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#Post#: 23581--------------------------------------------------
Re: Euro Parking County court letter
DIR By: b789
Date: May 22, 2024, 11:49 am
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Having gone back through the thread and read your Defence and
WS, you have a good chance if you are able to raise some points
that should have been expanded on in the WS. When is the
hearing? Which court?
It is interesting that the dispute resolution hearing judge
pointed out the serious flaw in Gladstone's filing of the claim
in that they never set out the conduct that amounted to the
alleged breach. The whole point of including the CEL v Chan
appeal court judgment (which should have been included in the
original defence as a "Preliminary matter" but wasn't) is that
it is persuasive and the judge should have thrown the claim out
for that breach alone.
Obviously, he knew about it and you should raise this matter as
the very first thing at your next hearing. You need to ask the
judge to dismiss the claim on that basis. However, if the judge
disagrees, then you must raise the following issue as it was
mentioned in your defence but not explained very clearly:
Whilst you have admitted being the driver and therefore they are
not relying on PoFA to hold you liable as keeper, they did so in
the original NtK (even though it was flawed in that respect).
According to PoFA 2012 4(5), if they had intended to rely on the
Act, the maximum sum which may be recovered from the keeper by
virtue of the right conferred by this paragraph is the amount
specified in the notice to keeper under paragraph 8(2)(c) or (d)
or, as the case may be, 9(2)(d) (less any payments towards the
unpaid parking charges which are received after the time so
specified). The maximum sum they can claim is £100 as shown in
the original NtK.
It may be a lot to try and take in but you should make the
effort to read and understand what you are going to be arguing.
The claimant's current claim is for £170 (or whatever amount is
shown in the first box of the amount claimed on the N1SDT claim
form), which exceeds the amount of the unpaid parking charges as
stated in the original notice. The claimant’s attempt to claim
an unlawful amount constitutes an abuse of process and should
not be allowed to proceed. You should respectfully request the
judge to dismiss the claim on the basis of the claimant’s
contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby
CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs
to the defendant for having to defend against this improper
claim.
CPR Breaches and Abuse of Process:
* CPR 1.1 - The Overriding Objective:
* The claim is not being dealt with justly or
proportionately. The excessive amount claimed puts the defendant
at a disadvantage, increases unnecessary costs, and is
disproportionate to the original charge.
* CPR 3.4 - Power to Strike Out:
* CPR 3.4(2)(a): The claim for £160 (or whatever amount is
shown the clim form) has no reasonable grounds, as it exceeds
the lawful amount stipulated by PoFA 4(5).
* CPR 3.4(2)(b): The claim represents an abuse of the
court’s process by attempting to claim an amount not legally
recoverable, thus obstructing the just disposal of proceedings.
* CPR 27.14 - Costs on the Small Claims Track:
* CPR 27.14(2)(g): The claimant’s behaviour in pursuing an
excessive and unlawful amount is unreasonable, warranting the
claim to be struck out and costs awarded to the defendant.
All the other breaches that you have put in your defence and
expanded on in your WS such as no contract formed due to lack of
or obscured and unlit signs need to be highlighted with
reference to the particular parts of their ATA CoP that have
been breached.
Make sure you create a set of notes as bullet points for
yourself. Know where every reference to anything is in your WS
and you can refer the judge to it. You've already been to court
once for this so you now know that it is not quite as daunting
as you expected.
Did you include a costs order with your WS? If you win, you
should remember to ask for your costs which are up to £95 for
loss of earnings and your transport costs and parking etc.
#Post#: 23650--------------------------------------------------
Re: Euro Parking County court letter
DIR By: BigPoppa
Date: May 23, 2024, 5:36 am
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Thank you @b789 :)
The hearing is on 19/06 at Birmingham court.
The claimant's current claim is for £170 (£169.09 shown in the
first box of the amount claimed on the N1SDT claim form)
I included standard witness costs for loss of earnings and
attendance in court of £95 in my WS.
It will be a different judge at the next hearing and I will
create a set of notes as bullet points of all the points you
have raised and the applicable laws to go in and make a good
case.
#Post#: 23670--------------------------------------------------
Re: Euro Parking County court letter
DIR By: b789
Date: May 23, 2024, 9:14 am
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That's good to hear. It's possible that the first judge for the
resolution hearing was a junior deputy district judge. Hopefully
the next judge will be more amenable to questioning the Claimant
about the breaches you will be expanding on.
Let us know if the Claimant send a Supplementary WS. They
sometimes try that. Also, when you go to court, make sure that
you have spare copies of your WS as it is not unknown for the
rep for the Claimant to try and say they don't have a copy of
it.
It may be worth creating a Skeleton argument. A skeleton
argument is a written summary of your case and your main
arguments in your case. It should outline the relevant
background facts of the case and briefly refer to the law that
will be relied on in your arguments.
A Skeleton shout be served no later than two business days
before the hearing. It may be worth having a read of this:
HTML https://www.judiciary.uk/wp-content/uploads/2022/06/Guide-to-the-Preparation-and-Service-of-Bundles-Skeleton-Arguments-and-Authorities-in-the-Business-and-Propert.pdf
#Post#: 25712--------------------------------------------------
Re: Euro Parking County court letter
DIR By: BigPoppa
Date: June 12, 2024, 12:39 pm
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[member=26]b789[/member] I had another copy of the whole bundle
in the post today which includes all of my paperwork and theirs.
Here is a link to my skeleton argument -
HTML https://file.io/Y8KJaBpJ1Ubn
I have never done one before so it might need some edits. Can
you let me know what you think before I submit it, please?
#Post#: 25714--------------------------------------------------
Re: Euro Parking County court letter
DIR By: b789
Date: June 12, 2024, 1:02 pm
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The link above does not work.
An additional point that has come up recently and seen claims
struck out is if the Claimants WS has been signed by a paralegal
or anyone from the solicitors reperesnting them. The following
is an additional point to put in your own WS or in a SWS:
--- Quote ---
> As a preliminary matter, the Defendant wishes to bring to the
Court's attention that the Claimant's Witness Statement, signed
by [Paralegal or Solicitor's Name] of [Solicitor Firm name]
Solicitors, does not comply with CPR 32.4 and Practice Direction
32, which require that a witness statement be made by an
individual with direct knowledge of the facts. Furthermore,
Practice Direction 32, paragraph 18.2, stipulates that the
statement must be in the witness's own words and include details
of how the witness has direct knowledge of the matters stated.
As [Paralegal or Solicitor's Name] does not have direct
involvement in the events in question, the Witness Statement
fails to meet these requirements. In light of this
non-compliance, the Defendant respectfully requests that the
Court strike out the claim pursuant to CPR 3.4(2)(c) due to the
Claimant's failure to comply with the relevant rules and
practice directions.
--- End Quote ---
#Post#: 25724--------------------------------------------------
Re: Euro Parking County court letter
DIR By: BigPoppa
Date: June 12, 2024, 2:27 pm
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Thanks [member=26]b789[/member] I have added your most recent
additional point and re-uploaded it here -
HTML https://www.scribd.com/document/741716803/Skeleton-Upload
Let me know what you think.
#Post#: 25785--------------------------------------------------
Re: Euro Parking County court letter
DIR By: H C Andersen
Date: June 13, 2024, 3:34 am
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Skeleton?? Weight of evidence should not be taken literally.
Keep it simple IMO.
What are your main points in order of priority?
It seems that you've been given a steer by the previous judge,
so I'd work with these i.e. consider how best to expand on those
in your favour and counter those which appear otherwise. Let's
be honest, the facts on the ground and your intentions are the
ONLY points on which you have any detailed knowledge. As you
say, 'I have not done one of these before' and it shows!
IMO, don't get bogged down in procedural matters. If these were
silver bullets I'd take a different view, but IMO they are not.
Was the land controlled; was this brought to the motorist's
attention; how; what was conveyed; if not a contract then you
were a trespasser(perhaps unwittingly) - it's not a hanging
offence, we've all probably done it at some stage on our lives;
and trespass cannot give rise to the charge.
#Post#: 26965--------------------------------------------------
Re: Euro Parking County court letter
DIR By: BigPoppa
Date: June 21, 2024, 6:43 am
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We won this one guys!! Thank you for all your help everyone
especially to [member=26]b789[/member]
I was awarded 2 lots of £95 for 2 court appearances and my
parking costs.
The judge completely agreed that the signs were unreadable
especially as it was dark and this location had no lighting. She
did not refer to any of the legal arguments in my documents but
as I had the opportunity to cross-examine the Gladstones
solicitor I asked him about why the particulars of the claim as
filed and served did not set out the conduct which
amounted to the breach and he did not have an answer. I also
asked him how he expects motorists to read the signs at night
without any lighting and he argued that the signs have been
approved by the law to which I showed the judge the example of
the Beavis case.
Glad to see the back of this! Thanks all once again this forum
is a life saver!!
#Post#: 26973--------------------------------------------------
Re: Euro Parking County court letter
DIR By: b789
Date: June 21, 2024, 7:21 am
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You’re welcome. One which grounds did the judge actually dismiss
the claim? Was it on the fact that if the signs were not visible
or they were unreadable and that no contract could have been
formed?
Was it because the claimant failed to state a cause of action in
the PoC?
Just trying to find out which points in your defence and WS were
the triggers for the judges decision on the facts.
#Post#: 26975--------------------------------------------------
Re: Euro Parking County court letter
DIR By: BigPoppa
Date: June 21, 2024, 7:35 am
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It was dismissed due to the Judge agreeing with me that the
signs would have been unreadable due to no lighting and it being
dark that night.
Also, the judge said that she agreed with me, that even if the
signs were readable, I had not parked obstructively as there was
enough room for cars to pass by my car and I had not blocked the
walkway. Also, there are no marked bays at all in this space but
Gladstone's solicitors were aruging that I had breached due to
not parking in a marked parking space and I had parked
obstructively by blocking the walkway for pedestrians and cars.
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