Liverpool business park PCN - We won!

nosferatu1001

It was Unkomass that answered your queries!

Likely? No idea
If you are asked then you must truthfully answer. If you are unsure, you can say you are unsure, for example. You must not lie.

The claimant should not have ANY furhter costs - jus thte hearing fee of usually £25. ANY legal fees are disallowed under CPR27.14. You should certainly say that Parking Eye confirmed ONLY the origianl amount can be pursued, not the crap "debt collector" amounts.

You should be utterly aware of what costs you are entitled to, and what are at the discretion of the judge

1) Normal ordinary costs - half a days pay (capped at £95) OR loss of leave, mileage, parking
2) Unreasonable behaviour costs -ONLY if you can show they have been unreasonable under CPR27.14(2)(g). You MUST look into other threads.

Either way you submit a costs schedule to the courts 48 hours in advance of the hearing. You can of course estimate the parking.

Tinyteague

Apologies Umkomaas, thank you for answering my questions.

And thanks nosferatu, I'll look into CPR27.14(2)(g) now.

I've also yet to receive their witness statement. I realise there is still a week to go, is it still recommended to wait for theirs if possible in order to beat theirs?

Tinyteague

Sorry for the long post. The claimant's witness statement bible hit the doormat today. 70 odd pages, I’ve just finished reading through it.

In one paragraph, its stated “The claimants’ production of exhibit XXX is evidence of the date, time and location that the defendant parked his vehicle in contravention of the terms and conditions …” Which is a bit presumptuous considering the defendant is both female and the RK. The exhibit is just the NTKs.

A few cases were cited, Some I’ve read, others I’ll need to read up on.
The obvious PE vs Beavis.
Thornton v Shoe Lane Parking 1971 QB 163.
A Vine v Waltham Forest LBC [2002].
Chaplair Limited v Kumari
VCS v Crutchley (yikes!)

VCS Ltd v Damen Ward [2018] - This one is included as a complete transcript. Its an interesting one, as its an appeal case (VCS appellant), where there were 2 respondents (Ward & Idle). Neither respondent showed on the day, Ward lost, where it was admitted he was the driver and stopped for 4 seconds, and Idle won, as he was only identified as the RK. Reading this transcript was like a rollercoaster, for most of it, both respondents were on track to win, and right at the end the judge completely changed his mind …

They deny most points of our defence. Such as stating they don’t operate a grace period. This is despite the IPC COP stating that grace periods are part of operational requirements applicable to all operators.

They obviously deny that POFA requirements were not met.

They deny the particulars of claim is not compliant (although it definitely is not with regard to CPR16.4). They instead state that it is compliant with paragraph 5.2A PD 7E (conditions for starting a claim using MCOL). Reading that “(1) included in the online claim form but must be limited in size to not more than 1080 characters (including spaces);” doesnt mention that the claim should be sparse on details though?

They obviously deny that the signs are inadequate.

They deny the point regarding land ownership and having authority by the landowners to issue PCNs. They include a copy of the contract signed between themselves and peel holdings in 2013, which auto renews in fixed 12 months periods, so I assume that’s still in place.

They deny that the maximum charge due is the value of the initial charge, and cite a line from their T&Cs. I’d like to think POFA trumps this. They also refer to the IPC COP - which they say states that no more than £60 may be added when a charge is overdue. I’ve looked, and I cannot see this in my copy of the COP, or the latest on the IPC website. The IPC website COP does appear to have more headings in the index for page 12 than actually exist on page 12...

Coupon-mad

Search this forum for the most rare single word in that list - I'd suggest Kumari and you will find this WS is a template and pulling it apart has been done to death.

The forum search is great and nothing is new, this template WS has been demolished more times than I care to remember and it's all here for you to copy, for the sake of a search.

Here I would make sure your Judge sees it's a persuasive appeal case:

2.2 In the persuasive (similar facts, in terms of brief stopping for a ''minor vicissitude'') parking case heard on appeal by [STRIKE]case[/STRIKE] HHJ Harris QC in Jopson v Homeguard Services Ltd (case number: B9GF0A9E) (2016),

You will struggle, due to VCS v Damen Ward. He stopped for FOUR SECONDS I seem to recall.

Search the forum for Idle Ward to read what's already posted re those cases. Oh dear. TRULY DREADFUL scammer example of leading the Judge up the garden path by VCS's rep and Mr Ward didn't bother to attend, so the Judge was fully led. Awful.

And the case is also persuasive, like your citation of the Jopson case, so this will be like a game of Top Trumps.

If this was Airport land you'd be able to point to the byelaws allowing stopping in an emergency...any scope to try to put it that way? The byelaws ALLOW it and the Ward case was not at an Airport. You need to distinguish your case from Ward, somehow.

Unfortunately this land is close but not the airport, and don't believe it is under the same byelaws.

How do you know and how will the Judge know because VCS have not fielded a byelaws map to exclude this road, have they? So, why not suggest the road is within the Airport curtilage?

Due to the AWFUL (wrong decision by the Judge) Ward case causing you serious grief, I'd try using the 'stopping in an emergency' part of the byelaws as an exhibit anyway...unless you can't describe the stop as an emergency?

Tinyteague

I'll look into the bylaws and reading up on those cases, specifically Kumari.

The difference between Ward and our case, is it was never in question whether Ward was driving, he was (at least in appeal). Mr Idle however had no issues as the RK despite his vehicle stopping for longer, both heard simultaneously in same court.

Deadline is drawing close to post our witness statement, and I've only got the hours I'm not in work to look at it.

Tinyteague

Ok I’ve read up as much as I can. I started to add to the witness statement point by point counter arguments to the claimants WS, but then thought thats probably not constructive, and would just show your hand, where it may be better to argue the points in voice at court?

I need to get everything posted tomorrow, so tonight is the last chance at editing anything.

As recommended, I will drop off the courts copy in person. However on the covering letter from the claimants WS, there is an email address, I am unsure as to whether we have used it before, would you recommend we post a copy or send via email?

Don’t think I can describe the stop as an emergency(bylaws), after all we haven't named the driver.

Some points based on the cited cases. (Red is claimant WS)

Thornton v Shoe Lane Parking 1971 QB 163

“It is settled that individuals may enter into a contract with a sign and reference is made to Thornton v Shoe Lane Parking 1971 2 QB 163. The Defendant ought to have been made aware of the Terms and Conditions of entering private land.”

After reading the case it almost feels the opposite and definitely distinguishable. Thornton had to stop at a barrier, he had to take a ticket and thus agreeing to a contract. There was T&Cs to read. With our case, if you’ve missed the signs, there can be no contract, no invite to treat, indeed by stopping to read and accept you’re already in breach!

Vine v Waltham Forest LBC

“This is a contractual clause which specifies the amount owed. The Claimant wishes to rely on the precedent set under Vine v Waltham Forest LBC [2002] 1 WLR 23832390 where Roch L.J. stated:”

"the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judged objectively and not subjectively. 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. Were that to be the law, it would be too easy for car
drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking spaces or parking areas on their property"

This seems highly dependant on signage. Also on this case, Roch was 1 of 3 judges, Another line of Rochs “Although the Range Rover was parked close to the wall and was high sided the sign was visible. Mr Parker, whose evidence I accept said it was visible.”. Suppose it comes down to distinguishing visible from legible.

LJ Waller said :

“Circumstances in different cases will present different problems. But I would suggest that absent unusual circumstances, if it is established that a car driver saw a notice and if it is established that he appreciated that it contained terms in relation to the basis on which he was to come onto another's land, but did not read the notice, and thus fully understand the precise terms, he will not be able to say that he did not consent to, and willingly assume the risk of being clamped.”

There’s so many double negatives in there I got lost, but reads to me that you have to read and understand the sign in order to agree to the terms when in breach. Also relies on having seen the sign.

Chaplair Limited v Kumari

72. In view of the Defendant not paying the charge within 28 days the breach of the contract entitles the Claimant to damages as of right in addition to the CN incurred. The warning notices make it clear that damages will be sought and added to the value of the charge levied. The maximum amount awarded is £60.00 which is identified as a debt recovery charge. The Claimant would place reliance upon the Court of Appeal ruling in Chaplair Limited v Kumari [2015] EWCA 798:

"that does not alter the fact that it remains a contractual entitlement which the Court will enforce subject to it equitable power to disallow unreasonable expenses. There is nothing in the rule making powers in respect of the CPR which enable the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the Judge had jurisdiction to assess the costs free from any restraints imposed by CPR 27.14".

CPR 27 caps the costs in small claims track, and POFA states the max amount ‘recoverable’ is the sum on the NTK. In Kumari’s case, the costs were recovered under the terms of the lease. The entrance sign mentions nothing of this £60. The smaller signs have a line at the bottom reading “You may also be liable for interest and any additional costs incurred”. They previously mentioned that their IPC COP allows upto £60 for overdue charges, I cannot find reference to this in the IPC COP.

VCS v Crutchley

Not sure how to deal with this one. The case even cites Jobson v Home Guard Services Limited, which I am relying on. Will most likely hobble our attempt at distinguishing parking from stopping. One major distinction is that Crutchley was the driver and admitted stopping for a passenger.

VCS Ltd v Damen Ward

This one is another thorn. But it was in appeal alongside VCS vs Nick Idle, in very similar situations, the key difference was Nick Idle never admitted to driving and won. Damen on the other hand got a raw deal. I’d like to think Nick Idles case is closer to ours than Damens.

Coupon-mad

I’d like to think Nick Idles case is closer to ours than Damens.

I think that's what you will have to press for the Judge to see.

A good summary and research there, bearing in mind you have your work cut out due to the terrible decision in Ward, where the Judge was literally steered, it seems.

Tinyteague

So the court case is coming up next week. The last document I need to write and send (I believe within 48 hours of the hearing) is the cost schedule.

I am going to be talking on behalf of the defendant, so I know I cannot claim anything, however, the defendant claims for half a days earnings (which will be well well below the £95 cap), postage, travel, parking and printing of the WS copies. Is this correct?

As for the schedule itself, I was thinking of a simple cover letter, clearly showing the case number, and all details, and the schedule. Is this correct?

Many thanks in advance.

Coupon-mad

I am going to be talking on behalf of the defendant, so I know I cannot claim anything, however, the defendant claims for half a days earnings (which will be well well below the £95 cap), postage, travel, parking and printing of the WS copies. Is this correct?

As for the schedule itself, I was thinking of a simple cover letter, clearly showing the case number, and all details, and the schedule. Is this correct?

Yes and yes.

Tinyteague

With less than 18 hours until the hearing we get a voicemail telling us the hearing is adjourned. Rang up to question the voicemail, and told its due to there being no judge.

This is turning into quite the ballache.