DCBL claim, draft defence- please help!

hiphopdan29

Final Draft…..
Any other pointers before I file this?

 Thanks 

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

 

3. The defendant avers firstly, that there is no liability as there was no contractual breach and in any case, the clause requiring a vehicle to gain authorisation was void for impossibility. The alleged contract was neither seen nor agreed due to very poor and unlit signage along the road.  This was not a car park and the area was pitch black, with no terms seen about 'authorised vehicles' nor how a driver could obtain such authorisation, had the Defendant even caught a glimpse of such a term or notice, which is denied. The defendant entered the private road without knowledge this was private land; this area had the appearance of a continuation of public highway where no contractual terms are possible and where local parking restrictions had ended.  There was no signage at the entrance of the private road, no street lighting and signage on the walls further down the road were obscured by hedging. The defendant’s purpose of being there in the first place was because of a pre-booked Rental Apartment booking and the time  recorded by the claimant’s devices spent here was trying to locate the address which was extremely difficult to find with it being nightfall and very little street lighting.   The alleged consumer contract fails the requirements in the Consumer Rights Act 2015 for prominence and transparency, and thus, these consumer notices (as well as the hidden terms) would be deemed unfair and unenforceable pursuant to that legislation, which was not enacted at the time of the hearing of the Supreme Court 'Beavis' case that the Claimant will rely upon.

4.  Further and in the alternative, there was a lack of the required 'relevant obligation or relevant contract' as set out under statute in the Protection of Freedoms Act 2012 (ref: Schedule 4) along with an absence of 'adequate notice of the parking charge' which are all pre-requisites for driver liability being established first and foremost.  The Claimant also failed to comply with paragraph 14 of Schedule 4 regarding the paperwork that had to be served in order to transfer liability from the registered keeper to the hirer, so there was also no question of lawful 'hirer liability'.

KeithP

In paragraph 4 you say...

The Claimant also failed to comply with paragraph 14 of Schedule 4 regarding the paperwork that had to be served in order to transfer liability from the registered keeper to the hirer, so there was also no question of lawful 'hirer liability'.

But earlier, in paragraph 3, you freely admit to being the driver, so there is no need for them to transfer any driver's liability to the hirer.

hiphopdan29

KeithP said:

In paragraph 4 you say...

The Claimant also failed to comply with paragraph 14 of Schedule 4 regarding the paperwork that had to be served in order to transfer liability from the registered keeper to the hirer, so there was also no question of lawful 'hirer liability'.

But earlier, in paragraph 3, you freely admit to being the driver, so there is no need for them to transfer any driver's liability to the hirer.

I’m just taking this from Coupon-mad. I don’t really understand what it means

Redx

H driver has no lawful protection under POFA !!

A hirer may be a keeper but wasn't the driver

Also , an owner or registered keeper may not have been the driver either

So if you are admitting to being the keeper , hirer and driver , POFA does not apply

So a Driver based defence can't allege that the transfer was incomplete , it's irrelevant when a Driver admits that they were driving

So a driver defence leaves out all POFA matters , so 4 is useless to you as an admitted driver

Coupon mad already rewrote the defence paragraphs , so I am unsure why you altered the rewrite

hiphopdan29

Redx said:

H driver has no lawful protection under POFA !!

A hirer may be a keeper but wasn't the driver

Also , an owner or registered keeper may not have been the driver either

So if you are admitting to being the keeper , hirer and driver , POFA does not apply

So a Driver based defence can't allege that the transfer was incomplete , it's irrelevant when a Driver admits that they were driving

So a driver defence leaves out all POFA matters , so 4 is useless to you as an admitted driver

Coupon mad already rewrote the defence paragraphs , so I am unsure why you altered the rewrite

Ok. Think I understand, but I didn’t rewrite it. I just copied and paste it and deleted all the words that was crossed out. 

Are you saying I don’t need paragraph 4?

sorry for my ignorance


 Thanks 

Coupon-mad

Keep it in. 

I know exactly what @KeithP means and it crossed my mind too, but this is a Judge we are talking about and they don't deal with the POFA every day like we do. 

I quite liked the 'neither driver nor hirer liability can apply' argument, taking the Judge to look at the POFA para 14 which he/she will see was not complied with because your NTH had no enclosures as the law prescribes.

I am playing a bit of a game here and @KeithP is right but it never hurts to have an alternative position and a law for the Judge to look at and start to be on your side when he/she can see that law has not been complied with.  Gets you halfway there IMHO.

hiphopdan29

Ok. So it won’t hurt to leave it in? Would the judge ask me to elaborate further on this point? Coz I don’t have a clue. 

Thanks 

Coupon-mad

You do have a clue because I told you exactly which paragraph of the POFA prescribes it.

Read Schedule 4, it's easy and in plain English,  There's nothing difficult about para 14.

hiphopdan29

Defence has been filed today. Just a couple of questions if you could help please. 

1. Do I still need to register with money claim.gov.uk as per claim form even though I submitted the defence using the email from the newbies thread?
2. Should the case go to court can a friend speak on the defendant’s behalf; and do I need to let the court know in advance?

much appreciated 

thank you 

Coupon-mad

1. No, don't put anything in MCOL's defence box!  You will have got a confirmation email and you can check MCOL for updates ONLY.

2. Yes, that's a lay rep (as long as the D attends too, and it will be a phone hearing anyway but they still have to 'attend' with the lay rep).  No permission in advance needed at all and they are not a 'witness'.