Disputing a ticket - frustration of contract?

Redx

Read this one too

https://forums.moneysavingexpert.com/discussion/6291259/vcs-county-court-claim-dcb-legal-next-steps/p2

You cannot read too many recent posts that contain defence drafts , up to a dozen and you will get the gist

Save your earlier attempt for the WS stage next spring or summer

You are right to study the Robert Cox ones , because bargepole gave them a glowing accolade in his subsequent post

Vanadesse

OK, updated and far simplified defence paragraphs. Is this simp[le enough without cutting anything of importance that should be included at this stage rather than waiting for WS? I am assuming that they will intend to proceed and we'll move to that WS stage at some point so this stage is probably just a bit of a formality where I just need to make sure that I tick all the boxes and bring out everything in full once we're at that point.

The facts as known to the Defendant:

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

2.           The Particulars of Claim states that the Defendant was the registered keeper of XXXX on 03/08/2016. Please note that this date is provided in the US date format, with the incident occurring on 8th March 2016. The Defendant admits to stopping onsite at the Ashton Retail Park on the said date but denies liability or that parking took place.

The Defendant manouvered into Ashton Retail Park after the failure of their wiper blades whilst driving on the A6043 in heavy downpour. They remained in the car with their 10-month-old infant whilst the RAC attended the call out, ultimately repairing a loose nut on the wiper motor. The Defendant did not leave the car unattended during their time on the site and left promptly following the repair. A Customer Assistance Report was provided to the Claimant within an appeal on the basis of frustration of contract, which the Claimant and a later Independent Appeals Service appeal refused.

The Defendant puts the Claimant to strict proof of both that and any evidence they have to show clear unobstructed signage that is neither distracted by other random signage and that has clear parking terms that could have been viewed entering the site from a busy dual carriageway in extremely poor weather conditions in order to form a contract.

Redx

A lot better

There was some considerable debate on this forum about incorrect format dates recently , so read what people like @Johnersh said as regards dates and about a defence where incorrect usa dates are shown

Now you have mentioned the location , I believe that the first hour on the landowner contract was free , although the signage was ambiguous when my relative received a PCN there several years ago when it said 30 minutes was free , so put the claimant to strict proof on signage and landowner authority etc

So the total time on site may be a factor , but none of this is in the above Defence , but should be mentioned , as the door or doors that opens later , to the lengthy WS in say 6 months time

So I am saying that you need to concisely add wording to bring these things into question later , by mentioning them briefly in the defence

Vanadesse

Redx said:

A lot better

There was some considerable debate on this forum about incorrect format dates recently , so read what people like @Johnersh said as regards dates and about a defence where incorrect usa dates are shown

Now you have mentioned the location , I believe that the first hour on the landowner contract was free , although the signage was ambiguous when my relative received a PCN there several years ago when it said 30 minutes was free , so put the claimant to strict proof on signage and landowner authority etc

So the total time on site may be a factor , but none of this is in the above Defence , but should be mentioned , as the door or doors that opens later , to the lengthy WS in say 6 months time

So I am saying that you need to concisely add wording to bring these things into question later , by mentioning them briefly in the defence

That’s really helpful, thank you. So basically, anything that I will mention in my witness statement I need to briefly mention in the defence in that strict proof form?

I don’t know if there is any landowner contract at all. The landowner (following from tiger) were unable to locate one and they’ve since moved to a different parking company who do give 1 hour now. Also worth mentioning? 

Vanadesse

The facts as known to the Defendant:

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

 

2.           The Particulars of Claim states that the Defendant was the registered keeper of XXXX on 03/08/2016. Please note that this date is provided in the US date format, with the incident occurring on 8th March 2016. The Defendant admits to stopping onsite at the Ashton Retail Park on the said date but denies liability or that parking took place.

 

The Defendant manouvered into Ashton Retail Park after the failure of their wiper blades whilst driving on the A6043 in heavy downpour. They remained in the car with their 10-month-old infant whilst the RAC attended the call out, ultimately repairing a loose nut on the wiper motor. The Defendant did not leave the car unattended during their time on the site and left promptly following the repair. A Customer Assistance Report was provided to the Claimant within an appeal on the basis of frustration of contract, which the Claimant and a later Independent Appeals Service appeal refused.

 

The Defendant puts the Claimant to strict proof of both that and any evidence they have to show clear unobstructed signage that is neither distracted by other random signage and that has clear parking terms that could have been viewed entering the site from a busy dual carriageway in extremely poor weather conditions in order to form a contract.

 

The Defendant also puts the Claimant to strict proof that and any evidence they have acted within the authority given to them by the landowner, including proof that their signage matches the free length of parking that is specified within the contract between the Claimant and the landowner.

Le_Kirk

Vanadesse said:

That’s really helpful, thank you. So basically, anything that I will mention in my witness statement I need to briefly mention in the defence in that strict proof form?

Yes, a defence is a series of (short) punchy legal/technical arguments, written in the third person (as explained by @Redx) whereas a witness statement is the narrative (written in the first person) explaining the story of what happened on the day and subsequently and backs up and supports your defence.  Provided you have mentioned something in the defence, for example, you (well the car) had a mechanical breakdown, you can give the full details with evidence (the Customer Assistance Report) in the witness statement.  Every paragraph requires a number just so you can refer to it by that number when talking the judge through it at a hearing - if it gets that far.

Vanadesse

That's really helpful @Le_Kirk thank you, I think I've finally got my head around it now. Sorry for being so slow! Slightly updated based on the thread that I just managed to find about the dates.

The facts as known to the Defendant:

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

 

2.           The Particulars of Claim states that the Defendant was the registered keeper of XXXX and was issued with a PCN on 03/08/2016. It is important to note that the Claimant has submitted incorrect information, despite this previously being raised with their legal representation and therefore the Defendant puts the Claimant to strict proof that a PCN with the above date was ever issued and therefore that the Claim Form submitted and issued is correct and enforceable.

 

3.           The Defendant admits to stopping onsite at the Ashton Retail Park on the corrected date of 08/03/2016 but denies liability or that parking took place. The Defendant manoeuvred into Ashton Retail Park after the failure of their wiper blades whilst driving on the A6043 in heavy downpour. They remained in the car with their 10-month-old infant whilst the RAC attended the call out, ultimately repairing a loose nut on the wiper motor. The Defendant did not leave the car unattended during their time on the site and left promptly following the repair. A Customer Assistance Report was provided to the Claimant within an appeal on the basis of frustration of contract, which the Claimant and a later Independent Appeals Service appeal refused.

 

4.           The Defendant puts the Claimant to strict proof of both that and any evidence they have to show clear unobstructed signage that is neither distracted by other random signage and that has clear parking terms that could have been viewed entering the site from a busy dual carriageway in extremely poor weather conditions in order to form a contract.

 

5.           The Defendant also puts the Claimant to strict proof that and any evidence they have acted within the authority given to them by the landowner, including proof that their signage matches the free length of parking that is specified within the contract between the Claimant and the landowner.

Redx

looking even better, yes mention that this site has always had a 1 hour free parking by the landowner from your own research and still does as far as you are aware, so there was no overstay

or words to that effect (but keep it concise)

every paragraph requires a number as you have now realised, so good , the old number 4 can be the new 6 etc when the final version is slotted into place

I am unsure what you should do about the usa format date issue, so will leave that to others, because quite a debate raged about it recently on here, which involved several regulars including Johnersh

if you compare this draft to the lengthy one earlier, you can now see what we were getting at

Vanadesse

Redx said:

looking even better, yes mention that this site has always had a 1 hour free parking by the landowner from your own research and still does as far as you are aware, so there was no overstay

or words to that effect (but keep it concise)

every paragraph requires a number as you have now realised, so good , the old number 4 can be the new 6 etc when the final version is slotted into place

I am unsure what you should do about the usa format date issue, so will leave that to others, because quite a debate raged about it recently on here, which involved several regulars including Johnersh

if you compare this draft to the lengthy one earlier, you can now see what we were getting at

I couldn't quite find a definitive answer so I will include it I think, unless anyone can give me good reason not to. It was raised with them previously but they didn't correct it.

Is it possible to find a copy of your POPLA decision against them related to the 1 hour free parking when it comes to WS and evidence? I'm not quite sure how it works, I'm looking through the POPLA decisions thread atm.

Le_Kirk

Vanadesse said:

4.           The Defendant puts the Claimant to strict proof of both that and any evidence they have to show clear unobstructed signage that is neither distracted by other random signage and that has clear parking terms that could have been viewed entering the site from a busy dual carriageway in extremely poor weather conditions in order to form a contract.

5.           The Defendant also puts the Claimant to strict proof that and any evidence they have acted within the authority given to them by the landowner, including proof that their signage matches the free length of parking that is specified within the contract between the Claimant and the landowner.

Not sure what you meant by this but I don't understand it, maybe the judge won't!