PCN escalated to Court proceedings **EDIT - I WON**

nosferatu1001

Face to face. 

Le_Kirk

Depends how strong your case is on paper.  I would take an adjournment.

D_P_Dance

Ask for it to be postponed sine die as it is quite likely, imo that a lot of these parasites will go bust before the end of this.

Littlewadie

Update.
So, I have only just received my letter from the court giving me my options:
Option 1: The claim could be determined without a hearing, on papers alone (pursuant to CPR 27.10)
but only if both parties agree.
Option 2: The claim could be determined by a hearing conducted by telephone, on submissions alone, but only if both parties agree. If so, the claimant would have to accept hat it could not challenge the Defendant's evidence in cross-examination.
Option 3: If the parties can not both agree on one of the 2 options above, the court will have no option but to stay the claim, with liberty to either party to request a lifting of the stay and request that it be listed for trial, but that the claim would stand struck out automatically if no request to lift the stay was made by 23/03/21

Which am I best doing, it has stated I must do this:
1. The hearing today is adjourned, without setting a new date for trial.
2. The parties must write to the court, sending a copy to the other side, by (14 days), stating which of the 3 options above they would prefer.
3. Liberty to apply. ( not sure what this means for me)
Thanks in advance

BrownTrout

Option 3 is a no brainer......

Littlewadie

Thanks BrownTrout, I wasn't sure if I could just choose option 3 or if it was just available if wither of the other 2 options was not agreed upon, is there a template letter I would need to follow or how would I write this back to the court?
Also I am unsure what to do with the liberty to apply, tried reading up on it but the few I have read describe 3 different types, which one does this fall into or am I on the wrong track, any advice is welcome.
Thanks

Le_Kirk

Littlewadie said:

Also I am unsure what to do with the liberty to apply, tried reading up on it but the few I have read describe 3 different types, which one does this fall into or am I on the wrong track, any advice is welcome.

I found this: -
https://v1.lawgazette.com.sg/2003-10/Oct03-feature3.htm
I took it to mean "you can if you want" object to or apply for the order to be appealed or set aside.  Why would you though if option 3 seems to be the best choice for you.

Littlewadie

Le_Kirk said:

Littlewadie said:

Also I am unsure what to do with the liberty to apply, tried reading up on it but the few I have read describe 3 different types, which one does this fall into or am I on the wrong track, any advice is welcome.

I found this: -
https://v1.lawgazette.com.sg/2003-10/Oct03-feature3.htm
I took it to mean "you can if you want" object to or apply for the order to be appealed or set aside.  Why would you though if option 3 seems to be the best choice for you.

Ah yes that is one of the ones I read, just didn't really know what to make of it.
I guess I just write to the court stating I want option 3? also send a copy to BW too.
 

Le_Kirk

That's what I would do but I think you are bound by the court letter to try to reach agreement with the claimant.  Of course, your agreement will be given if the claimant folds up his deckchair and wanders off into the sunset after agreeing to withdraw his claim!

Coupon-mad

Option 3 is the best, but not one you can just 'plump for'...it depends upon you not agreeing with (1) or (2).  So send this if everything I have put here is true (if not, change it):

Dear District Judge xxxxxxx (name of Judge on that Order)

Re: Claim number xxxxxxxx (claim number copied exactly)
Premier Park v xxxxxxx (your name) xxxxxx

Adjourned hearing from 23/3/2020 - response to Order

I attended my hearing in person on 23rd March at some considerable inconvience to myself and my husband, and the Claimant failed to appear despite paying for, and knowing about the hearing.  I was surprised that the case was adjourned rather than being struck out.  I have now received the Court's Order dated xx/xx/2020. 

My response is as follows and this has been emailed to the Court and to the Claimant's solicitors, BW Legal.  For clarity, I have repeated the options in the Judge's Order:

Option 1: ''The claim could be determined without a hearing, on papers alone (pursuant to CPR 27.10) but only if both parties agree.''
Defendant's response: I do not agree.  See reasons below.

Option 2: ''The claim could be determined by a hearing conducted by telephone, on submissions alone, but only if both parties agree. If so, the claimant would have to accept that it could not challenge the Defendant's evidence in cross-examination.''
Defendant's response: I do not agree.  See reasons below, and I am somewhat surprised that the court has not offered me the same warning (i.e. 'the defendant would have to accept that it could not challenge the claimant's evidence in cross-examination') but that is one of the reasons why I object, because I need to be able to do so, if this meritless claim continues.

Option 3: ''If the parties can not both agree on one of the 2 options above, the court will have no option but to stay the claim, with liberty to either party to request a lifting of the stay and request that it be listed for trial, but that the claim would stand struck out automatically if no request to lift the stay was made by 23/03/21''
Defendant's response:   I agree it must be stayed until a face to face hearing can take place, but only if the claim is not discontinued first, by the Claimant due to the facts (my costs on the claim being awarded against the claimant) or alternatively, struck out by the court, when they firstly consider the court's duty in s71 of the CRA 2015 (see below).

Reasons:
The Claimant and I cannot reach agreement.  The claim has no legal merit. 
I have taken every reasonable step to resolve the matter, from when I appealed in 2014 (twice) through to spending an hour on a wasted Mediation call, and finally when I filed and served my bundle in good time and went to court for the hearing on 23rd March.  This is causing me unnecessary distress and it is extremely upsetting that I am still having to think about this matter hanging over my head, and I urge the Claimant to discontinue.   

Myself and my husband are in the 'high risk' category for Coronavirus and we are self-isolating.  The claimant is already aware of my medical condition and the current situation is causing such anxiety to myself and my family that a telephone hearing, and the email preparation needed beforehand to electronically file and serve evidence if ordered to do so, is not something that myself and my husband can currently attend to, and this would be unfair to a defendant who meets the definition of disability within the Equality Act 2010.  

Further, I do not agree to a hearing 'on the papers' because I need a fair opportunity to be heard if this oppressive case continues.  My witness and I have already signalled our intent, by attending for a hearing once, and we will not let the matter drop or continue unchallenged without our voices being heard in person. 

This claim is following the usual oppressive parking robo-claim path, with very sparse and stylised particulars, later followed by a case made by way of ambush, using a 50-page prolix statement, littered with errors and template legal argument, which is not a 'witness statement' at all and fails to assist the court in identifying the facts of the case.  This placed me at a huge disadvantage, given the first time that I saw any 'evidence' was in March and my only chance to point out that large parts of the evidence are completely irrelevant, would have been at trial.   This was denied to me by the claimant's non-appearance, but our costs for attending were already assessed and known and we expected to be able to claim those costs and that the claim would be struck out.  

I ask the court to review the prospect of applying sanctions against the claimant, including my reserved costs from the first hearing, and to consider the following:

Court's duty under the CRA 2015, s71:
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'), which imposes a duty upon courts in all consumer contract cases, to apply the test of fairness.  

The case files are complete and I have drawn specific attention to more than one breach of the CRA Schedule 2, as explained in my witness statement and bundle.   A term of a consumer contract cannot be considered 'fair' or enforceable in any case, if it causes discrimination under the Equality Act 2010 (ref: section 142: unenforceable terms).

The courts have a duty in s71 of the CRA to consider the fairness of terms once sufficient information is known, and to deal with abuse as part of its case mangement powers.  This is a process that can be applied at any time and certainly before a hearing, as has been shown by the recent actions of courts as widely spread as Caernarfon, Skipton, Southampton, Warwick, the IOW and Luton, who (in the past ten months or more) have continued to strike parking cases out purely due to the sum claimed having a false '£60 contractual costs' added.   In my court bundle I already appended copies of strike-out orders, including one from Warwick court against Premier Park (using BW Legal) that they did not appeal.  I also appended the rationale from DJ Grand at Southampton, summing up why it is 'unfair' to allow such claims to proceed.

Due to this, and to remove an unnecessary burden on the court, instead I invite the Judge to strike this claim out now, due to the Claimant's abuse of process, and to grant my reserved full costs, as filed and served in my costs assessment prior to the March abandoned hearing.

In the alternative, the Claimant is invited to immediately discontinue this meritless claim and give me and my family, peace of mind at this vulnerable time.    

I hope to hear Directions that the claim is struck out for abuse of process and unfair terms, or that the Claimant has filed a Notice of Discontinuance.  Staying the claim is my only preferred option of the three, but to have this still lingering for another year would be unfair on me if the court does not apply its CRA 2015 (s71) duty at a stage when the facts are there to be read.

yours sincerely, 

your name