Help with defence

Robot23

Thank you all! -Sending now.

Robot23

Do I need to enter anything into MCOL at this point?

Redx

Definitely not , but you will get an auto response from the CCBC , so keep checking your inbox and spam folder

Keep checking the mcol status from tomorrow , until you see it change to defended and DQ stage

Coupon-mad

We assume you stopped to put the facts in para 3 and to read a few other Britannia current claim threads, where we have covered to death, the repeated likely fact that the landowner authority is possibly in the wrong company number/name.  You have all day; it's Sunday and there is nothing to be gained by not reading other Britannia threads.  I remember replying on one only yesterday about this landowner authority issue and suggesting how to word it in a defence.

Robot23

Many thanks - I've read through the Britannia posts - Is it ok to post my defence here for a quick review before I send?

KeithP

Robot23 said:

Is it ok to post my defence here for a quick review before I send?

Of course. You will have seen that on many of the other threads you've read.

Robot23

Not sure if 2 and 3 are very strong - but it's the truth so not sure how else to word it.

Point 4 - copied from previous posts.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  The Defendant does not know if they were the driver of the vehicle on this occasion and has no recollection of ever using this car park without inputting VRM and paying.  

3.  The Defendant has used this car park on a few occasions and states they have always entered their VRM into the machine and paid for a parking ticket.

4. There is no evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. Britannia Parking Group Ltd (No 08182990) issued the NTK, but the “Landowner” contract is with Britannia Parking Services Ltd (No 08187238), which is a different company. Therefore, there is no evidence that Britannia Parking Group are authorised by the landowner to issue PCNs/NTKs.

5. As previously stated, Britannia Parking Group are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs Parking Eye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

Coupon-mad

I'd remove #5. You don't need that repetition.  And if true, add this:

3.  The Defendant has used this car park on a few occasions and states they have always entered their VRM into the machine and paid for a parking ticket.  There are also other drivers of this vehicle in the family who may have been driving on the material date and as such, the balance of probabilities is not tipped in the Claimant's favour if they are merely seeking to resume that a registered keeper Defendant was driving.  This has already been dealt with in relation to parking on private land, by an appeal court in the case of Excel v Smith, where the Claimant tried to assume the keeper was driving and/or that they were somehow liable under the law of agency for the actions of an unknown driver.  Those Claimants (another parking firm) lost that case and the transcript will be exhibited in due course, if this Claimant persists with this meritless claim.

Robot23

Thank you so much! All sent now. 

Coupon-mad

Now hope for the best.  A person on here earlier this month was too late but you will soon know, if the CCBC reply telling you that judgment has already been entered last week (we hope not).