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  • FIRST POST
    • justnotgoodenough
    • By justnotgoodenough 7th Mar 18, 1:57 PM
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    justnotgoodenough
    Please Help - Draft Defence - County Court Claim
    • #1
    • 7th Mar 18, 1:57 PM
    Please Help - Draft Defence - County Court Claim 7th Mar 18 at 1:57 PM

    Any advice/comment on my draft defence before I submit. Thanks
    Last edited by justnotgoodenough; 21-04-2018 at 8:49 PM.
Page 2
    • justnotgoodenough
    • By justnotgoodenough 11th Apr 18, 9:51 PM
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    justnotgoodenough
    Excel have now issued court proceedings as of 10th April 2018. I understand I have 5 days after this issue date then a further 28 days to submit my defence. (I responded to the claim online this morning to extend the 14 days to 28 days.)

    I will post my first draft defence in the next week - anybody that has any time to spare to have a scan over it - I would appreciate that.

    Just a quick query In the 'Particulars Of Claim' that excel have sent they state that:

    "The defendant is responsible for the charge as the driver and/or registered keeper of the vehicle."

    Can they pursue me as both? As previously when I asked them whether they were pursuing me as driver or keeper they stated they were relying on POFA 2012 to pursue me as keeper (which they are in breach of) but have never supplied any evidence I was the driver.
    • KeithP
    • By KeithP 11th Apr 18, 10:02 PM
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    KeithP
    Just a quick query In the 'Particulars Of Claim' that excel have sent they state that:

    "The defendant is responsible for the charge as the driver and/or registered keeper of the vehicle."

    Can they pursue me as both? As previously when I asked them whether they were pursuing me as driver or keeper they stated they were relying on POFA 2012 to pursue me as keeper (which they are in breach of) but have never supplied any evidence I was the driver.
    Originally posted by justnotgoodenough
    That's just a general catch all statement.
    It just reinforces the view that these are robo-claims - saves then having to have one template for pursuing the driver and another when chasing the keeper.

    They have already said they are relying on PoFA2012, so that means they are pursuing you as the keeper.
    Last edited by KeithP; 11-04-2018 at 10:05 PM.
    .
    • justnotgoodenough
    • By justnotgoodenough 11th Apr 18, 10:23 PM
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    justnotgoodenough
    Cheers KeithP.

    I need to prepare to defend as driver AND keeper?
    Do they not have to state whether they are pursuing me as keeper OR driver in the 'Particulars of Claim' they have lodged with the court?

    EG: I have to assume it's keeper because that's what they said in earlier correspondence?
    Or essentially I should prepare for all eventualities?

    (Sorry if it seems obvious I don't mean to get caught up on some wording that's not important but I had been preparing my defence as keeper NOT driver)
    • KeithP
    • By KeithP 11th Apr 18, 10:37 PM
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    KeithP
    You perhaps need to be prepared to challenge any assumption, or assertion, that you were the driver.
    But from what you have posted it doesn't appear that they are going to try that.

    See what others say.
    .
    • Johnersh
    • By Johnersh 11th Apr 18, 10:38 PM
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    Johnersh
    And/or is an argument in the alternative, so yes.

    If it is transparent who was driving (eg. If the car was insured for just one driver), it may be easiest for them to be named so that they can give solid first person witness evidence and attend court. Your call, obviously.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Coupon-mad
    • By Coupon-mad 14th Apr 18, 2:12 AM
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    Coupon-mad
    I was giving a witness statement as the registered keeper who was there on the day.
    Is this not advised?
    You are not at WS stage at the moment, if the claim was from this week then do the AOS online first, as per the NEWBIES thread pictorial link, then show us your draft defence.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • KeithP
    • By KeithP 19th Apr 18, 10:18 PM
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    KeithP
    At first glance, that Defence looks to be way to long.

    Have you read the Defences linked from post #2 of the NEWBIES FAQ thread?
    There are at least a dozen Defences there.

    I've seen it said on here that more than two sides of A4 is perhaps too long.
    .
    • Johnersh
    • By Johnersh 19th Apr 18, 11:00 PM
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    Johnersh
    It appears to have got longer not shorter. I would try and simplify it. You are at risk of the facts of your case being lost in standard guff. You really don't need to cite great swathes of IPC regulations...
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • bargepole
    • By bargepole 21st Apr 18, 12:00 AM
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    bargepole
    There's a winning point in there somewhere, but I had to get all the way down to 4.1 before I found it. The machine wasn't working, and you couldn't pay to park. That's all the Judge will be interested in, and should be the first point.

    If I was a District Judge with an overbooked daily list to get through, I certainly would not take kindly to having to wade through a load of mostly irrelevant arguments about POFA (unless the defendant wasn't the driver), advertising consent, Data Protection Act, and various references to County Court decisions for which no transcript exists.

    The whole thing reads as though various template paragraphs have been cribbed from online sources. You need to ditch most of that, and make it much, much shorter.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • Coupon-mad
    • By Coupon-mad 21st Apr 18, 12:06 AM
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    Coupon-mad
    ANPR non compliance with the DPA is topical and worth a try though, surely, bargepole, not least because some PPCs might be incapable of dealing with it (and they might fold) and none of them have the 'right to subject access' info that the ICO requires for ANPR using scammers.

    I know you like the concise defence, but some of us can't be concise if our lives depended on it!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • bargepole
    • By bargepole 21st Apr 18, 12:37 AM
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    bargepole
    ANPR non compliance with the DPA is topical and worth a try though, surely, bargepole, not least because some PPCs might be incapable of dealing with it (and they might fold) and none of them have the 'right to subject access' info that the ICO requires for ANPR using scammers.

    I know you like the concise defence, but some of us can't be concise if our lives depended on it!
    Originally posted by Coupon-mad
    Most DJs will simply not want to deal with ICO/DPA issues, and will wait for a binding decision from a higher court for guidance. It will be the same as the CCA 2013 arguments, too complex for a small claims hearing.

    If the OP starts with the machine not working, which made the contract impossible to perform, or frustrated, straight away the Claimant is on the back foot, and the Defendant is half way there.

    Judges are also very wary of Defendants who file 'scattergun' defences, arguing every conceivable point under the sun. This does not increase the defendant's chances of winning, and with many DJs, it reduces them.

    The concise defence, as favoured by the Law Society, the Bar Council, CILEx etc, is the way to go. Any outbreak of verbal diarrhoea should be held back for the witness statement.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • Coupon-mad
    • By Coupon-mad 21st Apr 18, 12:56 AM
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    Coupon-mad
    If the OP starts with the machine not working, which made the contract impossible to perform, or frustrated, straight away the Claimant is on the back foot, and the Defendant is half way there.
    I agree, the defence should start with that. But a case was lost on that basis a couple of years ago on here, where the defence was short (can't find it now but you kindly wrote the defence, but she still lost).

    But it's Excel, so I can't agree to tell the OP to drop POFA as an alternative argument.

    And the DPA breach in not complying with the ANPR ICO rules needs testing, and can be evidenced with this:

    https://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf

    Provided by the BPA here:

    http://www.britishparking.co.uk/News/excessive-use-of-anpr-cameras-for-enforcement
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • bargepole
    • By bargepole 21st Apr 18, 12:11 PM
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    bargepole
    But it's Excel, so I can't agree to tell the OP to drop POFA as an alternative argument.
    Originally posted by Coupon-mad
    I'm afraid we're going to have to disagree on this.

    Nowhere in the Defence does the OP say that he wasn't the driver, or that he was elsewhere at the material time.

    So what's he going to say if the DJ asks "were you driving?"

    He can say that he is not obliged to reveal the driver's identity, and the onus is on the Claimant to prove it, but the DJ is then entitled to make a finding of fact, on balance of probabilities, that he was the driver. Not only does the whole POFA argument then fall away, but the OP is then viewed as a less than credible witness by the DJ.

    Also, he is making the case that he was queuing up to pay at a machine which wouldn't accept any coins. Another indication that he was more likely than not to be the driver.

    Many people on here seem to think non-compliance with POFA is some kind of golden ticket. In my view, that only applies if the Defendant can show that they weren't driving. Otherwise, it will appear that the Defendant is trying to wriggle out on a technicality, and most DJs don't like that.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • justnotgoodenough
    • By justnotgoodenough 21st Apr 18, 1:37 PM
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    justnotgoodenough
    Appreciate the input Bargepole. I appreciate the input from everybody I really do.

    I was there on the day and Im a she (is the assumption that its usually the male thats driving?). Its a family car. I am the registered keeper. Two people (me and my partner) insured to drive. As well as extended family covered by their own fully comp insurance. Its a cinema/restaurant/bar site - not beyond the realms of possibility that someone else was driving?. And why should I give up the driver? Surely if I say the driver wasn't me. The judges next question would be well who was it? Then I would seem just as awkward anyway? I do understand what you are saying BUT I'm at pains to see why the judge would find me the 'wriggle-y' one appealing on technicalities. I'm not the one taking someone to court for overstaying their welcome by 4 minutes 9 secs? Surely a small technicality in itself.

    They haven't complied with POFA. They haven't complied with consumer laws or data protection laws it would seem. You are clearly far more knowledgeable and I respect that - I'm cutting down the defence as we speak. But I would like to keep the POFA part in there ? ... I will focus on the frustration of contract as recommended. But if that only gets me half way there im at a loss where the other half is coming from.
    Last edited by justnotgoodenough; 22-04-2018 at 2:40 PM.
    • Quentin
    • By Quentin 21st Apr 18, 1:48 PM
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    Quentin
    Irrelevant to your pcn, but you need to know that it's highly unlikely your "extended family" have comprehensive insurance cover when driving your car. So don't let them unless you see written proof they are covered comprehensively


    Normally the cover other people have to drive other cars (if not named on the other car's policy) is third party only - ie no cover for any damage done to the car!


    (All this doesn't mean that only the 2 people insured on the car's policy could drive your car and park it! Just a heads up as you don't look to understand what "driving other cars" insurance cover involves)
    • justnotgoodenough
    • By justnotgoodenough 21st Apr 18, 4:50 PM
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    justnotgoodenough
    Thanks Quentin. Sorry I worded that badly. I just meant they had fully comprehensive insurance - which covered them to drive other cars.
    • justnotgoodenough
    • By justnotgoodenough 21st Apr 18, 5:12 PM
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    justnotgoodenough
    DEFENCE

    1. The Defendant denies that the Claimant is entitled to the sum claimed, or any amount at all.

    2. The Claimant has failed to produce any evidence regarding the identity of the driver, and there can be no lawful presumption that the keeper was the driver on any given date in the absence of evidence. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (POFA).

    2.1. Before seeking to rely on the keeper liability provisions of POFA the Claimant must demonstrate that the required deadlines and wording as described in the Act have been adhered to. The Claimant has failed to comply with the strict requirements in a number of areas. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

    2.2. In addition POFA does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued which was 100.

    3. In the Consumer Rights Act 2015 (CRA) at 71, it sets out the duty of court to consider fairness of a consumer contract term. The Court's attention will be drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair'.

    3.1. On the day in question the machine at the entrance of the site was not accepting coins properly, the coins were 'dropping through the machine' and not registering. The defendant avers that the fault with the machine frustrated any contract the driver entered into, if not prevented any contract being formed at all. The machine did not have the facility to accept notes, the driver did not want to pay by phone, the driver could not find an attendant to assist them. At the end of this short frustrating period the driver decided not to park on the premises. The defendant avers a frustration of contract here, a faulty machine, so the driver left the site.

    3.2. The Defendant avers that a consumer contract must be regarded as unfair if a term which has the object or effect of requiring that, where the consumer decides not to conclude or perform the contract, the consumer must pay the trader a disproportionately high sum in compensation or for services which have not been supplied. The payment being demanded is 185.

    3.3. The Defendant respectfully asked the Claimant to check all machine fault logs on that day, at that time (as was reported by a third party who encountered the same fault), to confirm the problem. The Claimant stated !!!8216;the Defendant would be put to strict proof that the machine was not working as it should. Requiring the Defendant to be put to 'strict proof' of the function of a machine that the Claimant controls is ludicrous, void for impossibility and clearly unfair and contrary to good faith.

    3.4. Expecting a driver to have arrived, found a space, walked to a machine, read the signs, then discovered from another driver in the queue that the machine was not working, then looked for an alternative resolution/machine and an attendant, then given up and driven out, all within the 'usual' grace period that applies to everyone on a normal day when the machine is working, is also void for impossibility, unfair and contrary to good faith.

    3.5. The Defendant further asserts that the 14 minutes 9 seconds taken by the unidentified driver was not unreasonable under the circumstances. Further, The IPC COP (of which the Claimant is a signatory) states motorists should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. Motorists must also be allowed a minimum period of 10 minutes to leave a site after this permitted period has expired. The defendant believes the minimum amount of time allowed in this case is 20 minutes.

    3.6. The Claimant failed to make reasonable efforts to make the terms and conditions clear and prominent. There are many areas around the site that are completely devoid of any parking signs at all. The Claimant is put to strict proof that the driver saw, read and agreed to a contract upon which the claimant is relying.

    3.7. Legislation requires that key terms of a contract, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not). Examples of terms that may be unfair under the Consumer Rights Act include: charges hidden in small print; added costs not specified prominently and clearly in the contract, and disproportionate charges.

    3.8. The claimant may seek to rely on the case of Parking Eye v Beavis [2015] UKSC 67 ('Beavis'). This claim can be easily distinguished from Beavis.

    In the alternative:

    4. Ex turpi causa. The Clamant asserts that the Defendant failed to adhere to the terms of the contract accepted by conduct. The Defendant asserts that if a contract has been broken, nevertheless the Claimant by reason of his own illegality cannot profit from it. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied

    4.1.The Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. The Claimant is required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant has therefore failed to meet its legal obligations under the DPA.

    4.2 The Claimant is put to strict proof of the existence of a Privacy Impact Assessment, made before ANPR surveillance and enforcement started. Further, the Claimant is put to strict proof of regular assessments made in consultation with the Land Owner at this location, to establish that ANPR being used 24/7 is the least data-intrusive method of enforcement.

    4.3 In breach of the Data Protection Act, the Claimant has provided no Privacy Notice specifically about an individual's right to subject access. At no point has the keeper been informed of their rights to subject access and how to obtain a SAR, and as such, this was an offence under the DPA at the point of the contract.

    4.4. Further, the Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner and/or the Local Planning Authority to display the signs and ANPR cameras. In the absence of strict proof I submit that the Claimant was also committing an offence by displaying their signs/ANPR cameras. These cannot be covered under deemed consent. So they must have been granted planning consent for either to be there legally (a criminal offence under regulation 30 of the Town and Country Planning (Control of Advertisement) (England) Regulations 2007.

    4.5. No evidence has been supplied to demonstrate that the Claimant is/was the landowner of the land in question, or that they have/had any other right, standing or proprietary interest in the land on the material date. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

    5. The defendant asserts that the conduct of the Claimant is completely unreasonable.
    a) Intimidating the Defendant with misleading threats and letters and in pursuing this claim.
    b) Ignoring the Defendant's letters and requests and not following Pre Court Protocols.
    c) Dismissing the requirements of POFA.
    d) Breaching Consumer Rights Act and The Data Protection Act.

    The Claimant seems determined to waste time and money in pursuing an unlawful and unsubstantiated claim.

    5.1. As such, the Defendant would like to seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

    5.2. The Defendant denies the claim in its entirety, voiding any liability to the claimant for all amounts claimed. In the absence of strict proof capable of rebutting the above points of defence, I submit that the Claimant has no cause of action whatsoever against the Defendant registered keeper, and the Defendant invites the court to exercise its case management powers to strike the claim out without a hearing, since it has no prospects of success.

    I believe the facts stated in this defence are true.
    Last edited by justnotgoodenough; 21-04-2018 at 5:16 PM.
    • justnotgoodenough
    • By justnotgoodenough 21st Apr 18, 5:25 PM
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    justnotgoodenough
    I've binned the other version and started from scratch.

    Hopefully this is a suitable compromise taken from the advice I've been given and is good enough to send as a defence. Again thankyou to everyone helping and giving up your time to comment (for free) - I am grateful.

    Thanks.
    Last edited by justnotgoodenough; 21-04-2018 at 8:05 PM.
    • bargepole
    • By bargepole 21st Apr 18, 5:40 PM
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    bargepole
    I've binned the other version and started from scratch.
    Originally posted by justnotgoodenough
    You have been advised by experienced members here to start with the fact that the machine wasn't working, so the contract could not be performed.

    Yet this is still half way down the page, and you are starting by arguing all that POFA stuff which, unless you can show you weren't the driver, the Judge will not be interested in, and start thinking "Here we go, another one of those internet templates".

    Then you are talking about advertising consent and planning permission. A complete waste of time, unless the Local Authority has taken enforcement action against the PPC.

    Unfair term in a consumer contract? That was killed off by the Beavis judgment. Just don't go there.

    More work required.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 34, lost 10), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am an associate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
    • Coupon-mad
    • By Coupon-mad 21st Apr 18, 10:48 PM
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    Coupon-mad
    Surely if I say the driver wasn't me. The judges next question would be well who was it?
    And then as registered keeper you could validly say that you will not be giving the name of the driver to Excel for obvious reasons and no adverse inference can be drawn - point to the words of Henry Greenslade in the POPLA Annual Report 2015.

    We very rarely hear of a Judge asking such questions. I can recall posters mentioning it just twice.

    Many do now 'get' the POFA, to an extent, and know the keeper does not have to name the driver. We've seen some just ask 'I assume you will not be naming the driver?' and you'd say:

    'No (Sir or Madam), I am choosing to defend this unfair ticket as registered keeper, and given the fact that Excel choose not to the rely on the POFA, it is my primary defence that I cannot be held liable even though I was a passenger that day. However this does mean I am a genuine witness to events, unlike the claimant...'.
    Last edited by Coupon-mad; 21-04-2018 at 10:53 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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