Civil Enforcement LTD - AOS/Defense Stage

Coupon-mad

That defence is good for a hidden keypad case.

At WS stage, when you highlight paras 6, 10 and 14 of the CRA 2015 (Sch 2) about the fake added £60 being unlawful, also highlight para 18 as I'd say a hidden keypad fails that grey list unfair term, too, as the trader has failed in its diligence and obligations to make the system prominent, obvious and easy to use for patrons.

Dingo30

meanwhile complain to the BPA online about it

Done... Thanks for that!

A lot of the background story above belongs in the witness statement , the defence should be concise and centre on legal arguments , address the POC , add no landowner authority and abuse of process with double recovery , plus raise the CRA 2015 as part of the abuse section

Save the story for the WS

Got it... Thanks for the pointers.

Dingo30

I have just realised that I have compiled a defence that may not reply to points raised in the particulars received from CEL for the court claim. Below are the 7 points they have raised:

1) At all material times, the Claimant was authorised to manage the the car park ("the site") situated at the address detailed on the attached Schedule of Information ("Schedule"). The Site is private property.

2) The Claimant uses Automatic Number Plate Recognition ("ANPR") cameras at the entrance and exit of the Site, which identify the times of arrival and departure of vehicles entering and exiting the Site.

3) There are many clear and visible signs at the entrance to and around the Site, notifying drivers of the terms and conditions of use. Drivers are permitted to park in the Site in accordance with the terms displayed on the signage. The signs and clear wording thereon constitute an offer by the Claimant to enter into a contract with drivers. The relevant terms of the contract are summarised in the Schedule.

4) When the vehicle parked on the site (on the date and time detailed in the Schedule) the driver of the vehicle accepted, by their conduct, the terms and conditions of parking (Vine v Waltham Forest Borough Council [2000] 4 All ER 169).

5) On the date in question the vehicle was parked in breach of the terms and conditions of the contract. The Defendant was therefore issued a Parking Charge Notice ("PCN") requiring payment of the parking charge arising by virtue of the said breach.

6) Payment of the sum required pursuant to the PCN was due from the Defendant within 28 days of the date of the PCN. The Defendant has failed to pay the PCN sum or any part of that by the due date or at all.

7) It is both lawful and commercially justifiable for the Claimant as a member of the Approved Operator Scheme regulated by the British Parking Association ("BPA") to implement a disincentive parking charge to enable the efficient management and control of private car parks for the benefit of its users (Supreme Court decision in ParkingEye v Beavis [2015] UKSC 67).

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Any thoughts on the particulars mentioned insofar as the defence I posted above? I intend to remove what was mentioned by RedX for the WS.

Le_Kirk

Have you actually submitted your defence? KeithP advised you it didn't need to be submitted until 2nd December. If you have, you would be able to counter their points in you rWitness Statement (WS) once you receive their WS later in the process.

Dingo30

Have you actually submitted your defence?

No sir. Thankfully, I still have time to reconfigure, further research and get advice from you, good folks.

Dingo30

Hi, based on this statement in the particulars:

5) On the date in question the vehicle was parked in breach of the terms and conditions of the contract. The Defendant was therefore issued a Parking Charge Notice ("PCN") requiring payment of the parking charge arising by virtue of the said breach.

would it be prudent for me to utilise a paragraph such as:

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.

?

Le_Kirk

^^^ Yes, that is a standard paragraph found in the Bargepole (and other) concise defences in the NEWBIE sticky post # 2.

Coupon-mad

4) When the vehicle parked on the site (on the date and time detailed in the Schedule) the driver of the vehicle accepted, by their conduct, the terms and conditions of parking (Vine v Waltham Forest Borough Council [2000] 4 All ER 169).

LOL, search the forum for Vine Thornton and laugh at their incompetence!

Dingo30

LOL, search the forum for Vine Thornton and laugh at their incompetence!

Wow... LOL indeed!

Here are the updates paragraphs added...

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.


8.3. The Claimant utilizes Vine v London Borough of Waltham Forest [2000] EWCA and, critically, NOT the ratio of the judgment from Roch JL, in which Miss Vine prevailed due to unclear signs and the fact that she did not see them. Paragraph 19 of that judgment is quite different from the general presumption that the Claimant is likely to invite the Court to make. It is for the Claimant to show that their signage is capable of forming a contract and that the positions and lighting of signs within the car park and the location and function of the machines used to register a VRN are clear to all motorists before parking (the authority in Thornton v Shoe Lane Parking being another case which supports this conclusion).

Le_Kirk

.......NOT the ratio of the judgment from.........

Is there something wrong with this? Did you perhaps mean rationale? If not, excuse me for sticking my size nines in.