Not the driver or keeper, driver now living abroad

Le_Kirk

You have two paragraphs numbered "2"

Slainte1

Thanks, I know I have to tidy up the numbering.

Coupon-mad

Add more about the Bransby Wilson situation and cite Fairlie v Fenton, as seen this past week on two other MB threads.

Slainte1

Coupon-mad said:

Add more about the Bransby Wilson situation and cite Fairlie v Fenton, as seen this past week on two other MB threads.

Thanks. I’ve been reading a 2019 thread about Blossom St. York which is where mine is but the photo links have gone. I’ve got some timeline photos from Google Maps that show older more prominent signs which have been replaced. Still poor visibility of terms from the street view 
Does this need to be included in the defence statement or left til later in the witness statement 

Coupon-mad

Please read the other two MB threads from this week.  Yes, you need to mention it all.

Slainte1

https://www.dropbox.com/s/jtfs2l1iuzxtj5r/defence%20draft%2C%20images3.docx?dl=0
I'm working on the other stuff and also my witness statement.  Id be grateful if someone could look at the photos via the link 
I realise it needs tidying up to state exhibit rather than photo where its obtained from Google maps.  Please could someone point me in the direction of recent stuff.  Ive seen the Yanness case which I will study for my witness statement and have had a look at Dorian Wolf.  Is there anything else for the defence statement.  Obviously I will include the remainder of the template defence
Thanks

Le_Kirk

Evidence, such as photos, does not go with the defence; two recent examples for format and style for Witness Statements are @aphex007 and @SJRRJS

Slainte1

Le_Kirk said:

Evidence, such as photos, does not go with the defence; two recent examples for format and style for Witness Statements are @aphex007 and @SJRRJS

@Le_Kirk
Thanks, I was just working ahead of myself with the photos,  but needed clarity about Coupon mads comments as to whether it should be stated in the defence or witness statement. I've read the SJRRJS case but will look at the other one now, is that important for the defence statement or the witness statement?  I guess that's my late night reading tonight
Thanks

Coupon-mad

They are both exemplar WS bundles, but of course both have a defence also shown earlier in their threads.

Slainte1

Ok final go at the defence.  I have tried to include Fairlie, but will expand on that in the WS

Should I change the points in para 3 to separate paras.  Also at para 20 I have made slight changes to reflect the fact that it is not about what I saw, as I wasn't the driver , but that it would be unreasonable for anyone to see.  Any comments please before I send tomorrow..How does one make an electronic signature, or would I be better off printing the whole thing, signing, then scanning. 

Any help greatly appreciated, thanks 

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, but was not the driver and was not the keeper of the vehicle. The driver and keeper of the vehicle now resides in Thailand. The defendant was at work on a site visit with witnesses, on the day in question.

3. It is understood by the Defendant that on the day on which this parking charge arose, the driver and their passenger had visited the car park.

3.1 They were unaware upon entering that this was a chargeable carpark. However when they became aware, due to the lack of change for the pay and display machine, the driver and passenger undertook to find change from a nearby retail establishment. It is also understood that they returned as quickly as is reasonable and left the car park

3.2 The driver has advised the Defendant that they were unaware of signs advising of parking charges, and unaware of any ANPR or CCTV cameras.

3.3 No evidence has been provided by the Claimant, the landowner or their representatives, that details any breach of terms or what those terms were. Nor has any evidence been provided of signage or ANPR cameras present at the time of incident, no timeline of events, nor evidence to determine the identity of the driver.

3.4 Upon receipt of the Claim, the Defendant visited the car park on foot and confirmed that the carpark signage is not visible on the approach road to the car park, nor are any car parking charge notices visible at or near the entrance.  The only terms notice is on the rear of the entrance sign, at such a height (above arms reach) and in such small lettering as to be unreadable in either daylight or nighttime. The defendant confirmed that neither the notices nor signs were illuminated during darkness. Therefore neither the driver, nor the registered keeper could have entered into any contract and was not bound by any contractual terms.

3.5 The defendant has reviewed historical images of the car park signage and entrance signs and contends that parking charges were not clearly displayed, and previous more prominent, yellow hazard type signs, had in some instances been removed and in others replaced with ‘friendlier’ non-compliant signs.

3.6 The defendant confirmed, by revisiting on foot, that the car park is managed by Bransby Wilson Parking Solutions Ltd (Agent), as shown on the signage and pay machine at the site. At no point has the defendant had any contact from or with Bransby Wilson Parking Solutions Ltd. The defendant believes that the Claimant, Minster Baywatch (Stranger) has no right to create or enforce a contract. The Defendant avers that Minster Baywatch is a broker in this matter and that a broker cannot sue in his own name upon contracts made by him as a broker. The Claimant is put to strict proof of the existence of a contract offered by them, that was prominently displayed so that it was bound to be seen, as well as a chain of authority from the landowner allowing Minster Baywatch to sue in their own name.

3.7 The Defendant (registered keeper) denies liability.

4. The facts in this defence come from the Defendant's own knowledge …..

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20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty could have been seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include: