £xx debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £90 and would kindly ask the court to look into this financial anomaly.

Statement of Truth:
I believe that the facts stated in this Defence are true.


xx xx Date: 4th January 2019

KeithP

My earlier comments still apply, but in your revised WS the paras are now 2 and 5.

TheSquirrel

Apologies missed that reply - It actually wasn't the driver that purchased the tickets, there were two adults in the car using nearby facilities and one returned to the car after a duration to reinstate the ticket. Is it better to just name myself as the driver regardless? Other than my error in the first line (now removed) I dont portray NOT to be the driver I just dont acknowledge it at all?

KeithP

It can still be left vague if you like. The keeper has the protection of POFA. The driver does not. Your decision.

One thing is certain - it was only the driver that could enter into a contract by parking the car.


If you are going to be a keeper defendant, you must also change the very first sentence in your very first post here too.

TheSquirrel

Thanks for your continuous help!

Adjusted accordingly

TheSquirrel

This matter has not settled out of court and I am in court next week, I was hoping an ambiguity in their paper filing was going to get me out of this situation but it looks unlikely - stressed is an understatement.

Should I settle out of court and just get this over with!?

Umkomaas

TheSquirrel wrote: »

Should I settle out of court and just get this over with!?

What kind of answer were you expecting from a FightBack forum dedicated to fighting this stuff?

Would you prefer we answer 'Yes', or would 'No' be more reassuring?

TheSquirrel

Anything constructive or supportive would have been great - cheers!

Umkomaas

TheSquirrel wrote: »

Anything constructive or supportive would have been great - cheers!

Given that we were never going to say 'Yes', then there's only one other answer.

You've done your research, you've produced a Defence and a Witness Statement (you have, haven't you? as we haven't seen a draft of that to help with fine tuning), you've a court date next week, so believe in what you've done and written, know your arguments inside out and respond to questions from the Judge in an honest and polite way. Then it's down to the Judge.

The most you can lose is the amount it would likely cost you to settle before court at this stage. If you win you've saved a couple of hundred and can seek costs against Napier. You have prepared a cost schedule, yes? Make sure you take wage slips to prove salary levels for a (maximum) £95 loss of earnings/annual leave claim if you win.

There's some evidence that where defendants who've got all their ducks in a row (I'm concerned about your WS though) and are resolute and determined to appear in court, BWL will discontinue last minute. It can't be guaranteed, but there's a vague possibility.

Constructive/supportive enough?