Telephone Hearings re parking firm claims - can we all discuss strategy and outcomes here

Umkomaas

Why not give them a call?

nuremburger06

Umkomaas said:

Why not give them a call?

Many thanks, just rang the court and they confirmed they have received everything I sent them.

bargepole

An important update regarding telephone hearings.

Some County Courts are open, for urgent face-to-face hearings, and conducting others by telephone. The Judges will be sitting in those Courts, and will have the case file with them for telephone hearings.

Others are staffed, which means the admin staff and Judges are in attendance, but no access for the public. Again, for any telephone hearings, they will have the case file available.

Some courts are closed, and that means that any telephone hearings will be run by a Judge working from home. For these courts only, it will be necessary to email a full bundle of documents as discussed in this thread.

The full list of open, staffed and closed courts is attached.

gbbe

nuremburger06 said:

Thanks. Do you have a line or para requesting costs for unreasonable behaviour please?

what line did you add for costs?

nuremburger06

gbbe said:

nuremburger06 said:

Thanks. Do you have a line or para requesting costs for unreasonable behaviour please?

what line did you add for costs?

As a result of the Claimant’s unreasonable behaviour - including the false £60.00 added to the claim, which is an abuse of process and a blatant disregard for the Civil Procedure Rules, the Court is respectfully invited to order the Claimants to pay the Defendant’s costs on an indemnity basis and such as are allowable, pursuant to Civil Procedure Rule 27.14(2)(g).

gbbe

nuremburger06 said:

As a result of the Claimant’s unreasonable behaviour - including the false £60.00 added to the claim, which is an abuse of process and a blatant disregard for the Civil Procedure Rules, the Court is respectfully invited to order the Claimants to pay the Defendant’s costs on an indemnity basis and such as are allowable, pursuant to Civil Procedure Rule 27.14(2)(g).

great thanks! did you add anything to the draft court order itself or just the supporting email?

nuremburger06

I added the above to the covering email and in the draft order it was something along the lines of “The Claimant is ordered to pay the Defendant’s costs pursuant to Civil Procedure Rule 27.14(2)(g).”

gbbe

nuremburger06 said:

I added the above to the covering email and in the draft order it was something along the lines of “The Claimant is ordered to pay the Defendant’s costs pursuant to Civil Procedure Rule 27.14(2)(g).”

brilliant thanks! let me know what the court says, fingers crossed!

Coupon-mad

Coupon-mad said:

Looks like we need a covering email that goes with a witness statement/evidence/costs assessment right now, in anticipation of a likely Telephone Hearing but trying (again) to get a strike out instead?! 

Something like this perhaps (not for ParkingEye cases):


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 sent to the Claimant's litigation team.  In the event of directions for a future hearing in person at this court, hard copies will be provided when I have access to a printer.

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').  

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 as widely spread as Southampton, Warwick, IOW, Caernarfon, Luton 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.

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.

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:

(a)  this claim is following the usual oppressive parking robo-claim path, with a very sparse statement of case, later followed by a case made by way of ambush, with a tendency to produce prolix witness statements, right at the death.  This places Defendants at a huge disadvantage, given the first time they see any 'evidence' is at completion of the bundle, and their only chance to point out that large parts of the evidence are completely irrelevant, is at trial.  

(b) the case of JD Wetherspoon Plc v Harris and others [2013] EWHC 1088 (Ch.) is an example of the Court using its power to limit the evidence by striking out large parts of a witness statement for abuse, because it was written by a person with no personal knowledge who recited facts based on the documents he had read.  Similarly, parking charge witness statements contain template legal argument, misleading reliance upon ParkingEye v Beavis and even more irrelevant case law, and are more designed to stand in terrorem of defendants  than to assist the Court in determining the substantive issues.  

(c) Such 'witness statements' lack probative value and are very often created by freelance legal writers and 'signed' (or facsimile 'signed') by a third party who is not a witness in the true sense, and who relies upon misleading and irrelevant extracts of case law and undated, old or 'stock' images of signs, some of which are often not even present at the location in question.  

(d) In my case, I strongly believe that I must be afforded a fair opportunity to rebut the inaccuracies in the 'evidence' re the car park location/event and highlight the  failure to demonstrate a prominent/legible contract, or liability, or legitimate interest.  I am the only local witness, in the true sense, and I believe that, if the claim is to be heard, a decision cannot be fairly made without a hearing in my presence.  If the claim is not struck out, I would prefer a hearing in person once the pandemic lockdown is lifted.  However, I understand that 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.

{Add here if you are currently affected by the pandemic and it would prevent you from accessing justice via a telephone hearing - e.g. if you are ill, vulnerable/alone, were relying on using a lay representative who isn't part of your household, or if you suffer severely from anxiety, have a known issue with telephone reception at home, or are front line NHS, Police, etc.    So, if you are someone who cannot spend any more time on this by liaising with the claimant about a 'shared bundle'  or would be highly unlikely to be able to access a telephone hearing - say so here now and attach a copy of your NHS ID or a letter about your medical condition as compelling proof.}

yours sincerely, 

Your name

Documents appended herewith:
- Draft Order (must be a word document!). Copy this one, change the court/claim no./dates, head it DRAFT ORDER:
https://forums.moneysavingexpert.com/discussion/6082895/court-claim-received-britannia-bw-legal/p2

A single PDF file containing:
- Trial bundle contents page (with page and exhibit numbering clearly set out)
- your defence (in case the Judge does not have access to the case file)
- signed/dated witness statement (and supplementary WS if setting out the abuse of process issue separately)
- Britannia v Crosby & Anor - Approved Judgment (6 page document linked in 'template defence' thread)
- Consumer Rights Act 2015 Schedule 2 (with paras 6, 10, 14 and 18 highighted)
- Supreme Court Beavis case paras 98, 193 and 198 (copied onto a page in full, and give this link too):
https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

- ParkingEye Ltd v Somerfield Stores Ltd [2011] EWHC 4023 (QB)  - (quote para 419 re adding £60 & give bailii link):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419

- the POFA Schedule 4 with 4(5) highlighted plus the link:
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
- photos of the signage showing how unclear it is in the light conditions (use GoogleStreetView if needed)
- the Beavis case (yellow & black sign) shown on a single sheet next to this Claimant's smaller and illegible sign
- other evidence, e.g. your lease or tenancy agreement or proof you were permitted to park (PDT machine ticket)
- other evidence from the applicable version of the BPA or IPC CoP, e.g. the paras on Grace Periods if applicable
- if defending on 'no keeper liability' a copy of Henry Greenslade's words from the POPLA Annual Report 2015
- if defending on 'no keeper liability' transcripts (such as from @adambuzz14 and Excel v Smith from the Parking Prankster - make it clear in your WS that Excel v Smith was an Appeal)
- other case law like Jopson v Home Guard (residential car parks - make it clear in your WS that Jopson was an Appeal).
- see the NEWBIES thread for tips about witness statement and evidence stage...!
- a second witness statement (if someone else corroborates your story/confirms you were authorised, etc). 


NB: To help confused newbies to achieve this, you can copy others.
Some examples of WS and evidence are here:
https://forums.moneysavingexpert.com/discussion/comment/76900527#Comment_76900527

https://forums.moneysavingexpert.com/discussion/comment/77048513#Comment_77048513

Bumping to show I've made some amendments to the above to make it even more robust, I hope, and here is a template Draft Order (an editable Word document to attach for your Judge to use and edit if they agree to strike the case out - yes this is normal court process and no, it won't annoy them, as long as it makes sense in your case):


In the County Court at xxxxxxClaim Number: Gxxxxxxx

xxxx ''Scammers R US Parking'' xxxxx Ltd (Claimant)

xxxxx xxxxxxxxx (Defendant)

DRAFT ORDER

Before Deputy District Judge xxxxxxxxx sitting at the County Court at xxxxxxxxxx.  Upon reading the court file and an email from the Defendant and having applied the court's duty in the Consumer Rights Act 2015, s71 'test of fairness' against the information provided by both parties, 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 the order was served upon that party.
   

REASON

(a) The claim contains a substantial charge additional to the parking charge which it is alleged the driver was contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012 Schedule 4 nor with reference to the binding Supreme Court judgement, which expressly approved the parking charge because it included costs of administration (ParkingEye Ltd v Beavis [2015] UKSC67 - paragraphs 98,193 and 198).  Additionally, s71(2) of the Consumer Rights Act 2015 requires the court to consider the fairness of a contract term/notice, and the inclusion of additional charges falls into examples 6, 10, 14 and 18 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. 

XXXXXXXXXXXXXXXXXXXXXXXX

If the WS has already arrived from ''Scammers RUs Parking'' Ltd, yet they are using a solicitor like Gladstones or BW Legal, or QDR, etc., then also add this reason (b) to your draft order:

(b) It has been noted by this Court that these Claimants have a tendency to produce witness statements which are prolix.  It remains part of the court’s case management function to exercise rigorous control over such statements.  The witness statement of the Claimant is an abuse, in that the factual errors and template legal argument format show that it was, on the balance of probabilities, prepared by the Claimant's solicitor and not by the Claimant.  Further, it is clearly intentioned to act in terrorem of the Defendant and does not stand as a real attempt to assist the court with the substantive facts of the case; ref CPR 32 (1) ''A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.''  This Claimant's witness statement fails to meet the requirements of the CPRs and it, together with the Claimant's bundle, is hereby struck out.
Dated: xx.xx.2020

ryou4me

when and how do you send the draft order? after posting the witness statement?
thanks