Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

gbbe

perfect! thankyou!

finally putting my bundle together, does this all look okay how its labelled?                            

• Witness Statement                                                                                                                  
• Supplemental Witness Statement                                                                                         
  
• EXHIBIT XX1 – XXXXXs Death Certificate                                                                     
• EXHIBIT XX2 – Protection of Freedoms Act 2012 (Schedule 4)
• EXHIBIT XX3 – Excel Parking Services only sign in the car park
• EXHIBIT XX4 – Excel Parking Services Service Agreement Contract
• EXHIBIT XX5 – PCN Appeal Letter
• EXHIBIT XX6 – XXXXs Blue Badge
• EXHIBIT XX7 – POPLA Annual Report 2015 - Henry Greenslade’s opinion  
• EXHIBIT XX8 – Subject Access Request
• EXHIBIT XX9 – Beavis car park sign
• EXHIBIT XX10 - Excel Parking Services car park entrance sign
• EXHIBIT XX11 – IPC Code of Practice 2017
• EXHIBIT XX12 - Peel Centre ticket machine failure: Excel v Mrs S
• EXHIBIT XX13 – Ambiguous signage Case Law: Excel Parking Services v Cutts 2011 – (referred to in Defence) 
• EXHIBIT XX14 – Judgment and reasoning for refusal to set aside Order: Britannia Parking v Mr C and another 2019
• EXHIBIT XX15 – Abuse of process Case Law: Excel Parking 2020
• EXHIBIT XX16 – ParkingEye v Somerfield 2011 at [419]
• EXHIBIT XX17 – Defendant's Summary Cost Assessment

gbbe

Also do i need to mention the abuse of process in my actual witness statement or reference my supplemental witness statement when i cover it?

Coupon-mad

Just refer to it with one line.

And make sure the summary costs assessment is signed & dated and headed the same as the WS with claim no., etc.  What you are trying to do there is emulate a solicitor's document of the same name (Google it to see) so that if the PPC discontinues before the hearing, you can ask for your properly assessed and documented costs to be granted (minus the hearing attendance costs) and list the unreasonable conduct - in pre- and post-action behaviour - that leads you to believe your costs should be granted on the indemnity bais.

gbbe

I have briefly mentioned Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' do i need to include a copy of the judgement? its not my main case and i am wary i am killing multiple trees for this witness statement!?

47. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

48. This judgment is binding case law from the Court of Appeal.
49. 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

50. Conclusion – no evidence of contravention and the Particulars lack any basis for a claim

Coupon-mad

No, you don't need to attach actual Court of Appeal or Supreme Court transcripts as they are easily accessible to the Judge and are known 'case law'. 

However, your wording should be saying that Excel are known to misquote that case in their WS templates. Search VCS Roch respondent to find out how to word that.  VCS (Excel's sister firm) do this misquote all the time.

gbbe

Coupon-mad said:

However, your wording should be saying that Excel are known to misquote that case in their WS templates. Search VCS Roch respondent to find out how to word that.  VCS (Excel's sister firm) do this misquote all the time.

@Coupon-mad on Roch Ive read:

https://forums.moneysavingexpert.com/discussion/comment/75657819#Comment_75657819

and

https://forums.moneysavingexpert.com/discussion/comment/73971817#Comment_73971817

should I use the argument once the claimant misquotes the case (presuming they will in their witness statement) when i write my skeleton argument? or should i just head it off before they can and put it in the witness statement, something like the below?

47. The Beavis case signs not being similar to the signs in this case at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

48. This judgment is binding case law from the Court of Appeal.

49. 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.

50. Interestingly, the Claimant has been known to often lead the Court to the Respondent's argument in Vine v London Borough and, critically, NOT the ratio of the judgment from Roch LJ that provides as follows: "To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the Recorder might have reached such a conclusion about the appellant's state of knowledge, but he did not do so. The Recorder made a clear finding of fact that the appellant did not see the sign. That finding is not surprising in view of the absence of any notice on the wall opposite the southern parking space and the appellant's distressed state, the reason why the appellant parked and left her car hurriedly. It was the appellant's evidence that she did not see the sign. There was never any suggestion that the appellant was other than a truthful witness."

51.The above (paragraph 19 of the judgment) is quite different from the general presumption that the Claimant often invites the Court to make. It is for the Claimant to show that their signage is capable of forming a contract, of sufficient number to be seen, illuminated where the parking occurs at night, and be clear.

gbbe

Q1 - how do i say even if this doesnt go to hearing because of unreasonable conduct listed in my defence, witness statement and supplemental witness statement please judge award costs on a indemnity bais?

Coupon-mad

The words about Vine look fine!  Pre-empt Excel saying it in their WS and they still will, which will make them look stupid and prove that the WS is a template.

DO NOT put in a COSTS SCHEDULE, please.  we now suggest a signed & dated SUMMARY COSTS ASSESSMENT.

Q1 - how do i say even if this doesnt go to hearing because of unreasonable conduct listed in my defence, witness statement and supplemental witness statement please judge award costs on a indemnity bais?

Have a look at the WS I wrote for @Littlewadie because I think I covered it there.  I seem to recall writing words near the end: 'In the event of a discontinuance...'

gbbe

Coupon-mad said:

DO NOT put in a COSTS SCHEDULE, please.  we now suggest a signed & dated SUMMARY COSTS ASSESSMENT.

Q1 - how do i say even if this doesnt go to hearing because of unreasonable conduct listed in my defence, witness statement and supplemental witness statement please judge award costs on a indemnity bais?

Have a look at the WS I wrote for @Littlewadie because I think I covered it there.  I seem to recall writing words near the end: 'In the event of a discontinuance...'

Great thanks, yes when i have referred to costs i have always called it a summary costs assessment, i will have a look at the witness statement now, and add some words to my W/S thanks!

The end is in sight.......

Umkomaas

The end is in sight.......

That sounds a bit too apocalyptic ....