Court Papers received - draft abuse of process defence

Le_Kirk

If it helps you, then yes of course.  It is strange because they normally send a partially redacted log.  Is your VRM there or is there a near miss for your VRM?

MC12345

Thanks just wasn’t sure if their error is a data breach and if we reproduce it for court wanted to make sure we are not complicit in mishandling data too etc that was sent in error.


They have tried to hide partial data by putting a floating black block over the data in the PDF,but it’s just that, you can select all the data behind the floating black image. So maybe they are doing that all the time , if you select the first line of text and go to the end of the document  you get all data.l and can copy it.

No the vehicle VRN is not there, but my partners old car is so it seems payment has been taken but applied to the wrong vehicle. Tried telling them but they are not listening. Asked them to confirm if that vehicle was in the car park at the same time, which obviously it wasn’t but they say they don’t hold that data longer than 3 months so can’t confirm that vehicle was not in the carpark ! But i can get a letter form the new owner saying they weren’t there at that time.

nosferatu1001

So you can 
- prove payment was made
- due to a simple error it was attributed to a vehciel the claimant knew was never in the car park
- that they now know that payment was made
that any breach is de minimims; the principal reason for the parking contract was fulfilled - payment for the given time

What noone has mentioned is that tidbit that they claim to have a posting certificate for every letter. 
Make them produce it!

MC12345

Hi All,

GF has today received the letter saying telephone hearing on a date towards end of November !! So it gives a bit of time. I have re-familiarised myself with newbie threads and telephone hearing threads and a couple of questions please.

I refer to https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p13

That details sending a communication to the court advising all information WS etc have been sent to claimant and inviting the Judge to discontinue the process and all the relevant attachments.

One of the attachments/items to include it says;

Trial bundle contents page (with page and exhibit numbering clearly set out) - first question is, dont you need to have agreed the bundle with the claimants in order to be able to do this ?

In our case Would it be sufficient in the interests of expediting something to the court to reword the letter saying you are in the process of agreeing the bundle with the claimants legal representatives which consists of the following key points and include

The letter in the above thread

some wording about costs due to unreasonable claim (forget proper wording at the moment).

summary of costs thus far

The draft order

items below quoted from thread above

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

and specific to her case.....

Proof / exhibits of payments made and the list / confirmation from the the claimant sent in error revealing all car number plates showing receipt for a payment of old vehicle registration.

Would that be sufficient ?

I note the letter to the judge in the above link talks about witness statement contents being struck out, so do we need to wait for the witness statements to be received from the claimant before filing this invitation to strike out email to the judge/court?

I was just wondering if there is a way to get the court/judge to do this sooner rather than later ?? in the event the claimant legal firm gladstones wait till the last minute to file their WS ?

Sorry if the questions seem noddy and I have missed a step explained in the threads I have read.

Thanks.

Coupon-mad

OK, as you are nowhere near bundle stage yet (presumably 'not later than' 14 days before the hearing) just don't include anything about the bundle at all.  You are unlikely to see the claim struck out so you don't have to actually do this stage, at all, but beware if any Order says the Judge WANTS to make a decision 'on the papers' because if so, you must object!

MC12345

I have been working on the Witness statement, would appreciate any constructive feedback please. There may be obvious points I have not included but tried to word it so someone with zero knowledge can see what I'm trying to get at. Do I need to inlcude all the technical side of it, in this witness statement (southampton vs etc etc) or is that just seperate as in the already filed defence ?

I see others like chefdave did a WS and then a supplemental one with unfait terms and all the relevant technical and points of law etc.

Thanks

1.       I am XXXXX of address yyyyyyy , The Defendant in this case.

 

2.       On the xx/yy/zz the defendant purchased the vehicle, registration make Rxxxxxx (Mini)

 

3.       On the same date,  xx/yy/zz the defendant sold the vehicle, registration mark ABC1234 (Fiat)

 

4.       On the xx/yy/zz the defendant  parked her Mini, registration mark Rxxxxx (Mini) in the  Marco Island, Huntingdon Street Car Park in Nottingham

 

5.       The Defendant had previously parked in this car park and was already registered to use the pay by telephone service / card service.

 

6.       The defendant attempted to Purchase a ticket to pay for parking using the automated service and added her hew vehicle details to the system as she had previously parked in this car park with her old vehicle (referred to in point 2).

 

7.       The defendant experienced technical difficulties in making the payment but eventually received confirmation she had paid for her parking and received a text confirmation of this. The defendant no longer has this text message.

 

8.       The defendant’s bank statement shows a debit of £4.70 to HX Car Park Management for a payment on the 11th October 2019. – exhibit ED/01

 

9.       The first communication the defendant received relating to the allegation of failure to comply with the parking regulations was the claim form issued 8th June 2020.

 

10.   The claimant failed to send any communication prior to court proceedings.

 

11.   The defendant was not afforded the right to appeal the alleged parking violation

 

12.   Upon receipt of the filed claim form the defendant contacted the claimant’s legal representatives by phone to ask what this was about and that she had not received any prior communication relating to the matter.

 

13.   The claimant’s legal representatives advised that it was now too late to do anything about it as legal proceedings had been commenced and the defendant would have to deal with the court requirements.

 

14.   The defendant then attempted to contact the claimant directly by phone but was unable to do so, as a result the defendant attempted to, and managed to contact the claimant via ‘on-line chat’ facility on their website on the 12th June 2020 – exhibit ED/02

 

15.   Exhibit ED/02 demonstrated that the claimant received a payment from the defendant however it was assigned to the wrong VRN, namely vehicle the defendant sold on xx/yy/zz.

 

16.   The claimant advised they could no longer do anything about this now and the only option is for the defendant to engage with the claimants legal representatives.

 

17.   The defendant made a subject access request to the claimant on the 21st June 2020 in order to see details of the alleged parking violation.

 

18.   The defendant once again contacted the claimant on the on-line chat facility on the 22nd June 2020 [ED/03] In this communication the defendant advised she had not been afforded the right to appeal the alleged parking violation as the defendant had not received any communication prior to notification of the files claim, the claimants did not offer any appeals process.

 

19.   The defendant contacted the claimants legal representatives with a copy of the payment on the bank statement advising this appeared to be a simple mix up could they please discontinue the claim.

 

20.   On the 10th July 2020 the claimant’s solicitors replied and enclosed a list of all vehicle registrations which had parked in the car park on said alleged non-payment date of 10th October 2020. Exhibit [ED/04]

 

a.      Thank you for your correspondence. 

 Please find attached a whitelist showing a search for your vehicle registration at Marco Island, This shows that there was no payment registered under your vehicle on this date.

 We have also attached a further whitelist showing all payments made on this date.

 The charge is therefor valid.

 

21.   The defendant replied to the claimants legal representatives [ED/O5] advising that entry 11 on the ‘white list’ [ED/04-05] of vehicles that paid on the day in question included the defendants previous vehicle which was sold on the xx/yy/zz and was not in the car park - thus demonstrating that a payment had been made but the systems seems to have allocated the record of payment to the wrong vehicle registration number.

 

22.   The defendant has a written letter from registered owner and keeper of her previous vehicle which confirms their vehicle was not in the car park on the alleged parking violation date. [ED/06]

 

23.   The claimant states in their on-line chat [ED/02] that they are unable to verify that the defendants previous vehicle was not in the car park on the dates in question as they no longer hold the data of vehicles which correctly paid with parking regulations and so they cannot confirm that the defendants old vehicle was not in the car park on the day in question.

 

24.   The communication the Defendant sent to the claimant’s legal representatives on the 10th July [ED/05] the defendant advised they felt they had provided sufficient information for the matter to be discontinued by the claimants and/or their legal representatives. The Defendant advised that they felt the claim made the claimant meets the grounds of ‘unreasonable behaviour’ as detailed in the defendants defence;

 

a.       (a) Standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) that any hearing is not vacated but continues as a costs hearing, in the event of a typical Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases, by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  It is noted that a Defendant may ask in their Summary Costs Assessment for the court to award their usual hourly rate for the many hours spent on this case [ref: Spencer & anor v Paul Jones Financial Services Ltd].

 

25.   The defendant advised in the same communication she would happily accept a payment for £400 to cover costs already incurred should the claimant discontinue the claim at this point, failure of the claimant to discontinue the claim will likely result in a claim for costs far in excess of this in accordance with the rights afforded by the defendant as detailed in the filed defence and the unreasonable behaviour the claimant has undertaken in filing this claim.

 

26.   The claimants legal representatives responded to the communication of 10th July on the 3rd August 2020, in the response the claimants legal representatives states;

 

a.      ‘It was only upon receipt of the whitelist that you have ascertained that you made payment for your old VRN, this is not our client's error. The signs on the land state that you must enter your full and correct vehicle registration, you did not and thus accepted the charge.’

 

And

 

b.      ‘For the avoidance of doubt, our client is not making payment to you in the sum of £400.00.”

 

27.   It would appear the claimants legal representatives are not familiar with the recorded on-line communication with the client via online chat facility [ED/02 & ED/03] which clearly advised that the defendant had made a payment and it may have been wrongly allocated by the system to the wrong VRN, instead it would appear the claimants legal representatives are suggesting the defendant is fabricating this defence/payment.

 

28.   The claimant and/or their legal representatives has failed to provide any proof that any communication was sent prior to filing the legal claim

 

29.   Despite the defendant advising they have not been afforded an appeals process due to the claimant failing to send the required communications prior to legal action the claimant has still failed to offer any appeals process.

 

30.   I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Coupon-mad

I'd remove #24 and #25 because it's not unreasonable to file a claim in a case where they had no idea you'd paid for the wrong car. You will never get £400 let alone 'far more' in costs and this detracts from the crux of your case.

This cannot be true. They will have sent a NTK and letters but you presumably, had moved, then they traced you:

10.   The claimant failed to send any communication prior to court proceedings.

 

It's not a parking 'violation' (makes it sound like a criminal offence):

11.   The defendant was not afforded the right to appeal regarding the alleged parking violation event

#27 makes little sense because you only told them this after the claim was filed so you can't argue that they shouldn't have filed the claim and it doesn't appear that they are saying you fabricated it, just that they didn't know, pre-claim.

Change 'the Defendant' to ''I'' throughout.

MC12345

Thanks for the feedback, I am preparing the bundle and have a question, one of the items to include is

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

I have searched for this and found

https://www.bailii.org/ew/cases/EWCA/Civ/2012/1338.html

But I can not find a paragraph 419 about adding £60.

Am I looking at the wrong thing please ?

Coupon-mad

Yes you are looking at the Court of Appeal stage.  You need HHJ Hegarty's decision at the High Court, the level before that.

I can always locate it by searching 'ParkingEye v Somerfield swarb' then that takes you to the Swarb resource, where the CA one you found presents itself at the top but the QB decision from HHJ Hegarty is underneath it with another bailli link.

I've made a mistake wherever I put that it's the CA decision, because it's the High Court QB one.  Where did I post that, please, exactly?  I need to change it to the right citation.

MC12345

Coupon-mad said:

Yes you are looking at the Court of Appeal stage.  You need HHJ Hegarty's decision at the High Court, the level before that.

I can always locate it by searching 'ParkingEye v Somerfield swarb' then that takes you to the Swarb resource, where the CA one you found presents itself at the top but the QB decision from HHJ Hegarty is underneath it with another bailli link.

I've made a mistake wherever I put that it's the CA decision, because it's the High Court QB one.  Where did I post that, please, exactly?  I need to change it to the right citation.

Thanks, it's in this link post on 3rd May 2.49pm, you need to click show previous quotes at the top

https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p13