UPDATE: 2 PCNs received from QDR - Witness Statement Stage

nopcns

The PoC on the claim form say that detailed PoC will be sent separately. When were the detailed PoC sent (date) and what was said in the detailed PoC that make you think that you can rely on the Chan preliminary matter?

terri99

Tbe original claim was sent in the 14th Feb ( page 1 of the doc linked above). The detailed PoC were sent on the 21st Feb (pages 2-5 of the doc linked above). 

I thought that they were vague in that they lack specific but key information about the case, such as how long the alleged overstay was, or between what times it was supposed to have occurred. 

I am happy to be corrected that this information doesn't need to be on the PoC.

nopcns

Whilst the detailed PoC are sparse, they do specify the breach of contract in that "THE VEHICLE WAS PARKED LONGER THAN THE MAXIMUM PERIOD ALLOWED". The original template defence will cover the scarcity of the PoC but you shouldn't use the CEL v Chan as a preliminary matter as the breach of terms is spelt out.

Coupon-mad

Just use the Template Defence because it already mentions that the POC aren't great, it just doesn't go as far as the hharry100 version.

You can state in para 3 that you don't know who was driving and neither the LBC nor the supposedly 'detailed POC' has specified the purported overstay, so the C is put to strict proof of all allegations. including 'keeper liability' and the prominence of the contractual signage as well as evidence of the alleged breaches.

terri99

Hello @Coupon-mad, 

Thank you for your comment.

Regarding your advice to state that I didn't know who was driving, I read elsewhere I think on the template itself, that I should only say this if it's true. Also, if I go down the route of saying that I don't know who the driver is, does that mean that I can't use the breastfeeding Equalities Act defence either?

so essentially my paragraph 3 will read as follows...

3. The defendant does not know who was driving and neither the Letter Before Claim nor the supposedly 'detailed Particulars Of Claim' has specified the purported overstay, so the Claimant is to put strict proof of all allegations, including 'keeper liability' and the prominence of the contractual signage, as well as evidence of the alleged breaches.

[...followed by rest of defence template]

Would this be enough?

Coupon-mad

Fruitcake said:

In your defence, you should include the relevant part of the Equality Act 2010 that refers to breastfeeding mothers of infants under 6 months of age. Read this in conjunction with the parts about certain persons having protected characteristics, and that they are entitled to reasonable adjustments (such as being allowing more time to breastfeed).

Failing to anticipate the needs of such a person with protected characteristics is indirect discrimination, a breach of the Act, and a criminal offence. Once the "service provider" gas been made aware of the subject's protected characteristics, pursuing the charge becomes direct discrimination, a further breach of the Act, and further criminal offence.

You should definitely include the above.

Remove the bit that says you don't know who was driving.  Be truthful.

terri99

ok draft defence as follows...

[...preceded by rest of defence template, paragraph 2 amended to admit being the "keeper and driver"...]

3. Neither the Letter Before Claim nor the supposedly 'detailed Particulars Of Claim' has specified the purported overstay. It is suggested that these could be instances of a typical ANPR error known as a 'double dip'. This is known in the industry as an inherent and well-documented likely flaw of ANPR, which cannot be relied upon to sign off a PCN without human checks.  AOS members are required to carry out manual checks to discount the possibility of 'orphan images' in the middle, denoting two visits within 24 hours, wrongly read as one period of parking (for example to return something, or to buy a forgotten item).  Given that ANPR defaults to 'first in, last out' images, the Claimant is put to strict proof of all ANPR captures of the vehicle onsite that day and of their documented human checks before this PCN was issued. The Claimant is also to put strict proof of the prominence of the contractual signage, as well as evidence of the alleged breaches. 

4. The Defendant is unable to recall the specific details that led to the alleged infractions that resulted in ‘parking charges’ being issued as the dates in question are all unremarkable days from 2 years ago. However, there are several reasons why an infraction may have occurred. First, Priory Retail Park has over 7 large shops, supermarkets, restaurants etc. very easy to lose track of time and overstay, especially as a lone parent with three very young children who were aged four, two, and two/three months at the time. Priory Retail Park is often heavily congested due to its layout and the number of shops the car park services, leading to delays in getting parked and exiting in a timely manner, especially with three young children. 

5. The infant in question was born premature and took longer than normal to feed, well over 30/45mins per time. Under the Equality Act 2010 (EA2010), the defendant should not be discriminated against for breast feeding her baby. Reasonable adjustment for breastfeeding mothers is expressly required by the Act. Subsections 17(3) and (4) read as follows:-

• (3) A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

• (4)The reference in subsection (3) to treating a woman unfavourably because she  has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.

6.  The child in question was less than 26 weeks old at the time of the alleged parking event.  A copy of the child's birth certificate will be provided with the witness statement. The operator is not entitled to any further 'evidence' of breastfeeding.

7.  The defendant is not aware of how long the alleged overstay was (due to the inadequate PoC), but she must be allowed a reasonable time adjustment to breastfeed by law.  Please note that this is a respectful demand for application of a legal right and not a request for consideration of mitigating or extenuating circumstances. Please also be aware that failing to anticipate the needs of such a person with protected characteristics is indirect discrimination, a breach of the Act, and a criminal offence. Once the claimant has been made aware of the defendant’s protected characteristics, pursuing the charge becomes direct discrimination, a further breach of the Act, and further criminal offence.

[...followed by rest of defence template]

Coupon-mad

I think that's fine.  Covers lots of issues that should see the case off in the end.

terri99

Thank you very much each one of you lovely people for your assistance, it is very much appreciated. May the good Lord reward you most abundantly

I'll keep you updated of anything interesting that happens. 

terri99

Good morning good peoples, 

I hope all is well. 

So to update, I have a hearing date at the end of this month, and a deadline to submit my witness statement tomorrow (11th April)!!

I have attempted to cobble together a draft in line with the advice from this forum...linked here https://docs.google.com/document/d/1BJRUCmPjWw2x8Nzl9tfe3uQLUPjdfN1zS3SPu2hEjSM/edit?usp=sharing

I apologise for the lastminute.com-ness. Any help or comments will be very much appreciated.

NB: the signage shown in exhibit 02 is taken from the claimant's witness statement (I don't have time to go and take my own photos).Is this allowed? Do I need to reference the claimant?