BW Legal - Any help very much appreciated...

bargepole

+1 to what CM said.

That Defence is way too long and convoluted, and will be regarded by many Judges as a 'technical' defence containing no facts.

The golden rule is facts of the case first, then the legal arguments and how they apply to the facts.

Either you were driving, or you were not. If you were driving, it's a waste of time trying to hide behind POFA, the Judge can simply ask "Well, were you driving the car or not?", and you don't want to be committing perjury. So if you were the driver, ditch all the stuff about POFA, and write an account of what happened when you entered the car park, were the signs clear, did you display a permit or pay a tariff if relevant, and so on.

If you were not driving, you should state that either you were a passenger in the car, or that you were somewhere else at the time. Again, state any facts that you know regarding the parking event, and then go on to state that the Claimant's paperwork fails to meet the statutory requirements of POFA, so that they are unable to hold you liable as keeper - no need to go into the specifics, that can come later in the WS and/or Skeleton.

It is not considered good practice to cite case law in a Defence. These also belong in the WS and/or Skeleton, and should be supported by Judgment transcripts as attachments, and with a brief explanation of how they apply to your case.

Whilst it is always tempting to give BW Legal a kicking, they are not the party making the claim, and any shenanigans they get up to have no relevance to the question of whether you are liable to the Claimant.

So in summary, it should be a much shorter and simpler concise rebuttal of the Claimant's case, with sequential paragraph numbers 1,2,3 etc., no complicated sub-sections. The real work is done when you get to the WS stage.

didgeridoooo

I am incredibly frustrated now. That’s NOT a complaint. I know you’re all trying to help which is brilliant of you, really. But It feels like I have been kidnapped by aliens for the past month or two, and just been dropped off at home again! Every single person and every single thread I have read (lots) suggests that IF a POFA defence is available, TAKE IT. And many people have said “don’t mention who was driving” , if POFA is applicable, etc.

bargepole

1. Should the driver defence (the facts of what happened) be point ONE on the defence, now that I know it should be in there at all!

Yes. Describe the facts first.

2. If so, Why mention POFA at all? I will already have told the Judge what happened, and who was driving. doesn’t it seem a bit of a weasel technicality?

Completely unnecessary. Chuck it all out.

3. Should I chop all the abuse of process section out, and the judge quotes etc (which everyone says to include!), maybe just make one mention of it in a sentence or two?

No. Leave it out (possibly include in WS if you have a copy of the Order)

4. Do you think I should remove the point about Maritime Car Park? I thought that was a good point, they are the entity represented on the signage, thus any contracts would surely be between the reader, and Maritime Car Park (which don’t exist).

Keep this in. If the signs are in the name of Maritime Car Park, then they are the contracting party, not the PPC. This means that the Claimant has no standing to bring this action.

didgeridoooo

Well that was like a bucket of cold water, badly needed too! THANK YOU BP.



Chuck all of POFA out, righty ho, thanks. Can I just ask... with so many people saying it's a strong defence, are they "wrong" (in your view), or are they right EXCEPT for when a driver defence can be presented with reasonably mitigating stuff the Judge will be more interested in?


Contractual parties (MCP) - Glad I first spotted and second mentioned that in my post, as I would have chucked that out too since I came up with that one all on my lonesome

Ok, driver defence front and centre (told in 3rd person, just in case the kindly Judge understands POFA could still let him/her chuck it out!) plus the contractual issue, and leave it at that. Thanks again, very much

waamo

POFA can be a strong defence especially when it's all your left with as is often the case. In your case you have a much, much stronger defence without having to rely on what a judge may regard as a technicality.

If you have a really strong defence anyway it looks much better to focus on something the judge will understand and probably agree with. It's better to push at an open door.

didgeridoooo

waamo wrote: »

POFA can be a strong defence especially when it's all your left with as is often the case. In your case you have a much, much stronger defence without having to rely on what a judge may regard as a technicality.

If you have a really strong defence anyway it looks much better to focus on something the judge will understand and probably agree with. It's better to push at an open door.

Very well put, thanks. I suppose if you have no other defence, it's best to think of POFA as strong, as it's all you got! Not quite the same definition as strong in the eyes of a solicitor though surely. I agree though, I fear for the DJ thinking I am trying to worm my way out on a technical point. If he/she seems conducive to that, I WILL!! But best to approach head on with what I think are decent circumstances.

Coupon-mad

I think many posters here automatically shout to 'never say who was driving' regardless of the facts of the case. It's not always the answer, but can be!

Bargepole tends to say (I think, and he can shoot me down if I am wrong) ''in most cases just defend as driver, if you were''. He has attended loads of court cases and is legally qualified, unlike me.

I tend to say, ''defend as driver if you were'' AND if the 'parking event/what happened' facts of the case have weight, but perhaps I say 'don't say who was driving' a bit more often than bargepole does. I do tell some people to put the POFA stuff in if their case doesn't have many other points, because if you have no real defence then a technicality might be worth a D hanging their hat on and hoping the Judge doesn't actually ask who was driving.

My wife did not park for 2hrs 26 minutes, so was BACK to the vehicle BEFORE the ticket for PARKING expired!

Are you saying your wife was driving and yet YOU are the Defendant keeper? If so, then this part of bargepole's advice applies and YOU DO need the POFA as a safety net, as he says.

If you were not driving, you should state that either you were a passenger in the car, or that you were somewhere else at the time. Again, state any facts that you know regarding the parking event, and then go on to state that the Claimant's paperwork fails to meet the statutory requirements of POFA, so that they are unable to hold you liable as keeper - no need to go into the specifics, that can come later in the WS and/or Skeleton

Only bin the POFA if you were the D and the driver, or if this is your WIFE's case and she is the defendant driver. Is that OK?

didgeridoooo

Sorry CM, and thank you and everyone else. Can't express how kind it is for so many people to take an interest in other people's plight.

didgeridoooo

This landed today. Where do these swines get the nerve?! Its going to COURT !!!!!!! Save your tricks for there. More evidence of undue threats of CCJs for sums they know are unrecoverable

waamo

That is disgraceful. Keep that as evidence of unreasonable behaviour.