Court Claims for Leased Spot (but wrong driver named)

The_Slithy_Tove

Deezo said:
 I was going to use the lease as template but from advice given here I should try another angle. 

You try ALL angles. Throw the kitchen sink at this. Only one defence point needs to win to make the whole claim fail.

Le_Kirk

Deezo said:

I'm now a bit lost as to how my defence should look. I was going to use the lease as template but from advice given here I should try another angle. Are there any templates I can look at?

If you go here: -
https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585
and scroll down a bit you will come across links to 17 (well 16 because the first link is broken) pre-written defences, some of which are "own space" cases.  Read them and adapt the one that most nearly matches your case.

Redx

It's your mum's defence , not yours

Read post #2 of the Newbies FAQ sticky thread near the top of the forum

nosferatu1001

Indeed
Stop calling it YOUR defence> it isnt.
What you SHOULD do is realise that as your mum isnt the ACTUAL keeper, SHE IS NOT LIABLE. SOmeone glossed over this. POFA2012 makes the KEEPER liable, and they only presume that to be the RK - but it can obviously be proven to be otherwise

Deezo

Thanks for the replies guys, yes I know I should stop calling it my defence. Had a hectic period but here's my first draft. 
Do we need to set out that I will be the "Lay Representative" in the defence?:

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BETWEEN:

XXX (Claimant)
-and-
XXX (Defendant)

Background
1. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

2. It is admitted that on [date] the Defendant's vehicle was parked at [location]

3. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
4. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

5. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

6. Accordingly it is denied that:
6.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
6.2. there was any obligation (at all) to display a permit; and
6.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

7. It is denied that the Claimant has any entitlement to the sums sought.

8. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Coupon-mad

6.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss

They are not claiming for loss.

You will find it easier to search for template defence and download the new one with a few red bits to edit!