Draft defence - am I along the right lines?

BQ1771

Hi, I've read and digested A LOT of information on this forum thank you!  My defence is due in on Wednesday and I just wanted to make sure I am along the right lines.  My situation was that I parked at a friend's, the (sole) visitor's permit was not available (previous friend drove away with it), charge was issued. Other permits are at a cost to residents of £10.  My appeal was unsuccessful (of course).  BWlegal are representing them and have included double recovery charges. 
In my draft I have referred to other resident cases but I may not have access to the tenancy agreement as I am no longer friends with the person so I'm unsure if I should include anything in relation to that.  I've included below a section of my draft as I cannot post the whole document (forum won't let me), and would be very, very grateful of any help or feedback.  I've been close to backing out and just paying but really want to hold my nerve!

Pre-action protocol breach and nonsensical Particulars of Claim

1.     In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the claim.

 

The facts - lack of prominently displayed contract and no agreement on the charge

2.     Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

Authority to Park and Primacy of Contract

3.     It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the vehicle to be parked by the current occupier and leaseholder of xxx, whose tenancy agreement permits the parking of vehicle(s) on land.

 

4.     The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to hearing.  Accordingly it is denied that:
 (i) there was any agreement as between the Defendant or driver of the vehicle and the Claimant
(ii) there was any obligation (at all) to display a permit.

 

5.     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 Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

1.     A more relevant list of binding Court of Appeal authorities which are on all fours with a case involving authority to park and primacy of contract and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)             Pace v Mr N [2016] C6GF14F0 [2016]

(ii)            Link Parking v Ms P C7GF50J7 [2016]

both leading examples of cases which have shown that a parking firm could not override a tenant’s right to park by requiring a permit, and by extension a visitor’s right to park.

go-on-then

This reads like a witness statement.
The concise facts of your case must be added, in your own words, to the template defence in the Newbies thread.  You can then give more details about the points that you have raised, permits/ signage etc in your witness statement much later on.

You only need to show on here the couple of paragraphs that you are adding to that template, not the whole thing.

Coupon-mad

That is all good stuff but I can't tell where this starts:

"In the alternative".

That phrase only makes sense if placed after another argument about a different point of defence.

Also, that paragraph includes wording that's already in the template defence (maybe point 4,  5 or 6 of the template, I can't recall). So I don't think that first para is needed at all.

And remove this phrase:

 "Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above,"

Because there are very few reasons stated above, because this is just the introductory facts.

KeithP

@BQ1771, have you received a County Court Claim?

If so, please tell us the Issue Date on the Claim Form.

BQ1771

Sorry that it seems dis-jointed, the forum won't let me paste the whole document in one post... shall I post it all in separate posts?

I'll add in more detail of the concise details, thanks!

The issue date on the claim form is 8th April, so I have to submit by 11th May

Le_Kirk

BQ1771 said:

Sorry that it seems dis-jointed, the forum won't let me paste the whole document in one post... shall I post it all in separate posts?

I'll add in more detail of the concise details, thanks!

The issue date on the claim form is 8th April, so I have to submit by 11th May

We only need to see paragraphs 2 & 3 from the template defence, NOT the whole document.

KeithP

BQ1771 said:

The issue date on the claim form is 8th April, so I have to submit by 11th May

You are right of course, but only if you filed an Acknowledgment of Service sometime after 12th April and before 27th April. Your MCOL Claim History will confirm that.

But there might be something useful here...

With a Claim Issue Date of 8th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 11th May 2022 to file your Defence.

That's just a couple of days away.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

BQ1771

Thank you for the pointers and advice above.  I will definitely not miss the deadline and have the email address from another of your posts @KeithP

Paragraphs 2 and 3 as per the template defence posted by CouponMad (updated in March 2022)

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

3. The driver was parked at xxx as a legitimate visitor to a resident.  When the driver arrived at the location, no warning signs are visible on entry to xxx.  No permit was available to the driver at the time of parking as only one permit is issued per resident.

(a) It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the vehicle to be parked by the current occupier and leaseholder of xxx, whose tenancy agreement permits the parking of vehicle(s) on land.

(b) The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to hearing.  Accordingly it is denied that:
 (i) there was any agreement as between the Defendant or driver of the vehicle and the Claimant
(ii) there was any obligation (at all) to display a permit.

Also amended section 20.

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver and would also be considered void pursuant to Schedule 2 of the CRA.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving authority to park and primacy of contract and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)             Pace v Mr N [2016] C6GF14F0 [2016]

(ii)            Link Parking v Ms P C7GF50J7 [2016]

both leading examples of cases which have shown that a parking firm could not override a tenant’s right to park by requiring a permit, and by extension a visitor’s right to park. And:

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

Coupon-mad

Very good editing of the template.  Much better.

BQ1771

Hi again, the time has come for me to submit a witness statement.  I have used the template suggested in the 'newbies' thread and here is the start of mine.  Wondered if you had any feedback or suggestions given that mine is at a residential estate and his was a car park...
Do I need to label the exhibits/appendices in a certain way?
How do I find the email address of the court office?
Thanks!

1.       I am xxxxxxxxxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.       In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Sequence of events and signage

3.       Firstly, it should be noted that the claimant has suggested that my defence constitutes a false statement, which is refuted because the claimant has spent many hours on research and should not be criticised for using some wording which has already been provided.  I have appended actual signage, photographed myself on 12th September 2022, and will refer to these throughout.

4.       The approach and entrance to the residence and car park is on a double yellow line and as is visible from exhibits xxxx through to xxxx there is no signage visible at the entrance to xxxxx nor on the approach to the parking spaces.

5.       The claimant asserts that the motorist is legally obliged to make themselves aware of the terms and conditions at the time of parking.  Exhibits xxxxx show the view from the car whilst parking and once stationary in a space.  Signage is not clearly visible from any angle or in any mirror as a driver, as such I refute this assertion.  It is not reasonable to expect a motorist to be bound by terms and conditions which are not abundant nor clearly marked.

6.       I visited a resident at xxx, returning to my car the next day 11th July 2021 to a PCN, the amount of which has now been inflated to £160.

7.       A key factor in the leading authority from the Supreme Court, was that ParkingEye was found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit xxxx for comparison.  In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community (IPC). The IPC mandatory code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers.

8.       This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. It is noted that the Claimant is relying upon an image of the vehicle near a sign which is not legible in the photograph, or from a distance. I took the evidence photographs appended to this statement myself (on 12th September 2022). I can state from my own knowledge that signage is not prominent and therefore a motorist has no real opportunity of becoming acquainted with terms that they are later expected to be bound to. 

Le_Kirk

The one suggested in the NEWBIE sticky is out of date and @Coupon-mad who wrote the NEWBIE is now suggesting one of theses is more appropriate: -

@aphex007 @Daiapolon2021 and @anged