NON-STOP PCN from Southend Airport ******* Case Dismissed, Now VCS appealing ********

Were_Doomed

Search this forum for Semark-Jullien ... PPCs are selectively using that appeal. The reasoning (and relevant rebuttal) is detailed elsewhere. Likewise the rebuttal for VCS v Ward can be found by searching this forum.

Perhaps someone may reply with links for easy reference.

Coupon-mad

IamWood said:

What fun it is!
The case was heard today via MS Teams. The repressive of VCS kept his lie, saying he still hadn't received my WS even though he acknowledged having received my "certificate of posting" and the screenshot of the original email. I asked the judge to dismiss the case due to the unreasonable behaviour that was denied. The judge ordered me to email my WS to the representative on site (which I complied with) and gave the agent 20 minutes to read. The representative read my WS and sent the judge and me two more pieces of evidence (which would be attached). The judge gave me 15 minutes to read. I read the evidence and stated that I would need more time (for a few hours at least) to do some research on the evidence as a layman of the law. I also mentioned the case is not about the money but the principle as the money was not worth the time I spent on it at all. Finally, the judge criticised the claimant's unreasonable behaviour but refused to dismiss the case. The judge re-adjourned the case for a later date.

VCS v Ward is not about an airport. 
The difference is, the Airport Roads are under statutory control of the Airport Byelaws and/or as public highway under the TMA and should be operated under the statutory framework, not as if they are private (POFA word: 'relevant') land, which they are not.  The Airport Byelaws allow for a car driver to stop for various emergency or other reasons outside the driver's control (read the Airport byelaws; I am not linking them as I don't have them any quicker than your Google can find them and I assume you appended them as an exhibit anyway).  The new PAS232 draft (the will of Parliament clarifying matters and removing the worst rogue practices) that was released for public comment in Sept/October makes it clear that where byelaws apply, byelaws prevail.

Semark Jullien I'm not linked anything about because that's already covered in the WS example in the NEWBIES thread (and in the new template defence as well - all is revealed) and could also be EASILY searched on this forum, ad infinitum.

IamWood

Thank you @Coupon-mad
The judge has asked me to send my updated cost to the court and the claimant. Should I send the extra argument for the 'Semark Jullien' as part of my WS as well?
Thank you very much!

Coupon-mad

Yes, set out a Supplementary Witness Statement to address the new case exhibits introduced at the hearing on (date)

and address them both.

Rjhsteel

I’m in the same boat. My case is due to be heard on the 16th Dec.

IamWood

My case is adjourned this Month. I'm about to send out my Supplementary Witness Statement. Could someone please check if the following is efficient? Thanks!

Supplementary Witness Statement to address the new case exhibits introduced at the hearing on 10 November 2020

 

VCS v Ward

 1.       This case is often quoted by the claimant as assisting their case. However in this instance it actually assists mine. It is further contended that the act of stopping a vehicle does not amount to parking. This predatory operation pays no regard to the byelaws at all. It is likely that this Claimant may try to rely upon two 'trophy case' wins, namely VCS v Crutchley and/or VCS v Ward, neither of which were at an Airport location. Both involve flawed reasoning and the Courts were wrongly steered by this Claimant's representative; there are worrying errors in law within those cases, such as an irrelevant reliance upon the completely different Supreme Court case. These are certainly not the persuasive decisions that this Claimant may suggest.

 Semark-Jullien Case

 2.       Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 3.       The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield

 a. (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

 ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

Coupon-mad

Had you not previously mentioned P/Eye v Somerfield in your defence or witness statement up until this point?  Why do a supplementary WS, you will get them doing one back...not great.  Better to cover such things at trial.

nosferatu1001

It is likely? You said this was in response to Nov, so they DID or DID NOT rely - you know, not a guess?

D_P_Dance

If the judge thought that the claimant's behaviour was unreasonable, imo he should have  CPR27.14(2)(g) costs.  I would press him/her again on this at the next hearing.  Read this

https://en.wikipedia.org/wiki/Reasonability

Members of the public should not be harassed thusly by these scammers. 

IamWood

Coupon-mad said:

Had you not previously mentioned P/Eye v Somerfield in your defence or witness statement up until this point?  Why do a supplementary WS, you will get them doing one back...not great.  Better to cover such things at trial.

Thanks @Coupon-mad

This was to response the last minute document provided by VCS during the hearing in November. Should I hold it and present them in court?