Claim Form received from Gladstones - Defence uploaded - review and comments appreciated!

Coupon-mad

contributor1999 wrote: »

Sorry! It was in Lewes

Not too far from me then.

contributor1999

[FONT=&quot]I have completed my first draft of a defence, using a combination of examples found online, my own research of various regulations etc and the specifics of my case. I would greatly appreciate some feedback as to whether I am on the right track and whether there is anything glaringly wrong or missing. I am particularly unsure on sections 6 and 8 so would appreciate comment on whether these are applicable or necessary in my case. [/FONT]

[FONT=&quot]Thanks in advance for any help or advice![/FONT]

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[FONT=&quot]DELETED DUE TO BEING TOO LONG
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Coupon-mad

That is so long that I am going to suggest you start again and look at bargepole's concise defence examples instead, in the NEWBIES thread, 2nd post.

contributor1999

Ok, I will try to make more concise (although with the greatest respect I took the outline of the above defence from one of the examples linked in the 2nd post in the NEWBIES thread...)

Coupon-mad

Yes I know some of them are long. I must do an edit and tidy it, and prune some!

contributor1999

I have condensed my arguments - hopefully this is more concise and easier to understand/review!!


1. It is admitted that the Defendant was the authorised registered Keeper of the vehicle in question at the time of the alleged incident, however the Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the driver “parked in breach of the terms of parking stipulated on the signage at XXXX” and that the Defendant is “the driver/keeper of the Vehicle”. 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.

3. The Claimant has not identified the driver of the Vehicle, nor has the Claimant complied with the strict provisions of the Protection of Freedoms Act (POFA) 2012 (specifically Schedule 4, sub-paragraph 9 (5) and Schedule 4, sub-paragraph 6 (1b)) which relate to holding a Keeper responsible for a drivers breach of terms. Consequently, it is the Defendants position that the Claimant is unable to rely on the 'keeper liability' provisions of the POFA and the Defendant cannot therefore be held liable for any alleged breach of contract between the driver and the Claimant.

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. The vehicle, registration XXXX, may have been present on the material date in a marked BRC bay at XXXX, but this would have been for no longer than 5 minutes, well within the grace period specifically described by the Claimants own Trade Association's Code of Practice (British Parking Association Code of Practice; Clauses 13.1 and 18.5) which requires any driver to be given a minimum of 10 minutes to read any relevant terms and conditions before deciding whether or not to enter into a parking contract.

6. The terms on the Claimant's signage are 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 without exiting the vehicle. It is denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 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 £100. This Claim includes an additional £60, for which insufficient calculation or explanation is given, and which appears to be an attempt at double recovery.

9. 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 Civil Procedure Rule 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Can you truthfully change it to this which reads better for you?

The vehicle, registration XXXX, may have been present on the material date in a [STRIKE]marked BRC[/STRIKE] bay at XXXX, but this would have been for no longer than 5 minutes, well within the grace period specifically described by the Claimants own Trade Association's Code of Practice (British Parking Association Code of Practice; Clauses 13.1 and 18.5) which requires any driver to be given a minimum of 10 minutes to read any relevant terms and conditions before deciding whether or not to enter into a parking contract. The few minutes shown in the Claimant's photographs account for a driver reading signage to ascertain what the writing and acronyms on the tarmac (such as 'BRC' which is not explained at the bays) actually meant, and to see if a permit would be needed, then leaving and not accepting any parking contract to leave the car in that space.

contributor1999

Perfect, this is absolutely true, thanks

contributor1999

Any last comments before I submit this?!

Coupon-mad - thanks for your advice

contributor1999

UPDATE: received 'Directions Questionnaire' from the Claimant plus suggestion that they would be open to offers to settle out of court. Seems pretty standard judging by other cases.



I have however not received any further communication from the Court - can anyone help me out with when they should be sending me my DQ? Should I call them?