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  • FIRST POST
    • claxtome
    • By claxtome 27th Apr 17, 2:25 PM
    • 213Posts
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    claxtome
    1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued
    • #1
    • 27th Apr 17, 2:25 PM
    1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued 27th Apr 17 at 2:25 PM
    Backgound
    1 big car park 2 landowners - local council and private (ESxxx) which is AOS member and should follow IPC guidelines)
    2 entrances from highway to ES part and 1 entrance from highway to Council part.
    Bought valid parking ticket in council part; drove to private part and parked.
    Didn't realise the car park covered 2 areas of land ownership.
    No signage at change of land ownership against IPC CoP guidelines
    No boundary fence on the day
    Came back later in day with 'Notice to Driver' parking charge with words "council tickets not valid in this part of car park"
    Have produced a DVD showing how it is possible to drive round the car park without going back onto a highway

    NTK came back 39 days later. I ignored and didn't appeal

    Further letters and sent my response appeal
    Received reply stating too late to appeal and continuing with chasing letters.

    Received LBC from Gladstones which I replied

    Received MCOL court claim letter from Northampton early April


    Defence, WS and Skeleton have now been submitted and court date is very soon

    My defence, WS, evidence etc. are in this folder->
    https://www.dropbox.com/sh/r1mszyesx5cxpoa/AACVSwFWvw_nXMN0soZAO964a?dl=0

    Claimant's WS and evidence are in this fo!der->
    https://www.dropbox.com/sh/im119eaq9etiyo8/AADm3lCyIuUpeg7itMoGtrq_a?dl=0

    Thanks for reading.
    Last edited by claxtome; 11-10-2017 at 2:11 PM.
Page 8
    • claxtome
    • By claxtome 7th Oct 17, 7:43 AM
    • 213 Posts
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    claxtome
    Getting closer with my skeleton and paginated court bundle.
    Some questions if I may that I would like answering today if possible please:

    1. Do the defendant documents in a court bundle need to be copies that show a signature?
    2. Now I have produced a paginated court bundle, originated bundle wasn't paginated, can I alter ‘the version of my WS in the bundle’ to use the new paging scheme when referring to exhibits?
    3. In the legal authorities (cases) bundle –> If the claimant is relying on a legal case I assume if I want to argue against it I need to include in the legal bundle the relevant parts from that case that back up my argument so I can hand to judge on the day?
    4. Related to 3 -> Do I need to include all Legal cases from my defence/witness statement even if not still arguing that point in my skeleton?

    Thanks for reading
    Less than a week until court...
    Last edited by claxtome; 07-10-2017 at 5:03 PM.
    • claxtome
    • By claxtome 7th Oct 17, 5:04 PM
    • 213 Posts
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    claxtome
    Cheeky Bump to see if someone can answer the questions in my last post.
    Last edited by claxtome; 07-10-2017 at 5:17 PM.
    • Lamilad
    • By Lamilad 7th Oct 17, 8:08 PM
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    Lamilad
    1. Do the defendant documents in a court bundle need to be copies that show a signature?
    Not sure what you mean, which documents are you referring to, and are you talking about the main bundle you will submit to the court and claimant, or the copies you will take to the hearing with you?
    • Lamilad
    • By Lamilad 7th Oct 17, 8:16 PM
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    Lamilad
    2. Now I have produced a paginated court bundle, originated bundle wasn't paginated, can I alter ‘the version of my WS in the bundle’ to use the new paging scheme when referring to exhibits?
    Assume your referring to the copies you'll take to the hearing..... The judge will use the bundle you originally gave them, as will the claimant. You can't pass either of them an 'amended' version (their rep would be all over that). Your copy can be anything you want as long as you're the only one looking at it.
    • Lamilad
    • By Lamilad 7th Oct 17, 8:23 PM
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    Lamilad
    3. In the legal authorities (cases) bundle –> If the claimant is relying on a legal case I assume if I want to argue against it I need to include in the legal bundle the relevant parts from that case that back up my argument so I can hand to judge on the day?
    If the claimant has adduced a legal case t/s and you want to rebut what they're saying about it or refer to something else in it then you don't have to include the same case (or any part of it) in your bundle (as the judge would then have 2 copies of the same case)

    . Just refer to the relevant parts of the case in your skelly along with your argument.
    • claxtome
    • By claxtome 7th Oct 17, 8:29 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    Thanks Lamilad.

    Not sure what you mean, which documents are you referring to, and are you talking about the main bundle you will submit to the court and claimant, or the copies you will take to the hearing with you?
    The bundle (lever arch file) I originally gave to court, which included my defence statement, witness statement, evidence and CoP, had each document paginated. (I.e there will be 4 page 1's) so was suggested to produce a new version which has a unique page number for each page (no duplicate page 1s) and hand in at court with my skeleton argument referring to it. So the only change to original folder is changing page numbers and including an overall index.

    Does that help answer number 1 (wanted to know as obviously having to reprint each page) - sounds like the answer to 2 is a definite no.
    Last edited by claxtome; 07-10-2017 at 8:37 PM.
    • Lamilad
    • By Lamilad 7th Oct 17, 8:30 PM
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    Lamilad
    Do I need to include all Legal cases from my defence/witness statement even if not still arguing that point in my skeleton?
    Technically, anything that is "case law" - such as Beavis does not need to be included as the judge has a direct link to the moj database with access to laws and statutes.

    But it's recommended you do include any cases you are relying on for convenience - DJs are usually grateful.

    You don't always need to include the full t/s - just the relevant pages
    • Lamilad
    • By Lamilad 7th Oct 17, 8:42 PM
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    Lamilad
    Does that help answer number 1
    Well I'm not sure as you were asking if the documents in your bundle need to show a "signature"?

    was suggested to produce a new version which has a unique page number for each page (no duplicate page 1s)
    You cannot give the court an updated version of your bundle even if it's just page numbers. You open yourself up being accused of trying to add documents well past the deadline or make changes at the last minute.

    Both of which you're not allowed to do... Why give the claimant the opportunity to make a big deal out of it and potentially risk an adjournment with a wasted costs order.

    Yes... Your bundle should have been numbered sequentially throughout (surprised you didn't see this advise in the NEWBIES thread) but this really isn't a big deal, esp in small claims..... Def not worth risking the above.
    • claxtome
    • By claxtome 8th Oct 17, 6:54 AM
    • 213 Posts
    • 189 Thanks
    claxtome
    Thanks Lamilad I heed your warning.

    The main problem was the bundle was produced 3 months ago as that was when the WS needed to be submitted.

    It was LoC in a PM the suggested producing a new paginated bundle. The advantage I can see of a new bundle:
    1) Without it is not easy to reference things as pagination is not simple
    2) The original bundle didn't include defendant's statement, FOI since then, correspondence via email so not easy to refer to things as not in courts bundle.

    I am now very reluctant to hand over a new bundle given what you said
    • Lamilad
    • By Lamilad 8th Oct 17, 12:16 PM
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    Lamilad
    !the bundle was produced 3 months ago as that was when the WS needed to be submitted.
    How come? I've never known a bundle have to be submitted so early.

    ) Without it is not easy to reference things as pagination is not simple
    Not AS easy, perhaps, but instead of saying:
    "I refer to [ evidence] at page 32"......
    You say
    "I refer to [evidence] at page 4 of the Legal authorities section"

    2) The original bundle didn't include defendant's statement, FOI since then, correspondence via email so not easy to refer to things as not in courts bundle.
    So, are you wanting to add evidence to your bundle?

    "Defendants statement"? - do you mean "defence"? Because the court will already have that... Surely it contained your WS?
    • claxtome
    • By claxtome 8th Oct 17, 1:29 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    How come? I've never known a bundle have to be submitted so early.
    The court order stated that they wanted all evidence towards the end of July.

    So, are you wanting to add evidence to your bundle?

    "Defendants statement"? - do you mean "defence"? Because the court will already have that... Surely it contained your WS?
    the "defandant's statement" refers to a second witness statement, sorry for confusion, from a new witness 'Kezza15' who's case was the same car park and same problem and was thrown out by a judge just over 2 weeks ago. The FOI response was not received until late August. So are not in the bundle for obvious reasons.
    The second witness statement has been filed with the court but not the FOI as it is not a pleading.
    • claxtome
    • By claxtome 8th Oct 17, 1:48 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    Here is my draft Skeleton argument:

    SKELETON ARGUMENT ON BEHALF OF XXXXX
    PREAMBLE
    1. This skeleton argument is to assist the Court in the above matter for the hearing dated XX/XX/XXXX.
    2. References in [] are to tab, page and para numbers of the defence bundle.


    DEFENDANT ARGUMENTS
    1. The Defendant’s primary defence is inadequate signage as mentioned in Defence [Red Tab page 3 para 4] and Witness Statement [Yellow Tab page 6 paras 3-5, page 7 paras 7 and 9 and page 8 paras 11 and 12].

    2. The car park was on XX November 2016 one large car park [Green tab page 11], separated into two parts which are named the same, one part run by the council [Green tab page 12] and one part by the Claimant [Green Tab pages 19 and 21]. The boundary between the 2 car parks is shown on the plan as a blue dotted line between points C and E [Green Tab page 11] with the council owned part to the south and the Claimant to the north. On the day in question the cost of a daily ticket was the same in both parts adding to the confusion.

    3. At the relevant date travel was allowed between the two areas as there was no fence, road markings or any other possible demarcation [Green tab pages 15 and 16]. In fact drivers could enter through a boundary entrance shown on the Defendant’s plan near red letter H [Green tab page 11] to either part of the car park. There is no signage from this extra entrance or at the boundary to highlight to drivers that there were two different areas of the car park subject to different management and terms & conditions [Green tab pages 15 and 16] and doesn’t conform to the IPC Code of Practice [Purple Tab “Part E” on page 22, para “Entrance signs should”].

    4. The Defendant has produced a helpful plan of the carpark showing all the relevant features [Green Tab page 11] which will be referred to the as “the plan” henceforth without the reference. The red arrows on the plan show the route driven in the car park. The defendant has explained how he came to drive into the council-run part of the car park, A on the plan, and how he stopped to purchase a ticket at machine [Green tab page 14], B on the plan, and then parked, D on the plan, in his Witness statement [Yellow tab page 6 para 3]. The Claimant’s part of the car park has signs at entrances shown on the plan as F and G [Green Tab pages 19 and 21] but none at the boundary entrance.

    5. The Defendant produced a short video on 23rd January 2017, nearly two months after the date in question, of the route taken in the car park and what signage was/wasn’t present. [Green tab page 35]. The video showed a new fence had been erected presumably at the boundary of the car park [Green tab pages 22 and 23]. This video and fence are described in the Witness Statement [Yellow tab page 7 para 7 and page 8 para 10].

    6. Sometime after he received the PCN which is the subject of these proceedings, the Defendant discovered that rubble had been dumped in the car park along the boundary between the two different parts of it [Yellow tab page 7 para 6, Green tab page 17] shown on the plan at point H. He enquired of the council using a FOI who said “The council were not aware of why this was placed there and what its purpose was” [Dark Blue tab 5 page 55 para labelled c]. Defendant’s case is that the retrospective marking out of the demarcation, including rubble, between the two parts of the car park, preventing drivers from passing freely between them shows that there has been confusion caused to drivers.

    7. The Defendant has discovered that on Friday 29th September another driver who had suffered exactly the same fate as him had appeared before this court, when the Claimant’s claim was dismissed. The defendant has filed and served an extra Witness Statement from this driver and submitted the Witness Statement from their original case as evidence in this one. The case involved identical facts and the court held that the Claimant’s signage was inadequate as can be seen by looking at her evidence. [Orange tab pages 36-40].

    8. The response to the Freedom on Information request received from the council demonstrates:

    a. The council were aware of the need to separate their land, but on balance (taking into account the Claimant’s Witness Statement) had not done so at the material time.

    b. I put it to the Claimant to refute that it also demonstrates that the PPC were aware that there was a parking issue where cars were straying from one parking zone into another and therefore erected a physical barrier to prevent this.

    c. If a) and/or b) are recognised by the court it follows that this is tacit recognition of the misleading nature of the signage which showed conflicting terms.

    9. On the day the defendant had every intention to pay for parking, and did so, and genuinely thought they had complied with the terms of parking in the car park (and was justified in their belief). The defendant relies on Jolly v Carmel (2000) which held that a party who makes reasonable endeavours and reasonable steps, to comply with contractual terms, should not be penalised for breach outside of their control and outside of any contractual term within their knowledge. Witness Statement [Yellow Tab page 6 para 22].

    REFUTTING CLAIMANT EVIDENCE AND ARGUMENTS
    1. The Claimant’s own evidence shows that their signage was inadequate [Grey tab page 68 Photo of signage] and the Defendant notes that this is in breach of Claimant’s contractual obligations to the landowner pursuant to which it claims it has the right to bring these proceedings [clause 3 of the contract, Grey Tab page 61].

    2. The Contract submitted as evidence is incomplete and is now out of date. Clause 8 states “This agreement is for an initial period of one year and thereafter is subject in accordance with the terms and conditions overleaf” therefore there are missing pages describing terms and conditions. Also the contract was signed on XX Feb 2015 so is now out of date.

    3. The Claimant’s map of signage submitted as evidence shows no border between the Claimant’s part and the Council-run part:

    a. The defendant bought a ticket from a machine within the boundary of the plan which is said to be the Claimant’s parking site. The Claimant must therefore prove why the ticket displayed was not valid.

    b. The Claimant is unable to specify or delineate the boundary on a plan, it is both understandable and inevitable that they failed to do so in the car park.

    4. The Claimant relies on Vine v London Borough of Waltham Forest (2000) that “once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice”.

    a. The Defendant refutes this as there was no distinct signage. The Defendant entered the site which displayed conflicting signage/contract terms and complied with them, the Defendant cannot be deemed to have agreed to any terms of parking specific to the Claimant (i.e. distinguishing Vine v London Bor. of Waltham Forest because the Claimant's signs (if any) were neither sufficient in number or sufficiently distinct from those complied with).

    5. The Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty’s Revenue & Customs [2013] EWCA Civ 186 and Parking Eye v Beavis (CA 2015), as establishing a precedent that the present Claimant can bring proceedings in its own name [Green Tab Page 33] and [Statement of Claimant para 10 and 11].

    a. The Defendant asserts that the facts of VCS v HMRC were substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

    i. The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS’s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with VCS were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

    ii. It was held, at para. 27, that " ... in my judgment the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts “contracts entered into as agent for the landowner”. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

    iii. It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

    b. Also, in VCS v HMRC it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass). Not even ParkingEye in the Beavis case tried to argue 'damages' and the Judges there said:

    i. 97. ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.

    ii. Lord Mance at 190: “Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract”.

    iii. and later: ‘’But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

    Note: The references in the final version will be checked. It was easier to leave them in when i posted it on this forum.

    As always any comments/suggestions for improvement are gratefully received.

    I am particularly interested in any further arguments/avenues i can explore.
    Last edited by claxtome; 08-10-2017 at 3:28 PM. Reason: Formatting
    • Lamilad
    • By Lamilad 8th Oct 17, 1:49 PM
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    Lamilad
    but not the FOI as it is not a pleading.
    Does it say anything that significantly assists your case?
    • claxtome
    • By claxtome 8th Oct 17, 2:03 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    Does it say anything that significantly assists your case?
    See draft Skeleton above paras 6 and 8.

    Lamilad thanks for all you responses you have added to this thread. I am surprised that LoC (as you may know a solicitor) suggested I produce a new paginated bundle which has taken quite a bit of time if she didn't think it wasn't in my best interest. Your comments, from a long term member of this forum whose advice I trust too, make me very worried about doing it until she responds or Johnersh, another legally trained person, replies.
    Last edited by claxtome; 08-10-2017 at 5:39 PM.
    • KeithP
    • By KeithP 8th Oct 17, 2:03 PM
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    KeithP
    In 4 a), "distinguishing Vine v London Bor. of Waltham because..."
    should be "distinguishing Vine v London Bor. of Waltham Forest because..."

    I.e. the word Forest is missing.

    And Forest is miss-spelt a few lines above.


    Is it right that the paragraph numbering restarts at 1) after the heading REFUTTING CLAIMANT EVIDENCE AND ARGUMENTS?
    Last edited by KeithP; 08-10-2017 at 2:08 PM.
    .
    • claxtome
    • By claxtome 8th Oct 17, 2:09 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    [I]KeithP/I] - done amendment to add in 'Forest' in the Skeleton post above - thanks.

    You are right about paragraph renumbering - in final version will change the document so it has unique numbered paras.
    Last edited by claxtome; 09-10-2017 at 3:03 AM.
    • Lamilad
    • By Lamilad 8th Oct 17, 3:02 PM
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    Lamilad
    Green tab page 35
    How many pages is your SA? The judge may disallow it if it's more than 25 pages.
    • claxtome
    • By claxtome 8th Oct 17, 3:04 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    Johnersh suggested that on a very similar case to ->
    Put them on notice that you require their company employee to attend and address the following questions:

    1. How many other tickets are pursued by them where the defendant is said to have complied with conflicting signage and/or to be confused by their signage

    2. Whether they have taken any steps to prevent drivers from entrance A parking in area B (and vice versa).

    The point is that the claimant should not profit from their negligent failure to zone two adjacent car parks. If this was not an issue, they would not have now taken action as they have after the event.
    I am willing to do this but wondering do I present an argument of entrapment in my skeleton as well?
    Last edited by claxtome; 08-10-2017 at 5:38 PM.
    • claxtome
    • By claxtome 8th Oct 17, 3:07 PM
    • 213 Posts
    • 189 Thanks
    claxtome
    How many pages is your SA? The judge may disallow it if it's more than 25 pages.
    My skeleton argument is 4 pages long the referrals are to my court bundle
    (Green tab is my evidence document)
    • Lamilad
    • By Lamilad 8th Oct 17, 3:15 PM
    • 1,016 Posts
    • 2,020 Thanks
    Lamilad
    My skeleton argument is 4 pages long the referrals are to my court bundle
    (Green tab is my evidence document)
    Originally posted by claxtome
    "2. References in [] are to tab, page and para numbers of the defence bundle"
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