BW Legal County court claim

Coupon-mad

Use ‘denies’.  Much better!

Castle

CaH27 said:

Sorry Le_Kirk, before 4pm Monday 20th September.

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

3. The defendant denies/dismisses using this site on the claimed date of 2nd December 2016. The defendant, according to bank statements, was located 5 miles away in a restaurant.

On point 3, I was unsure weather to use the word denies or dismisses? Are my bank statements enough evidence? Or would I be better letting the claimant prove I was there on 2nd December?

Coupon-mad - I remember you saying earlier about including that it was a memborable date, the 12th February was a memorable date, the 2nd December wasn't.

Thanks again everyone.

Don't you want to mention that the vehicle was also 5 miles away on this date.

CaH27

Castle - thank you, that is a good point!

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

3.  The defendant denies using this site on the claimed date of 2nd December 2016. The defendant, according to bank statements, was located 5 miles away in a restaurant, with the vehicle in question parked in the restaurant car park.

Hopefully the last draft haha (fingers crossed) 

Coupon-mad

Looks good but double check the rest of the template below this part (don’t ask us to do this check, this is for you, fresh eyes, unusual case).  Check it yourself to see it makes sense because I’m not convinced it all will be.  For example I think it talks about the signs being unclear and you can’t have that!!

CaH27

I have removed this section from point 4.

"The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2."

I do have an unfair charge added "debt recovery" so have kept that in.

Coupon-mad

Yes, I can't see how you can keep that in!

CaH27

Also, I am removing sections 13, 14 and 15. 

"The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed."

14. "Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound."

15. "Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished."

As my defence is that I was not there on the claimed date. I therefore, wouldn't argue about signage?

I am hoping to get this sent tonight. Any help would be really appreciated! Thank you everyone.

Johnersh

The sign could have given you the wining lottery numbers, but you wouldn't know because, as I understand it, you weren't bl00dy there.

Can people (not just the o/p but all forum users) pleeease stop following the template religiously. It is a suggested model, it is not a set of tramlines from which you should never depart. 

Coupon-mad

I agree, and am glad these parts are being removed in this case.

There is another thread like this with a US date and that person needs to remove all this too. 

CaH27

Thank you everybody for your help! It has given me great confidence and determination to fight my case!

The defence has now been sent. I await the next steps.