UKPC CCJ - URGENT HELP NEEDED FOR RESIDENTIAL CAR PARK - FINAL DEFENCE NEEDS PROOF READING PLEASE

Coupon-mad

You should write that bit, that is what para 3 is for, in the template.  To set the scene for the Judge.

Albie234

Coupon-mad said:

You should write that bit, that is what para 3 is for, in the template.  To set the scene for the Judge.

Ok thanks, ill write that bit out and add it to the template and then put it back on here fort feedback.

This will be done tomorrow afternoon.

Thanks 

Le_Kirk

Albie234 said:

Le_Kirk said:

Your defence does not line up with the background/explanation that you posted.  Was the car in an underground car parking space or was it outside the door to the flats?  Wherever it was, the driver was loading/unloading or assisting a disabled passenger to alight.  I am sure you noticed you have multiple paragraphs numbered (3) which you will sort out.  Your paragraphs are sometimes repetitive.  Your second last paragraph uses a word (contumelious) that, whilst it is English and has a meaning, is not in common usage (scornful and insulting) and does constitute a legal defence.  You seem to be stating that because something is insulting, the whole claim must be struck out.  Your paragraph about the additional £60, is already included in the defence template.  Have you seen the standard defence template?  Could you use that and add your points into it? 

I have seen the template where you add para 2/3 into it yourself - is this the one you are talking about too ? Should I just be adding the 'defence in my own words section' (at the top of my post) to this template?

Yes it is that one.  You are right to set the scene for the judge and explain (in a few words) the set up of the flats and car park but your main defence point is that you did not PARK at that location, you were loading/unloading.

Fruitcake

Albie234 said:

1505grandad said:

Redx posted 1st October to include:-

"Keeper but the driver is not known after all this time , the defendant cannot recollect who was driving in 2016 , 5 years ago

Think about your wording carefully"

Para 2 states:-

"The Claimant does not know whether the defendant was driving or not, ...."

But one of the paras 3 states:-

"The Defendant, at all material times, parked in accordance with the terms granted by the lease."  -  therefore  contradicting para 2.

Should I either add in - the defendant cannot recollect who was driving in 2016, 5 years ago for every date specified in the particulars?

or just take (the below) it out all together

"The Defendant, at all material times, parked in accordance with the terms granted by the lease."  -  therefore  contradicting para 2.

You could either remove the line, 
"The Defendant, at all material times, parked in accordance with the terms granted by the lease."
because it appears to identify the driver, or you could amend it to something like,
"The defendant's car was parked at all material times in accordance with the terms granted by the defendant's lease."

Whatever you do, do not leave it in as it is.

I'm not sure if it has been mentioned by other posters, but with regard to loading/unloading (of goods or people), you should include a comment about the Jopson vs Homeguard case where the judge stated that loading/unloading is not parking.
The transcript is available online so have a look at paragraphs 19 and 20 to see what the judge said. This was heard in the appeal court so is persuasive on the lower courts.

Albie234

Hey, 

So I have stripped it right back and amended paragraph 3 - please let me know some feedback 

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

2.1. The particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

2.2 The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 19 a total of dates, however, 3 dates ‘10/03/2016, 19/03/2016 and 01/04/2016’ are duplicated.

3. During the time period (02/16-04/16) on some occasions when our underground space was occupied by the other resident of the flat, I would collect (from their property) and help my disabled family member out of the car park, into the lift and to our flat. I needed to load/unload close enough to get them into the building and in the lift, due to this being a difficult task, and as there is very little parking around (it is next to a commuting train station up to london) I would load/unload in the unmarked/unallocated space (not blocking or obstructing anyone or any resident - leaving a note with my number on incase anyone needed me to move) and sometimes come down to a ticket.

3.1 ‘ Jopson vs Homeguard’ states the definition of whether a car is parked or loading/unloading which applies to my case - 

 

Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.

Albie234

Fruitcake said:

Albie234 said:

1505grandad said:

Redx posted 1st October to include:-

"Keeper but the driver is not known after all this time , the defendant cannot recollect who was driving in 2016 , 5 years ago

Think about your wording carefully"

Para 2 states:-

"The Claimant does not know whether the defendant was driving or not, ...."

But one of the paras 3 states:-

"The Defendant, at all material times, parked in accordance with the terms granted by the lease."  -  therefore  contradicting para 2.

Should I either add in - the defendant cannot recollect who was driving in 2016, 5 years ago for every date specified in the particulars?

or just take (the below) it out all together

"The Defendant, at all material times, parked in accordance with the terms granted by the lease."  -  therefore  contradicting para 2.

You could either remove the line, 
"The Defendant, at all material times, parked in accordance with the terms granted by the lease."
because it appears to identify the driver, or you could amend it to something like,
"The defendant's car was parked at all material times in accordance with the terms granted by the defendant's lease."

Whatever you do, do not leave it in as it is.

I'm not sure if it has been mentioned by other posters, but with regard to loading/unloading (of goods or people), you should include a comment about the Jopson vs Homeguard case where the judge stated that loading/unloading is not parking.
The transcript is available online so have a look at paragraphs 19 and 20 to see what the judge said. This was heard in the appeal court so is persuasive on the lower courts.

I've removed this whole section and added the Jopson vs HG - thanks for that, really useful

Fruitcake

A defence is written in the third person, so you should refer to yourself as the defendant in all cases.

Don't use sub para numbering. Para 3 is a bit woolly and confusing. It reads more like a witness statement.

What is relevant is that on the material dates the defendant assisted a disabled passenger to board and alight and load/unload their possessions/purchases/mobility aids (include or delete as applicable) and needed to briefly stop near the building entrance to do so.
The Equality Act 2010 covers reasonable adjustments a company must make where a disabled person is concerned.
If the note the defendant left on the car informed the parking attendant that the motorist was assisting a disabled passenger, then the PPC were aware that an occupant of the car had protected characteristics in accordance with the EA 2010 and should have made reasonable adjustments at the time. Not doing so would be direct discrimination.
If the PPC were not aware until after the event, then that would be indirect discrimination, but they should have made allowance for this possibility.
They should have mitigated their loss by contacting the defendant using the details provided by the motorist in the note left on the car.

Condense all that down to the basics so the judge gets a picture of what was going on. You can expand on all that at the WS stage.

You need to quote the Jopson case number, the judge's name, the fact that this was an appeal court case and is thus persuasive on the lower courts, quote the relevant parts/paragraph numbers from the case, and put the judge's comments in quotes.

Albie234

Fruitcake said:

A defence is written in the third person, so you should refer to yourself as the defendant in all cases.

Don't use sub para numbering. Para 3 is a bit woolly and confusing. It reads more like a witness statement.

What is relevant is that on the material dates the defendant assisted a disabled passenger to board and alight and load/unload their possessions/purchases/mobility aids (include or delete as applicable).

You need to quote the Jopson case number, the judge's name, the fact that this was an appeal court case and is thus persuasive on the lower courts, quote the relevant parts/paragraph numbers from the case, and put the judge's comments in quotes.

Thanks, I'll re-write now.

Albie234

Fruitcake said:

A defence is written in the third person, so you should refer to yourself as the defendant in all cases.

Don't use sub para numbering. Para 3 is a bit woolly and confusing. It reads more like a witness statement.

What is relevant is that on the material dates the defendant assisted a disabled passenger to board and alight and load/unload their possessions/purchases/mobility aids (include or delete as applicable) and needed to briefly stop near the building entrance to do so.
The Equality Act 2010 covers reasonable adjustments a company must make where a disabled person is concerned.
If the note the defendant left on the car informed the parking attendant that the motorist was assisting a disabled passenger, then the PPC were aware that an occupant of the car had protected characteristics in accordance with the EA 2010 and should have made reasonable adjustments at the time. Not doing so would be direct discrimination.
If the PPC were not aware until after the event, then that would be indirect discrimination, but they should have made allowance for this possibility.
They should have mitigated their loss by contacting the defendant using the details provided by the motorist in the note left on the car.

Condense all that down to the basics so the judge gets a picture of what was going on. You can expand on all that at the WS stage.

You need to quote the Jopson case number, the judge's name, the fact that this was an appeal court case and is thus persuasive on the lower courts, quote the relevant parts/paragraph numbers from the case, and put the judge's comments in quotes.

Is this any better?

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

2. The particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 19 a total of dates, however, 3 dates ‘10/03/2016, 19/03/2016 and 01/04/2016’ are duplicated.

3. On the material dates the defendant assisted a disabled passenger to board and alight and load/unload their possessions from an unallocated/unmarked space within the carpark into the block of flats.

3. Within the appeal case of Jopson vs Homeguard - (case no. 9GF0A9E Judge HARRIS) Para 19 - it states the definition of whether a car is parked or loading/unloading which applies to the defendants case. 

 

‘Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree.’

‘I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried it in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.’

Coupon-mad

Were you honestly unloading sixteen times and never parked?