Some help with defence statement

Le_Kirk

Keep going until you receive a discontinuation notice (N279) from the court.  This has happened before when defendants apparently get told the claim has stopped but the claimant fails to tell the court!

Island_blue

Oh dear, yes thanks, you’re right. I just rang them and it’s what I feared. The email was from a company with almost the same name and they’re the collections team I’ve dealt with all these years who drop it at this stage and it goes to DCB Legal who it seems still pursue the court claim. Deliberately confusing names. 

DCBL = DCB ltd (the collections company who sent above email) 

DCB Legal is the legal team who take you to court. (But they’re not DCBL)!

Crazy choice of name abbreviations. So I’ll have to continue tomorrow, managed to waste my morning unfortunately on this. Oh well..

Le_Kirk

Island_blue said:

Oh dear, yes thanks, you’re right. I just rang them and it’s what I feared. The email was from a company with almost the same name and they’re the collections team I’ve dealt with all these years who drop it at this stage and it goes to DCB Legal who it seems still pursue the court claim. Deliberately confusing names. 

DCBL = DCB ltd (the collections company who sent above email) 

DCB Legal is the legal team who take you to court. (But they’re not DCBL)!

Crazy choice of name abbreviations. So I’ll have to continue tomorrow, managed to waste my morning unfortunately on this. Oh well..

I don't think it is crazy - you could be forgiven for thinking it is deliberate!

Island_blue

Here’s the relevant part of my defence. Please let me know if you have time if any parts are irrelevant or already covered elsewhere. I’m not sure whether in the actual document I send whether I should mention it was my husband driving or not, or where I live in relation to the services (I guess they will know this anyway). So here it is, I need to send it on Monday daytime:

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The keeper denies being the driver.

3.  Almost five and a half years ago on ***** The driver followed the advice of the motorway signs “Tiredness can kill, Take a break”. The Driver was extremely tired having been working in London and was travelling the 350 mile journey home. The driver pulled into the services in the early hours of the morning for a sleep so he could safely carry on the journey ahead, for the safety of himself and all other road users. The case Bowden Vs Parking eye is similar to the Defendants case in which an over stay at night for the safety of himself and other road uses occurs.

On entering the service station the driver did not see any signs stating there was a fee chargeable at night, due to focusing on the route directions on the tarmac. No signs were seen from the direct route across the car park to the facilities. Furthermore no signs were visible from the car. It was a dark January night and the car park was dimly lit. 

The defendant did not receive a fine or any communication from CP plus and the first letter received about this case was in May 2020 from DCBltd  almost three and a half years after the alleged contravention stating it was too late to appeal. The defendant immediately emailed DCBltd to question this and asked for information on signage which was not received. Their communication stopped for a further year and a half until August 2021 when a letter arrived to our old address. Again the defendant emailed a reply to request signage information and an explanation of what the free period stated was. No information was provided. The defendant and driver live 200 miles away from the services and so had no way of knowing what the alleged overstay or contravention was.

4. The defendant strongly believes there should not be a disincentive to stop at night – as the signs say: ‘Tiredness kills, take a break’. This is backed up by Edmund King, AA president who believes there is a case for a special area at motorway service areas where drivers could rest in their cars without incurring penalties.

Edmund King, AA president, says: “Motorway service areas are essential for road safety and growing more important as motorways are widened on the cheap by using the hard shoulder. Tired drivers need somewhere to stop off, as it is estimated up to 10% of fatalities on motorways could be due to drivers falling asleep at the wheel”.

Johnersh

That reads very much like  a witness statement and if you weren't driving and weren't there, it's difficult to put into your defence. 

Can you say for certain there were signs or what they might've said? Cause if not, the parking company probably ought to prove that. 

My hypothetical defence would be more circumspect, like the below. I can't check your circumstances for accuracy, so obviously craft your defence as you wish. Remember that a defence must also contain a statement of truth with the contempt of court notice. 

1. The defendant was not the driver of vehicle xxxx on date. 
2. As RK You accept that where the provisions of PoFA schedule 4 are met, and only within those limitations, liability for a parking charge notice (PCN) may pass to the RK.
3. The particulars of claim refer to what is understood to be an alleged parking contract, but do not set out with adequate specificity what parking terms, if any, were breached 
4. The claimant in pre-action correspondence has failed to provide, when reasonably requested, further details of the parking contract.
5. The defendant reserves the right to amend the defence once details of the contract are provided.
6. The defendant did not receive a fine or any communication from CP plus at the material time.
7. The first letter received about the alleged breach of contract was in May 2020 from DCBltd almost three and a half years later. 
8. Insofar as it is within the knowledge of the defendant, the vehicle was present in service station x on y date
9. It is neither admitted nor denied that parking terms applied to service station customers on that date. The claimant is put to strict proof. 
10. It is neither admitted nor denied that there were parking notices sufficient in number or, inter alia illuminated and visible at night, so as to bring to the attention of car park users any terms of parking that the claimant may rely upon. The claimant is put to strict proof.
11. It is denied that the defendant is responsible for the sums claimed or at all.
11.1 the claimant claims interest on a sum that was not notified to the defendant and which is a result of their own delay in seeking payment. To the extent that there has been any delay it lies with the claimant and interest should be disallowed. 
11.2 the claimant claims a sum in excess of the maximum permitted under the relevant approved operator schemes and without justification or further explanation as to how such additional sums arise, are incurred or are calculated and seeks to claim additional interest thereon. It is denied that such sums are recoverable.

The driver will need to give a statement at a later date, naturally. 

Umkomaas

👆👆☝️☝️

Gold dust. Johnersh is a lawyer.  Lap it up. 

D_P_Dance

Personally I would submit the defence, .just in case anothe dirty shirt has taken over.

Island_blue

Thank you Johnersh for such in depth help with my defence. I did wonder how to phrase it given that I wasn’t there and the driver can’t remember that far back in the middle of the night when he was exhausted. I just know he didn’t see signs saying he would be fined at night.

i will alter it accordingly. Just to check before I send it off on Monday early afternoon, the point 4 I had written about “Tiredness can Kill” signs should be left out? Also the point about Bowden versus Parking Eye, do you think this is irrelevant to my defence? 
Thanks again

Johnersh

Be careful about Bowden v PE.  The claimant never attended that hearing. While the headlines are good, it isn't authority for the proposition that you can stay as long as you fancy in a service station.

Assuming the driver was tired, his reasons for stopping are best put in his statement I'd have thought.

Again, it's your defence. You must include what you wish to. The statement of truth was missing from draft #1 but I assume you now have that. 

Fruitcake

Service stations are designated refuge areas, a place of safety. A driver falling asleep is exactly the reason why these places exist; to stop motorists driving whilst tired which could then result in a fatal accident.
I would definitely include the Tiredness Kills point. It is a legal and moral requirement not to drive when tired. The driver in your case was complying with the higher authority of the laws of the road.

Forcing a tired driver to leave is dangerous. Forcing a tired driver to somehow set an alarm to male themselves wake up so they can pay for extra (unknown) time is just as dangerous.

If a driver fell asleep, it was because they were tired and needed to rest. They should not be charged for doing the right thing.