Witness statement help please - Court date set! Gladstones / UKCPM

FlyingHorse

IamEmanresu wrote: »

If you want you should draw the court's attention to the contract signed with the Leaseholder specifically item one.

They make no effort to check whether the person signing has the authority to enter into a contract. They could make simple checks from publicly available information but do not. As such they are accessing personal details at the DVLA with no "reasonable" cause.

A judge may bite and make a ruling on that point but likely avoid it. But if you do get a bite, it opens up all sorts of avenues for later.

Also if it is put into the SA which Gladstones will read, they may spot what is an obvious open goal for the judge and decide to pull out.

Great! Thanks, Emanresu!

I am just setting about dismantling the Claimant's WS which I will use as a introductionary summary of my position (i.e. a summary of the claimants case and why each of the points are invalid with pointers to the relevant paragraphs in my SA).

I wonder if anyone has a good response to this point in their WS:

11. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186;
(1) “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have
the right under its contract with the car park owner to grant a licence to park, it could not
have contracted with the motorist to grant such a right. In my judgment there is a serious
flaw in this reasoning.
(2) The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they
do not own in the hope of buying them later at a lower price. In order to perform the
contract the trader will have to acquire the required number of shares after the contract
of sale is made. Moreover, in some cases a contracting party may not only be able to
contract to confer rights over property that he does not own, but may also be able to
perform the contract without acquiring any such right. Thus in Bruton v London and
Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held
to have validly granted a tenancy of the land to a residential occupier. The tenancy would
not have been binding on the landowner, but bound the two contracting parties in
precisely the same way as it would have done if the grantor had had an interest in the
land.
(3) Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on
the question whether VCS had the power to enter into a contract. Having the power to
enter into a contract does not, of course, mean that VCS necessarily did enter into a
contract with the motorist to permit parking”

I think I can say something like "this is not relevant here" but a more detailed response would be appreciated.

System

This is the so called selling Buck Pal argument.

Simply put anyone can sell anything BUT they have to deliver the item (called consideration) or pay damages that arise.

Since the Claimant could never deliver the parking promised, their promise was essentially void for lack of consideration. It wasn't their parking space and it wasn't their clients parking space either. Then tie it back to the issue that UKCPM could have checked but they didn't.

[I'm always tempted to ask if the Claimant has actually tried to sell Buck Pal and how did they get on]

bargepole

FlyingHorse wrote: »

I thought that it was numbered sequentially? Do you mean that I should number the subparagraphs, i.e. 21.1.1 rather than 21.a.i? I read somewhere that judges preferred the second of those options as this was British standard, perhaps that was wrong though?

I wouldn't use sub-paragraph numbers at all, just go 1, 2, 3 etc.

Should I still list the authorities in the body of the text as they appear as well (e.g. 'AST APPENDED AS EVIDENCE: E.1' after paragraph 2) or should I just collate these all at the end of the document?

You cite the cases within the text, eg "the circumstances here were similar to Smith v Jones", and then at the end of the document, you have a list of evidence, and another list of authorities.

Just to clarify, should the SA be signed by me, the lay representative, as author, or by the Defendant even though she did not herself write it?

I thought I'd made this clear. The SA should not be signed at all, by anyone. The author's name and date should be printed at the end, so you would put "Flying Horse, instructed as Lay Representative for Defendant. Dated XX/XX/XX"

FlyingHorse

bargepole wrote: »

I thought I'd made this clear. The SA should not be signed at all, by anyone. The author's name and date should be printed at the end, so you would put "Flying Horse, instructed as Lay Representative for Defendant. Dated XX/XX/XX"

Yes, sorry, wires crossed in terminology here, by signed I really meant should my name be at the end as author or the Defendant's. Thanks for clarifying.

Just putting the finishing touches on the revised draft so will post that up soon.

FlyingHorse

Draft 2 of my Skeleton Argument here taking on board all that's been said.

https://www.dropbox.com/s/tljcnpfa87u6ws9/Skeleton%20Argument%20Draft%202%20%28redacted%29.pdf?dl=0

Any more comments?

Do I need to serve this SA on the Claimant as well as submit it to court?

bargepole

FlyingHorse wrote: »

Draft 2 of my Skeleton Argument here taking on board all that's been said.

https://www.dropbox.com/s/tljcnpfa87u6ws9/Skeleton%20Argument%20Draft%202%20%28redacted%29.pdf?dl=0

Any more comments?

Do I need to serve this SA on the Claimant as well as submit it to court?

It looks OK now. Bit of a sledgehammer to crack a nut, the whole thing should turn on the primacy of contract of the lease, nothing else really matters.

You can serve it on the Claimant, or hand it to their representative on the day, as long as it doesn't contain any new arguments that weren't previously in the Defence & WS.

[Deleted User]

Too long in my view. The Court of Appeal limit skellys to 25 pages and you're at 18 pages on a small claim. I'm sure you've not forgotten anything, but are your best arguments clear?

https://www.biicl.org/files/2223_skeleton_arguments_guide.pdf

FlyingHorse

I understand this is pretty long, but I want to make sure I've got all the bases covered. I think the way I've structure it makes the arguments pretty clear and straight forward. You could really stop reading at page 11 (or even page 4/5 if you didn't want to go into the full detail of the primacy of contract arguments).

FlyingHorse

A large amount of space is taken up by listing all the clauses that pertain to parking set out in the lease agreement. To me it seems prudent to do this to save a judge having to trawl through the lease agreement, but maybe I'm wrong about this?

[Deleted User]

Its entirely up to you. Present what you are most comfortable with.

An alternate approach could be to say " the core provisions in the lease pertaining to parking are found at clauses x, y , z of the lease, which is at tab XX of the bundle. The defence case is that these are the entitlements to use the land and that they cannot be superseded or varied by the signage displayed by the claimant" . The onus would then be on you to explain them orally at the hearing (as it always is).

FWIW my approach would be to try and go for short Skellys because a good defence and statement will already be lengthy enough.

That way, prior to the hearing the court has a short note which takes the DJ to the only 3 paras of the lease he needs look at or whatever else are "killer points" and has a list of arguments distilling the case to perhaps 3-4 pages.