Dispute Resolution Hearing 26 March @ Huddersfield County Court NPML/Gladstones

skintbutwantstosave

fisherjim said:

".......but saw the scam signs on approach to a bay."

Personally I would remove the word scam, they are signs that are alleged to form a contract, calling them a scam to a judge isn't a good idea IMHO.

"The Claimant claims the unpaid penalty charge notice........"

Once again you are using words that are not there or applicable, the word "penalty" is not there is it?

1.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023. The Defendant denies the vehicle was parked as alleged by the Claimant.  The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

2.      The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park at which the Hair and Beauty Bar is located but saw the signs on approach to a bay and had no wish to be bound, so the Driver rejected the contract without parking and left the land.  

  

3.      The Claimant claims the unpaid parking charge notice from the Defendant as the driver/keeper. The Defendant denies being the driver of the vehicle as she was a passenger. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

4.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. The Claimant has failed to provide evidence that the vehicle was parked on the relevant land including the time period the vehicle was parked pursuant to Schedule 4 of POFA as such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle, particularly where the vehicle did not park at the Hair and Beauty Bar.

 

I have amended the sections in bold. 

skintbutwantstosave

LDast said:

Can something or someone be both "notorious" and "unknown" at the same time? Why are you even mentioning "Downtown"? You are adding poorly thought out bits to the defence. What has the business "Downtown" got to do with the price of eggs in China?

What contractual terms does the claimant allege the driver breached in the PoC? They don't. You are answering the allegation in the PoC. You don't need to submit War and Peace in your defence, especially as you are using the CEL v Chan Preliminary Matter.

All that is left for you to do is state whether the defendant is the keeper, driver, both or neither. In the next paragraph the defendant can deny that the driver parked the vehicle at the location and the claimant is put to strict proof to show otherwise.

The rest of your story can be expanded on if/when the tme comes to submit your WS. There you can wax flowingly about what happened on the day.

Sorry, I missed this comment - I have amended in the latest comment. 

LDast

I don't understand why there is so much narrative in there. You are using the CEL v Chan Preliminary matter because the PoC are so woefully inadequate and they don't state a cause of action but then you go on to waffle on about knowing what it is all about. 

If you want a judge to throw this out at allocation stage, you need to stop elaborating on everything because all the judge has to do is look at what you have put in your defence and says "Hmmm, I think this defendant knows enough that, whilst the PoC are poor, can be overlooked.

You are saying, look, the PoC are rubbish. The defendant has little to no idea what they are being pursued for. The claimant has failed to prove enough information in their claim to enable a proper defence. The claim should be struck out.

Instead, you wax lyrically about how you know exactly what the claimant is on about. make your mind up.

If I were defending, I would make sure the CEL v Chan Preliminary matter is there. I would say that I am the keeper but was not the driver. Then for the bit you complete, just stay that the defendant denies that the vehicle was ever parked at the location and puts the claimant to strict proof otherwise. End of.

With a decent allocating judge, they will either agree with the preliminary matter or they will order the claimant to amend the PoC and allow the defendant more time to respond to the amended PoC. We will have to wait and see.

Everything else you want to say can be done later at WS time, if it ever gets that far.

skintbutwantstosave

LDast said:

I don't understand why there is so much narrative in there. You are using the CEL v Chan Preliminary matter because the PoC are so woefully inadequate and they don't state a cause of action but then you go on to waffle on about knowing what it is all about. 

If you want a judge to throw this out at allocation stage, you need to stop elaborating on everything because all the judge has to do is look at what you have put in your defence and says "Hmmm, I think this defendant knows enough that, whilst the PoC are poor, can be overlooked.

You are saying, look, the PoC are rubbish. The defendant has little to no idea what they are being pursued for. The claimant has failed to prove enough information in their claim to enable a proper defence. The claim should be struck out.

Instead, you wax lyrically about how you know exactly what the claimant is on about. make your mind up.

If I were defending, I would make sure the CEL v Chan Preliminary matter is there. I would say that I am the keeper but was not the driver. Then for the bit you complete, just stay that the defendant denies that the vehicle was ever parked at the location and puts the claimant to strict proof otherwise. End of.

Everything else you want to say can be done later at WS time, if it ever gets that far.

Sorry, I did initially do that, but then other posters suggested I put in more detail. I will remove and rely on CEL v Chan and submit. Thank you for your comments.

skintbutwantstosave

I don't understand why there is so much narrative in there. You are using the CEL v Chan Preliminary matter because the PoC are so woefully inadequate and they don't state a cause of action but then you go on to waffle on about knowing what it is all about. 

If you want a judge to throw this out at allocation stage, you need to stop elaborating on everything because all the judge has to do is look at what you have put in your defence and says "Hmmm, I think this defendant knows enough that, whilst the PoC are poor, can be overlooked.

You are saying, look, the PoC are rubbish. The defendant has little to no idea what they are being pursued for. The claimant has failed to prove enough information in their claim to enable a proper defence. The claim should be struck out.

Instead, you wax lyrically about how you know exactly what the claimant is on about. make your mind up.

If I were defending, I would make sure the CEL v Chan Preliminary matter is there. I would say that I am the keeper but was not the driver. Then for the bit you complete, just stay that the defendant denies that the vehicle was ever parked at the location and puts the claimant to strict proof otherwise. End of.

With a decent allocating judge, they will either agree with the preliminary matter or they will order the claimant to amend the PoC and allow the defendant more time to respond to the amended PoC. We will have to wait and see.

Everything else you want to say can be done later at WS time, if it ever gets that far.

is this better?

No Keeper Liability

1.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023.  The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

2.      The Claimant claims the unpaid parking charge notice from the Defendant as the driver/keeper. The Defendant denies being the driver of the vehicle as alleged within the POC. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

3.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. The Claimant has failed to provide evidence that the vehicle was parked on the relevant land as well as failing to provide the time period the vehicle was parked pursuant to Schedule 4 of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle. 

Zbubuman

What everyone is telling you is that you don't need to provide chapter and verse, especially if the particulars of the claim are not clear enough.  Your defence is that you don't know what they are talking about as the particulars are not clear and do not explain what they are implying that you did wrong. 

If you want to add the paragraph where you explain as to why you/or driver were inside the boundaries of the car park. You can keep it summarised as " The driver does remember driving into this car park, however upon noticing the signs and checking the T&C; they opted to reject the contract, immediately left the car park and parked the vehicle elsewhere. You don't need to elaborate or fluff things up. So NO to " I usually order a take away once a week from Bombay Bazaar because they do the best curry in town, and I was feeling peckish for some of their chicken korma on that particular day... (These details are not relevant). Just keep it simple stupid. Yes, the driver went in, didn't like the T&C, did not park, immediately left.  ( Also, like others are saying. don't think you need this paragraph at this stage and would be best left for the WS stage. Although worthwhile to keep the statement in mind in case the judge asks the question)

KeithP

skintbutwantstosave said:

is this better?

No Keeper Liability

1.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023.  The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

2.      The Claimant claims the unpaid parking charge notice from the Defendant as the driver/keeper. The Defendant denies being the driver of the vehicle as alleged within the POC. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

3.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. The Claimant has failed to provide evidence that the vehicle was parked on the relevant land as well as failing to provide the time period the vehicle was parked pursuant to Schedule 4 of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle. 

In your paragraph 1 you state "the registered keeper parked..." thereby stating that the keeper was the driver.

In your paragraph 2 you state "the Claimant does not know the identity of the driver of the vehicle...".

In your paragraph 3 you discuss the Protection of Freedoms Act. Surely there is no need to mention PoFA in a situation where a driver's identity is known?

Gr1pr

In 2, ( renumbering will eventually be required. ) add that 

I confirm that the defendant is the Registered Keeper but definitely was not the driver, (. maybe at the end. ?  So that it is crystal clear. )

skintbutwantstosave

KeithP said:

In your paragraph 1 you state "the registered keeper parked..." thereby stating that the keeper was the driver.

In your paragraph 2 you state "the Claimant does not know the identity of the driver of the vehicle...".

In your paragraph 3 you discuss the Protection of Freedoms Act. Surely there is no need to mention PoFA in a situation where a driver's identity is known?

The facts known to the Defendant:

1.      The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but not the driver.  

No Keeper Liability

2.      It is alleged within the POC that the Defendant parked at the Hair and Beauty Bar on 20 August 2023.  The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

3.      The Claimant claims the unpaid parking charge notice from the Defendant as the driver/keeper. The Defendant denies being the driver of the vehicle as alleged within the POC. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

4.      The Claimant has failed to provide evidence that the vehicle was parked on the relevant land including the time period the vehicle was parked pursuant to Schedule 4 of Protection of Freedoms Act 2012 (“POFA”) as such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

 

5.      Parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases.

 

6.      Further, the registered keeper is not obliged to name the driver to a private parking firm.  Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases and the following transcripts will be adduced in evidence:

 

I have amended this now 

LDast

Where is there a "keeper liability" sub heading in the template defence? Keeper liability has already been denied in the template. You will expand on that at WS time.

The PoC say that the unknown driver parked at some unspecified location called the "Hair & Beauty Bar" on a specific date. It doesn't say why parking at some unspecified location incurs a PCN. Forget about everything else for now. 

You only need to add a single paragraph to the defence template after the para where you say you are the keeper but were not the driver. It only has to say that the defendant denies parking at the unspecified location as there is no address. 

"The defendant denies that the vehicle was parked at an unspecified location that the claimant has alleged in their woefully inadequate particulars of claim. The claimant is put to strict proof that the defendants vehicle was ever parked at the unspecified location."