The claim is founded upon a single factual allegation, namely that the driver left the retail park in breach of the contractual terms relied upon by the Claimant.
That allegation is expressly denied.
The Defendant's case is that the driver remained within the retail park as a genuine customer of Decathlon before returning directly to the vehicle and leaving the site. Accordingly, no contractual breach occurred.
I've highlighted what I think is a mistake: you've tried to interpret their grounds.
I suggest you state exactly what's in the PoC, which is:
Driver left site designated for customer parking only.
Is a non sequitur (A non sequitur is a statement, remark, or conclusion that does not logically or naturally follow from what came before it).
Which is where you should start IMO.
Without further explanation, IMO (and forgetting your admissions on this forum) it is not possible to compile a defence because the roles of 'customer' and 'driver' are not explained. Is their claim that the driver was not a customer and left the site and there was no 'customer', or that the driver was the only customer (in the vehicle) and left the site? So is the breach that 'customers' must remain on the site or that 'drivers' must, but 'customers' are not bound by any restriction. Is the claimant saying that occupants of the car are bound by the same contractual terms which bind the driver and/or that the driver is responsible for occupants' whereabouts?
I haven't the foggiest idea!
As regards 'non compliance', IMO previous posts have overstated the requirement. Para. 9 of Sch. 4, which is the relevant part, uses these terms regarding what a notice must contain:
State;
Warn;
Inform;
Specify.
Previous posts have not differentiated between their legal meanings and IMO have sought to convey that para. 9 must be included, implicitly verbatim, and that its provisions must appear once only in a notice and in the same form as in Sch. 4.
IMO, courts have discretion regarding determining compliance i.e. is the meaning conveyed consistent with the purpose of para. 9, not just whether every word appears.
Thank you.
How about this:
DEFENCE
1.
The Defendant denies the claim in its entirety.
2.
It is admitted only that the Defendant is the registered keeper of the vehicle referred to in the Particulars of Claim. Save for that admission, every allegation is denied.
3.
The Particulars of Claim state only:
"Driver left site designated for customer parking only."
The Defendant is unable to determine from that wording the factual or legal basis of the allegation.
The Particulars do not explain:
the contractual term allegedly breached;
the meaning or geographical extent of the alleged "site";
the conduct said to constitute the alleged breach;
whether the allegation concerns the driver, passengers, or both;
how the alleged breach was observed; or
the basis upon which the Claimant contends liability arises.
The Defendant should not be required to speculate as to the case to be met.
4.
To the extent that the Claimant alleges that the driver left the retail park in breach of the parking terms, that allegation is expressly denied.
The Defendant's case is that the driver remained within the retail park as a genuine customer of Decathlon before returning directly to the vehicle and leaving the site. Accordingly, no contractual breach occurred.
5.
The Defendant has consistently denied that the alleged breach occurred from the earliest opportunity.
The Defendant's position is supported by contemporaneous evidence created during the visit, which will be relied upon at the witness statement stage.
6.
The photographs disclosed by the Claimant identify only the presence of the parked vehicle. They do not, on their face, evidence the alleged contractual breach pleaded in the Particulars of Claim.
7.
If the Claimant maintains that the alleged contractual breach occurred, it is required to prove:
(a) that the alleged conduct occurred;
(b) that the alleged conduct amounted to a breach of the contractual terms relied upon;
(c) that the operative accurately observed the alleged conduct;
(d) that any observations relied upon were recorded contemporaneously;
(e) that the contractual terms relied upon, including any alleged prohibition upon leaving the site, were clearly, prominently and unambiguously communicated to motorists; and
(f) that the Claimant possessed the necessary authority from the landowner both to enter contracts with motorists and to pursue this claim.
8.
Further, insofar as the Claimant seeks to establish keeper liability pursuant to Schedule 4 of the Protection of Freedoms Act 2012, such liability is denied.
The Defendant does not admit that the mandatory statutory conditions required to invoke keeper liability have been satisfied and puts the Claimant to strict proof of compliance with the statutory requirements.
The Defendant reserves the right to amplify this issue should the Claimant seek to rely upon Schedule 4 or should further relevant information become available during the course of proceedings.
9.
The Defendant disputes the additional sums claimed over and above the original parking charge and requires the Claimant to prove the contractual and legal basis upon which those additional sums are said to be recoverable.
10.
For the reasons set out above, the Court is respectfully invited to dismiss the claim.
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