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

Smith8

Hello everyone, today is they absolute cut off for submission of my Defence and the anxiety this is causing when I should be enjoying my Wedding is really upsetting  

This is what I intend to submit today via email.  I'm just wondering if I should mention the vehicle being broken down and not being left unattended at any time?

Thanks again.

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. 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 was entered into with Minster Baywatch -

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

5. The Claimant Minster Baywatch Ltd, company number 07517434, and the car park operator Bransby Wilson Parking Solutions Ltd, company number 04707572, are separate unrelated legal entities therefore, the Claimant has no standing to bring the claim.

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

7. The Claimant has 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.

8. The Claimant failed to satisfy 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; 

9.  There is no period of parking mentioned in any correspondence as required by POFA, S4, 9 (2) (a).  A photograph of a vehicle in motion along a road and passing in front of a camera cannot by definition be parked.

10. The facts in this defence....................

Smith8

Johnersh said:

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. 

Thank you Johnersh,

Would I attach said screen shot to my Defence or leave that until WS stage?  If the former then I would make reference to it along the lines of:

*. The attached screenshot of the Brandon Wilson Parking Solutions Ltd website explains how they operate the site in question and how the machines and payments, etc are managed by them.

Thoughts?

Johnersh

You'd want the page clearly specific to that car park. You can embed within the body of the Particulars if it is a short excerpt. 

Smith8

Johnersh said:

You'd want the page clearly specific to that car park. You can embed within the body of the Particulars if it is a short excerpt. 

How about this piece:

"We chose Bransby Wilson because they understand our company ethos and are able to provide a parking service that overcomes the issues around our rural location. A professional team who are a pleasure to deal with."

An excerpt from the landowner clearly stating BW?

Smith8

@Johnersh

*. The Branbsy Wilson website specifically refers to the location in question as being managed by them –

“We chose Bransby Wilson because they understand our company ethos and are able to provide a parking service that overcomes the issues around our rural location…”

Smith8

AMMENDED:

5. The Branbsy Wilson website quote the landowner of the location in question as clearly being managed by them- 

“We chose Bransby Wilson because they understand our company ethos and are able to provide a parking service that overcomes the issues around our rural location…”

Johnersh

I was thinking of the case study... 

• Bransby Wilson installed two new solar powered Flowbird payment terminals with cash, pay by card (chip and pin) and contactless payment – all payments had to be made against specific vehicles visits and were none transferable.
• Previously card payments had not been possible due to poor signal in the area. Bransby Wilson overcame these issues by using multi sim routers with signal boost aerials.
• To give the greatest ease of use the system allows visitors to pay retrospectively for parking up to 24 hrs after leaving the site – a feature which has been well received since its introduction and helps genuine paying users of the site to avoid any parking charges/enforcement action.

So what are MB doing? If they're just debt collecting for BW, they're not the claimant. It remains unclear that MB do have a contract. 

Smith8

5.  The Bransby Wilson website shows a case study for the location in question -

·       Bransby Wilson installed two new solar powered Flowbird payment terminals with cash, pay by card (chip and pin) and contactless payment – all payments had to be made against specific vehicles visits and were none transferable.

·       Previously card payments had not been possible due to poor signal in the area. Bransby Wilson overcame these issues by using multi sim routers with signal boost aerials.

·       To give the greatest ease of use the system allows visitors to pay retrospectively for parking up to 24 hrs after leaving the site – a feature which has been well received since its introduction and helps genuine paying users of the site to avoid any parking charges/enforcement action.

6. There is no mention of Minster Baywatch.  If they're just debt collecting for Bransby Wilson, they're not the claimant. It remains unclear that Minster Baywatch do have a contract.

Coupon-mad

Yep. Looks fine.

I would add an extra fact paragraph:

In the alternative, the Defendant is aware that the car was in fact broken down and limped into this area to await rescue.  The car was not left but it is pertinent that no signs nor machines were seen that alerted the driver to any relevant obligation or contract, nor even that this might be private land. 

Johnersh

Up to the o/p but I think it's difficult to say no signs were seen on the basis of the preceding argument and even Google images.