Help required - OH Court date in under 3 weeks and been ill!

Stevey

Hi folks,

Don't like to come on asking for help like this but I have been ill for a month with a sudden discovery of multiple pulmonary embolysms (blood clots on the lungs), and have been unable to prepare as i would have for a court date on behalf of my wife to defend a parking fine which is on the on 21st May.

I believe a defence needs to be done and received within 14 days of trial date so I have a couple of days to deal with this. I am off work due to the illness, so will do what I can but have lost a month in which I hoped to prepare properly for this.

I was originally posting on Pepipoo and have submitted an initial draft defence. We also submitted Directions Questionnaire, and that was the last thing done.

First questions I have - Is there any way we can defer the court date to get more time to prepare?

If not, what level of detail do I need to prepare and submit in the next 2 days? I will follow this post with a copy of the draft defence anonymised.

Many thanks for any help that can be given - it is appreciated.

Stevey

This is the submitted defence: The original Pepipoo topic ID is 115443 - title is PCN - Lost the Letter. Can't add a link as MSE says I'm a new user even though my account is over 10 yrs old!

IN THE COUNTY COURT BUSINESS CENTRE
Claim No.:

Between

HX CAR PARK MANAGEMENT LIMITED
(Claimant)

-and-



(Defendant)


DEFENCE

(1). It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.

(2). The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver.
b) The Defendant has no liability, as they are the keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver!!!8217;s alleged breach. The car has more than one insured driver and therefore on the balance of probabilities, there is nothing to tip the balance of evidence as to who was driving.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.

(3). The Defendant has no knowledge of whether there is any contractual arrangement between the Claimant and the owner or occupier of the land in question, or, if such a contractual arrangement exists, what the terms of that arrangement are. The Claimant is therefore required to prove that it has the necessary standing to bring this claim.

(4). It is denied that a contract was formed between the Claimant and the Defendant. This is because no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all.

(5). The signage was inadequate to form a contract with the motorist
a) The signage on this site has changed since the parking charge was allegedly incurred on the 17th July 2017. At the time of the alleged parking contravention, there were no signs displayed at the entrance to the car park, meaning no contract could be formed between driver and Claimant.
b) The newly installed signage on this site is still inadequate to form a contract. It is barely legible being of an unusual colour for both the wording and the background, making it difficult to read.

(6). The Claimant has omitted to obtain Planning Permissions or Advertising Consent from Calderdale Council & the present Landowner for the Signage or the ANPR Cameras. The Calderdale Council Planning Register does not show any such applications in its planning history. It is contended that the signs are in place without consent and are therefore illegal advertisements, which would constitute a serious breach of the Code of Practice for the Independent Parking Committee, the accredited operator scheme the Claimant is a member of.

(7). It is denied that the Claimant is entitled to the sum claimed. If, which is denied, a contract was in place between the Claimant and the Defendant and the Defendant breached a term of that contract it is denied that the Claimant's losses amount to the sum claimed. Alternatively, if, which is denied, a contract was in place between the Claimant and the Defendant under which the Defendant is liable to pay the sum claimed to the Claimant it is denied that the sum due under the contract is the sum claimed.

(8). The Claimant has not complied with the relevant Pre-Action Protocol. The Defendant has not had the opportunity to comply.

(9). When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence.

I believe the facts stated in this Defence Statement are true.


!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;. !!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;!!!8230;
(Defendant) (Date)

Loadsofchildren123

sorry, I don't understand.

This is the process:

Claim Form Served.
You file the AoS.
You then file the Defence.
Court then issues order assigning the case on a preliminary basis to the small claims track and ordering you to fill in and return the DQ by a certain date.
File then transferred to Defendant's local court.
Local court then issues directions with a trial date, and dates for WS and documents relied upon.
Sometimes the court will also do things like require the C to better particularise the claim and then for D to file another defence.

You are talking about an initial defence, and now a court date and having to file your defence 14 days before.

This makes no sense.

If you've already filed a defence, you don't get a second bite at the cherry unless the court gives you permission.

Are you actually talking about witness statement? In which case, you write this in the first person and it contains all the facts to back up and evidence your defence.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Stevey

Yes, sorry, I mean the witness statement to backup and validate the defence.

If we can!!!8217;t reschedule it!!!8217;s just whether I can do a good enough job of this in the next 2 days. I am correct in my assumption this needs to be sent to all parties a minimum of 2 weeks before the hearing, which means posting by Friday end of play?

Thanks.

KeithP

It's usually two weeks before the hearing, but your Notice of Allocation will state when you need to file and serve your Witness Statement.

Coupon-mad

which means posting by Friday end of play?

But no-one posts snail mail, their WS and evidence.

Posters email the version to the other side (with separate emails to break the evidence attachments apart so as not to email on huge file that might not be readable). And for the Judge, defendants deliver in person, a fairly weighty file...please read other threads, it's all been done to death on every defence thread that has progressed to WS/evidence stage.

Loadsofchildren123

Below I've reproduced your defence and written in red the sorts of facts you should include in your WS to back up the defence. That's the purpose of the WS, to tell the story and provide the evidence to support the legal arguments.


DEFENCE

(1). It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident. Start by telling your story. I am.... I own car VRN ......

(2). The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver.
Are you going to deny driving or just not admit it? If the former, you explain how you are not the only person who uses your car, produce the insurance certificate to show others are insured to drive it/explain that other family members drive it on their own insurance. Then you say why you are confident you were not driving on the day/it was so long ago you can't remember and this car park is not one you'd normally visit. That sort of thing. If the latter, again you explain how you are not the only person who uses your car and you simply can't say who was driving on the day in question and the C has produced no evidence to show it was you.
Be aware: the judge may try to cut through all this by simply asking the direct question on the day "were you driving?". If you were, then you're in difficulties aren't you?
b) The Defendant has no liability, as they are the keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver!!!8217;s alleged breach. The car has more than one insured driver and therefore on the balance of probabilities, there is nothing to tip the balance of evidence as to who was driving.
Refer to the specific provisions of the Act and include it in your documents bundle.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
Run through these and exhibit them, demonstrating how vague they were and how no evidence of anything was ever produced.

(3). The Defendant has no knowledge of whether there is any contractual arrangement between the Claimant and the owner or occupier of the land in question, or, if such a contractual arrangement exists, what the terms of that arrangement are. The Claimant is therefore required to prove that it has the necessary standing to bring this claim. Explain this further.

(4). It is denied that a contract was formed between the Claimant and the Defendant. This is because no offer was communicated by the Claimant, effectively or at all, that was capable of acceptance by the Defendant, expressly, by conduct, or at all. you need to give chapter and verse on this. Say that when you became aware of the pcn you went to the car park in question and looked at the signage, then say why it made no offer/how it was badly displayed. Exhibit photos. Say you have no idea in relation to the signage where the car was parked. I think a google map is a good idea, mark on it the signs and the entrance, with reference to the photos.

(5). The signage was inadequate to form a contract with the motorist
a) The signage on this site has changed since the parking charge was allegedly incurred on the 17th July 2017. At the time of the alleged parking contravention, there were no signs displayed at the entrance to the car park, meaning no contract could be formed between driver and Claimant. produce evidence of this and exhibit it then expand on this. Cross refer to the BPA/IPC CoP (whichever is the relevant one) which has fairly stringent guidenlines about signage. Put the CoP in your documents bundle.
b) The newly installed signage on this site is still inadequate to form a contract. It is barely legible being of an unusual colour for both the wording and the background, making it difficult to read. it doesn't matter what the new signage says so don't dwell on this too much.

(6). The Claimant has omitted to obtain Planning Permissions or Advertising Consent from Calderdale Council & the present Landowner for the Signage or the ANPR Cameras. produce evidence of this and exhibit it The Calderdale Council Planning Register does not show any such applications in its planning history. It is contended that the signs are in place without consent and are therefore illegal advertisements, which would constitute a serious breach of the Code of Practice for the Independent Parking Committee, the accredited operator scheme the Claimant is a member of.
look up threads where Ex dolo malo non oritur actio is discussed - a person cannot rely on an unlawful act to bring a claim - the unlawful act being the unlawful signage. You need to demonstrate that the signs require permission rather than just say they are there without permission. Be aware that this argument, whilst correct, does not generally find favour in a small claim with litigants in person.

(7). It is denied that the Claimant is entitled to the sum claimed. If, which is denied, a contract was in place between the Claimant and the Defendant and the Defendant breached a term of that contract it is denied that the Claimant's losses amount to the sum claimed. Alternatively, if, which is denied, a contract was in place between the Claimant and the Defendant under which the Defendant is liable to pay the sum claimed to the Claimant it is denied that the sum due under the contract is the sum claimed. explain why. eg the extra charges are not defined on the signage so cannot be part of the contract as they are either not mentioned at all or so vaguely that this term would be void for uncertainty.

(8). The Claimant has not complied with the relevant Pre-Action Protocol. The Defendant has not had the opportunity to comply. explain how this has affected you. eg all the questions you have about where the car was parked, what the signage said, the additional charges, the illegal signage, whether you were the driver - all these issues could and should have been explored pre-claim stage - there's plenty about this on the forum you need to research it a bit more.

(9). When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence. make the point that you are still somewhat in the dark about the C's case, given the failure to comply with the pre-action obligations.

Stevey

@LoadsofChildren123 - Thank you - that is extremely kind of you. I have been in touch with the Court today and as Monday is a Bank Holiday they are ok with us submitting the Witness statement and Evidence next Tuesday which gives me a few more days.

I'm drafting these now, and will keep everyone updated on progress.

Couple of questions:

1) If the claimant fails to pay the court fee, would I be automatically notified? Don't want to do all the work for no purpose. Would MCOL have any info on whether this is paid or not.

2) We've had nothing from the claimant yet in terms of their argument. Based on previous cases is it unlikely we'll get anything from Gladstones, and they will try to hand us a bundle on the day, as some are reporting. What is the current experience of how Gladstones are handling cases, and has this changed since Feb when Parliament started talking about legislation in this area to curb the number of claims being made?

nosferatu1001

You should get notice to say it has been struck out.
MCOL hasnt played any part in this since it was allocated to your court.

You likely WILl gte a "WS" from them, but it will be utter garbage.

Coupon-mad

If the claimant fails to pay the court fee, would I be automatically notified?

Nope.

But you will know, based on whether you get a WS or not. You will probably get it late, next week.

If you get no WS and evidence from Gladstones at all, then write to the court with one week to go, and ask for the claim to be struck out, saying:

The Claimant's failure to comply with the Practice Direction, failure to set out clear Particulars of Claim (not even telling the Defendant what the alleged 'breach of terms' was) and their failure to file a Witness Statement or any evidence at all, has caused the Defendant considerable wasted time and stress, prevented the possible avoidance of litigation, and prevented the Defendant from being on an equal footing with the Claimant. These failures and the vexatious nature of this typical cut & paste Gladstones 'one size fits all' parking charge robo-claim, with no checks being made about the facts to show that the Claimant has any claim in law, cannot be described as 'trivial' and as a result, sanctions should be imposed as per para 41 of Mitchell v. News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 which is re-iterated in para 24 of Denton v T H White Ltd [2014] EWCA Civ 906.

Include your costs schedule to claim costs 'on the indemnity basis' for the wholly unreasonable and vexatious claim and conduct from start to finish (sum it up in bullet points and ask for your wasted costs/time at £19 per hr LIP rate). Make it well into 3 figures. Send a copy to Gladstones as well, by email, but a couple of days later and after 6pm!

Then you can phone the court 2 days before, and find out if the hearing is actually taking place, or of the Judge has read your letter and will be striking it out without a hearing.

If you DO get a WS and evidence, you WILL have a hearing but should still file a costs schedule a couple of days before, that includes your time off work, and on the day have a copy of your wage slip with you in your file bundle. And email a copy to Gladstones as well, before the hearing.