Feedback on my defence please

helpthisgirl

1505grandad said:

I believe that the Brittania Parking Group v Crosby case is no longer exhibited having been replaced by the Excel V Wilkinson case.

Ah, thank you!  So I don't need to provide this case within my evidence even if it's referred to in my defence a few times?  

Trainerman

helpthisgirl said:

1505grandad said:

I believe that the Brittania Parking Group v Crosby case is no longer exhibited having been replaced by the Excel V Wilkinson case.

Ah, thank you!  So I don't need to provide this case within my evidence even if it's referred to in my defence a few times?  

I used 'Excel' in my WS, and attached transcript. I believe that is the current advice. If doing that, I would lose 'Brittania'

Coupon-mad

helpthisgirl said:

1505grandad said:

I believe that the Brittania Parking Group v Crosby case is no longer exhibited having been replaced by the Excel V Wilkinson case.

Ah, thank you!  So I don't need to provide this case within my evidence even if it's referred to in my defence a few times?  

Definitely remove it.

Use the WS bundle by @aphex007 as your base.

helpthisgirl

Hi all, please see new file location here - old one will no longer work:  (note will amend to not include southampton judgement as per above comment, will do this after work...)

https://drive.google.com/file/d/1vREVTONqOEcMFZQ_p2N0Sjv4l1PByd9U/view?usp=sharing

Any feedback much appreciated! Thank you

1505grandad

Para 15  -  "In the present case, the Claimant has fallen foul of those

tests (See Exhibit XX-12 for paragraphs of ParkingEye v Beavis).

Have you stated the correct exhibit  -  XX-12 is "screenshot of outdated evidence..."

Suggest check that exhibits are quoted correctly in the main body of the WS.

Coupon-mad

That's good, subject to checking exhibit numbers.

I would add a paragraph (fairly high up) about the terms offered on the app for the car park locations on Rochdale Road is ambiguous at best, when all the circumstances are taken into account: i.e. that there was no visible sign telling you that the location code should have been 8080.  To this day, the only sign that actually communicates that code is the replacement sign (exhibit xx) where for the first time, a 'location code 8080' message is in very large lettering.  In this case, the information provided by the app was the only information and was reasonably understood to refer to this car park.  Given there were two car parks in such close proximity, the potential for error was obvious to the Claimant, and they should have addressed this  ambiguity with a clear alert/warning in the app to avoid consumer harm.  The app was the only 'consumer notice' that could be read, and those terms were relied upon in good faith. 


Then directly under that, add this as another numbered paragraph:

The Consumer Rights Act 2015 says at  S.69. (1) “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”  This is an objective statement. It requires no interpretation nor invites any legal argument about an unclear or ambiguous term to decide what it really says. Instead, it focusses on difference. If the trader who drafted terms thinks that a term means A, but a consumer sees two conflicting messages and/or has a reasonable belief that it means B, there is no longer any need to decide which of A and B is the intended or the more probable meaning.  The mere presence of different understandings reasonably held allows the consumer to prevail – without further discussion.

helpthisgirl

Coupon-mad said:

That's good, subject to checking exhibit numbers.

I would add a paragraph (fairly high up) about the terms offered on the app for the car park locations on Rochdale Road is ambiguous at best, when all the circumstances are taken into account: i.e. that there was no visible sign telling you that the location code should have been 8080.  To this day, the only sign that actually communicates that code is the replacement sign (exhibit xx) where for the first time, a 'location code 8080' message is in very large lettering.  In this case, the information provided by the app was the only information and was reasonably understood to refer to this car park.  Given there were two car parks in such close proximity, the potential for error was obvious to the Claimant, and they should have addressed this  ambiguity with a clear alert/warning in the app to avoid consumer harm.  The app was the only 'consumer notice' that could be read, and those terms were relied upon in good faith. 


Then directly under that, add this as another numbered paragraph:

The Consumer Rights Act 2015 says at  S.69. (1) “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”  This is an objective statement. It requires no interpretation nor invites any legal argument about an unclear or ambiguous term to decide what it really says. Instead, it focusses on difference. If the trader who drafted terms thinks that a term means A, but a consumer sees two conflicting messages and/or has a reasonable belief that it means B, there is no longer any need to decide which of A and B is the intended or the more probable meaning.  The mere presence of different understandings reasonably held allows the consumer to prevail – without further discussion.

Thank you for this @coupon-@Coupon-mad !!  I did have that exact point in mind but I wasn't sure how strong an argument it was to state that they should be explicitly clear that they operate two car parks within close proximity. But backing it up with the CRA, wow, sounds great! Thank you again. 

I've been through this morning with fresh eyes, added the above and checked all of my exhibit numbers. My final copy can be found here: https://drive.google.com/file/d/1Xi9X1hd0Q4r10Li8ud5j7EXZVw-8VqM0/view?usp=sharing

If anyone has any last minute feedback then I'm all ears! I have until 3pm today to submit it.

Thank you all again for the support with this, it's given me a good deal of confidence going into my hearing in a few weeks' time. 

Coupon-mad

That does strengthen the argument for the defence.  Reads and flows well, where you put it.  Nice WS bundle!

helpthisgirl

Coupon-mad said:

That does strengthen the argument for the defence.  Reads and flows well, where you put it.  Nice WS bundle!

Thank you for all of your support! I'll let you know the outcome on this feed 😊 

helpthisgirl

Hi all, 

I've received the claimant's secondary witness statement and just looking to get some feedback on whether i should be submitting one in response?

Feels a little petty but if it means me going in with the upper hand... 

Their response below: 
'The Defendant refers to repair works that were taking place on the date of the contraventions which affected  the  accessibility  of  one  of  the  signs  within  the  car  park  which  displayed  the  necessary information to pay for  a valid session.  Although the Defendant has  provided images of the  signs within their Witness Statement, it ought to be noted that there appears to be no date or time stamp, therefore; it is respectfully submitted that such images bear no relevance to the matter, as they do not evidence the signs that were in situ at the time of the PCN being issued. In the event that a Driver parks their Vehicle on the Land in which they do not have own nor have prior authority to park, it is incumbent  upon  the  Driver  to  ascertain  whether  there  is  a  remedy  to  prevent  their  unauthorised parking. It is reasonable to suggest that the defendant should have sought out the signage on the Land in any case if they were unsure of the Terms of parking.  

5.  Additionally, throughout the Witness Statement the Defendant has stated that they paid for the wrong car park in error due to my Company’s signs being obscured. Further to this, they refer to the British Parking Association (“BPA”). It is respectfully submitted that as exhibited at “EXHIBIT 7” of my First Statement the Defendant made payment correctly twice prior to the Charge being issued which confirms that they were aware of the Land and the Terms as they had previously complied. If the Defendant was unable to comply, they should have exited the Land and found alternative parking. My Company’s position remains unchanged, the Charges were issued correctly and remain due and owing.  

6.  Further to the above, the Defendant states they returned to the Land at a later date and new signage had been put in place on the Land.  It is respectfully submitted that this bears no relevance to the current proceedings. The Defendant failed to comply with the Terms of parking thus, breaching the contract.  

7.  Within paragraph 24 of the Defendant’s Witness Statement, the Defendant alleges my Company has failed to adhere to the Landowner’s definitions, exemptions, grace period and hours of operation. The Defendant is a third party to the Landowner Agreement. Privity of contract applies.  

8.  For the avoidance of doubt, it is my Company’s position that the Charges were issued correctly and remain due and owing.'

I think I've made it quite clear within my evidence that the repair works were ongoing so the time stamp response from them seems irrelevant to the reasonable person. 

Also their statement about me parking there before is irrelevant because the sign wasn't necessarily obstructed on those dates. Surely that isn't strong enough evidence to be relied on in court? 

Let me know what you guys think. They seem pretty persistent with this one unfortunately! 

Thanks as always