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    • Jilts
    • By Jilts 15th Apr 18, 12:51 AM
    • 3Posts
    • 0Thanks
    Defence for court
    • #1
    • 15th Apr 18, 12:51 AM
    Defence for court 15th Apr 18 at 12:51 AM
    So in November i got a parking ticket from Minster Baywatch trying to charge me 100 but they were going to 'generously' offer me a reduced rate at 50. I guess im too stubborn to pay that so I ignored them, and kept ignoring them until I got a county court form then realising I had to do something. So Ive asked for an administration of service and have started setting up my defence. The place in reason is Mecca Bingo in Oldham and never had any signage up until after I had the fine and now states it is for Banktop Tavern and Mecca Bingo patrons only. If anyone can help me with the defence it would be greatly appreciated as they now want 240 and I am definitely begrudged to paying that. Stuggling with 7.2,7.3 and 7.5.
    7.2 : Not sure how high the sign is maybe I will have to go back and check that.
    7.3 : Should I say only recently placed signage?
    7.5 : Not sure how to word it as it is just for Banktop Tavern and Mecca Bingo patrons only.

    Again much appreciated if anyone can help.

    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ML16 DUH which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

    3. It is not admitted that on 03/11/2017 the Defendant's vehicle was parked at Oldham Mecca Bingo (Lower)
    3.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked and not waiting / giving way to pedestrians or vehicles.

    4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    4.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. 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")
    4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    4.2.1. There was a relevant obligation either by way of a breach of contract, trespass or other tort; and
    4.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.
    4.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is 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.

    5. Minster Baywatch Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
    5.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
    5.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    5.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

    6. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from 100 to 239.25. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    6.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
    6.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    6.2.1. The Defendant denies that the driver would have agreed to pay the original demand of 100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    Failure to set out clear parking terms
    7. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
    7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    7.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    7.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    *******7.2. The signage where the vehicle was photographed is on the opposite side of the roadway, approximately 4 meters above ground with very small writing, making it illegible and does not mention what restrictions apply to the carpark in question. The Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a signatory, states that should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign. The signage in the area does not meet this requirement.
    7.2.1. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
    *******7.3. Minster Baywatch Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states that;
    Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.
    7.4. There are no signs at the entrance at all and no additional signs or notices to alert drivers.
    ********7.5. Minster Baywatch Ltd has made no attempt to clearly distinguish between parking spaces available to Banktop Tavern and Mecca Bingo customers and those of the Claimant either by suitable signage or by other means.

    8. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
    No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

    9. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    10. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the contents of this Defence are true.
Page 1
    • nosferatu1001
    • By nosferatu1001 15th Apr 18, 11:44 AM
    • 2,222 Posts
    • 2,624 Thanks
    • #2
    • 15th Apr 18, 11:44 AM
    • #2
    • 15th Apr 18, 11:44 AM
    Have you filed your acknowledgement of service online, as per post two of the newbies thread? Yes or no.

    What is the issue date on your form?

    Did you get a letter before action? If yes, did you ignore that as well?
    • The Deep
    • By The Deep 15th Apr 18, 11:53 AM
    • 9,012 Posts
    • 8,666 Thanks
    The Deep
    • #3
    • 15th Apr 18, 11:53 AM
    • #3
    • 15th Apr 18, 11:53 AM
    3. It is not admitted that on 03/11/2017 the Defendant's vehicle was parked at Oldham Mecca Bingo (Lower)

    If that is the case, why do you need all the rest?
    You never know how far you can go until you go too far.
    • Jilts
    • By Jilts 15th Apr 18, 7:39 PM
    • 3 Posts
    • 0 Thanks
    • #4
    • 15th Apr 18, 7:39 PM
    • #4
    • 15th Apr 18, 7:39 PM
    Yes the acknowledgement of service was filed online
    The issue date is 9th April
    And yes I got a letter before action so ignored that, also got a letter from Gladstone's and ignored that as well but now the county court claim form has come through I know I've got to reply to that
    • Jilts
    • By Jilts 15th Apr 18, 7:45 PM
    • 3 Posts
    • 0 Thanks
    • #5
    • 15th Apr 18, 7:45 PM
    • #5
    • 15th Apr 18, 7:45 PM
    I guess I should take 3 out or change it to it is not admitted that the defendant was driving the vehicle?

    The signs state it's for use of patrons only and you need to be on the authorised user list
    Last edited by Jilts; 16-04-2018 at 10:16 PM.
    • Quentin
    • By Quentin 15th Apr 18, 8:05 PM
    • 35,095 Posts
    • 19,174 Thanks
    • #6
    • 15th Apr 18, 8:05 PM
    • #6
    • 15th Apr 18, 8:05 PM
    The advice here is never to reveal who was driving

    If you intend on following that advice you need to remove details of who was driving from your post

    The ppcs monitor this forum and can use your posts against you
    • Coupon-mad
    • By Coupon-mad 16th Apr 18, 2:36 AM
    • 56,060 Posts
    • 69,736 Thanks
    • #7
    • 16th Apr 18, 2:36 AM
    • #7
    • 16th Apr 18, 2:36 AM
    I guess I should take 3 out or change it to it is not admitted that the defendant was driving the vehicle?

    You have ages to get the defence right. Read some more Gladstones claim threads!
    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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