Help, got until 24th November to submit Defence for VCS

Leviathan747

Coupon-mad said:

Oh dear, this still looks like it's going to a paper hearing then.  What a disaster...

Could I ask what makes you think that CM?

Leviathan747

Coupon-mad said:

Can I clarify:
1.  Did you get their WS and evidence and did it arrive before yours, so that you had time to rebut theirs?
2.  Did your bundle already include a supplementary WS about the abuse of process, and the Soton judgment?

1. Yes.
2. No. Is it too late to include them in the email to the court?  I have until 12 noon on 27th to notify them in writing that I disagree with a hearing on papers.

Redx

seems to me that they filed 10 says before the lockdown and failed to take note of the new order that has been issued more recently

nosferatu1001

2) no, it's not too late. Do so. Why wouldn't you add to the file when you know you've got time?
a hearing on papers has, historically, been terrible for all of us. 

Leviathan747

Redx said:

seems to me that they filed 10 says before the lockdown and failed to take note of the new order that has been issued more recently

Not following Redx, could you say a bit more?

Leviathan747

nosferatu1001 said:

2) no, it's not too late. Do so. Why wouldn't you add to the file when you know you've got time?
a hearing on papers has, historically, been terrible for all of us. 

Because I don't know what's allowed dude.  Will do so tomorrow  If I add it to the PDF of my bundle - do I have to draw attention to the fact that I've done this in the email to the court (which I will be CCing VCS in to)?  I guess I will, because it's not in the physical bundle they've got already, so will have to give them a heads up that this one has more information.

And I understand the historical loss rate is high on paper hearings!  And whilst I'm doing my best to get out of it...I'm also of the mind, what will be, will be.

Coupon-mad

Leviathan747 said:

Coupon-mad said:

Oh dear, this still looks like it's going to a paper hearing then.  What a disaster...

Could I ask what makes you think that CM?

Because you said you have an Order suggesting it - so the court wants that - and

 I have until 12 noon on 27th to notify them in writing that I disagree with a hearing on papers.

That's good.  You MUST seize your moment and it is this week, but let's get this right.

You need a Draft Order like the one @gbbe has been working on, and that must be a WORD DOCUMENT that the Judge can edit and use if he/she agrees that this case should be struck out with no hearing.

And you need the Southampton Approved Judgment, and the POFA, the CRA and the April judgment against VCS (Caernarfon) that I posted in the thread by @Janetx tonight:

https://forums.moneysavingexpert.com/discussion/6090581/fluttering-parking-ticket/p10

She is at the same stage as you (different facts case but still the same stage) and this has already been said to her and to gbbe and @Chefdave to name a few, so do read their threads tomorrow, in detail.  This has been done and lots has been written that you can just copy!

In your covering email, use some of the words from my suggested email in the Telephone Hearings thread, about the court having more than sufficient information to activate their duty under s71 of the Consumer Rights Act 2015...etc.

And grab/adapt as well, the (a) and (b) reasons that I put in that example email, about why a hearing 'on the papers' is not fair on consumers against parking firms.

Show us first and take a couple of days over it.  You need to get this right, especially if your WS and evidence so far had just the story of what happened and nothing about the abuse of process (how was that missed, it's been the main thrust of defences and WS here for the whole of 2020 and longer).

Leviathan747

Thanks CM.  Will have a bash at that today.  Abuse of Process has been discussed on our WS on Pg 18, Post 5, Points 20-34 here: https://!!!!!!/2Kig9i1. 

Here's my DRAFT ORDER: 
General Form of Judgment or Order                                In the County Court at Sheffield

                                                                                              Claim Number: XX

                                                                                              Date: 27 April 2020

Vehicle Control Services Ltd                                                1st Claimant Ref: VCS 16509630

XX                                                                                        1st Defendant

Before District Judge Bellamy sitting at the County Court at Sheffield, The Law Courts, 50 West Bar, Sheffield, S3 8PH on XX 2020.

IT IS ORDERED THAT

1.       The claim is struck out as an abuse of process

2.       This order has been made by the court of its own initiative without a hearing pursuant to Rule 3.3(4) of the Civil Procedure Rules 1998 and a party affected by the order may apply to the court to have it set aside, varied or stayed not more than 7 days after the date that order was served upon that party.

REASON

The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay.  This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the judgment in Parking Eye v Beavis, which expressly approved the parking charge because it included costs of administration.  Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term and the provision for additional charges falls into examples 6,10 and 14 of the indicative list of unfair terms in schedule 2 of the Act.  It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

Dated: XX 2020

 

Snakes_Belly

On the positive side this car park has featured on here before and the judge could be familiar with the issues. 

Leviathan747

Covering email, pretty much as original, with minor tweaks:

Dear District Judge xxxxxxx, 

Re: Claim number xxxxxxxx - hearing date set for xx/xx/2020
Important Preliminary matter and Witness statement and evidence from the Defendant
(served by email due to COVID_19 measures)

I am the Defendant.  The appended witness statement and evidence bundle, as well as this covering email, has also been CCd to the Claimant's litigation team. 

Preliminary matter
I am aware that there is more than sufficient information available in this case to activate the court's duty, as set out in s71 of the Consumer Rights Act 2015 ('the CRA').  This parking charge claim has been deliberately exaggerated to reach a global sum of £160 despite the Claimant and their legal advisers being well aware by now, that such a sum is unrecoverable in parking charge cases because it is an attempt to go behind case law and statute law, and taints the entire claim.  As such, the Defendant draws attention to the Claimant's continued 'forum shopping' and their clear intention of finding victims who will pay in full without defending, or a less than competent court to allow them to claim a sum far higher than they can lawfully recover. 

Further, there has been no serious attempt to comply with the CPRs and the Claimant's incoherent, stylised particulars do not constitute compliance.  These cases unnecessarily delay and clutter court listings and represent a contemptuous and significant abuse of process.

The CRA imposes a duty upon courts in all consumer contract cases, to apply the test of fairness in s71 of the CRA and I draw specific attention to more than one breach of CRA Schedule 2, as explained in my witness statement.   Due to this, and to remove an unnecessary burden on the court, I invite the Judge who may at this stage be considering an Order for a Telephone Hearing or adjournment, to instead exercise the court's case management powers pursuant to CPR 3.4, to strike this claim out without a hearing in any format.   

This has already occurred in multiple parking claims in recent months, with duplicate reasons used by Judges sitting at courts are widely spread as Southampton, Warwick, IOW, Luton, Caernarfon and Skipton.  Failed applications with hearings attended by two barristers acting on behalf of parking firms have taken place at Skipton (February 2020, before District Judge Faye Wright) as well as at Southampton, before District Judge Grand.  I refer to my exhibit transcript of the Approved Judgment in Britannia Parking Ltd v Crosby and Anor (11/11/2019) which pays regard to the Supreme Court binding case law and the duty on the courts to invoke s71 of the CRA. EXHIBIT J and attached again above.

To assist with the efficient disposal of the case, I attach an editable (Word Document) Draft Order.

For the avoidance of doubt, should the court decide against striking the claim out, I am not in agreement with the case being heard 'on the papers' because in parking cases such as mine, I strongly believe that it is important that the consumer's voice is heard to rebut the inaccuracies in the 'evidence' re the car park location/event and the lack of a prominent contract, liability or legitimate interest.  When the Judge takes on the unenviable task of reviewing the vast amounts of template cut paste paperwork and undated 'stock' photographs this Claimant is known to file, I need a hearing to give me a fair opportunity to respond. 

If the claim is not struck out, I would prefer a hearing in person once the pandemic lockdown is lifted.  However, to formally ask for an adjournment would be at a disproportionate cost which is not an option for me so I await the court's Order and Directions.

Yours sincerely, 
XX