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

henrik777

If a claimant is being difficult or just plain ignoring you, send your own bundle. Include their stuff, obviously, but also a note to say that's all they've sent you and the reason you've had to send your own, as is, bundle.

Coupon-mad

Yes indeed.   

This thread is all about being proactive, whether you have a telephone hearing order yet or whether you are just at WS & evidence stage and are trying to pre-empt it.

If a claimant is being difficult or just plain ignoring you, send your own bundle. Include their stuff, obviously, but also a note to say that's all they've sent you and the reason you've had to send your own, as is, bundle.

That advice is worth repeating, given that we've seen Gladstones not want to play ball and do the work needed.  If Defendant's just assume all is OK and/or let Gs get away with that, then neither party will have their bundle in front of the Judge.

Johnersh

OK my thoughts on this, having just prepared for and completed a complex piece of litigation using an e-bundle (in my case by video) 

1. Telephone hearings are much harder. The concentration is higher and you lose the ability to see if your points are "hitting home" 
2. Speakerphone is essential so you can access your e-bundle or paper copy. Alternatively, use (ideally wireless) headphones on a mobile as that optimises your ability to hear and places the mic close to you. 
3. Since the PPC spend no time on cases they won't prepare a decent bundle. Do it for them and get the judge working from your indexed and paginated pdf. It really helps if page 1 of the pdf is the same as the pagination in your documents (the judge can type in a page ref in the toolbar and it goes straight to the relevant document) 
4. For God's sake, if you've got a printed copy do ensure it mirrors that of the judge.
5. Word copies of the order and any skelly can be sent separately. Don't be afraid to email in advance and ask if the DJ can access links or even a secure Dropbox if the pdf is too big. Many will. 
6. The party with the legal representative is responsible for booking the call and recording. 

bargepole

Johnersh said:

6. The party with the legal representative is responsible for booking the call and recording. 

I had a video hearing at Reading this week, and it was all arranged by the Court.

They sent out a link with instructions and a PIN, then the Usher emailed the parties asking them to log in when the Judge was ready. We didn't need to file any electronic bundles, the Judge was sitting in chambers, and had access to the court file of papers previously filed.

Johnersh

@bargepole interesting - there really has been some variation between judges and courts!   Clearly that arrangement only works when they are in chambers/with ready access to, which won't always be the case. 

Coupon-mad

Bargepole posted a full list of courts and whether they are suspended or not, on p10 of this thread.

Sohail12345

Coupon-mad said:

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:


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):

- ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 - (quote para 419 re adding £60 & give bailii link):

- the POFA Schedule 4 with 4(5) highlighted plus the link:

- 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:

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 xxxxxx

Claim 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

Very helpful. Will look to use this for mine. 

Umkomaas

Bargepole contributed the following to another thread which I think is apposite to this one too.

The following are the guidance notes sent out by Reading County Court, but will apply to any type of video hearing:

NOTES FOR PARTIES TAKING PART IN SMALL CLAIMS OR OTHER HEARINGS BY CVP IN THE COUNTY COURT AT READING/SLOUGH/HIGH WYCOMBE

The following notes are intended to help you to get ready for the hearing and ensure it is as effective as possible.

1. Getting ready beforehand:

a. The Court will have sent out a Directions Order after you submitted your Directions Questionnaires, as well as more information about this video hearing. Read all the orders from the Court and make sure that you have complied.

b. The Court will not be able to read things that you hold up to the screen, and is unlikely to be able to accept documents sent over by email during the hearing. The Judge has to complete the hearing in the time allowed, as there will be another hearing after yours, so he or she needs to read everything in advance. Unless you send all the documents you want to use (including written witness statements saying what you and your witnesses are going to say) to the Court and to the other party beforehand, it is likely that the Judge will make a decision without using that evidence. During the Covid-19 pandemic, the Court will accept all documents by pdf attached to an email, and we expect (or may order) all parties to send documents that way if possible.

c. Make sure that everyone who needs to be “at” the hearing has the link to the Court and is ready on time. That means being ready at least 15 minutes beforehand, possibly more. This includes all advocates, witnesses, parties and interpreters.

d. Where professional lawyers are involved, the advocate will need to speak to the party and any other witnesses beforehand. We strongly urge you to do this by video-link, so that in addition to “meeting” each other you can check that their video and sound works.

e. Witnesses need a copy of the (bundle of) documents for the hearing, and their witness statement. Because of the way that some lawyers work, the witnesses may only have seen their statements through a link to the lawyers’ case management system, which will probably now be out of date. Make sure that everyone involved has a pdf copy of all the documents being used for the hearing.

f. Photographs in bundles need to be high-quality colour copies. In a video hearing there is little chance of passing a better quality copy to the Judge during the hearing.

g. If you need to play a video or sound recording during the hearing, you must contact the court well in advance to make arrangements for that.

2. Making sure the technology works.

a. The Court has found since the use of CVP for small claims trials was introduced on about 20 April 2020 that it takes a while to get everyone

Guidance for Small Claims CVP hearings – Final 12 May 2020

properly set up for the hearing, with their cameras and microphones

working. There have been instances where people have "practiced" with one

machine and then tried to use a different one, perhaps without a camera, for

the hearing.

b. Please, therefore, ensure that the machine you are using has a good,

consistent internet connection. Poor quality/intermittent internet means

that sound and/or video "lag" and you will not be able to follow the hearing

and the Judge and other parties will not be able to follow you when you

speak.

3. Set up in a quiet room where you will be free from interruption.

a. Small Claims Trials are in “open court” so there is no objection to other

people being there to watch, provided that they remain quiet and only

observe. However, the room you are in needs to be treated as if it were part

of the actual Courtroom. You will not be able to concentrate on the hearing if

there are people coming in and out or if there is music or some other

distraction in the background.

b. If other people interfere with the hearing the Judge may well have to stop

the hearing, or possibly just exclude your link. In either case there could be a

decision made without further input from you and/or you could be ordered

to pay the costs of a wasted hearing.

c. Try not to sit with a window behind you, as the other parties and the Judge

will find it difficult to see your face, and you may also find it difficult to see

the screen.

4. It is a contempt of court to record a court hearing without permission. The Court will

be recording the hearing if you need a copy afterwards. You must not record either

audio or video of the hearing yourself.

5. When you tell us about your case, it is important that there is no-one “helping” you

or giving you tips about what to say, unless that person is doing so as your McKenzie

Friend or representative. If you want someone to help you during the hearing,

please ask the Court well in advance for a form for your proposed helper to

complete; this must be sent back to the Court no later than the day before the

hearing. If you have a McKenzie Friend, that person can help to remind you of points

to make or questions to ask, but cannot speak to the Judge directly unless given

permission by the Judge and cannot help you when you are being asked questions. If

you have a representative, that person can speak to the Judge.

6. When you are giving evidence, the Judge needs to hear about the case in your own

words and not from your McKenzie Friend or representative. You are not allowed to

be told what to say when you give evidence in court, and exactly the same rules

apply to a video hearing. If someone else is telling you what to say that might make it

difficult for the Judge to believe you, and might have very serious consequences.

7. Video hearings are tiring for everyone involved because of the need to concentrate

even more closely than usual. If you need to have a short break, let the Judge know.

8. Please remain quiet when other people are speaking. The technology for video

hearings does not handle several people speaking at once well. If you interrupt you

will disrupt the hearing. The Judge may ask everyone, or just some people, to

“mute” their microphones, and may also decide to mute some people. It is better

just to make a note and say what you need to say later. The Judge will always do

their best to ensure that everyone gets a chance to say what they need to say. If the

Judge has muted you, please raise your hand or wave, so that the Judge knows you

want to speak.

Le_Kirk

If you want someone to help you during the hearing, please ask the Court well in advance for a form for your proposed helper to complete; this must be sent back to the Court no later than the day before the hearing. 

Really, why is this different to normal court where you can just turn up on the day to be a lay rep?

Umkomaas

Le_Kirk said:

If you want someone to help you during the hearing, please ask the Court well in advance for a form for your proposed helper to complete; this must be sent back to the Court no later than the day before the hearing. 

Really, why is this different to normal court where you can just turn up on the day to be a lay rep?

That crossed my mind. I wonder if it's something to do with setting up a discrete link to the LR, particularly if he/she is not a household member, where lockdown regulations would preclude them physically sitting alongside the Defendant, as they would in a real courtroom. Just my best guess!