Help with defence

Coupon-mad

jordan91 said:

Coupon-mad said:

jordan91 said:

I am aware of what the sign says now, but at the time I did not notice it. 

So are you saying that my case is most likely going to get dismissed and I am going to have to pay?

Wow, we pointed out something about the sign that supports your position and it flew right over your head and you thought we were saying the sign was clear?   It always amazes me that people read what we are saying and yet jump to completely the wrong understanding. 

Read PCM v  Bull in the Parking Prankster's case law pages (Google it).  You need to understand the simple point the regulars were making for you.

That sign is also unlit (was it dark?  was it Winter?) and there is only a sign on the right side of a dual-lane entrance and exit from a very busy A road, such that it would only take a high-sided van or people carrier exiting, to completely obscure that sign as you driving in.

I am so sorry that I am not as clued up as some of you and the regulars here. And I am so sorry that reading a post that says "PARKING IS PERMITTED FOR VEHICLES:
DISPLAYING A VALID PERMIT WITHIN THE WINDSCREEN WITH PERMIT CLEARLY ON VIEW" made me think I did not have a case considering I was not displaying a valid permit. 

But cheers for your positive input and general friendliness. 

I gave you defence points and told you where to read about forbidding signs - PCN v Bull, and where to find that case.  I gave you all the tools you need.

KeithP

@jordan91, you would be wise to get pictures of the signs near where you parked before they mysteriously change.

jordan91

So, I have pretty much for most of my defence sorted and I have been rewording and inputting elements of this mock-up into it- https://forums.moneysavingexpert.com/discussion/comment/71285691/#Comment_71285691

Obviously, the reason is due to the signage being small, unlit, and very wordy and the fact I never agreed to a contract so how can I be prohibited from parking there. Am I on the right line here?

Redx

You can be prohibited from parking there , but that would be Trespassing meaning only the landowner can sue for Trespassing on private property

But that isn't happening here , because trespassing isn't the charge and the landowner is not suing you either

It is definitely prohibition

jordan91

Redx said:

You can be prohibited from parking there , but that would be Trespassing meaning only the landowner can sue for Trespassing on private property

But that isn't happening here , because trespassing isn't the charge and the landowner is not suing you either

It is definitely prohibition

Should I put that into my defence or not? I have copied what I have written so any help to amend it would be greatly appreciated. I am hoping to send it tomorrow. 

The facts as known to the Defendant:

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

The defendant parked on Gateley Road on 11/02/2018 around 9 pm. The defendant usually parked outside of Hagley Road West, B68 0NR, as this was the house that their partner owned. The parking along this street was often limited and on the night in question, there were no spaces available. The defendant, therefore, parked just around the corner, on Gateley Road, unaware of any parking restrictions.

The road in which the defendant parked on had no specific parking bays and was on a road that was covered with potholes and needed resurfacing which did not give the impression that it would lead to parking fines.


Upon a recent visit to the private land, there was one sign at the entrance to inform visitors that the property was private land, although it should be noted that this notice is written in very small print and is not well lit making it impossible to read while entering the private land. This is even more difficult to read and notice when you consder that the driver is entering the road from a busy A road, as well as cutting across a Bus Lane, and due to there being a dual-lane entrance and exit onto said A road, it would only take a van or people carrier to be exiting to completely obscure that sign as you drive in.

The signs in this parking area are not prominent, clear or legible from all “parking spaces” and there is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and especially difficult whilst driving - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge and therefore the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

Should this case evolve, I would ask that the operator show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

KeithP

There is nothing in there - at least, I didn't see it - about the signs actually prohibiting parking.
As the signs prohibit parking, it is not possible for a driver to enter into a contract.
Read again my post of 22 January at 4:07PM on your thread.

Also, everything in a Defence should be written in the third person.
I.e. there is no place for the word 'I'.

jordan91

Should I shorten my defence and just include the key legal points and save the bulk of what I have written for my witness statement that I will receive at a later date I imagine?

Redx

jordan91 said:

Should I shorten my defence and just include the key legal points and save the bulk of what I have written for my witness statement that I will receive at a later date I imagine?

Correct

My previous post was an observation , possibly for a WS later on

KeithP has told you the legal argument for a defence in regards to my observation

Coupon-mad

Get rid of all this, all of it:

The road in which the defendant parked on had no specific parking bays and was on a road that was covered with potholes and needed resurfacing which did not give the impression that it would lead to parking fines.

The signs in this parking area are not prominent, clear or legible from all “parking spaces” and there is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and especially difficult whilst driving - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge and therefore the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

Should this case evolve, I would ask that the operator show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Keep this paragraph in, under the bit I didn't quote:

Upon a recent visit to the private land, there was one sign at the entrance to inform visitors that the property was private land, although it should be noted that this notice is written in very small print and is not well lit making it impossible to read while entering the private land. This is even more difficult to read and notice when you consder that the driver is entering the road from a busy A road, as well as cutting across a Bus Lane, and due to there being a dual-lane entrance and exit onto said A road, it would only take a van or people carrier to be exiting to completely obscure that sign as you drive in.

We assume you are adding your words to the template, because you do need everything in the template defence.

jordan91

Coupon-mad said:

We assume you are adding your words to the template, because you do need everything in the template defence.

That would be correct. I am just showing you guys what I have amended in the sections I was informed to edit. 

I have condensed what I have written (thanks to both you and Redx). Is this all I would need to provide for my defence then?

The facts as known to the Defendant:

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

The defendant parked on Gateley Road on 11/02/2018 around 9 pm. The defendant usually parked outside of Hagley Road West, B68 0NR, as this was the house that their partner owned. The parking along this street was often limited and on the night in question, there were no spaces available. The defendant, therefore, parked just around the corner, on Gateley Road, unaware of any parking restrictions.

Upon a recent visit to the private land, there was one sign at the entrance to inform visitors that the property was private land, although it should be noted that this notice is written in very small print and is not lit making it impossible to read while entering the private land late at night. This is even more difficult to read and notice when you consider that the driver is entering the road from a busy A road, as well as cutting across a Bus Lane, and due to there being a dual-lane entrance and exit onto said A road, it would only take a van or people carrier to be exiting to completely obscure that sign as you drive in.

Any signage in the area simple prohibits parking and therefore it is not possible for a driver to enter into a contract.