Some help with defence statement

Coupon-mad

One newspaper article I recall, had MOTO saying they will cancel a PCN if a driver had fallen asleep.

If this is MOTO (or Roadchef) do an angry email complaint to their CEO even though they won't cancel now and are washing their hands of it all.

Over the past year we've seen both MSAs swing from cancellations to refusing to cancel (perhaps leaned on by their pet parking agent that has grown teeth?  Maybe even threatened with a Somerfield-style litigation, for preventing their 'income stream'?).

Do it anyway.  Their CEO needs to get so fed up of the predatory !!!!!! being operated by CP Plus and dump them.  How dare they do this to registered keepers who were not even driving and are not liable AND don't have to name the driver?

BTW I think the defence by Johnersh is brilliant!  IMHO needs the rest of the template defence after it, not least to cover the DLUHC position on the fake added costs, the lack of any truly independent ADR and the fact the NTK is non-POFA so can't even hold you legally liable (at all) if you were not driving.

All of which is in the template. 

Castle

And you can be charged with careless or even dangerous driving in a car park.

Johnersh

This is why everyone needs to consider the contents of their defences carefully when deciding what goes in and come out.

My approach does cover the costs, just differently   if elements of various templates are used, you need to integrate them carefully, focusing on each specific issue. You cannot just bolt them together. That is the path to accusations that you don't understand it all. 

If the NtK is not pofa compliant say so. If running points about the tiredness, it may be sensible to say 'the defendant will rely upon evidence from the driver that etc etc.'  

Coupon-mad

Yep, saw that Johnersh!  I just didn't want to make things overcomplicated for the OP to have to cherry pick parts of the template.  I could see they need at least a nonPOFA point.

The NTK is always non-POFA from this Claimant and the template covers that, and lack of a true ADR.  And it has the statement of truth, so I thought it might be easier for them to just merge.

Island_blue

Thank you so much for helping to direct me through this completely new language. So I will use the points as written by Johnersh and then continue with the whole of Coupon-Mad's up to date defence. I hope I wont be repeating anything and will look for overlaps in the non POFA point. I'll include the Tiredness can kill point as suggested and write to the Moto (which it is) to complain. Shall I say I will rely on the driver's evidence re the tiredness etc. Is it ok to say who he is in relation to me? Or is it ok if I was there to be a witness to what happened (why else would you be at a service station in the middle of the night)?!

Ok  I'll have a go. Thank you all.

Island_blue

By the way I just saw your question Johnersh about whether I had a statement of truth. This one which is in the template is what I was going to send. Should I alter it? I agree with it obviously, but having never had to do one,I wasn't sure whether you or Coupon-mad intended that this part needed to be personalised...

Statement of Truth

 

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Island_blue

Hi, I am going to print, sign and email this shortly. I am pasting it here for the sake of continuity in case it's useful to anyone in the future. I tried to take on all advice and have merged parts which overlapped so as not to repeat. Included will be the rest of the template defence below this (not included here) which take it up to 31 separate paragraphs ending in the statement of truth. I hope that the paragraph breifly explaining the driver's story is ok on this defence statement, as it was pointed out to me it will overlap with his witness statement, but I wanted to give some context, so used the prefix that Johnersh suggested 'the defendant will rely upon evidence from the driver that etc etc.'  

Well I'll give it a go. I am so very grateful to you guys for spending time to give me your expertise! I am actually an artist and so legal language is something I have never had to try to understand before!

DEFENCE

1.The defendant was not the driver of vehicle **** on ****.

 2. As Registered Keeper I 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 Registered Keeper. The claimant was not PoFA compliant (please see paragraph 24).  (HERE I REFER TO COUPON-MAD'S PARAGRAPH ON THIS)

 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. Although the alleged overstay was almost five and a half years ago, the claimant in pre-action correspondence has failed to provide, when reasonably requested on several occasions, 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 on ****.

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 It is denied that any conduct by the driver gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

11.3 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.

12. The defendant will rely upon evidence from the driver.

12.1 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 for a sleep so he could safely carry on the journey ahead, for his own safety and that of all other road users.

12.2 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.

 13. The keeper believes it is a legal and moral requirement not to drive when tired. The driver 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 make themselves wake up so they can pay for extra (unknown) time is just as dangerous.  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. He states: “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”.

 14. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source for help with the more technical aspects.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. Myself, the Defendant signed it after full research and having read this defence many times, because the court process is outside of their life experience.  The claim was an unexpected shock.

etc etc for another 17 paragraphs.

Johnersh

14 is a meaningless paragraph. It adds nothing and looks weak. It also concedes you adopt a one size fits all approach, when you've taken care to craft only what you need. 

Don't use PoFA as an abbreviation unless you explain that you refer to the protection of freedoms act schedule 4 first (Google it). It is not the claimant that is not pofa compliant, but their letter of notice. If you are going to argue this point, you need to understand *why* it is non compliant too.

Don't mess with the declaration. It is prescribed within the rules. 

Le_Kirk

 2. As Registered Keeper I the defendant accepts 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 Registered Keeper. 

Defences are written i he third person so adjust as above (and anywhere else you have used "I" etc).

Fruitcake

Para 6, either remove this, "a fine or" or change it parking charge notice. Note also in para 6 (and anywhere else relevant, the PPC is CP Plus, note the capital letter.