DCB Legal - Letter of Claim - Disabled Driver

Boat_to_Bolivia

*EvilMissKitty* said:

Thank you KeithP

You have all been so helpful. I can't thank you all enough. If I run into any problems I may post again just for sake of clarity.

Kind Regards to Everyone. 

Kitty 

Just to say, when you get around to doing your defence, post up your paragraphs 2 and 3 and any others you add/change, and the great folk here will check them out before you submit.

Coupon-mad

You will be posting again anyway because defence is not your only job.  You must read the NEWBIES thread to know what happens when and to be ready for the other paperwork stages.

Don't just read the Template Defence thread only.

*EvilMissKitty*

HI Guys

I'm sorry for not getting back to you sooner. I have written the defence sections for both claims. These are below;

All feedback is appreciated, Thank you.

CLAIM 1

A Parking Attendant observed the Defendant consuming a sandwich in the parked vehicle. 

The Defendant exited the vehicle about 10 minutes later and proceeded to a number of the retail outlets on the site, including TKMaxx, where he was returning a few items purchased by his wife. These were stored in his backpack.

The Parking Attendant was observed spying on the Defendant as he entered TKMaxx, but was nowhere to be seen when he left TKMaxx.

The Defendant proceeded to a number of the other retail outlets and subsequently returned to the vehicle, where he discovered a parking notice claiming he had left the site. Since this was patently untrue, The Defendant attempted to locate the Parking Attendant; however, as stated previously, he could not.

There is no evidence that the Defendant left the site, as claimed, since the Defendant did not leave the site until he exited in his vehicle. 

CLAIM 2

The Driver had visited the retail park without the Defendant present. The driver is physically disabled, eligible and claiming Personal Independence Payments (PIP) and had a carer with her to provide support. The Driver is severely disabled with Ehlers-Danlos syndrome. 

The Driver displayed her Disabled Parking scheme - Blue Badge on the dashboard with the correct time set. Due to her limited mobility, the Driver required additional time to complete the objectives. When she returned to the vehicle, she discovered a parking notice stating that her badge had expired.

The Driver had applied for a replacement Blue Badge and was unaware that her existing badge had expired before this had arrived. The Driver has had a Blue Badge since 2006 and has never used an expired badge.

She attempted to explain this to the Parking Attendant, who refused to cancel the PCN, and stated that an expired badge broke the rules. 

The Driver proved the validity of her blue badge eligibility and feels that she is being penalised for a trivial and illegitimate reason, despite having a legitimate requirement to access Disabled Parking.

Fruitcake

Every paragraph needs a number.

For both claims, para 2 should read something like, The defendant admits they were the keeper and driver at the material time.

For claim 1, para 3 should state that the defendant denies leaving site and the claimant is put to strict proof that the contrary is true.
Also state that the site boundary is not defined on signage so a motorist has no way of knowing if they were or were not leaving site, which is an unfair contract term and thus breaches the Consumer Rights Act 2015.

If you have proof such as receipts or card/bank statements for the returns, then say so.

With regards to the parking attendant, state they observed the defendant at the material time, and therefore they are required to attend the hearing so they can be questioned about their actions, and the claimant is required to produce the attendant's original notes and/or log taken at them material time in accordance with the Court Practice Rules Part 33 - Miscellaneous rules about evidence.

You can read up about these requirements here,

PART 33 - MISCELLANEOUS RULES ABOUT EVIDENCE - Civil Procedure Rules (justice.gov.uk)

I'll post about claim 2 in a moment.

B789

@*EvilMissKitty* Unfortunately, those are not proper defences and read more like witness statements. Think of a defence as a set of hooks that you will later hang your witness statement on. Your defence needs to be short and punchy using legalities that, not mitigating circumstances.

Have a search through the forum for other "blue badge" or "leaving site" claims and have a look at their defences. As per the Newbies thread, there is a template defence in there. Go and read it, again if necessary, There is a format to it. You only need to change paragraphs 2 & 3 but you can add more if necessary. ALL paragraphs need to be numbered sequentially so if you add any, all the subsequent ones will need renumbering. You should include everything after the 2 paragraphs that you edit and/or add as they are "legal" points that will cover you for anything that the claimant tries to add or has put in their PoC.

Have you actually received a Court Claim (N1) yet? If not, you can't submit a defence until you have received one and acknowledged service of it. If you are just trying to write something to rebut the LoC, then you should still try and use most of what you will find in the defence template but worded slightly differently.

AN actual defence is written in the third person. A witness statement or response to an LoC is not. If you think you need more time to respond to the LoC, you can just write back and tell them that you are seeking debt advice, although any debt is denied and that they must give you at least 30 days before they can issue a claim according to the civil procedure rules.

If they've included any forms with their LoC, don't fill them in. You will only respond by email and those forms are not required for you.

This site has a good fact sheet that explains the PAP:

https://nationaldebtline.org/fact-sheet-library/pre-action-protocol-in-the-county-court-ew/

Fruitcake

For claim 2.

The blue badge scheme does not apply on private land as defined in the blue badge booklet, the blue badge government website, and publicly available documents held in the House of Commons library.
The defendant displayed their blue badge as a courtesy.

The fact that the defendant's disabled badge had expired is immaterial. The defendant's disability, and their rights in accordance with the Equality Act 2010 did not go away when the badge expired, and neither did their right to make use of an accessible parking bay.

The claimant knew or should have known that a failing to make reasonable adjustments for a disabled person with protected characteristics is indirect discrimination and breaches the above Act. 
As soon as the claimant and the parking attendant were made aware of the defendant's disability, then continuing to proceed with the issue of a parking charge and subsequent court claim constitutes direct discrimination and is a breach of the above Act.

A reasonable adjustment in the defendant's case would have been to acknowledge their disability, acknowledge their right to use an accessible parking bay, to cancel the charge and not pursue it through the courts.
The defendant will be claiming costs for unreasonable behaviour regarding the breach of the Equality Act 2010, breach of the Data Protection Act (DPA) 2015, and breach of the General Data Protection Regulations (GDPR) 2018

Le_Kirk

This is confusing; in Claim 1, "he" returned some items to a shop and in Claim 2, "she" displayed the blue badge. Are these claims against the same registered keeper?

*EvilMissKitty*

Le_Kirk said:

This is confusing; in Claim 1, "he" returned some items to a shop and in Claim 2, "she" displayed the blue badge. Are these claims against the same registered keeper?

Same keeper, different drivers.

Le_Kirk

In which case I think it needs to be made clear in the defence.

*EvilMissKitty*

Thanks Le_Kirk, Fruitcake and B789 for your assistance.

Hopefully this is better 

Claim 1: Leeds Carpark - The facts as known to the Defendant:

2.     It is acknowledged that the registered keeper and the vehicle's driver was the keeper.

3.     Defendant denies leaving the site, and the claimant is put to strict proof that the contrary is true.

4.     The site boundary is not defined on signage such that a motorist has no way of knowing if they were or were not leaving the site, which is an unfair contract term and thus breaches the Consumer Rights Act 2015.

5.     A Parking Attendant was observed by the Defendant at the material time and is therefore required to attend the hearing so that they can be questioned about their actions.  The claimant is therefore required to produce the attendant's original notes and/or log taken at the material time in accordance with the Court Practice Rules Part 33 – Miscellaneous rules about evidence.

Claim 2: St James Retail Park, Knaresborough - The facts as known to the Defendant:

6.     It is acknowledged that the registered keeper of the vehicle is the defendant. The defendant was not the vehicle's driver at the time of the incident.

7.     The blue badge scheme does not apply on private land as defined in the blue badge booklet, the blue badge government website, and publicly available documents held in the House of Commons library. The defendant displayed their blue badge as a courtesy.

8.     The fact that the defendant's disabled badge had expired is immaterial. The defendant's disability and their rights in accordance with the Equality Act 2010 did not go away when the badge expired, and neither did their right to make use of an accessible parking bay.

9.     The claimant knew or should have known that failing to make reasonable adjustments for a disabled person with protected characteristics is indirect discrimination and breaches the above Act. 

10.  As soon as the claimant and the parking attendant were made aware of the defendant's disability, continuing to proceed with the issue of a parking charge and subsequent court claim constitutes direct discrimination and is a breach of the above Act.

11.  A reasonable adjustment in the defendant's case would have been to acknowledge their disability, acknowledge their right to use an accessible parking bay, to cancel the charge and not pursue it through the courts.

12.  The defendant will be claiming costs for unreasonable behaviour regarding the breach of the Equality Act 2010, breach of the Data Protection Act (DPA) 2015, and breach of the General Data Protection Regulations (GDPR) 2018