County Court claim received

chambi01

Thanks for your replies everyone & for the tip off of other threads to check out

chambi01

Hi
I have 3 questions which I could use some help on:

1) I received Gemini's Witness Statement by email less than 2 weeks before the court date. Per CPR 27.4.3.a.i. am I entitled to ask for their Witness Statement to be in admissible, it being sent less than 2 weeks before the court date? Would this likely just lead to an adjournment (which I don't want) or is it worth pursuing? It seems unfair that they've been able to respond to the points in my WS but not I to theirs.

2) They've submitted an agreement authorising their company to manage parking on the relevant land, but in their WS this agreement is incomplete - only odd-numbered pages included. Is this also worth pursuing, ie they haven't demonstrated their authority to levy/pursue charges?

3) Is their Notice to Keeper POPLA compliant? Here it is: https://drive.google.com/open?id=0B78F-89mtlWVSWw3U0ZTMHVsaWM

Thanks a lot for your continued help

Coupon-mad

(1) Yes - raise it - some Judges will agree, e.g. this one at Maidstone Court:

http://parking-prankster.blogspot.co.uk/2017/06/gladstones-epic-fail-on-behalf-of-am.html

(2) 2) They've submitted an agreement authorising their company to manage parking on the relevant land, but in their WS this agreement is incomplete - only odd-numbered pages included. Is this also worth pursuing, ie they haven't demonstrated their authority to levy/pursue charges?

Definitely! The even-numbered pages could set out anything and they have withheld it.

3) Is their Notice to Keeper POPLA compliant?

No. Use this reported POPLA appeal decision to prove their NTKs that say 'within 28 days' have been found non-compliant by POPLA, and therefore incapable of holding a registered keeper liable in law:

https://forums.moneysavingexpert.com/discussion/comment/70494352#Comment_70494352

The NTK also does not tell the keeper to 'pass the Notice to the Driver' not that the driver is liable or that the parking charges have remained unpaid...loads of omissions. As this was a windscreen PCN case, compare the NTK letter to para 8 of the POFA yourself!

chambi01

Thanks so much for the quick response & very helpful links, CouponMad!

Coupon-mad

Oh, and see this court report from today - won because the so-called contract was a mess:

https://forums.moneysavingexpert.com/discussion/5504705

Diego Fuego has some good tips there, too.

chambi01

I recently had my day in the County Court for this claim.
Thanks to this forum, I had prepared what the judge described as an exhaustive defence skeleton, which began by questioning the claimant's counsel's rights of audience, then their late filing of the witness statement, before getting into the substance (or lack of substance) of their case.

Before the opposing counsel said a word, the judge said she wanted to go through the points on my skeleton, which the opposing counsel had not seen, despite my having sent it to Gladstones the day before. I had not given a copy to their counsel during the lengthy wait for the hearing, but passed them a copy at this point in the courtroom. They started muttering about needing an adjournment to consider it, which I would have objected to, but the judge got into the skeleton straight off.

She began by telling me that the many District and County Court cases I'd sited, which I'd found on the forum, were not binding on her, only instructive. This is an important point to note which I had forgotten: only the courts higher to the County Court can bind its decisions.

She went on to consider the claimant's counsel's right of audience, and found that as a legal executive, he did have ROA. This is another point that I hadn't properly understood from forum posts. You can be a solicitor acting for another solicitor's firm and be called a solicitor's agent. This is different from being an unqualified barrister acting as a solicitor's agent, which probably wouldn't be allowed. Fair enough.

So onto point two of my defence skeleton, that the late filing of the claimant's witness statement was in breach of the directions of the court, and that it should not be allowed for the following reasons:

- this was the first information sent by the claimants about their case, and my ability to properly understand and defend the claim was hampered. Whilst the claimant is represented, I am a litigant in person, and was able to meet all the court's directions

- the late-filed witness statement capitalised on my own statement being filed on time, by attempting to rebut the points I had made in it, creating an unfair advantage for the claimant

- the claimant is a professionally represented serial litigant with unlimited access to legal advice from qualified legal professionals. It is inexcusable for them not to comply with the court's directions, and their failure to do so is an abuse of process and contempt of court

The judge noted the witness statement was received by me and the court two days late, and that the claimant would have to apply for relief from sanctions (presumably the sanctions imposed by the civil procedure act). Their counsel had received no instruction as to why it was submitted late, and the judge agreed that their witness statement was at least in part a response to my own one.

The judge noted that the claimants are a large parking organisation represented by a solicitors firm involved with a very large number of parking cases across the UK.

In considering any application of relief from CPR sanctions, the court had to look at S.3.9 and consider all the circumstances to deal justly:
- the need for efficient litigation
- the need to enforce compliance
- considering all the evidence in the case

The judge had to look at the decision of Denton re granting relief from sanctions, and ask whether the breach was a significant or important one.

She found that the breach here was not trivial, and that it caused significant inconvenience to the court and the defendant.

She noted that in the small claims track there is no disclosure, and that it is the first opportunity to see the evidence in the case. It's important to respect the CPR rules, as the small claims track is designed to be a solicitor free process, and here the witness statement contains all the evidence of the case. So this was a serious breach.

The second question was why had the default occurred? Here there was no evidence or explanation for the late filing. These solicitors trade in this kind of work, and they should know the importance of complying with the rules.

In considering the case as a whole, the judge noted the need to discourage any opportunism in the non-defaulting party, and the importance of compliance, and the need for a lax culture of non-compliance to not be tolerated.

The judge then turned to the question as to whether the claimant's witness statement being late filed hampered my ability to prepare my defence, and here I thought my exhaustive skeleton defence might count against me. She noted the statement contained unappended legal points and a large amount of factual information. It sought to make a complex legal argument, and appended a large number of documents. She said it was not surprising I had had trouble understanding it.

She found this was a substantial breach of the rules with no good reason given. She would not give relief from sanctions, and as the witness statement was not allowed, the case was dismissed and I was awarded costs.

I then asked the judge to consider whether the claimant's behaviour could be considered unreasonable, allowing her to award me further costs. I suggested the late filing, coupled with the submission of an incomplete contract with the landowner of the parking site, lack of clear signage at the site, and invalid NTK should amount to unreasonable.

The judge replied that there's no specific definition of unreasonable, and that although the claimant's behaviour was verging on unreasonable, I won my case on a procedural basis, and my claim for further costs were denied.

The judge finished by commending me on the careful and exhaustive way I prepared my skeleton, saying it was a of a higher quality than those she sees from solicitors firms, and that if ever I wanted to change profession, I would be very welcome! She asked for the names of this forum and of the parking prankster site, neither of which she'd encountered, and professed her amazement at the level of detail provided.

I should end by saying that although it was a lot of work to prepare, I found the court experience really satisfying and interesting to be involved with. You learn a lot by fighting these cases, and it's very rewarding to stand up to the companies who are abusing their authority. Gemini parking paid for a nice family meal out last night, and I wouldn't hesitate to take them on again.

This forum is incredibly informative, encouraging, and empowering, and it has the judicial seal of approval! I'm really grateful to all of you for your time, your help and encouragement.

Lamilad

Wow, what a great read that was. Brilliant report - one of the best I've read. You have clearly learned a great deal through this process and discerned that knowledge. I hope you will stay with us and join the ongoing fight against these bloodsucking scammers.

Your knowledge and descriptive writing style will make you a valuable asset to this community.

Well done, and thank you for the very useful and informative report.

Umkomaas

Uber super report. Thoroughly enjoyed reading it. The story you built of the judge finding unreasonableness on the part of the claimant at various points had me anticipating a punitive cost order. So it was a bit of an anti-climax seeing that none was awarded. What a shame.

If you're thinking of changing profession, as well as a legal one, you should consider one as a suspense novelist!

Well done on grinding this lot down. I bet your family meal tasted extra good.

AntrimMark

Chambi, I'd very much appreciate a look at your Skeleton Argument.
You will see from my threads I have a similar impending day in court against Gemini represented by Gladstones, and am putting together my own SA.
Any help you can give is appreciated.

[Deleted User]

Good case report from Chambi. It should not be forgotten that the usual sanction for late service of witness evidence is that it cannot be relied upon. Of course, strictly speaking part 32 cpr does not apply to the small claims track, but the courts have case management discretion generally and under 32.1, which does apply.

It is well worth a review of Denton (or the wealth of case commentary online) for anyone with a case in which the PPC is in breach of an order. The full case name is Denton v TH White and it is court of appeal authority. The test is described broadly above and is a multi-part test, starting with a breach which is more than trivial. Technically a defaulting party should apply for relief ASAP. Thus you should always write to the PPC if they breach a court order as soon as they are late to comply.

As demonstrated above, if applied, the results can be brutal. (or indeed happy ones for the party benefiting).