Napier Parking claim despite no parking bays - Defence feedback needed please

parking321

Hi All,

I entered a car park which I have used several times over the last few years. On this occasion there were no bays. There are approx 34 parking pays so not the biggest of car parks in what is a busy area especially on the weekends when the fine was issued. I stayed around in the car park to see if a space would become available as this has usually happened in the past.  After around 11 minutes of waiting I left the car park and received the fine through the post a short time later. I did appeal this at the time directly with Napier, however this was rejected.

I have now had the claim form with issue date of 17th Nov and I did the AOS on the 28th. I'm in the process of writing my defence, can someone kindly check the below:

3. The defendant entered the car park  with the intention of

parking up and paying to do so, as I have done multiple times in the past in the same car

park. Upon entering the car park there were no available bays. I decided to wait to see if

a bay would become available as this has been the case when I have used the car park

in the past. After what I deem to be a reasonable waiting time, no bays became free and

I then decided to the leave the car park to park elsewhere. At no point was my vehicle

parked in any bay and nor did I leave the vehicle at any stage. Had a parking space

been available the defendant would of course have paid and displayed. As a result of

the vehicle not being in a parking bay there is clearly no financial loss to the claimant

and thus usage of the car park was to no personal gain to the defendant who was in the

area to shop in the neighbouring high street for what is usually a few hours yet left the

car park after a few minutes. As mentioned previously the defendant has used this car

park numerous times without any issue in the past which shows I had no intention of

misusing the car park. With all of the points above it is the defendants case that the

claim is dismissed.

Also I do have a couple of question if someone can someone point me in the right direction.

1) Am I right in thinking I leave the rest of the defence template (points 1 through to 29) as they are and just add my defence into section 3? I have added the words 'add driver' in section 1 as per the guide.

2) With regards to evidences I am unsure what I can provide to help my case. I have used the car park in the past paying with coins so no digital receipts. Would a SAR request provide me with records of all the times I have used the car park without issue in the past and would this support my case?

Many thanks

Coupon-mad

Please show us the bottom half of the claim form, covering up the password and VRM of course.

KeithP

parking321 said:

I have now had the claim form with issue date of 17th Nov and I did the AOS on the 28th. 

With a Claim Issue Date of 17th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 20th December 2023 to file a Defence.

That's nearly three weeks away. Plenty of time to produce a Defence but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

parking321

Coupon-mad said:

Please show us the bottom half of the claim form, covering up the password and VRM of course.

Hi See attached,

Coupon-mad

Who filed that claim, BW Legal?

The whole template defence is used, if course, as it tells you where it says "YES, ALL of it".

Please re-draft your draft para 3 in the third person as the Template also tells you to do.

parking321

Coupon-mad said:

Who filed that claim, BW Legal?

The whole template defence is used, if course, as it tells you where it says "YES, ALL of it".

Please re-draft your draft para 3 in the third person as the Template also tells you to do.

Thanks for your response. Yep it is BW legal. I have edited my defence below:

3. The defendant entered the car park on the 27th August 2022 with the intention of parking up and paying to do so, as they have done so multiple times in the past in the same car park. Upon entering the car park there were no available bays. The defendant decided to wait to see if a bay would become available as this has been the case when using the car park in the past. After what the defendant deemed to be a reasonable waiting time, no bays became free and so the defendant decided to the leave the car park to park elsewhere. At no point was the vehicle parked in any bay and nor did the defendant leave the vehicle at any stage. Had a parking space been available the defendant would of course have paid and displayed. As a result of the vehicle not being in a parking bay there is clearly no financial loss to the claimant and usage of the car park was to no personal gain to the defendant who was in the area to shop in the neighbouring high street for what is usually a few hours yet left the car park after a few minutes. As mentioned previously the defendant has used this car park numerous times without any issue in the past which shows there was no intention of misusing the car park. With all of the points above it is the defendants case that the claim is dismissed.

Fruitcake

You haven't mentioned anything about the PoC being woefully adequate and not stating the specific breach of alleged parking terms. The CEL v Chan case apples here. The claimant has said, you breached the terms displayed at the site, but has not specifically stated what those terms were, nor which ones were allegedly breached.
For example, are they claiming the defendant parked at all, or for too long or failed to make payment, or failed to display a disabled person's badge, or failed to park only on a Tuesday, or parked a red car in a place where only blue cars are permitted, etcetera?

This is what C-m meant when she said use, "All of it" 

You have mentioned, "no financial loss," but that won't fly because of the Beavis case in 2015. You do need to state that the defendant gained no benefit since they did not park, therefore no contract was formed.
It is trite law that a contract is concluded when an offer is made, is considered, then accepted.

Whilst an offer of parking may have been made, and may even have been considered, the defendant did not actually park therefore there was no acceptance of the offer (contract), therefore no parking terms (the contract) were accepted, therefore there can have been no breach of contract.

Whilst this was from a few years ago, this case is still relevant, (except the cpmment about no loss).

Parking Prankster: Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach (parking-prankster.blogspot.com)

Coupon-mad

I don't think Chan applies here.  Just all of the Template Defence.

parking321

Coupon-mad said:

I don't think Chan applies here.  Just all of the Template Defence.

Hi all, Looking for some help please. I have sent my defence twice to the email provided in the defence thread but I've had no bounce back email and there are no updates showing in MCOL.

I've tried sending the email twice and waited a few days but still nothing.

In some of the threads I've read through, others have also not had any bounceback but for them MCOL has updated with "your defence has been received" but this is not the case with me.

 Any ideas?

Fruitcake

Try sending it from a different email address/email provider. 

parking321

Hi everyone,

I'm starting to get worried as MCOL has still not updated despite me sending my defence 3 times. The first 2 times I didn't receive an acknowledgment, however following a 3rd attempt on the 18th December from a different email address I did get a below acknowledgment so thought all was good but MCOL still hasn't been updated to say my defence has been received. I understand it's the holiday period and judging by the below email they seem to have a backlog, so do I just wait for MCOL to update?

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