Do I have a case or shall I just pay it? Galdstone letter

Coupon-mad

hopsfield wrote: »

what is the maximum I can claim back? As English is not my first language I easily spent over 30 hours researching everything but that brings the costs to over £300? Is there a limit ie not more then the claim amount?
Thanks

You can't claim that.

You can claim a day (or half day for the hearing) loss of leave or missed salary, and travel and parking. Also try a few pounds for any postage and £19 per hour for a couple of hours only.

An example costs schedule is shown in another thread, I posted links to it this week, thought I had on this thread? Maybe in another.

Loadsofchildren123

I think the points to hammer home on costs is these. Take this with you and make the points in turn (you can really just read it out - judge will understand your wish/need to have a crib sheet):


1. Read out CPR 27.14(2)(g).


2. The bar is set high for what "reasonable" conduct should be expected of this Claimant pursuant to CPR 27.14(2)(g).


3. This Claimant is a professional parking company, its day to day business is issuing, pursuing and enforcing PCNs, including court claims. It should be expected to behave "reasonably" by complying with court rules and orders and by providing a Defendant with information and documents relating to the Claim. Particularly when it knows that Defendants are ordinary citizens who are not conversant with the law/court rules.


3. This Claimant has not acted reasonably, as follows:


4. It issued generic roboclaim Particulars of Claim (make judge look at them at this point) which were incoherent and in breach of CPR 16.4.


5. This was preceded by a vague, unsubstantiated claim being asserted in the Letter Before Claim (make judge look at this). A breach of the Practice Direction on Pre-Action Conduct and Protocols, paras 3 and 6, 12 and 13. You were denied the opportunity of understanding and dealing with the claim at this stage: had you been able to explain to the Claimant that you have a good arguable defence, these proceedings may never have been issued. In these circumstances, the court has the power under paragraphs 14 and 15 to punish even a successful Claimant by awarding costs in favour of the Defendant.


6. The Claimant then attempted to bypass the need to amend its incoherent and inadequate Particulars by (partially at least) particularising its claim in its Witness Statement.


7. Throughout, the Claimant has refused to answer any request you have made for more information or documents (reference your letters).


8. The Claimant has made it impossible for this claim to be capable of settlement. This goes wholly against the overriding principle and a party's pre-action obligations.


9. The Claimant's conduct has effectively prevented any possibility that the parties may make any real attempt to resolve matters in the “lower cost atmosphere of the pre-action protocol procedure”, rather than the “higher cost atmosphere of court proceedings” (as it was referred to in Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855).


10. The court should take a dim view of such conduct and make a 27.14(2)(g) costs order.




This is definitely worth a go.


[sorry if the font has changed, I've copied and pasted from another document]

hopsfield

Thank you for this.
I've already email the schedule (to the solicitors and court) this morning.
C-M yes I used your example from previous post that you have showed me - thank you

Can I just ask about regulations concerning rights of audience.
Do i understand this correctly - If the person speaking in court (Claimant) is not the actual person from the WS than it can only be a registered solicitor that can replace him/her? is that correct?

DoaM

Check http://parking-prankster.blogspot.co.uk/search?q=audience

hopsfield

Wow that is some reading ahead of me....
I also just read on KimmyHrunt post (feeling really sorry for you ) that the Claimant can simply say they are not relaying POFA. which I think they will try in my case (as they don't mention POFA in their WS. How can I defend that? Am ok in right thinking that without relaying on POFA they break the law by contacting DVLA to retrieve keepers details?

Loadsofchildren123

hopsfield wrote: »

Can I just ask about regulations concerning rights of audience.
Do i understand this correctly - If the person speaking in court (Claimant) is not the actual person from the WS than it can only be a registered solicitor that can replace him/her? is that correct?

No, that's not right.
The person who made the W/S is probably an employee of the Claimant.
They could turn up to argue the case, then they'd be (like you) a litigant in person.
But usually the parking company gets a cheap lawyer, who will be a different person and to whom the rights of audience regulations apply.

Loadsofchildren123

A witness is, however, supposed to turn up and make themselves available for cross-examination

Loadsofchildren123

hopsfield wrote: »

Wow that is some reading ahead of me....
I also just read on KimmyHrunt post (feeling really sorry for you ) that the Claimant can simply say they are not relaying POFA. which I think they will try in my case (as they don't mention POFA in their WS. How can I defend that?

Bargepole's assessment of Kimmy's case was that there was too much emphasis on irrelevant defences, such as not being the driver - if he'd just argued the supremacy of his lease then the judge would never have considered those other issues and been sucked in and sidetracked/confused by Beavis.


The judge in that case decided that the Defendant was driving.


I think where it's obvious that the Defendant was the driver, and there is a strong defence that doesn't rely on not being the driver, then a Defendant should concentrate on that and admit to being the driver. The risk in denying being the driver, where it doesn't actually matter, is you look evasive and unconvincing.

hopsfield

I think I understand what you saying.
I've never denied being the driver I just reused to admit to it or tell who the driver was (under POFA I don't have to). Also my main point is that there was a ticket purchased for the whole day.

I read Prankster Blog but its very confusing...(had to google every other word )

I read this (from barcouncil) as recommended by Parking Prankster

Paragraph 1(3): Small claims
17. Other paragraphs of schedule 3 to the LSA 2007, apart from paragraph 1(7) considered
above, may entitle someone to exercise a right of audience. A person is an exempt person
under paragraph 1(3), for example, where a right of audience is granted by an enactment. One
such enactment is the Lay Representatives (Rights of Audience) Order 1999, paragraph 3 of
which provides that any person may exercise a right of audience in proceedings dealt with as
6
a small claim in accordance with rules of court (it is not exclusive to solicitor’s agents). This is,
however, expressly precluded: (a) if the client does not attend; (b) at any stage after judgment;
or (c) on any appeal against any decision made by a district judge in the proceedings.
18. Solicitor’s agents may therefore be entitled to rely on this provision in relation to small
claims proceedings, whether or not paragraph 1(7) applies to them.

This means to me that Solicitor agent is allowed to be at the hearing?
I think I need some pointers here sorry

Loadsofchildren123

I need to read it all carefully. I agree it is confusing.


One of the linked articles sums it up and I've copied and pasted it and my comments are in square brackets:
On 28th June 2016, DJ Peake gave an (unreported) decision in the case of McShane v Lincoln, which may have wide ranging consequences. A self-employed agent [ie a solicitor who is not employed by a firm of solicitors, or a barrister who is not part of a chambers - so ask them who they are and what firm/chambers they are part of/employed by - if the answer is none then they are a self employed agent], who was not a solicitor, represented the Claimant at the MoJ Stage 3 hearing-arguing that he was an "exempt person" [which means he has rights of audience] performing a reserved legal activity under the Legal Services Act 2007 [includes appearing in court].
The District Judge had to determine

1. Whether the Stage 3 hearing was "in chambers" –The Judge found that it was a contested hearing, which finally disposed of the claim, and was very similar to a disposal hearing, and was, therefore, not in Chambers [in chambers means in private. Small claims, and a final hearing, are "open court" ie public, so not "in chambers"]
   
   
2. Was the advocate "assisting in the conduct of litigation" – the judge found that exercising the rights of audience is not "assisting in the conduct of litigation". [so just appearing to argue the case on the day does not satisfy this part of the test]
   
   
3. Was the advocate assisting under instructions given by, and under the supervision of, an authorised person – DJ Peake held that supervision requires close involvement, and the required "closeness" was not present in a solicitor/agency relationship such as this... [so no rights of audience, and you rely on this part of the "test"]

I'd suggest printing this off, and the Law Gazette article, and handing it up and saying you want to check if the advocate has rights of audience


This one explains it better, I'd print this one off as well and take it with you:
http://www.4kbw.net/news/28102016123256-rights---wrongs-of-audience/
Highlight this paragraph:In order to be an exempt person, a solicitor’s agent must prove that their work includes assisting in the issuing of proceedings, commencing prosecuting or defending such proceedings or performing ancillary functions under the instructions and supervision of an authorised individual, and that the proceedings in which they appear are heard in chambers.