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

Smith8

Thank you Coupon-Mad for that useful Para.  

I  re-ordered and tweaked things, then lost signal on the ferry.  I'm now nearing the French side and just seen @Johnersh comments. 

I'm guessing it needs another tweak now? Should I remove para 5 or amend it? 

Once again, thank you!

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. 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).

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 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.

 7. 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 driver or 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.

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

Johnersh

Only you know exactly what the signs say and who you thought the contract was with, but para 5 reads to me that you were aware of the claimants involvement, whereas 6a at least suggests you may not have been. BWPS should say Ltd after it.

Johnersh

There are Google images for a car park at Peel Street online, which also has a minster perimeter sign. 

Assuming this is similar, and only the o/p can know, the wording of the contract is on the BW sign and the payment details.  It is the payment that is the consideration for the contract terms and who the contract is with.

If a defendant can keep it simple. Do. 

The identity of the correct legal entity is obviously important. They can apply under cpr 19.4 to substitute the claimant if they wish, but that'll cost them an application fee and your costs of preparing a new defence. 

Johnersh

PS. Happy nuptials! 

Coupon-mad

I think remove the paragraph I suggested, now that I've read what Johnersh (a solicitor) thinks.

1505grandad

Sorry this is all above the understanding of my aging brain.

So who issued the NtK?  -  BPA CoP V8  -  BWPS Ltd are not BPA AoS members (only corporate?) and presumably the agent of the landowner.***

(I believe SAR to DVLA has been suggested  -  should also be to both Bransbury Wilson and Minster Baywatch?)

12.3  You must use data from the DVLA only to carry out

          the parking control and enforcement activity for which

          you requested the data. You must not act as an agent

          to get data from the DVLA on behalf of a third party

          (for example a landowner or agent), unless that third

           party becomes a member of the AOS and meets all the

           compliance conditions. If you do not keep to the Code

           requirement this could lead to your membership of the

           AOS and of the BPA being suspended or terminated.

21.9    Or, if you were unable to issue a parking charge notice

           while the driver was present, perhaps because you use

           ANPR or camera equipment to monitor the car park, you

           may want to issue a parking charge notice by post.

21.10  In either case, you will need to try to identify who was

           driving the vehicle and make contact with them. You do

            this by first seeking the keeper details from the DVLA.

            Having received the keeper details from the DVLA you

            will need to issue a ‘Notice to Keeper’. 

21.14   When you serve a Notice to Keeper, you must also

             include information telling the keeper the ‘reasonable

             cause’ you had for asking the DVLA for their details.

As an aside  -  ***Mind you, benefits include:-

"Political and stakeholder engagement The BPA’s voice has never been stronger, with a proven ability to influence decision making at the highest levels of government in the delivery of improved parking management policy. We monitor key political activity that affects and impacts on the parking profession, ensuring we engage with the best contacts to influence them on behalf of our members"

https://www.britishparking.co.uk/BPA-Member-Benefits/70444

Smith8

Johnersh said:

There are Google images for a car park at Peel Street online, which also has a minster perimeter sign. 

Assuming this is similar, and only the o/p can know, the wording of the contract is on the BW sign and the payment details.  It is the payment that is the consideration for the contract terms and who the contract is with.

If a defendant can keep it simple. Do. 

The identity of the correct legal entity is obviously important. They can apply under cpr 19.4 to substitute the claimant if they wish, but that'll cost them an application fee and your costs of preparing a new defence. 

Thank you Johnersh for such concise and helpful comments.  

You are correct in assuming the similarity of signage between Peel St and the location in question, I will tweak and post my Defence again.

Thanks for the well wishes, it will be nice once ive sent this off and can focus on the celebrations 

Smith8

1505grandad said:

Sorry this is all above the understanding of my aging brain.

So who issued the NtK?  -  BPA CoP V8  -  BWPS Ltd are not BPA AoS members (only corporate?) and presumably the agent of the landowner.***

(I believe SAR to DVLA has been suggested  -  should also be to both Bransbury Wilson and Minster Baywatch?)

12.3  You must use data from the DVLA only to carry out

          the parking control and enforcement activity for which

          you requested the data. You must not act as an agent

          to get data from the DVLA on behalf of a third party

          (for example a landowner or agent), unless that third

           party becomes a member of the AOS and meets all the

           compliance conditions. If you do not keep to the Code

           requirement this could lead to your membership of the

           AOS and of the BPA being suspended or terminated.

21.9    Or, if you were unable to issue a parking charge notice

           while the driver was present, perhaps because you use

           ANPR or camera equipment to monitor the car park, you

           may want to issue a parking charge notice by post.

21.10  In either case, you will need to try to identify who was

           driving the vehicle and make contact with them. You do

            this by first seeking the keeper details from the DVLA.

            Having received the keeper details from the DVLA you

            will need to issue a ‘Notice to Keeper’. 

21.14   When you serve a Notice to Keeper, you must also

             include information telling the keeper the ‘reasonable

             cause’ you had for asking the DVLA for their details.

As an aside  -  ***Mind you, benefits include:-

"Political and stakeholder engagement The BPA’s voice has never been stronger, with a proven ability to influence decision making at the highest levels of government in the delivery of improved parking management policy. We monitor key political activity that affects and impacts on the parking profession, ensuring we engage with the best contacts to influence them on behalf of our members"

https://www.britishparking.co.uk/BPA-Member-Benefits/70444

Thank you 1505grandad,

I have never received a NtK just the ‘DEMAND FOR PAYMENT OF UNPAID CHARGE’ which appears to have the same layout of a NtK (a couple of pictures, entry/exit time, location, etc). This letter has the BAYWATCH MINSTER logo and title - no mention of BWPS Ltd.

Fruitcake

The first document a keeper receives by post is a notice to keeper, even if it doesn't have those words writ upon it.

Smith8

This is the signage as it was when the alleged incident happened.