Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

KeithP

CPR 16.5(1) reads:

16.5
(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(c) which allegations he admits. 

milkybk

KeithP said:

CPR 16.5(1) reads:

16.5
(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(c) which allegations he admits. 

So with that in mind:

1. I admit to being the registered keeper of the vehicle.
2. I am unable to admit or deny that I was the driver and therefore require the claimant to prove so.

Which ties in with what @henrik777 was saying.

Coupon-mad

Yes, perfect.  I could have been driving your car, as could any allowed friend or relative who has insurance that allows driving other vehicles. 

milkybk

Coupon-mad said:

Yes, perfect.  I could have been driving your car, as could any allowed friend or relative who has insurance that allows driving other vehicles. 

Cool. Here is another draft then, with the changes everyone has recommended, tried to ensure it's third person too.

Should Defendants actually be - Defendant's - due to it being a request from them or something they possess etc.

1.   The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.   It is admitted that the Defendant was the registered keeper of the vehicle. However anyone could have been driving the car. such as a friend or relative, who had insurance allowing them access to other vehicles. Over 55 months have past since the alleged event and therefore, the Defendant cannot be sure who was driving. Therefore the Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so.

3.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. The Claimant's Data Protection Officer also refused to reply to the Defendant's Subject Access Request email, sent 04/072021. The Claimant also ignored a follow up email chasing the SAR on 07/07/2021. By law, the Claimant should have responded without delay and within one month of receipt of the request. This was a simple request and therefore there are no mitigating circumstances to allow for an extension should have been required. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal. 

4.   On 16/09/2021 the Defendant received a SAR file from Excel. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails, along with automatic reply receipts from the Claimant, proving they did receive the aforementioned SAR. It contained no new information that pertains to the Defendant's defence. The Claimant to this date has still refused to provide PDT machine records from the day of the alleged parking charge. 

5.  As the registered keeper, the first heard the Defendant about this alleged parking charge was via post. The only photos provided were two blurry ones, where the cars registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant's Subject Access request, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

6.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

7.   Finally, the aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

8.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

Coupon-mad

Yes it should have the apostrophe, denoting ownership.  And remove this, I was only saying what could have happened but no need to add it to the defence, it looks like you are making it up:

However anyone could have been driving the car. such as a friend or relative, who had insurance allowing them access to other vehicles. 

milkybk

Coupon-mad said:

Yes it should have the apostrophe, denoting ownership.  And remove this, I was only saying what could have happened but no need to add it to the defence, it looks like you are making it up:

However anyone could have been driving the car. such as a friend or relative, who had insurance allowing them access to other vehicles. 

Ah thought so, English wasn't my best subject at school, hence being an Engineer!

Hehehe but it sounded good! Although suppose it's a bit presumptuous and therefore rude to assume a Judge wouldn't realise that themselves. Excel on the other hand, need to write it out in crayon for them to get it. Will edit now.

Everything else good?

Le_Kirk

Over 55 months have past passed since the alleged event and therefore, the Defendant cannot be sure who was driving on an unremarkable day so long ago.

5.  As the registered keeper, the first the Defendant heard about this alleged parking charge was via post.

Maybe adjust as above, although I don't know what point you are trying to make with para # 5 - except maybe that there was no NTD.

milkybk

Le_Kirk said:

Over 55 months have past passed since the alleged event and therefore, the Defendant cannot be sure who was driving on an unremarkable day so long ago.

5.  As the registered keeper, the first the Defendant heard about this alleged parking charge was via post.

Maybe adjust as above, although I don't know what point you are trying to make with para # 5 - except maybe that there was no NTD.

Hi @Le_Kirk - yes that is the point I was trying to make. In Feb 2017 I never found a NTD affixed to my vehicle at any time, regardless of where it was parked. However, I am also obviously not admitting to being the driver on the night of the alleged incident. 

Question - Once finished should I send this draft defence to the claimant and the court before my hearing (on Thursday this coming week)? Just so they know I'm willing to defend under CPR13.3 too. 

Also, sorry for tagging many people but the date is closing - @Johnersh

________________________________________________________________

Pinged names please see below acknowledgment, I apologise if I missed everyone, so many people have helped me it's hard to keep up:

@henrik777
@Le_Kirk
@Coupon-mad
@KeithP
@Umkomaas
@Redx
@Jenni_D
@Fruitcake


I cannot thank you all enough for the help you've given me over the last months. You have helped turn a horrible experience into a simple step by step process. You've given me the confidence to go into this hearing knowing I can defend myself and knowing I can win, regardless of if it's CPR13.2 or CPR13.3 - With that said, regardless of the outcome of the next few weeks, I will forever be grateful for the time you spend helping others, thank you.

________________________________________________________________

Changes made:

1.   The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.   It is admitted that the Defendant was the registered keeper of the vehicle. However anyone could have been driving the car. such as a friend or relative, who had insurance allowing them access to other vehicles. Over 55 months have passed since the alleged event and therefore, the Defendant cannot be sure who was driving on an unremarkable day so long ago.

Therefore the Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so.

3.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. The Claimant's Data Protection Officer also refused to reply to the Defendant's Subject Access Request email, sent 04/072021. The Claimant also ignored a follow up email chasing the SAR on 07/07/2021. By law, the Claimant should have responded without delay and within one month of receipt of the request. This was a simple request and therefore there are no mitigating circumstances to allow for an extension should have been required. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal. 

4.   On 16/09/2021 the Defendant received a SAR file from Excel. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails, along with automatic reply receipts from the Claimant, proving they did receive the aforementioned SAR. It contained no new information that pertains to the Defendant's defence. The Claimant to this date has still refused to provide PDT machine records from the day of the alleged parking charge. 

5.  As the registered keeper, the first heard the Defendant about this alleged parking charge was via post. The only photos provided were two blurry ones, where the cars registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant's Subject Access request, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

6.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

7.   Finally, the aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

8.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4

milkybk

Here is my template for the hearing day, reminders etc:

1. Test Mic, lighting and camera here - https://join.meet.video.justice.gov.uk/HMCTS/#/?conference=test_call

2. Wear suit.

3. Ensure all desktop is clear of icons and no other web pages are open.

4. Have files open on desktop in split screen mode, ensuring they can be easily pulled up and shared if required.

5. Ensure Judge has all up to date and relevant files. Have them ready to send in a zip folder if required.

6. Introduce self - Defendant

7. Lead with your N244 statement

8. Say you wish to focus your Set Aside hearing on CPR13.2 and why you believe the CCJ should be a mandatory set aside - ensure Judge is aware that the Claimant has purposefully tried to avoid this section of CPR13 even though I have consistently stated to them that it is my defence for the Set Aside.

9. Use supplementary witness statement and emails to Excel as proof of this if required - already in evidence packs.

10. Ensure Judge is aware you have a schedule of costs.
11. Ensure Judge is aware you have a defence prepared for CPR13.3

Questions:

• I have email confirmation that the court received my contact details but haven't received a link yet to the hearing. How long before the hearing should I receive this?
• Do you have to share your screen at all during the hearing?
• How can ensure the Judge has the up to date documents? My dealings with the CCBC admin staff were poor (as this thread details, thankfully corrected eventually) and they made numerous errors. I don't have full confidence that the court admin staff are any better...
• My main concern is that they won't have added my supplementary witness statement to the file for the Judge (and draft defence once I sent it). This is important as it points out the errors in the Claimants Witness Statement and proves they're conjecture etc.
• Therefore, during the trial, can I send and share files on the day if required.

Notes:
I have already tested my camera, mic and lighting on the website and all work well - I will double check on the morning of the hearing before logging in. My suit is also ready haha.

1505grandad

Para 3  -  "The Claimant's Data Protection Officer also refused to reply to the Defendant's Subject Access Request email, sent 04/072021."  -  / missing

Just checking this:-

"The Claimant also ignored a follow up email chasing the SAR on 07/07/2021."

in view of this:- 

"By law, the Claimant should have responded without delay and within one month of receipt of the request."