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

Smith8

These are screenshots from the Bransby Wilson Website today.

Smith8

Someone has kindly just driven there and taken these pictures, also today!  Interesting how they have changed them all since my PCN was issued, maybe they have tweaked them to get around the whole contractual issue we're discussing?

Thoughts?

Smith8

This is the only demand/PCN/Ntk? letter that was ever received, along with a LBC, and the Claim Form itself.  I got all 3 together as previously mentioned at the beginning of this thread.

Coupon-mad

Smith8 said:

Someone has kindly just driven there and taken these pictures, also today!  Interesting how they have changed them all since my PCN was issued, maybe they have tweaked them to get around the whole contractual issue we're discussing?

Thoughts?

Nope!

The other images ALL show the offer to park is made by Bransby Wilson.

Smith8

It seems its just the new final picture 'PAY AND STAY' sign that has Minster Baywatch in small letters at the very bottom, everything else is BW. 

Here is my latest draft: (ive tweaked and moved most of the paras)

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 next to the payment machine 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’.

The wording of the contract and payment details are on the Brandon Wilson sign and at the payment machine with no mention of Minster Baywatch. It is the payment that is the consideration for the contract terms and who the contract is with.

Thornton v Shoe Lane Parking Ltd., [1971] 2 QB 163 represents a good example here 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.  

6.   The BPA Approved Operator Code of Practice, V.8 (of which Minster Baywatch is a member and Bransby Wilson is not) states-

    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.

In the defendants case, Bransby Wilson (clearly acting as the agent for the landowner) is the third party instructing Minster Baywatch, who are in clear breach of the BPA CoP.

7. 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.

8. 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.

There is also 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.

9. The facts in this ........................

 

Coupon-mad

The wording of the contract and payment details are on the Brandon Wilson sign...

Typo above.

Every paragraph must have a number.

You could add in your points about the POFA Schedule 4:

It is denied that there was a 'relevant contract or relevant obligation' involving the driver and this Claimant.

Johnersh

For God's sake, why are you referring to agency at all? Why refer to common directors? 

I disagree with Fruitcake here as I think the case law deployed is a bit  random in this scenario. This isn't about parking terms but the very essence of the contract and who it was with. 

Who cares if you're shocked? This isn't a witness statement. Also why dilute the core issue with the BPA stuff which does nothing to prevent MB bringing a claim? I just don't see that a DJ will be interested. 

If I were doing a defence like this, I'd keep it really simple. I would admit that the vehicle was parked on that date. 

I'd deny that any contract was entered into with MB Ltd.

I'd aver that the parking contract was with BW and that the claimant is the wrong legal entity and therefore has no standing to bring the claim. 

If I had a receipt or bank statement for the parking fee naming BW I'd append it to defence.

But as I always like to say. This is your case and there is a benefit to the collective view to guide you as to how you want to approach it. 

Johnersh

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.  

How do you know this (that MB are utilised expressly by BW in that role) and why are you admitting it? Isn't it just as likely that BW are doing it all. 

From the photos above, the parking terms on the signs are in fact different.  The MB one requires a ticket or an active Ringo payment.  The BW one permits retrospective payments up to midnight. So even if the MB sign was there, if those aren't the terms you saw and agreed, then you still didn't contract with them. 

Smith8

Johnersh said:

For God's sake, why are you referring to agency at all? Why refer to common directors? 

I disagree with Fruitcake here as I think the case law deployed is a bit  random in this scenario. This isn't about parking terms but the very essence of the contract and who it was with. 

Who cares if you're shocked? This isn't a witness statement. Also why dilute the core issue with the BPA stuff which does nothing to prevent MB bringing a claim? I just don't see that a DJ will be interested. 

If I were doing a defence like this, I'd keep it really simple. I would admit that the vehicle was parked on that date. 

I'd deny that any contract was entered into with MB Ltd.

I'd aver that the parking contract was with BW and that the claimant is the wrong legal entity and therefore has no standing to bring the claim. 

If I had a receipt or bank statement for the parking fee naming BW I'd append it to defence.

But as I always like to say. This is your case and there is a benefit to the collective view to guide you as to how you want to approach it. 

Thank you Johnersh all points noted, I appreciate what you're saying here, ref keeping it simple, etc.

For clarification:

The vehicle wasn't parked and left unattended, it had an alternator issue en-route and a drained battery so it barely limped into the carpark.  The bonnet was lifted for the duration and wasn't left unattended.  It took two hours for some jump leads to arrive to put enough charge into the battery in order to drive it away. Thus, no ticket was purchased.

Johnersh

Noted. Insofar as it is a breach of contract, it still isnt with MB. Some screenshot of the BW website will help as that explains how they operate the site in question and how the machines payments etc are operated by them.