Court Report: Excel spanked at Skipton

Lamilad

Apologies for the length, but worth the read....
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[FONT=&quot]Excel Parking Services Ltd vs Ambler. [/FONT][FONT=&quot]E1DP2061[/FONT]

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[FONT=&quot]17/07/18. Skipton County Court. Judge Skalskyj-Reynolds, presiding[/FONT]
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[FONT=&quot]Claimant represented by Ms Peabody[/FONT]
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[FONT=&quot]Lay Rep for the defendant – Lamilad
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[FONT=&quot]Background:[/FONT]
[FONT=&quot]Ms Ambler was a member of Sports Direct Gym at Cavendish Retail Park (CRP), Keighley. Members are allowed 2 hours free parking provided they enter their full VRM into one the terminals in the gym entrance. She visited the gym on 5/5/16 and shortly after received a PCN for ‘failure to purchase a valid pay and display ticket’[/FONT]
[FONT=&quot]Ms A appealed stating that she had entered her full VRM (to get the free parking) but the terminals were prone to malfunction and members regularly received PCNs despite entering their VRM. She enclosed records from the gym confirming that she was there at the material time. The appeal was rejected and the case eventually passed to BW Legal who commenced the usual debt collection process followed by an LBC and finally court papers in Jan ‘18[/FONT]
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[FONT=&quot]Ms A sought advice from Tony Taylor’s ‘fight’ facebook group and was eventually given Bargepole’s email address, who passed the case to me. The defence was filed shortly afterwards focussing on mainly on the fact it was Excel’s failing terminals that had caused the PCN to be issued and that D had in fact fully complied with the T&Cs. Also disputed were – incoherent PoC, CPR/ PaP failures, signage, contract and unrecoverable added costs
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[FONT=&quot]On allocation to Skipton court, an ‘unless order’ was issued by Judge Wright instructing the C to provide further and better particulars. These were provided along with an evidence pack containing photos and the full VRM logs from CRP on the material date. An amended defence was submitted and shortly afterwards a hearing date was scheduled.[/FONT]
[FONT=&quot]The Ds WS gave more detail about her visit to the gym and the well-known issue of the malfunctioning terminals, as well as her attempts to engage with the C and the fact she’d given them sufficient reasons and evidence to cancel the charge. Also mentioned was the fact this was a distance contract, the regulations for which the Cs signage did not comply with (stolen from a previous Bargepole WS)[/FONT]
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[FONT=&quot] Appended as evidence was a WS from the gym manager confirming the terminals were prone to malfunction and his own frustrations in having to deal with angry gym members and Excels stone-walling when he tried to resolve issues with them; a WS from another gym member in exactly the same position as Ms A; the gym logs confirming Ms A’s attendance, and Ms A’s pre-action comms with Excel and Sports Direct.[/FONT]
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[FONT=&quot]The Cs WS was the usual dross from Rachel Brook at BWL. It was full of false statements, factual errors, spelling mistakes and incorrect gender references. Appended as evidence were more photos, all previous documentation, the contract with the landowner and another copy of the VRM logs. It was immediately apparent that there was an issue with the VRM logs insofar as they did not match the previous copy sent with the further PoC. The WS copy had over 40 VRMs removed that were in the first copy. I took the view that the C had deliberately falsified the logs in order to make them support their claim and this was stated in the Skeleton, filed a few days before the hearing along with the costs schedule.[/FONT]
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[FONT=&quot]The skelly also mentioned the Cs failure to comply with r27.9 regarding their non-attendance at court – notice was received 3 days before the hearing rather than 7 as required by the rule. Received at the same time was a second WS from Rachel Brook disputing points raised in the Ds WS – it said the WS from the manager and the other member were irrelevant and inadmissible and that distance contract regulations did not apply.[/FONT]
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[FONT=&quot]The Hearing[/FONT]
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[FONT=&quot]We started on a rather nervy note, DJ SR saying that the distance contract regulations would need looking into very thoroughly and, as this had only been raised at WS stage, there might not be enough time. She said if she found for the C based on the other evidence she would reserve judgement until further submissions on ‘CIC-CAR’ (as she called it) could be made. Whereas, if she found for the D, the claim would be dismissed outright.
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[FONT=&quot]Keen to get on SR didn’t bother asking Ms P to state the Cs case; she summed it up herself and asked me for a response which was the D had done everything right, the terminal had failed to register her VRM and the PCN was issued incorrectly. Asked if I had any proof of this I replied that it was impossible for any gym members to prove they had entered their VRM as the terminal doesn’t issue a receipt or any form of tangible confirmation. I went on that the defence would prove on the BoP that the machine failed to register the Ds VRM based on, inter alia, the 2 additional WS’s and comms with SD discussing the terminal’s frequent and well known failings.[/FONT]
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[FONT=&quot]SR then wanted to look at the logs to confirm the Ds VRM wasn’t there. She commented ‘I believe, Mr L, that you say there is something wrong with these logs’. I explained the mismatch between the 2 copies and the missing VRMs. At first she was very confused and, believing there must be a rational explanation, she began bombarding Ms P with questions about the logs, looking for some clarity. Ms P couldn’t answer and eventually mumbled something about the C ‘truncating’ the logs to avoid unnecessary printing/ wasted paper. I actually gasped at this response. The bombardment continued with SR becoming increasingly frustrated and Ms P sinking further into her seat. This went on for several minutes until SR, by now very angry, reached the conclusion that the logs were not reliable, she was ‘displeased’ that evidence appeared to have been ‘messed with’ and if she couldn’t trust this evidence how could she trust anything from the C.[/FONT]
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[FONT=&quot]SR noted that the missing entries were all before the Ds entry time (9.25am) so she flicked through the logs to see if there was a record of the Ds VRM on either copy or something similar (perhaps a wrong digit was entered). Here she spotted that 4 VRM entries that were on the first copy had been removed from the second, between 9.24 and 9.31. She was fuming, she launched a furious attack on Excel about the fact the evidence had been ‘altered’. She said she was already ‘deeply concerned’ that earlier entries were missing but to see that entries at the ‘material time had been removed was absolutely shocking and very troubling. Her voice was strained, she was practically shouting. She was saying that ‘messing with material evidence’ was completely unacceptable and something that the C ‘must not do’… They cannot and must not alter evidence to suit their case. SR said she was ‘disturbed’ by this; it was ‘absolutely inexcusable’.[/FONT]
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[FONT=&quot]This tirade went on a while I missed parts of it as I was looking at the floor trying hard to hide my obvious grin, but it was absolutely brutal, I have never seen a judge so angry and appalled. That said I felt sorry for Ms P who was visibly shaking and tapping her foot at the end – SR did apologise to her saying ‘I appreciate you are a solicitor’s agent and none of this is your fault’ SR ended her rant by saying ‘this claim is obviously dismissed and I will award costs for the Cs clear unreasonable behaviour, I do not feel I need to give a full judgement unless one is requested’[/FONT]
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[FONT=&quot]Ms P, from almost underneath the desk squeaked that she ‘would need a full judgement’. SR was just starting to calm down but got fully worked up again as she revisited the details in her judgement. Now on to costs I referred SR to the Ds schedule which was bold but genuine. Ordinary costs were awarded for loss of a day’s leave, travel and, parking. 40 hours LiP costs were awarded under r27.14(2)(g) (after breaking the costs down for the judge). A further £120 was awarded ‘in principal’, pending further submissions in the next 14 days. £15 for stationary, printing and copying was refused. Total costs £989 (£120 reserved) £869 to be paid to the D within 21 days.[/FONT]
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[FONT=&quot]Thankfully there was a ‘anything else’ at the end so I grabbed it to refer SR to paras 9 and 10 of the skelly which quoted r32.14 in relation the apparent falsified evidence and the Ds view that it crossed the threshold of Contempt of Court. SR agreed that it could be contempt and she would send a letter along with the case documents to a civil judge who would make a decision (not sure if she meant to say circuit judge). Don’t know if the D will be kept in the loop about this but I hope so.[/FONT]

Redx

hee hee , still ppppppp ing myself laffing at this one


almost a grand awarded due to abuse of the court process and evidence tampering , lol


Ms A must be killing herself laughing at those pesky kids ( the 2 morons / claimants ) - rooby roo

twhitehousescat

remind me , who prepare the paperwork and handed it to BW ?

es5595

That made for fabulous reading, well done!

twhitehousescat

https://theipc.info/professional-standards


about right

Lamilad

Ms A must be killing herself laughing at those pesky kids

She was shell shocked. Afterwards she said "that doesn't mean they actually have to pay me that amount does it?"

....."er... yeah!"

waamo

I bet there are some squeaky bums in the homes of whoever prepared those log sheets too.

Porridge for Christmas breakfast. Yum.

System

Well done L. Is there a transcript planned as it would be useful with the other Excel transcripts to show

* a history of faulty equipment
* a history of submitting misleading evidence
* a history of being banned by the DVLA for misleading paperwork.

All of the above speaks to the standing of Excel in these cases. We know, now that circuit knows too.

Edit: There is an outside chance that Excel will be back on this one claiming a mistake, as I can't see them letting this one (and a transcript) stand.

[Deleted User]

First things first: that's quite the day in court. Congratulations to Lamilad and all involved in the document investigation too. :j :T Frankly stunned excel sought to try and exclude the other statements too. :eek:

”She was shell shocked. Afterwards she said "that doesn't mean they actually have to pay me that amount does it?"

....."er... yeah!"

Jeez. Given the usual advocates "fresh off the boat" this may be a first loss for Miss Peabody. Ouch. Even so, surprised she asked this! Obviously she felt battered. No appetite to ask for an appeal (although I suspect it would've been given short shrift).

There is an outside chance that Excel will be back on this one claiming a mistake, as I can't see them letting this one (and a transcript) stand.

In my experience there can be such a thing as winning too well as it can lead to an appeal, true. That said, to do that excel would need to revisit the obvious failings. The reason for the Uber costs is the messing with the evidence. They'd be hard pressed to argue the DJ was wrong to make the finding or that the costs outwith unreasonable costs orders - especially since they were trimmed a little. I think this will probably stand. We shall see.

The contempt point is interesting. Not sure if that'll go anywhere, but would be great to have an update on that in due course. Neatly requested for good measure

bargepole

Johnersh wrote: »

Jeez. Given the usual advocates "fresh off the boat" this may be a first loss for Miss Peabody. Ouch. Even so, surprised she asked this! Obviously she felt battered. No appetite to ask for an appeal (although I suspect it would've been given short shrift).

It was the Defendant who asked this, not Miss Peabody.

And this wasn't Miss P's first loss, there have been cases reported previously on this forum where she was the losing advocate.

The_Deep

I am sure that from hereon, any PPC who comes before this judge is likely to have a rough tyime. If they were aware of their terminals failing they should have cancelled the charge at the first appeal.