MCOL defence

oreo2016

Hi, im defending a private parking claim and have drafted my denfence based on the template on the newbies thread

The Particulars of Claim allege that I parked for longer than the maximum permitted period and are also claiming an additional £60 in recovery costs.

I was the driver. During the visit I was accompanied by my mum, who has diabetes. She became tired and unwell, so I stayed longer than intended to make sure she was okay. I'm particularly unsure whether I've addressed the alleged overstay and the additional £60 recovery costs correctly.

Please let know if this is okay and if i should update or include anything i may have missed! this is what i wrote:

The defendant denies that the claimant is entitled to the sum 
claimed, or any sum beyond any parking charge with the claimant is 
able to prove was properly incurred and is legally recoverable. 
The claimants particulars of claim allege that the vehicle was 
parked for longer than the maximum permitted period. The defendant 
put the claimant to strict proof of the alleged breach, including 
the applicable pay parking terms, the maximum permitted period and 
never evidence relied upon to establish the alleged duration of 
parking.

The defendant was the driver of the vehicle on the day in question 
liability for the sum claimed it denied. The defendant accepts of 
the vehicles are made at the car park for longer than originally 
intended but the noise of the circumstances just by the Sum now 
claimed.

The defendant was accompanied by their mother, who has diabetes. 
During the visit, the defendant mother became tired was not 
feeling well. The defendant therefore made at the location for 
longer than originally intended in order to ensure their mothers 
well-being. The additional time was due to the circumstances and 
was not an intentional attempt to disregard the parking times the 
defendant asks the court to take the circumstances into account 
when considering the alleged breach and the claimants claim.

The claimant is put to strict proof of the contractual terms 
relied upon including the signage in place on the material date, 
its location, prominence and wording and how these terms with 
suffciently go to the drivers attention. the claimant must also 
established that the alleged permitted parking part of the 
contract between the parties.

The claimant is further put a strict proof of it starting to bring 
their this claim, including its authority from the landowner to 
issue parking charges at the location to pursue unpaid charges 
through litigation. The claimant should provide the relevant 
contemporaneous landowner authority and establish that it covers 
the location and material date.

The Defendant does not accept the circumstances of this case are 
suffciently established to justify the paring charge claimed. the 
claimant is put to strict proof of the circumstances giving rise 
to the charge and is required to distinguish this case from 
ParkingEYE LTD V Beavis (2015) UKSC 67, particulaly as to the 
proinence and clairty of the parking terms and legitimate interest 
relied upon. The Supreme Court's decision in Beavis turned on the 
particular circumstances and prominently displayed terms of that 
car park.

In addition to the parking charge, the Claimant seeks a further 
£60 described as "recovery costs". The Defendant disputes the 
recoverability of this additional sum and puts the Claimant to 
strict proof of its contractual and legal basis, including 
evidence that the sum was actually incurred and is recoverable 
from the Defendant. The Particulars of Claim do not adequately 
explain how the £60 has been calculated or incurred. CPR 16.4 
requires particulars of claim to include a concise statement of 
the facts relied upon, and where interest is claimed, details of 
the basis and calculation of that interest.

The Defendant also disputes the Claimant's claim for interest 
insofar as it is calculated on any sum which is not properly due. 
The Defendant reserves the right to challenge the calculation and 
basis of the claimed interest. The Defendant further denies that 
the Claimant is entitled to recover any additional sum merely by 
describing it as recovery costs.

Accordingly, the Defendant respectfully asks the Court to dismiss 
the claim. The Defendant reserves the right to rely upon further 
evidence, including photographs, correspondence, signage and other 
documents, as appropriate at the relevant stage of these 
proceedings. The Defendant also seeks such costs as are permitted 
by the small claims track.

Car1980

"The defendant was the driver of the vehicle on the day in question 
liability for the sum claimed it denied. The defendant accepts of 
the vehicles are made at the car park for longer than originally 
intended but the noise of the circumstances just by the Sum now 
claimed.

The defendant was accompanied by their mother, who has diabetes. During the visit, the defendant mother became tired was not 
feeling well. The defendant therefore made at the location for longer than originally intended in order to ensure their mother's well-being. The additional time was due to the circumstances and was not an intentional attempt to disregard the parking times the 
defendant asks the court to take the circumstances into account when considering the alleged breach and the claimants claim."

I would change the above to this:

The defendant was accompanied by their mother, who is diabetic. During the visit, the defendant's mother became unwell as a direct result of the diabetes and had to rest before returning to the car. Long term diabetes that affects day to day wellbeing is a protective characteristic under the 2010 Equality Act and the claimant is obliged to allow reasonable additional time for such people. Under contract law this would amount to frustration. The defendant obviously could not leave the passenger to suffer a medical episode.

You also need to fix all your spelling mistakes.

Gr1pr

Check member muffin231 ( hint. )

MrJenkinsEsq

My tuppence (make sure the facts are true, I've guessed a bit, and delete the word briefly if it wasn't brief):

3. The Defendant admits that the vehicle remained briefly at the site for longer than the period stated on the Claimant's signs. The overstay was neither chosen nor avoidable. The Defendant's mother, a passenger, has diabetes, a long-term condition affecting her day-to-day activities and a disability within s6 of the Equality Act 2010. During the visit she became unwell and needed to rest and recover before it was safe for her to return to the vehicle. The Defendant could not leave her. The additional time was what her condition required and no more.

3.1. The Claimant is a service-provider (s29 Equality Act 2010) owing disabled users of the car park an anticipatory duty to make reasonable adjustments (ss20, 21, 29(7) and Sch 2 para 2). A fixed maximum stay enforced by a charge, with no provision for a disabled person who becomes unwell and needs time to recover, puts disabled persons at a substantial disadvantage. The reasonable adjustment is to allow the time or to cancel a charge so incurred. The Claimant made none, and insofar as it was told of the circumstances and declined to cancel, that refusal was a further failure, contrary also to its Code of Practice.

3.2. Under s19A (indirect discrimination: same disadvantage) the Defendant, though not disabled, was put by that practice to substantively the same disadvantage as a disabled person, and the Claimant cannot show the practice to be a proportionate means of achieving a legitimate aim. By s142 a contract term is unenforceable against a person in so far as it provides for treatment of that or another person that the Act prohibits. The Defendant will give evidence of the condition and the events of the day.

Coupon-mad

Great stuff!

That can go into the Template Defence and if it's too long, remove para 10 about costs.

Show us the Claim POC please.

Which parking firm?

Which solicitor?

Did you ever appeal?

Were the Claimants ever told about the passenger's needs & condition?

MrJenkinsEsq

On frustration, I left it out because the bar is high and probably not met. Performance has to have become impossible, illegal, or radically different from what was undertaken. Hardship and inconvenience aren't enough.

The test looks at the obligation, not the driver's circumstances. The obligation was to get the vehicle off the land within the free period, and however inhumane it would have been, that remained possible. A third party randomly encasing the car in concrete would arguably make performance impossible. A passenger needing time to recover doesn't. You could leave them behind, or call a recovery company to move the car.

Frustration also needs a supervening event. A long-term managed condition isn't one. The risk was there when the contract was formed, so it's treated as allocated rather than as something that came out of nowhere.

The Equality Act covers it instead.