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

Le_Kirk

Bilbo_Baz said:

Hi what if someone does not have video or sound capable pc to download skype business app so can not comply with the court to do a video hearing and does not have £225.00 to apply for an adjournment 

Probably best asked on your own thread, however, did you not have a chance to object to a telephone/video/zoom/Skype hearing when the letter came from the court?

Coupon-mad

Bilbo_Baz said:

Hi what if someone does not have video or sound capable pc to download skype business app so can not comply with the court to do a video hearing and does not have £225.00 to apply for an adjournment 

The Defendant would surely be intelligent enough to reply to the Order explaining they can't do that and need a telephone or face to face hearing instead. 

The Order always gives seven days to object...it is simple to do.

Bachelorplace

I have a few hearing questions - I did post in my own thread about this. 
https://forums.moneysavingexpert.com/discussion/6102854/new-one-county-court-claim-for-pcn#latest
1. Can I email the court about my anxiety condition and ask to assign a helper?
2. Can I just refer to my defence outlined herein as to "own words" 
2a. Is there anywhere I can get some assistance as to what to say as "own words" - so as not to muddy waters in defence. 
3. Why do you have to do "own words" when you have filed a full defence explaining the situation?

Le_Kirk

1.  You don't need to e-mail anything to the court, you are entitled to a McKenzie friend (someone who explains things quietly to you and passes you paperwork) or you can have have a lay rep (someone who speaks for you at the hearing)  These two things may act out differently depending upon whether it is a face to face hearing or a telephone/Skype hearing.
2.  Don't know what you mean about "own words" unless you are referring to your Witness Statement (WS).  Your defence cannot be your WS; a defence is a series of technical/legal arguments whereas the WS is a narrative explaining the story of what happened on the day and subsequently.  It should back up and support the defence and provide evidence.
2a  No one can write your WS as you are the witness, i.e. you were there (unless your defence is that you were not driving and are defending as keeper.)
3.  See answers to 2 & 2a.

nosferatu1001

3) A defence is not evidence, is the obvious answer
Courts work on arguments and evidence to back up those arguments. 

BWScammer

Incase anybody is emailing their bundle to the court.  I have emailed mine, including the Order which was in Word, as advised.  I received an email back stating "The Court is not permitted to open documents that are not submitted in the PDF format. Please resend". Just a heads up 

Le_Kirk

I believe it does state that in @Coupon-mad's instructions - use .pdf and you wouldn't want to send a document that could be altered by anybody; not suggesting that anybody would!
ETA Unless of course it is a draft order for the judge to make amendments, such as in the case of the six-point draft order for a set-aside application.

BWScammer

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 third party '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
- 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 [2012] EWCA Civ 1338 - (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

States Draft Order to be in Word....

nosferatu1001

Any need to quote all of that?
Word makes sense for a draft order. Or submit as PDF, and they can copuy and paste. 

BWScammer

Sorry, I just quoted the message. I am only following advice as written on the forum. I had to reformat it and send again. I was just offering some advice for anybody at my stage to save them doing this. No offence intended.