4 Year Old PCN with bonus PCN

Coupon-mad

But there's loads more about unclear signs in the template defence...

Thornton/Vine,
the CRA 2015 test of prominence of consumer notices

The matter of the CRA 2015 test of fairness and clarity has to be considered by a court even if no party raises it (not that most Judges realise that duty under s71).

snores

Hi, could you all let me know if this is good to submit please? Thank you

[redacted]

Coupon-mad

Yes, looks good but I would add a few things and adjust your paragraph about the 'coupon' because you simply don't know if the driver was using Go Outdoors or Aldi (some sort of free parking coupon is produced) or was using the gym which relies on a typically error-prone VRM keypad system. 

You told us this:

"I only know about how the gym validates their parking based off a couple of other threads on here that I've read where people have been patrons of the gym and the gym parking validation errored and they received PCNs. I've never been a member of this particular gym however my partner and brother who were both insured to drive the vehicle in question, may have been (I can't say with certainty because with some gyms you can pick a multi-site option and they can't remember if they attended the gym at this location or not). There's also an Aldi at this location which my partner and I have shopped at multiple times and also a Go Outdoors which again we've both visited. Overall, I really cannot state with any certainty what happened".

And you said:

" I don't remember who the driver was, the original PCN and POC didn't say anything about un-validated parking being the reason for breach. They have only mentioned 'parking validation' as a reason in this amended POC because otherwise the vehicle was well within their time limits (according to the terms they've stated in the same paragraph 4). I'm a bit confused on whether or not I can reference anything about this being the first time they've mentioned failure to validate"

I think you need all of the above and edit the 'coupon' statement, which isn't right if the driver was in the gym (failure of the electronic keypad system, not a coupon thing).

Add a paragraph or two, stating all the above, including that the original postal PCN that arrived weeks later (out of the blue about a car and incident no-one recognised) was not issued for 'failure to validate parking'.

snores

Coupon-mad said:

Yes, looks good but I would add a few things and adjust your paragraph about the 'coupon' because you simply don't know if the driver was using Go Outdoors or Aldi (some sort of free parking coupon is produced) or was using the gym which relies on a typically error-prone VRM keypad system. 

You told us this:

"I only know about how the gym validates their parking based off a couple of other threads on here that I've read where people have been patrons of the gym and the gym parking validation errored and they received PCNs. I've never been a member of this particular gym however my partner and brother who were both insured to drive the vehicle in question, may have been (I can't say with certainty because with some gyms you can pick a multi-site option and they can't remember if they attended the gym at this location or not). There's also an Aldi at this location which my partner and I have shopped at multiple times and also a Go Outdoors which again we've both visited. Overall, I really cannot state with any certainty what happened".

And you said:

" I don't remember who the driver was, the original PCN and POC didn't say anything about un-validated parking being the reason for breach. They have only mentioned 'parking validation' as a reason in this amended POC because otherwise the vehicle was well within their time limits (according to the terms they've stated in the same paragraph 4). I'm a bit confused on whether or not I can reference anything about this being the first time they've mentioned failure to validate"

I think you need all of the above and edit the 'coupon' statement, which isn't right if the driver was in the gym (failure of the electronic keypad system, not a coupon thing).

Add a paragraph or two, stating all the above, including that the original postal PCN that arrived weeks later (out of the blue about a car and incident no-one recognised) was not issued for 'failure to validate parking'.

Thanks CM. Does this look any better?

4. At the location of the alleged contravention, there are 3 retail stores and 1 gym. The Defendant has no recollection of the driver of the vehicle on an unremarkable date 5 years ago; 4 people were insured to drive the vehicle in question. All 4 people, including the Defendant, have visited this location multiple times to patronise the 3 retail stores and possibly also the gym.

4.1. This gym is part of a national chain which offers multi-site membership; it is possible that 2 of the people who were insured to drive the vehicle, may have visited the gym at this location.

5. The Claimant’s amended POC avers that there is signage stating “customers will receive a free parking voucher in store”. Paragraph 4 is therefore, neither admitted nor denied insofar as the Defendant has no recollection of the signs from 5 years ago. The claimant is put to proof with contemporaneous photographs, contracts and other VRMs that were exempted in-store that day, across all three stores.

5.1 The Terms require the three onsite retails stores to supply the driver with a ‘voucher’. Thus, the Claimant is put to strict proof that they did in fact provide all three shops with an adequate number of vouchers and that the driver was in fact issued with a voucher, if they did patronise any of the stores. If the driver was, for whatever reason not provided with a voucher, the Term of the Contract becomes impossible to perform.

5.2. The gym onsite utilises a tablet to validate parking; the Claimant is put to strict proof that this tablet was functioning correctly on the date of the alleged contravention, was able to validate parking correctly and evidence other VRMs validated in the gym that day. If parking was not able to be validated due to failure of this tablet system, the driver, if they did patronise the gym, would therefore not have been able to perform the Terms of the Contract. 

8. Paragraph 7 is not admitted. The Claimant is put to proof that the vehicle was parked on the land concurrently for the time alleged, and that the alleged contravention was not in fact 2 separate visits both under an hour each.

8.1 The Claimant is put to proof that the Defendant’s vehicle was not exempted in-store or at the gym.

8.2. The original postal PCN sent to the Defendant by the Claimant, which;

(i) arrived weeks after the date of the alleged contravention,

(ii) was unanticipated and referenced a vehicle whom no-one recognised,

did not mention a “failure to validate” or any reference that the vehicle was un-validated, which was therefore the reason for the breach of contract and subsequent PCN.

Coupon-mad

I'd remove this at the end there:

"which was therefore the reason for the breach of contract and subsequent PCN."

And add this as 5.3:

5.3.  It is denied that the gym operates any sort of 'voucher system', therefore the Defendant avers that the new Particulars of Claim - which also fail to inform the court of the fact that Highview have never used the POFA 2012 provisions and cannot hold keepers liable - are incoherent and irrelevant.

snores

Coupon-mad said:

I'd remove this at the end there:

"which was therefore the reason for the breach of contract and subsequent PCN."

And add this as 5.3:

5.3.  It is denied that the gym operates any sort of 'voucher system', therefore the Defendant avers that the new Particulars of Claim - which also fail to inform the court of the fact that Highview have never used the POFA 2012 provisions and cannot hold keepers liable - are incoherent and irrelevant.

Thank you so much CM, I really appreciate it.
I'm going to submit the defence today

snores

Hi all I've done a first draft of my WS for the claim regarding my own car, its due this thurs (I only got the letter from the court last weds hence the last minute).
Would you all be so kind as to take a look at it for me incase there's anything I need to change please?


Thank you so much

Coupon-mad

4 and 5 are repetitive. That needs sorting.

A later para (36?) says 'as per paragraph 27' which makes no sense and that phrase needs removing.

You need Excel v Lamoureux and Excel v Smith (Appeal). Search the forum for a WS with those cases referred to and appended as exhibits. Copy what someone recently wrote about those cases and be aware that EXCEL V SMITH is most important because it was on appeal to a Circuit Judge, which makes it persuasive. It has clout.

snores

Coupon-mad said:

4 and 5 are repetitive. That needs sorting.

A later para (36?) says 'as per paragraph 27' which makes no sense and that phrase needs removing.

You need Excel v Lamoureux and Excel v Smith (Appeal). Search the forum for a WS with those cases referred to and appended as exhibits. Copy what someone recently wrote about those cases and be aware that EXCEL V SMITH is most important because it was on appeal to a Circuit Judge, which makes it persuasive. It has clout.

Thanks CM. I'll have a look at 4 and 5 and amend 36.

I'll look for those transcripts and add them in. Should I still keep Excel v Wilkinson? 

DCBs deadline for paying the court fee is after the deadline for my WS - if they see my WS before they have to pay, is that a disadvantage to me?

Also I've read on a few threads now that the court won't accept an emailed WS that's above 50 pages - I don't want to risk posting it due to all the delays so can I print it off and drop it off to the court myself on Thursday? 

Coupon-mad

'll look for those transcripts and add them in. Should I still keep Excel v Wilkinson? 

Of course.  Read them, they are nothing to do with each other and deal with different things.