County court - CPM/Gladstones - exhaustion as a defence?

kc0793

Brief background:

• Came back from holiday in north Scotland to London in Dec 2018 - long tiring drive.
• Parked in the passageway in front of my residence entrance (multi storey block of flat, I don't have an allocated parking bay there)
• Unloaded car, went up to my flat with my companions. Everyone was exhausted and the driver on that day sat down for couple of mins, and then came back down to move the car to any available street parking.
• Driver saw PCN attached to windshield. Ignored that, didnt appeal, and now have a county court claim letter from Gladstones. Dont recollect receiving any letter before court claim, or any other correspondence.

While I am happy to prepare a defence statement based on the usual arguments for a residential parking ticket situation in this (supremacy of lease over PPC contract, etc) and other forums I have seen, I have a couple of questions.

• There was a recent case won by the defendant on the basis of 'exhaustion' (cannot post links, but am referring to a Guardian article on QC Nicholas Bowen Vs ParkingEye). The driver in my instance was similarly (or possibly even more) exhausted. Can I use this approach? This would mean letting go of the 'registered keeper' route and disclosing the identity of the driver?
• I own a flat in the building but I dont have any parking space in the building car park. Surely I still have a claim on the passageway in front of the building (not a public road, only the residents would need to use that passageway) - right-of-way to enable me to access my property?

I have to submit my defence by this Monday, and I aim to finish my draft defence statement by tomorrow morning - will post here for feedback. Grateful for any advice.

Redx

you will have to decide which is the better option

keeper based defence and WS ?

or

DRIVER based defence and WS

EXHAUSTION WOULD DEFINITELY BE A DRIVER BASED DEFENCE , AS IN THE BOWEN CASE

no idea if it has legs or not because Bowen is a barrister and knows what he is doing, hence his driver based first person witness defence and WS


the problem is that Bowen supposedly or allegedly overstayed on an MSA but he had no landowner or lease or tenants rights , so it wasnt a residential parking case, yours is totally different

KeithP

A Defence filing deadline will never fall on a non-working day.

What is the Issue Date on your County Court Claim Form?

Have you completed an Acknowledgment of Service? If so, when?

kc0793

Apologies, the deadline (5+28 days) is Monday, not Sunday.

Redx

I suggest you answer the queries above by KeithP

Fruitcake

What does your lease/AST say or not say about parking, parking permits, issuing charges, and court?

Have you challenged the signage for being inadequate to form a contract.

You should also have, not the landowner, and no standing (no valid contract) to issue charges.

Also have a look at the Jopson vs Homeguard case where the judged defined parking as opposed to stopping, and also stated that loading/unloading is not parking.

There is also a mention of the keeper/driver doing something else during the fifteen minutes which does not help your case.

kc0793

@KeithP:
Issue date of county court claim form 13 Nov. Filled AOS on 20th Nov.

@Fruitcake:

There is also a mention of the keeper/driver doing something else during the fifteen minutes which does not help your case.

I dont understand this bit?

Redx

kc0793 wrote: »

@KeithP:
Issue date of county court claim form 13 Nov. Filled AOS on 20th Nov.

@Fruitcake:

I dont understand this bit?

the quarter of an hour sitting and eating part, instead of promptly going down to move the vehicle


fruitcake is correct, it does not help your case

KeithP

kc0793 wrote: »

Issue date of county court claim form 13 Nov. Filled AOS on 20th Nov.

Yes you are right with your Defence filing deadline, but there might be something useful here...

With a Claim Issue Date of 13th November, and having done the Acknowledgment of Service in a timely manner, you have until 4pm on Monday 16th December 2019 to file your Defence.

[STRIKE]That's over four weeks away.[/STRIKE] That's very soon. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Redx

not 4 weeks , lol


a few days as mentioned earlier, but otherwise excellent info from KeithP as usual, just a typo from his template

kc0793

So I had a look at my property lease. It states:

The Leaseholder covenants with the Landlord:
Not to park or permit to be parked anywhere upon the estate any vehicle
Not to park or permit any occupier of the Premises to park any motor vehicle on any other part of the Estate

That's quite clear-cut, and doesnt help my case if I went down the usual route of sticking to the 'registered keeper' designation, and trying to dispute the parking contract.

Surely I have a better chance with naming the driver, reiterating the points of the Jopson vs Homeguard case (stopping a car versus parking it), and then the Bowen vs ParkingEye case (citing exhaustion and the primacy of safety considerations in terms of the driver having a couple mins rest and then continuing on his journey)?

Well, actually, the best solution would be if I could use the 'exhaustion' argument without naming the driver - the car is insured for 2 persons and both were travelling in the car on that day, and both were tired. I cannot remember who was driving at this particular point of time.