Defence Statement due tomorrow - Leave for my Wedding overseas also tomorrow!

Smith8

Thanks for looking at this at such short notice.

I was hoping someone could advise any amendments to my Defence Statement before I submit via email tomorrow then drive to France to get married! ( there are reasons for my lateness here)

Back story - I wasn't the driver (post Op on meds). Didn't receive any letters until it had gone to claim (was at different address post Op rehab/WFH/recovery)and vehicle is registered to work address (long story/military) now its at 'Claim' stage.  I've done the Acknowledgement of Service, tomorrow is the last working day for my Defence Statement. I've got the new 27 Para template, here is the top portion to Para 4:

MINSTER BAYWATCH LIMITED

(Claimant) 

- and -  

**

 (Defendant)

_________________

DEFENCE

 1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question.

3. The defendant was not the driver, who was unable to drive whilst recovering from a major operation and taking sedative medication at the time in question (medical notes available).

4. The claim is for breach of contract. However, it is denied any contract existed with Minster Baywatch -

          (a)   The car park signage clearly states it is managed by ‘Bransby Wilson Parking Solutions Ltd’.

          (b)  The Payment machine also shows the payment is being made to ‘Bransby Wilson Parking Solutions’.

6. The claimant has also breached the requirements of the Data Protection Act 2018 by requesting and using the defendants personal data from the DVLA without reasonable cause –

 (a)   The claimant Minster Baywatch Ltd, company number 07517434, and the car park operator Bransby Wilson Parking Solutions, company number 04707572, are separate unrelated legal entities although they share common directors.

 7. Even if the driver at the time had a valid contract with the claimant, which is denied, the claimant has no claim against the defendant as the claimant failed to satisfy several of the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA) and so cannot transfer liability from the driver at the time to the defendant as the keeper.

8. There is also no period of parking required by 9 (2) (a). Moving in front of a camera cannot by definition be parking.

9. The facts in this defence come from ....................

Thanks again, and for such wonderful work you all do.

KeithP

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Your paragraph 3 needs rephrasing. It currently tells me that the driver was unable to drive whilst recovering from a major operation and taking sedative medication at the time in question.

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

Fruitcake

KeithP said:

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

I think perhaps the OP is stating that the claimant has no reasonable cause because they are not the car park operator and is a stranger to the parking contract.

I think Thornton vs Shoe Lane should be mentioned because Ts and Cs (such as forming a contract with another unidentified party) cannot be added post event.

I think Lord Denning's "Red Hand Rule" also applies because it should be obvious at the time of the alleged event with whom a motorist is forming the contract.

Para 2 needs the words, "but liability is denied" adding at the end.

You should state which part of Sch 4 of the PoFA has been breached in para 7.

Para 8 is missing some words. 
"There is also no period of parking mentioned in the Notice to Keeper (NtK) as required by paragraph 9 (2) (a) of the PoFA 2012."

KeithP

Fruitcake said:

KeithP said:

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

I think perhaps the OP is stating that the claimant has no reasonable cause because they are not the car park operator and is a stranger to the parking contract.

Ah, ok. In that case perhaps that paragraph needs a bit of clarification too. 

Aside from that, do we even know which entity actually asked the DVLA for keeper's details?
Perhaps the OP should send a SAR to the DVLA asking exactly that question?

Smith8

KeithP said:

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Your paragraph 3 needs rephrasing. It currently tells me that the driver was unable to drive whilst recovering from a major operation and taking sedative medication at the time in question.

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

Thanks KeithP, 

Yes AoS was filed on 19 May, the Claim Form dated 10 May.

I guess the point im trying to make is the claimant unlawfully requested info from the DVLA given Minster Baywatch are taking me to court and the carpark is managed by Bransby Wilson.  Im guessing this needs re-working?

All noted on Para 3, I'll re-work that point, thank you.

KeithP

Smith8 said:

KeithP said:

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Your paragraph 3 needs rephrasing. It currently tells me that the driver was unable to drive whilst recovering from a major operation and taking sedative medication at the time in question.

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

Yes AoS was filed on 19 May, the Claim Form dated 10 May.

I know you said you are going away tomorrow, but...

With a Claim Issue Date of 10th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 13th June 2022 to file your Defence.

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'.

Smith8

Fruitcake said:

KeithP said:

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

I think perhaps the OP is stating that the claimant has no reasonable cause because they are not the car park operator and is a stranger to the parking contract.

I think Thornton vs Shoe Lane should be mentioned because Ts and Cs (such as forming a contract with another unidentified party) cannot be added post event.

I think Lord Denning's "Red Hand Rule" also applies because it should be obvious at the time of the alleged event with whom a motorist is forming the contract.

Para 2 needs the words, "but liability is denied" adding at the end.

You should state which part of Sch 4 of the PoFA has been breached in para 7.

Para 8 is missing some words. 
"There is also no period of parking mentioned in the Notice to Keeper (NtK) as required by paragraph 9 (2) (a) of the PoFA 2012."

Thank you Fruitcake.  

How would you recommend I mention Thornton vs Shoe Lane and Lord Denning 'Red Hand Rule'?

Para 2 - thank you, I'll add.

I'll also look at the PoFA breaches and revise in para 7.

Ref para 8:  I never received a NtK, just the DEMAND FOR PAYMENT OF UNPAID CHARGE which shows a camera shot of a vehicle driving along a plain road with an alleged entry and exit time.  What I'm trying to say is a picture from an overhead camera of a moving vehicle doesn't show or prove the vehicle is parked?

Thanks again, sorry to be a pain.

Smith8

KeithP said:

Fruitcake said:

KeithP said:

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

I think perhaps the OP is stating that the claimant has no reasonable cause because they are not the car park operator and is a stranger to the parking contract.

Ah, ok. In that case perhaps that paragraph needs a bit of clarification too. 

Aside from that, do we even know which entity actually asked the DVLA for keeper's details?
Perhaps the OP should send a SAR to the DVLA asking exactly that question?

Not known yet, I intend to send a SAR when I get a moment   thanks for the prompt 

Coupon-mad

Just search the forum for red hand rule defence true or Thornton defence true and you'll find it written by someone before.  Copy!

Your para 1 looks odd because it is centrally justified.

Smith8

KeithP said:

Smith8 said:

KeithP said:

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Your paragraph 3 needs rephrasing. It currently tells me that the driver was unable to drive whilst recovering from a major operation and taking sedative medication at the time in question.

Surely in (the first part of) para 6 it is acceptable for the Claimant to ask the DVLA for keeper's details? The 'reasonable cause' is to ask the keeper who was driving.

Yes AoS was filed on 19 May, the Claim Form dated 10 May.

I know you said you are going away tomorrow, but...

With a Claim Issue Date of 10th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 13th June 2022 to file your Defence.

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'.

Thanks KeithP, I was really hoping not to have to do on the road.  We have to drive a convoy of wedding equipment to the South of France and not exactly how I thought my wedding would go, but hey ho, we are where we are I guess.  The best news is I haven't even packed yet!  So Monday is seeming more likely tbh!  Thank you for the info much appreciated, I will use the email for submission, thank you.

Smith8

Coupon-mad said:

Just search the forum for red hand rule defence true or Thornton defence true and you'll find it written by someone before.  Copy!

Your para 1 looks odd because it is centrally justified.

Thank you so much!

I'll compose a re-write when a get a few minutes and post here for review if thats ok, it might be the early hours.

I'm really grateful for all the helpful and prompt responses.