Help Needed! Please can I get some feedback on my defence.

Skysurfer69

Okay, that's a good shout, I hadn't thought about that but in all of the previous cases a comparison has been made to the ParkingEye signs.

Just wanted to point out that I have a photo of the sign which shows the sign itself is some 9ft in the air (I took a tape measure with me) and at that distance, yes, you're correct it's small print indeed. I would need reading glasses to read it. I have another photo that shows that pretty much all of their signs are that high up. 

Coupon-mad

Skysurfer69 said:

Okay, that's a good shout, I hadn't thought about that but in all of the previous cases a comparison has been made to the ParkingEye signs.

Just wanted to point out that I have a photo of the sign which shows the sign itself is some 9ft in the air (I took a tape measure with me) and at that distance, yes, you're correct it's small print indeed. I would need reading glasses to read it. I have another photo that shows that pretty much all of their signs are that high up. 

Yes, but no close ups. Nothing readable.

You realise the Beavis case signs were also 9 feet up a pole?

Skysurfer69

Okay, WS v1 is nearly ready. Will commence redacting the file.
Hopefully this doesn't come across as a stupid question, but when I upload it, do I need to make it available to all and sundry or is there a way I can specify who can access it?
Or am I just being overly cautious?

Skysurfer69

Okay, v1 is ready. Thanks to all for all your help so far. 

I've enabled commenter options if that helps

https://docs.google.com/document/d/19-hXmg6MQZU7_W1KjAM46xrpEcHjLOkT/edit?usp=share_link&ouid=105462088843519370819&rtpof=true&sd=true

1505grandad

Suggest you look at the Judgment you are exhibiting as there in middle "e" in this context.

Skysurfer69

1505grandad said:

Suggest you look at the Judgment you are exhibiting as there in middle "e" in this context.

Yep, already spotted that and suggested those changes to myself in the comments

Seems that my default settings are American english

Coupon-mad

I haven't read the body of the WS yet but in your exhibits descriptions remove the word 'numerous'!

Never describe car park signage as clear or numerous.

Skysurfer69

Coupon-mad said:

I haven't read the body of the WS yet but in your exhibits descriptions remove the word 'numerous'!

Never describe car park signage as clear or numerous.

Done and done!

Coupon-mad

The two main judgment transcripts are fuzzy and unreadable here. Are they readable in your bundle? 

Change this as shown:

I acknowledge that the location in question is recognised as a local retail/leisure park which various insured family drivers (including myself) have visited frequently with this vehicle. I am unable to confirm or deny parking there on the specific day in question and deny liability as keeper.

Remove 10 and 11 and replace them with the 2 long paragraphs (and 2 more transcripts) you will find when you search the forum for:

Gargan Anthony Smith

Skysurfer69

Coupon-mad said:

The two main judgment transcripts are fuzzy and unreadable here. Are they readable in your bundle? 

Yes, they seem fine to me, I'll be sure to check those when I submit. 

I've made the changes you suggested and added these lines:

1.     The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

 

                          i.     In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re: claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed, and Excel's claim was dismissed.

                         ii.     In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re: claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  His Honour Judge Gargan concluded at 35.2 and 35.3. "My decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.