Defence template adjusted for parking charges.

DBTHype

I think I should swap position of 13 and 14

Coupon-mad

I'm not sure why you have abandoned the template defence you had in post #1?

DBTHype

Sorry, as requested only posting paragraphs changed or added. I'll be putting all this back into the template at 2. 3. and change all other numbers accordingly before emailing.

Coupon-mad

Ah, OK, well I was confused about the bit about costs because it would then be in the wrong place on the template.  Costs are mentioned already in the template, right at the end.

DBTHype

Ok, I'll remove that. 

Le_Kirk

There is no sign at the entrance to the car park and furthermore the signs are sparse within the car [park The] Claimant is put to strict {proof, with} the bar being set by Denning LJ in  J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable:  ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' 

The above is confusing.  You have a phrase that stops shown within [ ] and then appears to start again with a different thrust.   You then have started again and then gone off at a tangent {here}.  Strict proof of what?

DBTHype

Are you suggesting I put a full stop between park and the at [ ]. Should I cut out the strict proof bit and just phrase it differently?

Also I've noticed some of the IPC code of practice pages are incorrect to the current edition.

Le_Kirk

I am suggesting you make it read correctly.  The full stop would be a start as you will then have the end of one sentence and the start of the next.  I am also suggesting you need to add something such that the judge will know what you mean, for example "the claimant is put to strict proof that the signs were there, that the signs conformed to the latest IPC code of practice, that the signs met the bar set by Lord Denning etc................."

DBTHype

Ok thank you. I'll be going through it all again later this afternoon when I have more time and hopefully post the amended defence before the evening.

DBTHype

Todays amended defence.

1. Car spares and TSB are situated adjacent to each other on the A38 Bristol Road South with access from either the side road Broughton Crescent just off the A38 or from the A38 itself. The car park is sited in front of both of these premises and do not share a physical barrier between plots. The defendant has lived locally for some 30 years plus and throughout this time it has been common knowledge to patrons of both Car spares and the TSB to enter the site from Broughton Crescent and exiting via the Bristol Road South, creating a unofficial one way route on and off the car park for convenience and safety. Parking in spaces wherever available at busier times.

2. The nature of both businesses means patrons spend little time parked and on average spend say two to five minutes either ordering or buying parts to making deposits or withdrawing cash.

3. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

4. The Defendant believes that the parking in the designated area was and is for an adjacent premises and that there was no clear overriding signage stating otherwise.

5. The Defendant has also parked in this area multiple times in the past being a regular customer of Car spares / TSB and has on many many occasions observed others doing that same

6. The Claimant has done nothing to denote the correct areas that they claim to cover.

7. The particular of the claim are sparse. There is no information regarding the alleged contract, what the terms on the signage actually said on the material date, or what the alleged breach was, or why/how the claimant purports that the registered keeper is liable, given the facts the claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the protection of freedoms Act2012 (the’POFA’).

8. The particulars of claim does not state whether they believe the defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the claimant has failed to identify a cause of action, and is simply offering a menu of choices. As such, the claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

9. The signage on and around the site was unlit, not prominent, in small font and did not display that new charges were in force.

10. The Claimant had an obligation under their trade body, The Independent Parking Committee (IPC), Code of Practice to show sufficient signage to warn of a change of management and the introduction of new parking conditions. The particular section within the IPC Code of Practice states:

Changes in Operator’s Terms and Conditions 

Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charges. The claimant failed to inform the driver that new charges apply (Page 30 of the Code of Practice Schedule 1 states “signage at the entrance making it clear that new terms and conditions/charges apply”) 

No additional signs were in place. Page 29 Schedule 1 of the Code of Practice shows the type of sign that should be present at the entrance.

11. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation, or risk £100 penalty. There is no sign at the entrance to the car park and furthermore the signs are sparse within the car park. The claimant is put to strict proof that the signs were there, that the signs conformed to the latest IPC code of practice and that the signs met the bar being set by Denning LJ in  J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable:  ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' 

12. The defendant would like to bring to the attention of the court that over 2 years after the alleged contravention occurred vehicles are still parking in this location and that the parking operator has made no efforts to provide clear signage or hatched lines and anything that would make it clear that the area is restricted. It can only be assumed that this action is an intentional effort to mislead customers into parking in these ‘restricted’ locations and then issuing them with extortionate fines in a bid to gain revenue or wasting the courts time with cases that could have been avoidable had the parking operator had the due diligence to provide adequate markings and signage.

13. The claimant is asked to --

Provide proof that additional signs were erected.

Provide examples of the signs displayed.

State how long they were in place and did they clearly state that that new terms and conditions/charges apply.

14.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.