1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

Lamilad

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 Jonersh, another legally trained person, replies.

I'm sure LoC and Johnersh would be the first to admit that the small claims system is quite different from other court procedure. There are rules that only apply to SC and many that don't. It's generally less formal and you get can 'get away' with things you wouldn't in other courts. Such as submitting documents/evidence a little late, conflating argument and fact

In SC Judges have a lot of discretion (hence 'DJ bingo') and they will generally balance decisions about what is acceptable on compliance with the CPRs and what is fair and reasonable... If a party has not properly complied with something but it doesn't prejudice the other side then the court will probably overlook it.

Here's you problem.....

Less than a week until court...

any changes made to your evidence now are likely to deemed unfair and unreasonable. The claimant could easily argue that they have been prejudiced. Let's face it if GS tried to make, even minor, changes to their bundle at this late stage you would raise holy hell about it (and quite rightly).


There was a case on pepipoo recently (can't remember the poster) where the defendant tried to adduce additional evidence at the last minute. Even thought the claimant rep didn't object the judge did and the case was adjourned, at which point the rep requested, and was granted a wasted costs order for £200.

claxtome

Thanks to all who have read my Skeleton argument I do appreciate it.

I will be handing it to court and emailing it to the Claimant tomorrow.

Any further comments about the skeleton argument in post #152 ?

Lamilad

Your SA looks good, very professional.

claxtome

Below is my final Skeleton Argument that will submit to court->

IN THE XXX COURT Claim Number: XXXXXXX

ES Parking Enforcement Ltd
(Claimant)
-AND-

XXXXXXXX
(Defendant)

________________________________________________________________________

DEFENDANT’S SKELETON ARGUMENT
________________________________________________________________________



PREAMBLE
1. This skeleton argument is to assist the Court in the above matter for the hearing dated XX/10/2017.
2. References in [] are to tab, page and para numbers of the Defendant’s bundle.


DEFENDANT ARGUMENTS
3. The Defendant’s primary defence is inadequate signage [Red Tab p3 para 4] and Witness Statement [Yellow Tab p6 paras 3-5, p7 paras 7/9 and p8 paras 11/12].

4. The Defendant has produced a helpful plan of the carpark showing all the relevant features [Green Tab p11] which will be referred to the as “the Plan” henceforth without the reference.

5. The date of the parking incident was XX/11/16. On that date the car park was one large car park not separated by any barrier, feature or signage although the Defendant now knows that different areas of it were run by the council [Green tab p12] and by the Claimant [Green Tab p19/21]. The dividing line between the 2 parts of the car park is shown on the Plan as a blue dotted line between points C and E with the council-run part to the south and the Claimant-run part to the north. On the day in question the cost of a daily ticket was the same in both parts adding to the confusion.

6. At the relevant date cars could pass between the two areas without knowing, as there was no fence, boundary feature, road markings, signage or any other possible demarcation [Green tab p15/16]. In fact drivers could enter through a boundary entrance shown on the Plan near red letter H to either part of the car park. There is no signage from this extra entrance or at the boundary between C and E to notify drivers that there were two different areas of the car park subject to different management and terms & conditions [Green tab p15/16]. This does not conform to the IPC Code of Practice [Purple Tab “Part E” p22, para “Entrance signs should…”].

7. The red arrows on the Plan show the route driven in the car park. The Defendant explains in his Statement [Yellow tab, p6 para 3] 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 a machine [Green tab p14], B on the Plan, and then parked at point D on the Plan. The Claimant’s part of the car park has signs at entrances shown on the plan as F and G [Green Tab p19/21] but none at the boundary marked C-E.

8. The Defendant visited the car park and made a short video on XX/01/17, 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 p35]. The video shows that by that date a new fence had been erected (which he presumes is at the boundary between the two parts of the car park [Green tab p22/23] [see Yellow tab p7 para 7 and p8 para 10].

9. 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 between points C and E on the Plan [Yellow tab p7 para 6, Green tab p17] shown on the Plan at H. He enquired of the council using a FOI request, who replied “The council were not aware of why this was placed there and what its purpose was” [Dark Blue tab 5 p55 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 – this can be the only reason why the demarcation was retrospectively made. The rubble makes it impossible to pass between points C and E, and cars can now only enter the two different parts of the car park via the two different entrances, each bearing the signage which relates to that part of the car park.

10. The Defendant has discovered that on 29/09/17 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. [Orange tab pages 36-40].

11. The response to the FOI request by 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. It must demonstrate that there was an issue with cars unknowingly straying from one parking zone into another requiring a physical barrier to prevent this – and this must have been known to the Claimant.

c. It follows that this is tacit recognition of the misleading nature of the signage which showed conflicting terms.

d. It’s inconceivable that the Claimant doesn’t know/didn’t know there was an issue with the lack of demarcation. They must have had countless complaints about it, even if people pay up many would have complained. The IPC AOS CoP doesn’t allow predatory or misleading tactics [Purple Tab p81 para 14].

12. On the day the Defendant had every intention to pay for parking, and did so, and he complied with the terms of parking in the car park set out on the sign at the entrance he had used, and at the machine where he paid. His belief that he had complied with the relevant terms and conditions was justified. . The defendant relies on Jolly v Carmel (2000) in which the court 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 [Yellow Tab p6 para 22].

REBUTTING CLAIMANT EVIDENCE AND ARGUMENTS
13. 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 the 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].

14. 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 12th Feb 2015 so is now out of date.

15. 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.

16. The Claimant relies on Vine v London Borough of Waltham Forrest (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”.
16.
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 because the Claimant's signs (if any) were neither sufficient in number or sufficiently distinct from those complied with).

17. 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.’’

18. The Defendant invites the court to dismiss the Claim.

Loadsofchildren123

In my case there was an order that the Claimant had to produce a composite paginated bundle for the final hearing. In claxtome's case there is no such order.


There is one existing bundle, which is his WS and defence docs.


For ease of reference, both in his SA and on the day, I think it is sensible that he makes a composite bundle and refers to the section numbers and page numbers in that. It would need to contain his Defence, his WS, his documents and Kezza's statement.


Kezza's statement has been served very out of time, but the facts which emerge from her case only emerged after 29 Sept, so very recently, and all of the facts of her case are already in the Claimant's personal knowledge so it cannot contain ANY surprises. So I think the court will allow claxtome to rely on it.


As for the FOI request and response, it turns out that although claxtome had the response in late August he didn't realise he should have sent it to the Claimant. So he has done so now, and will put that into his bundle. Whilst, again, it is late, the facts confirmed in the response are, again, already in the C's knowledge - it manages the car park so it must know that a fence and rubble were put there later to demarcate the two car parks - so again he will argue that there is nothing new and no surprises here, it simply confirms what he said in his own July evidence, but it is useful and relevant information that the court should allow it.


So back to the issue of the bundle, of course he doesn't have to produce this, but the easier he makes the judge's job, the better. The judge will be pleased to have one composite bundle to refer to and which is easy to navigate. The bundle doesn't change the pre-existing evidence, it just puts it in a more organised and convenient form.


No to changing the refs in your WS to the exhibit. The WS and exhibit should be as they originally were. Leave the old pagination on the exhibit so that it shows both the original pagination and the new pagination - you can distinguish the two by putting the pagination in a different place - eg if the existing pagination is central on the bottom of the page, make the new pagination on the right hand bottom corner.


On the subject of their witness - who was it who made their WS, is it a company employee or a person from Gladstones?
If an employee: write to say that you will wish to cross examine them and that you are putting them on notice now that you require their attendance (you will want to ask them, inter alia, how many tickets they have issued where drivers have complained about the lack of demarcation/signage - you'll also want to ask them about when the rubble and fence were placed there, by whom and why)
If Gladstones person: same same. You want to cross examine them, and your questions will be designed to establish that this person has none of the facts set out in the WS within their personal knowledge. At all.

claxtome

Thank you LoC for the clarification about the bundle.

On the subject of their witness - who was it who made their WS, is it a company employee or a person from Gladstones?
If an employee: write to say that you will wish to cross examine them and that you are putting them on notice now that you require their attendance (you will want to ask them, inter alia, how many tickets they have issued where drivers have complained about the lack of demarcation/signage - you'll also want to ask them about when the rubble and fence were placed there, by whom and why)
If Gladstones person: same same. You want to cross examine them, and your questions will be designed to establish that this person has none of the facts set out in the WS within their personal knowledge. At all.

I am 99% sure it was someone from Gladstones - will check when I get home.

Loadsofchildren123

Lots of judges get narked at the fact that a witness who has nothing in their personal knowledge has made a statement, and further that they then don't turn up.


Other judges don't care.


Make a big song and dance about it. Say you put them on notice that you wanted to cross examine them (if you're asked you say that you want to ask them questions about the signage/demarcation issue and about how many tickets have been issued which drivers then complain about because of this issue, what dealings there may have been with the council about it, what they know about the rubble/fencing and who put it there and why etc). You can also say you wanted to ask the witness why, when they have no personal knowledge whatsoever of the car park, they feel able to state things as fact, supported by a statement of truth, that are not in their personal knowledge at all. Say that their lack of attendance has put you at a disadvantage and their evidence should in the circumstances be disregarded (or at least given very little weight).


Perhaps add the point to your skeleton that the witness appears to have no personal knowledge whatsoever of the facts contained in their witness statement - no knowledge of the car park, the issue with the demarcation (or lack of it) - and consequently you invite the court to attach no weight to their evidence.


Remember to take to court your letter(s)/email(s) inviting them to withdraw the claim. When you win you will produce these in relation to costs.

Loadsofchildren123

Remember to send your SA to the Claimant's solicitors when you file it at court and take a spare copy for them because they'll probably deny receiving it.


I've suggested you scan and email to them the bundle you've made.

Loadsofchildren123

And your costs schedule must be filed at court and served on the C at least 24 hours prior to the hearing.

claxtome

Thanks again for all the advice.

A quick update for those interested->
1) Filed with court my skeleton argument early this morning. Frustratingly it is left in a cupboard until tomorrow morning so not hopeful it will get to the judge before court
2) I also handed over the new court bundle - over 100 pages
3) I emailed the skeleton and new court bundle today to Claimant (Invited them to discontinue again)
4) I also posted early this morning a letter to 'Company Employee' who did Claimant WS (Was wrong it was not a Gladstones Employee and found him as Northern Manager for ES) - asked him to attend court as a witness to answer the questions mentioned by LoC yesterday.

Tonight I am re-doing my costs schedule (not filed or served yet) and going to put forward case for extra costs for unreasonable behavior under CPR Rule 27.14(2)(g). (Can't do any harm).

Will serve costs tomorrow morning and file it at court then as well.

Tomorrow night I will be printing etc. all the extra bits I need - checking all this thread, Kezza15's thread and NEWBIE post etc. to make sure I don't forget anything.

I must admit I thought I would have heard before now for a discontinuance or offer to not got to court.
(Still time I suppose)