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

1505grandad

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

Just checking  -  is the above now necessary as C-m has stated in the new para 1:-

"Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars."

Coupon-mad

It's not now needed in Para 2.

As part of the recent edit, I put it in para 1 instead, to stop people who kept removing it!

Smith8

I'm failing miserably to edit my Defence as my eyes keep closing. I'll try again shortly after a little sleep.

Also, im perhaps not fully with it, but searching for a decent example of the Red hand rule defence true or Thornton defence true is proving difficult to decipher at this silly hour, any good steers on how to incorporate an example of these would be really appreciated.

I'll be back shortly with my Defence review.  Thank you all!

Fruitcake

Try an internet  search engine of your choice instead of a forum search.

It's more important to mention them at this stage than go into fine detail which you would do at the Witness Statement stage. 

The basics of Thornton vs Shoe Lane are that Ts and Cs cannot be added after the event. The example in that case was Ts and Cs on the ticket from a PDT machine were not displayed on the signs.
The judge said the "It's too late once the motorist has pressed the green button to obtain the ticket. The motorist can shout at the ticket machine but cannot change anything, or words to that effect.

In the other case, Lord Denning said that signs must be prominent, for example having a red hand pointing towards them in such a manner that the motorist could not possibly miss the contract terms, or words to that effect.

Coupon-mad

Google search those words plus 'moneysavingexpert.com'.

Or forum search those words and click 'discussions' 'newest' on the parking board category only.

Smith8

Good evening, so it turns out we missed our ferry by 20 minutes!  So we're now sat at the Port waiting for the night ferry (instead of a lovely hotel in the Loire Valley ) as I finally amend my Defence.  

I think i've covered most of your kind comments/recommendations, I'd really appreciate any final observations then I guess I need to wait until working hours on Monday to email it or should I email it right away given KeithP worked out my deadline is 4pm on Monday.

Thanks again 

_________________

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 recovering from a major operation and taking sedative medication at the time in question (medical notes available).  Therefore, was not the driver.

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

(a)   The car park signage 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’.

Thornton v Shoe Lane Parking Ltd., [1971] 2 QB 163 represents a good example because terms and conditions (such as forming a contract with another unidentified party) cannot be added post event.

There are similar echoes to Lord Denning's "Red Hand Rule" comment in J Spurling Ltd v Bradshaw, [1956] EWCA Civ 3, because it should be obvious at the time of the alleged event with whom a motorist is forming the contract.

 5. 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 because they are not the car park operator and is a stranger to the parking contract–

(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.

6. The claimant failed to satisfy several 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 - 

Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; 

The claimant had no right to enforce against the keeper as they are not the car park operator and a stranger to the parking contract.

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

The defendant has never received a notice keeper, only a ‘DEMAND FOR PAYMENT OF UNPAID CHARGE’ dated 49 days after the alleged contravention.

7. There no period of parking mentioned in any correspondence as required by 9 (2) (a).  A vehicle in motion along a road passing in front of a camera cannot by definition be parking.

8. Adding costs/damages/fees ......................

Coupon-mad

Looks good.  Sorry you missed your first ferry!

1505grandad

In a previous post:-

"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?"

Presumably ANPR where PoFA sch.4 para 9 applicable - the following just for info from B W website:-

https://www.bransbywilson.co.uk/technologies/anpr-automatic-number-plate-recognition/

"ANPR is the most popular parking technology available as it offers an effective solution to most parking concerns, 24 hours a day, 365 days a year.

What makes Bransby Wilson Parking Solutions stand out from competition is who we choose to partner with to enforce our car parks. We have built a strong and trusted working relationship with Minster Baywatch and Bransby Wilson set the terms which are unique to the needs of each site and each client.

Minster Baywatch does not rely on a fully automated process, every potential breach is reviewed by a highly trained analyst. They can quickly identify incorrectly entered registrations and other common mistakes before requesting to issue a Parking Charge Notice."

Coupon-mad

Just a thought.  You could add this:

There is a declared principal (Bransby Wilson) on some signs, and that principal company states on its website that it sets the terms in each car park.  Minster Baywatch are mere agents who set up the ANPR system and print the PCNs.  Therefore, unlike in ParkingEye v Beavis, this Claimant has placed their service, and themselves, in the position of an agent/broker/middle-man, making the bargain for and on behalf of another party. The Claimant is put to strict proof if their position is to the contrary of that stated by this Defendant, who takes the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply and there is no contractual relationship between this Claimant and the driver. Instead, a stranger to the bargain (the Claimant) is trying to sue a stranger to the bargain (the Defendant).

Johnersh

I would not plead agency law if it were me. That is complex law, depending on actual or implied authority.

It's far simpler to argue (if correct) that all the signs said company A as does the ticket/receipt/credit card bill, so who on earth are company B. They are separate legal entities. 

Those points also need to be consistent with the primary case - presumably the o/p was a passenger.