County Court Claim Received - Daughter was the Driver

Redx

Great stuff , Another one bites the dust !!

Le_Kirk

Well done, a notable success.

nosferatu1001

Good going
Did you get your costs, if any?

beamerguy

Well done

What was rhe reason from the judge
What is the name of the judge and which court and case number
PLEASE

Did you get costs

Coupon-mad

No chance of costs with some Brighton Judges!  I will post a court report as it was me in the chair, with this OP watching by video.

Umkomaas

Looking forward to that. Well done everyone. 🥂👏

Coupon-mad

COURT REPORT -  F4GM1D5P:  Civil Enforcement v x - another win but still no costs from Brighton/Lewes

This was my first CVP (video) hearing.  Background:

Case had been adjourned from March and concerned a P&D car park at Polegate, where this OP's daughter was driving and made endeavours to pay and believed she had successfully paid after three calls to a line that kept cutting off - but finally said 'successful' in a recorded message - so she went and caught her train. All the evidence points to a Phone & Pay app failure.  

This OP appealed and lost at POPLA (wrongly) so here we were before DJ Henry, a no-nonsense female Judge. I liked her!

A paralegal young girl appeared for CEL, who she works for.  After some discussion from DJ Henry who was unhappy with Miss Paralegal's  RoA, the Judge decided to crack on as I was a lay person (with RoA) and so it was a level playing field, to her mind. 

I said I was OK with that as it was clear we'd win as soon as the DJ said with arched eyebrows: ''yes...I've read your papers...'' to Miss Paralegal.   And anyway I knew we had enough to win on 5 points, which were:

1.  Non-adherence to the rules and Orders of the Court

- Defective POC (Breach of CPR 16.4) - their statement of case didn't even say how much the parking charge was, just ''debt and damages = £182'' and claim form signed by Civil Enforcement (claim was filed over a year ago, before Scott Wilson joined CEL from Wonga) - breach of PD22;

- abuse of process/double recovery, adding the costs twice;

- CEL had not complied with an Order dated 27th June which required them to supply an electronic bundle to this OP.  They'd emailed it to the Court but not the Defendant...DJ said 'it's the same bundle'  (*see #5 - it wasn't*!).

2.  Frustration of contract and no breach of terms. 

The signs said there were 4 steps to phone and pay and the driver had complied with all steps.  This OP had put in a very impressive and  comprehensive defence, WS and exhibits including the daughter's phone records showing the calls she made and all sorts of useful exhibits.

Plus CEL's own evidence showed no payments at all had been made by phone between 9.55am and 8.20pm for that site - a busy central car park near the station - on a Saturday.  Daughter had got a recorded message on her 3rd attempt saying the transaction was ''successful''. 

This OP had put in evidence the AWFUL Trustpilot reviews for Phone & Pay that backed up the likelihood of the app failing. 

CEL's records had nothing from Phone & Pay except a document marked 'failed' next to what looked for all then World like a complete set of successful inputs by the driver.  So the app had failed, then, and so had POPLA.

3. Wrong Defendant and POFA failure

This OP (keeper) was not driving and CEL knew that 2 years ago from her first appeal, as well as knowing that the NTK had not been received (at all).  She'd appealed and then lost at POPLA following receipt of CEL's second letter.  Even if the NTK had been given it would have been a day too late because of the May Bank Holiday, so as a matter of fact and law, this OP couldn't be held liable and CEL should have checked their dates and known that.  So should POPLA but we know they can't count to 14!

4.  Useless signage with £100 hidden in tiny writing and the entrance signs turned away from the entrance and hidden behind large hoardings.  Parking event happened in May 2018 but CEL's photos they put in evidence were from over 3 years earlier, Feb 2015.   This OP had taken some pics in 2019 for this defence and the signs had changed (no idea when) but both sets of evidence showed rubbish signs insofar as adequate notice of the 'penalty' is concerned.  Another POPLA fail.

5.  No landowner authority.

Paper witness statements had been exchanged back in February in preparation for the March hearing that never happened.  The Order that CEL failed to comply with for this CVP hearing said they had to send an electronic bundle to the court last week and copy us in.  As I said above in (1) they had not copied us in and the Judge knew this from me and had said the bundle was 'the same' as the papers she had in front of her. 

So it came as something of a surprise when I said that our 5th point was neither Scott Wilson's WS nor the exhibits included any evidence of landowner authority (at all) and on the BoP, I said that CEL had none.  I invited the court to refer to the Simon Clay v CEL case that this OP had put in her evidence back in Feb, and find that the contract either didn't exist or was likely to be with Creative Car Parks, the wrong company. 

Sharp intake of breath from Miss Paralegal who pointed out that CEL had included the landowner contract by adding it into the electronic bundle to the court 48 hours before this hearing...and hadn't shown us a copy due to 'sensitive' info..!   

I remarked ''That is too late.  You can't exclude evidence from the Defendant and add secret new exhibits now, but we should leave this to the learned Judge...''   I then asked the Judge if she wanted me to expand on any of our five points - she didn't.  She had been writing everything down and seemed quite happy with it all.

The above took just 25 minutes (hearing listed for 1.5 hours so I think DJ Henry was happy to see a prospect of an early lunch!). She cut to the chase, and told Miss Paralegal that their claim must fail because she agreed that it was clear the driver had made every attempt to pay and believed she had, and for this reason on the BoP the app had failed, and the appeal should have been accepted at the outset in July 2018.

She said she wouldn't make a finding on signage but did agree the £100 was in tiny text on the evidence before her (2015 versus 2019 photos).   But she couldn't be sure what the signs looked like in 2018

She agreed there had been non-compliance by CEL with the court processes but she didn't give Miss Paralegal a hard time over it.  Didn't mention POFA.    Some Judges are not so keen on that...they prefer the facts of the case, first.

Summed up and declared with a steely gaze that ''this is small claims and I won't allow any costs''.  We get this a lot in Brighton/Lewes.

She wasn't to be argued with so in spite of clear evidence of unreasonable conduct by CEL throughout, including ignoring the rules & Orders of the court and slipping evidence into the court but not us, 48 hrs before trial, I didn't argue.  This was partly because the OP had only emailed her costs to CEL that morning and because I've found some Brighton/Lewes Judges are adamant that costs are a no-no so I'd have got nowhere.   You can't argue sometimes, even though not allowing fixed £95 attendance costs is wrong..

Anyway 1 - 0 against CEL - ANOTHER ONE BITES THE DUST!

Redx

well done , and yet another dismal failure for POPLA !!!

as I said the other day on another thread, these people are inept !!! , all of them, CEL , POPLA and these paralegals etc, they are clearly not receiving correct supervision or oversight

Umkomaas

Thanks for the great report CM, as usual comprehensive and extremely well written. I felt that I was almost there watching.  

Another win chalked up for you as a Lay Rep. Are you going to show the notches on your belt (almost said 'headboard', but thought that might be the wrong word! 🥴) in your signature - à la bargepole?

D_P_Dance

They have wasted your time, consider wastinh some of theirs.  Read this

https://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim