Preparing Defence

Darcy_1966

Hi 
 
My daughter received a PCN from TCP April 2021 26 mins overstay initially appealed received gesture of goodwilll offer of £20 did not receive as offer emailed into an email box no longer used then received a letter to say now handed over to debt recovery, she then emailed explained that she would like to pay the £20 but they replied it was too late. 

claim form issued 18/10/2024 

AOS sent 25/10/24

I just wanted some feedback on how to word the defence - she had attended a physio appointment for back pain arrived back to the car had a migraine like headache couldn’t drive as had visual disturbances so unsafe to drive left car park 26 mins after ticket time had lapsed . 

Many thanks in advance 

Gr1pr

Use the template defence by coupon mad in announcements, near the top of the forum 

Adapt paragraphs 2 & 3 and post those few adapted paragraphs below for critique 

Please do not post the rest of the template defence, its not necessary, ONLY your homework or the defendant's homework is being checked and hopefully improved 

KeithP

Darcy_1966 said:

claim form issued 18/10/2024 
AOS sent 25/10/24

Hello and welcome.

Who is the Claimant?

With a Claim Issue Date of 18th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 20th November 2024 to file a Defence.

That's over two 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'.

LDast

Who are "TCP"? Full name as on the N1SDT form. Also, are they acting for themselves or are they using a bulk litigator. Looks like a DCB Legal issued claim from the Particulars of Claim (PoC).

Having submitted the AoS, you have until 4pm on Wednesday 20th November to submit the defence. The second post in the Newbies/FAQ thread and the Template Defence thread give all the advice on what to do.

If it is a DCB Legal issued claim, any defence will suffice as it will eventually be discontinued early next year.

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS

Darcy_1966

Thank you for your replies the claimant is Total Car Parks Ltd and it is DCB Legal 

Darcy_1966

Gr1pr said:

Use the template defence by coupon mad in announcements, near the top of the forum 

Adapt paragraphs 2 & 3 and post those few adapted paragraphs below for critique 

Please do not post the rest of the template defence, its not necessary, ONLY your homework or the defendant's homework is being checked and hopefully improved 

Many thanks for your advice is this ok for Paragraph 2 and 3 ? Do I use Paragraph 1 as written in the defence template thread ?  and then copy and paste from paragraph 4-30 ? 

Darcy_1966

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

"3 ) This parking event allegedly took place in April 2021, the defendant parked said vehicle AV67 MSY inn the Slade Street car park purchased a ticket and attended a physio appointment for back pain. On the defendant’s return to the vehicle, the defendant experienced a migraine type headache with visual disturbances and felt that they would not be safe to drive as their vision was not 100%. As soon as the vision had returned they drove out of the car park. 

Coupon-mad

That's not para 2 from the template defence. Only alter the tiny bits of the Template Defence that I tell you to alter, in that thread.  Of course you use all if it. The template says already: "YES, all of it".

Darcy_1966

Hi 

I would like to say many thanks for your support I am very grateful.

I am going on holiday so would like to get this defence submitted this evening if possible. 

The facts known to the Defendant:

2. 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 driver.

3. The vehicle was parked in XXXXXXX  on xxxxx as noted by the claimant. The defendant parked to attend a physiotherapy appointment. The defendant purchased a 60 minute ticket. The PCN alleges the vehicle was on site for 1 hour and 26 minutes, which according to the claimant was an Overstayed Paid For Parking Session. On the defendant’s return to the vehicle, following physiotherapy treatment, the defendant experienced a migraine type headache with visual disturbances. The defendant made the decision that it would not be safe to drive as their vision was not 100%. Due to the visual disturbances the defendant was unable to purchase another ticket to cover the 26 mins. As soon as the defendant’s vision had returned they drove out of the car park. The attempt to impose a charge for a driver who was ensuring they were safe to drive, appears reckless and acting without due care and safety to the wider public.

Many thanks again you are all brilliant 🙌 

Coupon-mad

Remove all this:

"...The defendant purchased a 60 minute ticket. The PCN alleges the vehicle was on site for 1 hour and 26 minutes, which according to the claimant was an Overstayed Paid For Parking Session. On the defendant’s return to the vehicle, following physiotherapy treatment, the defendant experienced a migraine type headache with visual disturbances. The defendant made the decision that it would not be safe to drive as their vision was not 100%. Due to the visual disturbances the defendant was unable to purchase another ticket to cover the 26 mins. As soon as the defendant’s vision had returned they drove out of the car park. The attempt to impose a charge for a driver who was ensuring they were safe to drive, appears reckless and acting without due care and safety to the wider public."

replace that section with:


...The Defendant paid for their parking. The Claimant is put to strict proof that the vehicle significantly overstayed after expiry of the purchased ticket. More likely is that the Claimant failed to allow a suitable consideration period on arrival, given this was a site requiring use of a pay and display machine.  All this takes time on arrival at a site and is not part of the 'parking period'. A reasonable period of minutes on arrival and also added upon leaving do not count and would fall within grace periods, especially in a car park where after finding a space, one must first read tariff boards, find coins (or download an app) and take time to pay.

3.1. The British Parking Association ('BPA'), the Court of Appeal and the relevant Government Department (now renamed the MHCLG) all agree with this point:

3.1.1.  In an official, published BPA news article by Kelvin Reynolds, BPA Director of Corporate Affairs, he states that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.”
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

3.1.2.  In the Court of Appeal case of National Car Parks Limited vs The Commissioner for HMRC (2019) A3/2017/2435 Lord Justice Newey states that ‘the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed.’

3.1.3.  This (consumer fairness) position is also reflected by the planned statutory regime which will flow from statute law already enacted, and which the new Government is now set to finalise in the coming months. Under the Parking (Code of Practice) Act 2019, the Secretary of State 'must' lay a statutory Code of Practice before Parliament and provide for a regulated regime of scrutiny to overcome the wholesale 'market failure' of the consumer-harming private parking industry. The draft statutory Code of Practice includes clauses that were not objected to by the parking industry's 2022 Judicial Review blocking tactics. In the definitions, the DLUHC (now MHCLG) state at 2.24: - parking period:  the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired ... This is not the period between a vehicle being recorded as entering and departing controlled land."  

3.2.  In addition to an observation period (on arrival) there must be a grace period, to allow sufficient time to leave without penalty. On the Defendant’s return to the vehicle, following physiotherapy treatment, they experienced a migraine headache with visual disturbances. The Defendant was unable to drive away immediately but was within the vehicle and caused no obstruction nor loss of parking space availability because the car park was not full by any means. It would not have been safe to drive as their vision was not 100%.  A suitable extended grace period under these circumstances would be required under the Equality Act 2010 (the EA) and the Claimants knew all about the Defendant's migraine attack from her appeal but they have instead pursued this to court, which is in clear breach of their EA duty.

Darcy_1966

Thank you so much Coupon-mad !!  I am so grateful for your critique and guidance I will be submitting the defence today