County Court Claim Form Recieved - Excel - BW Legal

SavvySavey

Thanks. So I've cut it down quite a bit. It might still be long but I don't think it is excessively long.



If I was in the judges shoes I think I would find this document useful. It's just under 4 pages with all "IN THE COUNTY COURT" stuff, and is well spread out.



________________________________________________________________
SKELETON ARGUMENT ON BEHALF OF THE DEFENDANT (NAME)
________________________________________________________________
1. This is the skeleton argument by the Defendant on the above claim made by Excel Parking Services Ltd in relation to a PCN.



2. The Defendant asks the court to dismiss the claim due to the below grounds:


On a Procedural Basis
3. The claim made via Money Claims Online (MCOL) is broad and unspecific.



a. The Witness Statement by the Claimant (NAME) claims the claim contains “a concise statement of facts” (para. 36). No facts about the nature of the contravention or liability are included.


b. In para 37, the 1080 character limit is referenced as rationale for their brief claim. The claim only uses approximately 645 characters. Additionally, MCOL explicitly allows claimants to submit further particulars on the claim outside the platform.


c. In paras 38-40, the Claimant relies on previously issued letters. The claimant cannot rely on these as part of their claim. Additionally, these letters are inconsistent and lack detail.


4. The claim is for £160 in relation to a charge notice. The Charge Notice in question (Claimant’s Evidence FJ2 p. 40, Defendant’s Evidence 3a) clearly states the value of £100. There is no explanation in the particulars for the additional £60.


a. The Claimant cannot use para 47 of their Witness Statement to add to the particulars of the claim. Additional sums like this have been excluded from previous cases including ParkingEye v Beavis [2015] UKSC 67.



5. There is inconsistency in the Claimant’s Witness Statement. Para 29 contradicts with para 46 over the issue of driver vs keeper liability and the use of POFA. Para 12 states that it is the role of the patrol officers (PO) to issue PCNs, which contradicts with the facts where the PO issued a slip stating “This is not a PCN”.


6. Letters sent by the claimant are also inconsistent. The first letter is titled “Parking Charge Notice, Notice to Driver” The second letter mentions “A Notice to Keeper”.


7. The claimant failed to acknowledge a subject access request under GDPR within 30 days. The claimant only fulfilled the request 1 day after the deadline to file Witness Statements and Evidence.


Lack of Contract Basis
8. It is for the claimant to prove that a contract had been entered.



a. The Claimant’s reference Thorton v Shoe Lane Parking 1971 2 QB 163. In this case, the signage was not found to be sufficient of creating a contract.



b. The Claimant also reference Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 as signs being “the only method” of stopping unauthorised parking. Other methods of enforcement, such as ticketed barriers, are viable.



c. The Claimant’s Evidence FJ2 show a number of pictures of signage around the car park. None of these pictures are legible.



d. The design of the sign on p25 is intentionally hard to read making the less important parts larger than they need to be and making text smaller in favour of unused space.


e. The large sign at the entrance to the car park is implausible to read while driving.



f. In ParkingEye Ltd v Beavis [2015] UKSC 67, the sign was found to be sufficient. The sign in this case was much clearer than it is here.



Lack of Liability Basis
9. The claimant is not clear about whether they are pursing the Defendant with Keeper’s liability or Driver’s liability (see para 6 above).


10. If they are pursing the defendant as a driver it is for them to prove that the Defendant is a driver. The Defendant has no recollection of taking any positive action of declaring to the claimant that they were the driver.



11. If they are pursuing the Defendant as a Keeper, they need to follow the rules set out in Schedule 4 of the Protection of Freedoms Act 2012.



Factual Basis
13. If a contract did exist between the Claimant and the Defendant or the driver, then the requirements were filled. The Defendant purchased a pay and display ticket and displayed it in the car.


a. In para 44 of the Claimant’s Witness Statement, they claim that there is a 10 minute grace period allowed for someone to purchase a ticket and display it in their windscreen. Nowhere on any of the signage is this term stated.



b. The signs states that tickets “must be purchased at the time of parking”. As it is the Claimant who is seeking to rely on it, it must be interpreted against them. This leaves two options:


(i) That the ticket must be purchased before the driver had left the car park premises. In this instance they had not left the premises, and it is for the claimant to prove otherwise.


(ii) That the ticket must be purchased within a reasonable time of the driver leaving the vehicle. If the claimant wishes to claim that 10 minutes is a reasonable time, they must submit their reasoning for doing so.



c. With reference to point 13.b(ii), the Defence submits that 10 minutes is not a reasonable time due to the obstacles created by the claimant (see para 14 below).


14. All the requirements were fulfilled. Any delay in fulfilling is the responsibility of the Claimant so holding the Defendant liable is unjust.


a. There were a lack of instructions on how and where to buy a pay and display ticket.


b. Referencing the Defendant’s Evidence 5-6, none of the machines were visible.



c. With a lack of clear instructions on how to buy a ticket, the Defendant or driver could not be prepared to buy a ticket within a 10 minute grace period.


15. The Defence would also like to highlight the absurdity of the facts of how a £1.40 pay and display ticket came attached with a £100 fine due to it being purchased, allegedly, 5-7 minutes past an unspoken deadline.


The suggestion the claimant has an untoward interest
16. The Claimant has submitted their contract with the land proprietor as evidence (FJ1 p15-23).


17. In schedule 2 of this agreement, it stated that the claimant will keep all income from PCNs. It suggests that there business model is reliant on this income.


18. In paragraph 11 of this agreement, it says the claimant will comply with relevant laws in their duties. It is likely that the use of POFA would have been in contemplation here.



I believe that the facts stated in this Skeleton Defence are true.


Signed

Date

Loadsofchildren123

It is often difficult to gather your thoughts as you are presenting your case.

Personally, I hate doing my own advocacy. I take in as detailed notes as I can and effectively read them out, or at least paraphrase them. A long skele is no bad thing - you can ask the judge if he's read it and if he has, then you ask if he wants you to add or clarify anything. That's if it says all you have to say.

So I'd use it as a crib sheet. But do see if you can reduce its length.

Then all that's left is for you to reply to any new points raised by the Claimant that aren't dealt with in your skele, and for you to make points like "the witness hasn't turned up for x-xamination"

Umkomaas

Still looks overly long. However, .....

1. Is it priority-ordered in terms of the key points you wish the Judge to look at? If the Judge asks you what are your 3 critical points would you be in a position to tell him? Make those your first 3 points in you SA.

2. The 'legal precedents' you are quoting - are you completely familiar with them so that if the Judge asked you to articulate how they impact in the context of your PCN, could you do so? You may also have a legal advocate of the claimant arguing against you on these? Did you include these (and any appropriate transcripts) in your WS?

SavvySavey

Thank you! That's a lot of help!



I'm a little bit worried about the actual day but I think I'll be fine. My plan was take my longer Skeleton that I had wrote before so that I had the information to flesh out points as required/appropriate.


I will try shortening down further, I just can't identify what needs to be kept and what doesn't. For example, do I have to reference the particular parts of the evidence or witness statement in the Skelie?



I can see some parts that could potentially be removed as it is also in the Witness Statement/Evidence/Defence, but just including the brief details of the point in these that I'm referring to makes the arguments so much clearer.

SavvySavey

1. Is it priority-ordered in terms of the key points you wish the Judge to look at? If the Judge asks you what are your 3 critical points would you be in a position to tell him? Make those your first 3 points in you SA.

It's kind of split into 5 key points with headings. I might reorder them in priority though so thanks!

2. The 'legal precedents' you are quoting - are you completely familiar with them so that if the Judge asked you to articulate how they impact in the context of your PCN, could you do so? You may also have a legal advocate of the claimant arguing against you on these? Did you include these (and any appropriate transcripts) in your WS?

I think I'm fairly confident with them. I will brush up on them more thoroughly in preparation (along with everything else in the case). These were not included in the my evidence though. My Skeleton Argument is largely attacking the Claimant's use of these cases (who also didn't include them), and which I had no prior knowledge they would be attempting to rely on this precedent.

Loadsofchildren123

SavvySavey wrote: »

Thanks. So I've cut it down quite a bit. It might still be long but I don't think it is excessively long.



If I was in the judges shoes I think I would find this document useful. It's just under 4 pages with all "IN THE COUNTY COURT" stuff, and is well spread out.



________________________________________________________________
SKELETON ARGUMENT ON BEHALF OF THE DEFENDANT (NAME)
________________________________________________________________
1. [STRIKE]This is the skeleton argument by the Defendant on the above claim made by Excel Parking Services Ltd in relation to a PCN. [/STRIKE] no need for this, it's already in the title



2. The Defendant asks the court to dismiss the claim due to the below grounds:


On a Procedural Basis
3. The claim made via Money Claims Online (MCOL) is broad and unspecific.



a. The Witness Statement by the Claimant (NAME) claims the claim contains “a concise statement of facts” (para. 36). No facts about the nature of the contravention or liability are included.


b. In para 37, the 1080 character limit is referenced as rationale for their brief claim. The claim only uses approximately 645 characters. Additionally, MCOL explicitly allows claimants to submit further particulars [STRIKE]on[/STRIKE] of the claim outside the platform.


c. In paras 38-40, the Claimant relies on previously issued letters. The claimant cannot rely on these as part of their claim. Additionally, these letters are inconsistent and lack detail. I would say they CAN rely on the information in their letters, the whole point of the pre-action protocols is for details to be provided before a claim is issued


4. The claim is for £160 in relation to a charge notice. The Charge Notice in question (Claimant’s Evidence FJ2 p. 40, Defendant’s Evidence 3a) clearly states the value of £100. There is no explanation in the particulars for the additional £60.


a. The Claimant cannot use para 47 of their Witness Statement to add to the particulars of the claim. Additional sums like this have been held to be unrecoverable in [STRIKE]excluded from[/STRIKE] previous cases including ParkingEye v Beavis [2015] UKSC 67. include here information about the recent rulings on this - plenty of info about this on other threads



5. The[STRIKE]re is inconsistency in the[/STRIKE] Claimant’s Witness Statement is inconsistent. Para 29 contradicts [STRIKE]with[/STRIKE] para 46 over the issue of driver vs keeper liability and the use of POFA. Para 12 states that it is the role of the patrol officers (PO) to issue PCNs, which contradicts [STRIKE]with[/STRIKE] the facts ([STRIKE]where [/STRIKE]the PO issued a slip stating “This is not a PCN”).


6. Letters sent by the claimant are also inconsistent. The first letter is titled “Parking Charge Notice, Notice to Driver” The second letter mentions “A Notice to Keeper”.


7. The claimant failed to acknowledge a subject access request under GDPR within 30 days. The claimant only fulfilled the request 1 day after the deadline to file Witness Statements and Evidence.


Lack of Contract Basis
8. It is for the claimant to prove that a contract had been entered into.



a. The Claimant’s reference Thorton v Shoe Lane Parking 1971 2 QB 163. [STRIKE]In this case, the signage was not found to be [/STRIKE]The case provides that the signage must be sufficient to create the contract. In this case it was not.



b. The Claimant also reference Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 as signs being “the only method” of stopping unauthorised parking. Other methods of enforcement, such as ticketed barriers, are viable.



c. The Claimant’s Evidence FJ2 show a number of pictures of signage around the car park. None of these pictures are legible.



d. The design of the sign on p25 is intentionally hard to read making the less important parts larger than they need to be and making text smaller in favour of unused space.


e. The large sign at the entrance to the car park is [STRIKE]implausible[/STRIKE] impossible to read while driving.



f. In ParkingEye Ltd v Beavis [2015] UKSC 67, the sign was found to be sufficient. The sign in this case was much clearer than it is here. [does this belong with a?]



Lack of Liability Basis
9. The claimant is not clear about whether they are pursing the Defendant as [STRIKE]with[/STRIKE] Keeper[STRIKE]’s liability[/STRIKE] or Driver[STRIKE]’s liability[/STRIKE] (see para 6 above).


10. If [STRIKE]they are pursing the defendant[/STRIKE] as [STRIKE]a[/STRIKE] driver it is for them to prove that the Defendant [STRIKE]is a[/STRIKE] was the driver. The Defendant has made no admissionh that he/she was driving [STRIKE]no recollection of taking any positive action of declaring to the claimant that they were the driver[/STRIKE] and puts the Claimant to full proof.



11. If [STRIKE]they are pursuing the Defendant [/STRIKE]as [STRIKE]a[/STRIKE] Keeper, they need to follow thestrict requirements of [STRIKE]rules set out in[/STRIKE] Schedule 4 of the Protection of Freedoms Act 2012. They did not [summarise how, or cross refer to your Defence/WS para]



Factual Basis
13. If a contract did exist between the Claimant and the Defendant or the driver, then its terms [STRIKE]the requirements[/STRIKE] were fulfilled. The Defendant [don't you mean driver if you are not admitting driving?]purchased a pay and display ticket and displayed it in the car.


a. In para 44 of the Claimant’s Witness Statement, they claim that there is a 10 minute grace period allowed for someone to purchase a ticket and display it in their windscreen. Nowhere on any of the signage is this term stated.



b. The signs states that tickets “must be purchased at the time of parking”. As it is the Claimant who is seeking to rely on it, it must be interpreted against them (contra preferentem rule). This leaves two options:


(i) That the ticket must be purchased before the driver had left the car park premises. In this instance they had not left the premises, and it is for the claimant to prove otherwise.


(ii) That the ticket must be purchased within a reasonable time of the driver leaving the vehicle. If the claimant wishes to claim that 10 minutes is a reasonable time, they must submit their reasoning for doing so.



c. With reference to point 13.b(ii), the Defence submits that 10 minutes is not a reasonable time due to the obstacles created by the claimant (see para 14 below).


14. All the requirements were fulfilled. Any delay in fulfilling is the responsibility of the Claimant so holding the Defendant liable is unjust.


a. There were a lack of instructions on how and where to buy a pay and display ticket.


b. Referencing the Defendant’s Evidence 5-6, none of the machines were visible.



c. With a lack of clear instructions on how to buy a ticket, it was impossible for the [STRIKE]Defendant or[/STRIKE] driver [STRIKE]could not be prepared[/STRIKE] to buy a ticket within [STRIKE]a[/STRIKE] 10 minutes [STRIKE]grace period.
[/STRIKE]

15. The Defence would also like to highlight the absurdity of the facts of how a £1.40 pay and display ticket came attached with a £100 fine due to it being purchased, allegedly, 5-7 minutes past an unspoken deadline. Think you should delete this


The suggestion the claimant has an untoward interest
16. The Claimant has submitted their contract with the land proprietor as evidence (FJ1 p15-23).


17. In schedule 2 of this agreement, it stated that the claimant will keep all income from PCNs. It suggests that there theirbusiness model is reliant on this income.


18. In paragraph 11 of this agreement, it says the claimant will comply with relevant laws [STRIKE]in their duties[/STRIKE].The relevant laws in this context must be POFA [STRIKE]It is likely that the use of POFA would have been in contemplation here[/STRIKE], and also the relevant industry code of practice (which it was held in the Beavis casew are akin to legislation in the absence of the Secretary of State issuing regulations under paragraph 17 of Schedule 4 [ideally look for the relevant Beavis paragraph number].



I believe that the facts stated in this Skeleton Defence are true.


Signed

Date

These are my suggestions, it can be shortened - eg take out whole sentences and replace it with something that's in more note-like form

I think the stuff at the start about abuse of process is very weak and a judge is likely to disregard it. Consider just mentioning it and referring to your defence/WS. The real crux of the matter is surely that the driver DID buy a ticket, but just not within the 10 minute grace period, and convincing reasons for that are contained in the WS - so just say that and cross refer to the relevant paragraph of the WS. In the particular circumstances which existed on this particular day, complying with the 10 minutes was impossible. I'd add that the breach (if any) is de minimis and the court should not have been bothered with a claim where a ticket was purchased 5 minutes after the 10 minute grace period ended.

Loadsofchildren123

Look at post #61 of this thread re the 10 minutes
https://forums.moneysavingexpert.com/discussion/5988857/gladstone-solicitors-claim-form-for-parking-ticket&page=4

Loadsofchildren123

SavvySavey wrote: »

Thank you! That's a lot of help!



I'm a little bit worried about the actual day but I think I'll be fine. My plan was take my longer Skeleton that I had wrote before so that I had the information to flesh out points as required/appropriate.


I will try shortening down further, I just can't identify what needs to be kept and what doesn't. For example, do I have to reference the particular parts of the evidence or witness statement in the Skelie?



I can see some parts that could potentially be removed as it is also in the Witness Statement/Evidence/Defence, but just including the brief details of the point in these that I'm referring to makes the arguments so much clearer.

cross-refer it to the specific paras of your WS/Defence. I wouldn't start with the abuse of process stuff, it's weak. The points themselves are valid, but our experience is that the vast majority of judges just ignore them.

SavvySavey

Look at post #61 of this thread re the 10 minutes
https://forums.moneysavingexpert.com/discussion/5988857/gladstone-solicitors-claim-form-for-parking-ticket&page=4

That post is great thank you! Hopefully my day will be similar!!


Thank you for all your detailed comments as well. I'll now be going through and restructuring it. I thought the 10 minutes thing would be more vital as well but all the advice I've read focuses on procedural grounds and abuse of process.



Thank you for these terms as well: contra preferentem rule, de minimi. I had heard them before, but couldn't recall them and couldn't find them again anywhere.

Loadsofchildren123

de minimis

google them both and read up a bit more

Historically, these procedural points whilst good, do not curry favour with the majority of judges. Your time and energies are better spent on real defence points.

think it through logically:
1. keeper, not driver. POFA not complied with in x respects, so claim should fail.
2. If 1 fails, then driver substantially complied with the contract, and the 10 minutes was impossible to comply with and any breach is de minimis; the 10 minutes should be treated as a guide (look at #61 of that other thread); the 10 minutes should be from parking, not entering; the contract terms were vague and should be interpreted in your favour, as per the contra preferentem rule.
That's the crux of it isn't it?
You also argue the case should be thrown out under the procedural points, but most judges will ignore that.