Getting Ready for the Hearing

Umkomaas

The SA should really only be a checklist of the main points of your defence and those key points you would wish the Judge to concentrate on. It just seems a further regurgitation of everything you've already covered in your D and WS. How much time do you think the Judge has to read all of your submissions?

What is your objective in raising Right of Audience? What are you hoping for?

NorfolkBOI

Understood

Given the issues with the paperwork winning is an objective but I do not want a party unconnected with the claimant or solicitors lest they try and put blame on a contractor.

Right of audience is also a possible infraction of the rules and I would like to get them for unreasonable behaviour.

They are using a agent so if they subsequently send a solicitor due to the agent being persona non grata that's another cost for them ongoing.

Fruitcake

You have to be careful challenging right of audience as it might pee the judge off if the opposition's representative is entitled to be there.
If they are not and the case is thrown out, the judge won't look at the evidence and you won't get to have your say.

It all depends on what you want.

Umkomaas

If you get the advocate 'slung out on his/her ear', who do you think will represent the Claimant's case?

If you read most court case reports on the forum, you will find that many advocates are hopelessly ill-prepared, have only received the documentation the day/evening before, have little idea of the detail ........ and you want them disallowed from opening their mouth?

Do have a think about my first question above.

NorfolkBOI

Hmm do think its better to leave that out and then... If the flow goes that way and the rep.is an agent and knows sweet fa.....bring right of audience up from the angle it has denied me the right to find out why x y z was put in the witness statement?

My issue is that many previous claims (same location and date range) have had x contract and all been thrown out.

Now when it comes to me they no have a new truth... that the contract is double signed due to the parking company being a leaseholder..... with no supporting information to that end.

So either all the prior ws where false or this new one is false.

I understand the rationale for right of audience now

If you have to go there you know your case if not send a solicitor or barrister who knows your case...

If joe is pulled off the street to attend he has neither the knowledge or chain of liability to account for that information in the WS or the legal advice that resulted in its inclusion.

Umkomaas

Do you have all the legal points in your head to argue RoA against a Judge, who, as a minimum, will be ensuring the advocate has a 'fair hearing' on his/her RoA?

I've never read one single court case where RoA has won the case for the Defendant.

Yet I've read quite a number where the Judge has been p*ssed off by the issue being raised.

I'm still unsure what advantage you are seeking, especially when weighed against the consequences of finding the Judge in a particularly grumpy mood.

If your Defence is good, even Rumpole of the Bailey has his work cut out!

NorfolkBOI

In the County Court at x

National Parking Enforcement LTD (Claimant)
v

mr/mrs x(Defendant)

Claim no: x

Skeleton Argument of the Defendant for hearing x x 2020

Introduction

1. The claimant National Parking enforcement LTD is a parking enforcement company. They wish to claim £100 charge plus additional costs from the defendant for a parking incident well under 5 minutes in duration. They had previously admitted to the defendant in a letter that they had chosen not to apply a grace period mandated by their accredited trade association the International Parking Community. Instead they declared their compliance null and void due to CCTV evidence.

2. Such evidence along with CCTV requested should have been supplied during the pre-action phase, under the pre-action protocol for debt claims. It was not, and the Claimant being a serial litigator has no justifiable excuse for filing a claim yet withholding information from the consumer, an inexperienced litigant in person, until the hearing is imminent.

3. This skeleton argument covers the Consumer law applicable and other regulatory and legal arguments that apply in addition to the Defendant's own witness statement, and is supplied to assist the court and the parties to narrow the issues. It is also a response to the case law exhibits, photographic and documentary evidence that were suddenly supplied by this Claimant.



Signage Inadequate, Forbidding and unable to form a contract

4. In paragraph 4 of the claimant’s witness statement they state that the signed is “clear and unambiguous”. The defendant disagrees is no evidence of there being a sign with the terms and conditions at the entrance of the car park on the driver’s side and the term mentioning the parking charge itself (and especially the vague added 'costs', which in themselves are objectionable as double recovery - see #7 below) is in the smallest font and cannot possibly be described as prominent. You can hardly even read the version of it provided by the claimant in their witness statement, let alone at distance, and some metres away.

5. In their witness statement they claim the location of parking was “restricted” if so, why was there no sign in front of that bay, the driver’s side of that bay or even a sign conveying its restricted status.

6. In the claimant’s witness statement they confirm that there is no signage on the driver’s side when entering via Earlham road. There is also no contractual signage in front of the bay and not any at all on the recreation road entrance.

6.1 It is entirely possible that the driver could have accessed via the Recreation Road entrance or travelled down Recreation road, then Earlham Road turning to the left which makes viewing a sign on the left hand side unlikely. So in 3 possible approaches 2 do not give a clear view of the first entry sign.

6.2 The small entrance sign is simply an invitation the actual contract is not in front of the bay and it is perfectly feasible that a driver could exit forward or to the right without seeing a sign containing the bespoke terms and conditions.

6.3 The claimant in paragraph 16 their witness statement wishes to incorrectly cite Vine v London Borough of Waltham Forest [2000] suggesting that not reading a sign will not stop a contract from being formed.

In reality, the court of appeal judgement found exactly the opposite and that a contract may not be formed if the signage was not sufficiently prominent as to be visible from the parking spot.

6.4 This judgment is binding case law from the Court of Appeal and supports my argument, not the Claimant’s case:

6.5 This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

6.6 The claimant’s signs are clearly forbidding

6.6.1 The claimant’s witness statement has omitted the large sign that states

“Parking for shoppers only” & “no other parking permitted”

6.6.2 Ergo if a visitor is not a “shopper” for example a taxi driver, collecting a friend or making a delivery they are not offered a license to park, completely different to ParkingEye vs Beavis [2016]. They are clearly trespassers and then only the landowner can make a claim for trespass. This is consistent with the Judgement in PCM-UK v Bull [2016] where DISTRICT JUDGE GLEN para 17

“If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”


6.6.3 On the contract it states “NO PARKING IN PARENT AND CHILD BAY UNLESS ACCOMPANIED OUT OF THE VEHICLE BY A CHILD 12 YEARS OLD OR LESS”

6.6.4 Ergo if you park in that bay without exiting with a child you are a trespasser. If you are not proved to be a shopper you are also a trespasser. In either scenario no acceptance, consideration or intent to form a contract on behalf of the driver.

ParkingEye vs Beavis [2015] is against this claim

7. Whilst the Claimant wishes to rely on ParkingEye v Beavis [2015] in paragraph 13 of their statement. That case is distinguished, as it related to a car park with clear and brief terms, with the most onerous (the charge) the clearest. The only relevance ParkingEye vs Beavis [2015] has on this case is to support my defence, in that

7.1 The ParkingEye vs Beavis [2015] case was for an overstay time for invitation, acceptance, consideration and intent was allowed. In this case the claimant cannot even adhere to their own mandated code of practice or the widely accepted ten-minute grace period. ParkingEye are British Parking Association members so they offer ten minutes on entry and ten minutes on exit so they do not make such meritless de minimis claims such as this one for people choosing not to form a contract.

7.2 Double recovery was not an issue as ParkingEye do not add extra fees.

7.3 The claimant has confused the precedent of ParkingEye vs Beavis [2015] they feel is a carte Blanche to harass consumers with frivolous claims. In reality the judgement precedent is that if all the factors adequate non forbidding signage, clear charge in large font, grace period and all code of practice requirements met and then a fair contract under the Consumer Rights Act [2015] may be enforced. That is not the case in this claim.







No Authority to Enforce Charges

8. In paragraphs 21 the claimant states:

"21. In October my company signed a lease with Bellgold properties LTD to lease the car parks associated with Earlham House Shopping Centre. As my company was now the "landowner" a new form of permission was required. That is why the form of permission dated 23/10.17, is signed by myself as both the "landowner' and as Director. My company is fully authorised to operate and managed a parking scheme on this land."

Whilst I am reticent to assert that the contract dated 23rd October 2017 is a false instrument, I have serious concerns about its use in the claimant’s witness statement.

8.1 The claimant has won a claim (s) against other defendants using the contract dated 2015 on its own. Once such claim was number F9GF1Q63 District Judge Reeves in Norwich.

8.2 The claimant then issued a number of claims using the contract dated the 23rd October 2017. These claims did not mention that this “new” contract was due to a lease they simply proceeded as if this was the main contract. F8GF4Q90 also judged by District Judge Reeves in Norwich, is one such an example of many. This resulted in the claims being found for the defendants due to the 23rd October 2017 contract being presented as the sole “contract” and invalid. Having been signed twice by the defendants representative.

8.3 It is not credible for the defendant to sign multiple statements of truth with professional legal representation. Then loose these claims and subsequently re-write the statement of truth to say that now there is another truth and that is that the claimant is now a leaseholder of the car park and thus the “landowner”.




8.4 There is no contract/lease to support the claimant’s status as a leaseholder on the land owned by Bellgold Properties (now Bellgold Civils) in the claimant’s witness statement bundle. With such a volte-face concerning a previous stated truth its inclusion should be essential.

8.4.1 Any contract supplied should comply with the Companies Act 2006 and have either two authorised signatories from each party or be signed by a director and witness from each company.

8.4.2 The contract must be with the landowner or with an agent of the landowner who must also have a contract with the landowner.

8.4.3 The contract must be with or flow from the landowner and must state they have authority to issue charges in their own name and to issue court claims.

8.4.4 There is no contract supplied that meets the above criteria and no contract that meets the above criteria that flows from landowner to the claimant.

8.5 There is no registered lease on the land registry entry for the car park as is required for a substantial lease. I have attached the requisite land registry entry to this document.

8.6 With no material evidence to support this new truth I have concluded that there is no contractual authority in place and the claimant is issuing claims which are without merit and doomed to fail.

8.7 The Claimant has changed their narrative to simply regurgitate the same previously dismissed paperwork. There is a strong possibility in the absence of evidence that the first statement of truth in claim F8GF4Q90 was indeed correct and the claimant cannot now enforce court claims from the 23rd October 2017 until a new contract is provided.

8.7.1 The claimant has only recently started to routinely issue court claims and given the lack of a lease covering the relevant dates a new contract may not have been in place until claims started to be dismissed in November/December 2019. A possible motivation to alter the witness statement, potentially three years’ worth of unenforceable claims.




8.8 If so then in essence the claimant since the 23rd October 2017 has issued possibly hundreds of claims without merit. A high percentage of these claims would have been paid pre litigation and or default resulting in financial hardship and distress.


Costs and Abuse of process

9 My supplementary witness statement dealt with the fact that to add £60 to a parking charge is an attempt at double recovery because it is trying to cover the 'costs of the operation' twice. The time and minimal costs of sending debt recovery letters must already be part and parcel of the actual 'parking charge', or that sum itself would fail, due to not matching the justification set out in the ParkingEye Ltd v Beavis [2015] case.

“The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin.”

10 In the claimant’s witness statement para 26 they state that their costs have risen. However, this runs afoul of the POFA Schedule 4, paras 4(5) and 4(6) and the Beavis case, which remove any possibility that a parking firm's operational costs are 'additional' costs or loss with this business model. Even if they are stated on the sign circa 40 lines down in tiny font.

11 In this case, the 'debt recovery/damages' term is so vaguely buried in the sign's wordy small print that it is impossible to describe those terms as prominent and transparent, as the CRA 2015 requires. A term or consumer notice that falls at the hurdle of the 'grey list' paras 6, 10 and 14 is unrecoverable (CRA 2015 Schedule 2).

11.1 The claimant uses no win no fee debit collection agencies. Their legal representatives Gladstone have on their website a percentage-based fees structure hence the large number of claims with the same particulars of claim Even if this is genuine legal advice it is not claimable.



Conclusion

12 There is no proof in the witness statement that the clamant has provided to substantiate that they are the leaseholder.

12.1 On the evidence supplied the claimant has simply tailored their witness statement to suit the documentation they have to justify further claims. I invite the court to specify this fact and consider whether to make a limited civil restraint order as specified in practice direction 3C – Civil Restrain Orders Rules 3.3(7), 3.4(6) and 23.12.

12.3 This claim meets the unreasonable behaviour threshold for additional costs.

12.3.1 A claim that is unreasonably made and without merit. The claimant has already lost numerous claims on the 23rd October 2017 contract.

12.3.2 Exaggeration of a claim and/or dishonesty. Re-dressing the failed contract without proof of the new lease. Also attempting double recovery of costs without proof of incurring them.

As per Clohessy v Homes (2003) the defendant should receive Further costs pursuant to civil procedure rule 27.14(2)(g). These costs attached to the trial bundle submitted to court. Both for wasting the defendants and courts time and to dissuade the claimant from such meritless claims in the future

12.4 As of the xth December no written offer to settle has been received and this document has been submitted to the court and the claimants.

13 Signature

Defendant

Signed

Coupon-mad

8.3 It is not credible for the defendant to sign multiple statements of truth with professional legal representation. Then loose these claims and subsequently re-write the statement of truth to say that now there is another truth and that is that the claimant is now a leaseholder of the car park and thus the “landowner”.

'Then lose these cases'

1505grandad

A heads-up - if you are going to file the SA for a Judge to read it might be a good idea to correct several references to "Judgment" where an extra "e" is included.

Control F "judgement" will highlight them

NorfolkBOI

Ok update I lost.

I had DJ O Malley

We went through everything but she was very friendly but not interested.

1) Signage was deemed ok

2) Apparently signage is fair and dandy and any issues with CR act brushed off

3) Complained that the driver should have been there.

4) Saying no parking is just semantics and of no interest and not offering a licence to park is no problem.

5) Was not interested in code of practice breaches

6) Felt 4 mins 20 seconds was sufficient time and that "driver action" was ok reason not to give more

7) Felt that the photos with no CCTV was enough

8) Did not think giving me CCTV earlier was that bad or that it was deleted after I requested it.

9) Thought my assertion there should be prominent signed as per Beavis just a number ie not relevant not having any signs from the drivers position.

10) Was not open to any argument of double recovery and said legal costs are standard I said no but then did not like it

10) Said she has read my supplementary witness statement (did not feel like it) and said every case is different end of

11) But amazingly she allowed them to change their witness statement from previous claims and have no lease to prove it. Apparently "each case is different"

So they now have changed their line from having a contract to operate > Leaseholder with no lease.

The guy from the other side even admitted they did loose the cases.... and then she said of well I am satisfied. WTAF

My request for proof they "lease the land" was considered a serious allegation and with no proof (I said there is no lease on the land registry! She said ok then it must be under 7 years then!!

Why not bring it? Why loose the other cases.... as just a mistake was the answer. MY assertion that either this is true and the others are false or this is false and the others true was dismissed out of hand.

Unbelievable stuff

Not happy and she also refused my request for appeal getting defensive when I said i want to revisit the abuse of process etc (was a bit annoyed at this point)

Even allowed them some additional costs (so about 200) but nocked off a bit due to asked for the CCTV and them not providing it and dis not like it when i said it was not recoverable.

"The £70 i a standard fee under the CPR Sir" when I pushed.

Al felt strange I was given a lot of time but it felt like I was to dissuade others given the comprehensive nature of my documentation ..... Which I was complimented on haha

Even the NPE guy was surprised as he had no answer for it either but she let it. I was worried there TBH he said