Excel claim - defence advice

Troubled42

Hi folks.
Well the hearing was a few days ago and well... it's not over yet.
We made a few notes and here they are;
The judge basically opened up by saying these are 'newer style hearings' and that theres a few areas to explore during the session such as;
- Whether or not there are fundamental flaws in either parties case to be struck out as an abuse of process or procedural irregularities
- Whether either party wishes to conduct a short meditation to resolve the issue
- Whether the final hearing could be dealt with on paper.
- Whether the final hearing could be dealt with on a face to face basis. (Video call essentially)

Judge was friendly and lets be honest i'm totally surprised the C turned up but they did... lets call him Mr X.
Mr X seemed a little nervous over the phone and when the Judge asked if both parties had received the latest court order documents ... there was a long pause from Mr X and for some strange reason he didn't have the latest paper work.
Although it wasn't clarified on the call, it leads us to believe the C has STILL not fully read our defence or WS, even at this stage. It somewhat backs up the fact they didn't send a letter of discontinuation but anyway, slight speculation.
Mr X did admit it was his 'first time' attending a hearing in this format...

 
Somewhat disappointingly the judge had clearly very briefly read both parties WS' and he said there were no obvious infractions by either party... and thus, not worthy of the first option listed above. (i.e to be struck out as abuse of process or procedure error)

I think it's fair to say the Judge hasn't really read much into the case notes because it quite clearly is an abuse of process.

Judge then went onto suggesting meditation for both parties.
The C was happy to go for this but we rejected it.
The offer of a hearing on paper was also coined but we strongly preferred face to face.
The judge then said it was more of a question of submission & argument via audio/visual format and that there wouldn't really be much room for 'cross examination'.

We were happy to go ahead & agree with face to face.

In a nutshell - relative was nervous on the day but was well spoken over the phone to the judge.
The fact the C's rep had no idea what was really going on further excelled our confidence. (no pun intended there)

That's that... stay tuned to whenever we get a date for a video call.

Coupon-mad

Thanks for the update.    Keep going!

Someone should have pointed out to you that a 30 minute hearing is never going to be 'the' hearing.  This was just a case management hearing, a preliminary one to narrow the issues.  Some courts do it that way.

Snakes_Belly

I wondered what had happened and I had my fingers crossed for you. I thought that the most difficult issue would be in communicating the ambiguity of the car park and the lack of signage to someone who has not been there and seen it for themselves. 
  
In my case the Claimant's WS showed photo's of greatly enlarged signs and the images were taken when the car park was empty. The "To Let" signs on the Travelodge wall were made to look as if they were parking signs.

It is disappointing when geared up and focused for the hearing to just be given directions when you are hoping that it will all be over. In my case the first hearing was rescheduled because of lack of time and the judge gave the Claimant directions.  She said that they had not provided evidence that their machine was working and basically told them to put or shut up. I thought that they would discontinue especially as the judge had allocated a further two hours to the case but they came back and there was no offer so they must have thought they had a good case.  I did not see this judge on the second occasion as she recused the case and passed the case onto another judge.   

A similar thing happened on Keep Calms's second case as she had to go back for a second hearing.  She came out of that extremely well.  It did help though that she was not actually parked on the car park.  

I do wonder if these DDJ's get to read the case much in advance of the hearing.  These are the judges that cover a number of different courts. The judge in the directions hearing may not hear your case next time. It could be another judge.

The representatives for the Claimant also receive the WS at the last minute. Were Elms representing?  It could be a different representative next time.       

Keep going. At least you have done all the preparation now.

Best 
Snakes


  

Snakes_Belly

Regarding this car park I came across an incident (with the help of Edna Basher) that relates to a penalty notice as a result of driving through a bus lane. The circumstances are similar to the car park at Derby Street in that there were numerous random signs which distracted the driver. 

The lack of signage on entry to the Derby Street car park has been discussed however there are numerous non-related signs. To Let (which looks very much like Excel's signage), taxi business, sandwich shop, micro brewery, pub, etc. all on the car park as well as the Travelodge signage which is in the same colour as Excel's signage. It creates confusion and the person in the appeal below won her appeal because there was too much "clutter". IMO it's a useful example as the person who received the penalty was a specialist (expert witness) in her field.

"There are so many signs by the bus gate but a little contradiction in the brain means we cannot absorb all the information.

"To consciously process all the information, it may take a few seconds and by that point, you've already travelled 20ft or 30ft down the road."

https://www.bbc.co.uk/news/uk-england-essex-47175357

You could send a copy to the court with a covering letter and request that it is added to the bundle. They may accept it or they may not. You will need to send the Claimant a copy as well.

I gave the first judge some more images on the day that my case was rescheduled. The representative for Excel pulled a face but the Judge added it to the bundle.

This is a car park with a number of businesses operating on the car park,  I think the more evidence that the car park is not a straightforward rectangle where you can see the signage and machines the better. 

We know what a dog's breakfast that car park is but it's communicating this to someone who has never been there that is the difficulty,
  


 

D_P_Dance

IMO, there is n place for mediation against a claimant who is trying to scan you.  The judge surely  needs "further training".

Snakes_Belly

D_P_Dance said:

IMO, there is n place for mediation against a claimant who is trying to scan you.  The judge surely  needs "further training".

From memory this was heard by a DDJ. Small chance that this judge will hear the case next time. They cover a large area. 

Snakes_Belly

I was just reading Keep Calms thread about her first case on Derby Street Car Park for another poster (similar scenario) different car park.

One thing that I think will be very difficult in a telephone interview to get over to the judge is the ambiguity, lack of signage and clutter in the car park. I noticed when reading Keep Calms's thread that she had made a video of the car park. That would really help and I think that you would be able to add this to your bundle as it is not adding a new defence point. I added further photographic evidence. I asked the court first.

https://forums.moneysavingexpert.com/discussion/5919448/county-court-defence-advice-failure-to-park-in-a-marked-bay/p3

Snakes_Belly

Any news on the next hearing? Several other cases regarding the Derby Street car park have appeared on the forum recently. One involves a visitor to the Travelodge the other issues with the demarcation between the Railway car park and the Excel car park.

There are also more bad reviews on trip advisor and some of them do look as if there is an element of entrapment.     

Troubled42

Hi folks.
Thought we'd pop on to provide an update as its been a while.
In a nutshell, we received notification early December that the C had not paid the court fees for the final hearing. We were over the moon and thought the case was over.
Unfortunately this wasn't the case - the C had submitted this but the court did not pick up on this within the correct time.
We had already made alternative plans on the date of the original hearing... so we emailed the court asking them to move the hearing date as it was effectively their error.

As expected, they were more than happy to do this and the final hearing is coming up in the next week or so.
We note that there has been a few more topics on this same car park and we are still overly confident with our bundle.

The hearing will take place via video on Microsoft Teams. I do intend to be with the defendant for this call and during introduction, announce myself as a Mckenzie friend and to not address the court. I can then assist with the paperwork and quietly pass on advice.
We are wondering if you're allowed to mute yourself on Teams to discuss between yourselves but that can be clarified on the day I suppose.
Secondly, another relative is in a spot of bother so I will be posting about that separately.

Coupon-mad

You will probably be encouraged to mute yourself on Teams when the other side is talking, to stop any echo noise anyway.