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Help! DEFENCE due

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Comments

  • It's by 4pm tomorrow.  Two weeks before your Tuesday hearing.   They have the exact same deadline as you.

    Show us your draft of WS and your exhibits list and we can help tonight.  
    Trying to upload my redacted version but says file type not accepted. Tried with pdf and .doc
  • Umkomaas
    Umkomaas Posts: 43,778 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    It's by 4pm tomorrow.  Two weeks before your Tuesday hearing.   They have the exact same deadline as you.

    Show us your draft of WS and your exhibits list and we can help tonight.  
    Trying to upload my redacted version but says file type not accepted. Tried with pdf and .doc
    Neither work now (any more).  Temporary or permanent?, your guess is as good as ours. 

    You can use Imgur, Dropbox or similar third party hosting sites. 
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • Umkomaas said:
    It's by 4pm tomorrow.  Two weeks before your Tuesday hearing.   They have the exact same deadline as you.

    Show us your draft of WS and your exhibits list and we can help tonight.  
    Trying to upload my redacted version but says file type not accepted. Tried with pdf and .doc
    Neither work now (any more).  Temporary or permanent?, your guess is as good as ours. 

    You can use Imgur, Dropbox or similar third party hosting sites. 
    Does this work? https://www.dropbox.com/s/xbueml02dfsgb1e/Witness Statement - Redacted draft.pdf?dl=0
  • If @Coupon-mad @Umkomaas @Le_Kirk et al. can all have a read over and provide any advice that would be really appreciated. Thanks in advance. I plan on sending it via email (same way as I did my defence) tomorrow at mid day (4pm deadline) to both the Court and DCB Legal
  • Umkomaas
    Umkomaas Posts: 43,778 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    26 pages seem to be showing. 

    Sorry, I don't critique court documents. Only so many hours in the day I can devote to this stuff, or I'll be handling my own court case - when Mrs U files for divorce!
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • Umkomaas said:
    26 pages seem to be showing. 

    Sorry, I don't critique court documents. Only so many hours in the day I can devote to this stuff, or I'll be handling my own court case - when Mrs U files for divorce!
    Yeah I don't know how you guys read through so much, its a massive help! Shows 26 pages, the Southampton court judgement is page 20-26. I've just numbered it as page 20 (will change it just for format)
  • Umkomaas
    Umkomaas Posts: 43,778 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Umkomaas said:
    26 pages seem to be showing. 

    Sorry, I don't critique court documents. Only so many hours in the day I can devote to this stuff, or I'll be handling my own court case - when Mrs U files for divorce!
    Yeah I don't know how you guys read through so much, its a massive help! Shows 26 pages, the Southampton court judgement is page 20-26. I've just numbered it as page 20 (will change it just for format)
    Without reading it, I don't think that judgment goes in there any more.  It will be rebutted by use if the Semark-Jullien appeal case which, while not arguing that the principal claim was, or was not, without merit, it made the case that the whole claim should not be dismissed purely because of the added 'double recovery' £60. 'Abuse of process' is now not a viable argument in this context. 
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • Coupon-mad
    Coupon-mad Posts: 155,729 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 18 February 2021 at 12:01AM
    Replace the Britannia v Crosby case with Excel v Wilkinson, as @Nosy has done now.

    https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

    You can say that leave to appeal Excel v Wilkinson case was refused and it was not appealed.  The Judge in question became a Specialist Civil Circuit Judge last year, soon after handing that judgment down.  Dozens of other cases have been struck out at allocation stage in that court area alone, on the back of (now) HHJ Jackson's considered 'test case' (as Judges are calling it). 

    It is relevant to your case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case decided, already more than covers the cost of an average of four automated demands that are fundamental to the business model anyway, and that her conclusion is being echoed by other Judges: ‘I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases’.

    Send a pm to @Nosy to see what he/she has finally put in their WS because I am somewhat busy this week now.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Nosy
    Nosy Posts: 191 Forumite
    Fifth Anniversary 100 Posts Name Dropper
    Hey, 

    This is what i have so far, be sure to clearly check it as its not complete. I have made mention of Crosby case but replaced the exhibit with excel v Wilkinson.



    Abuse of process - the quantum

     

    17.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process see Exhibit 8 –  Approved judgment in Excel Parking Services v Ann Wilkinson (Bradford Court 01.07.20).  Leave to appeal that case was refused and Judge Jackson became a Specialist Civil Circuit Judge last year, soon after handing that judgment down:  ‘I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases’.

    18.     Dozens of other cases have been struck out at allocation stage in that court area alone, on the back of (now) HHJ Jackson's considered 'test case' (as Judges are calling it). This is a crucial and very relevant case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case already decided, as it covers more than the cost of an average of four automated demands that are fundamental to the business model. The conclusion of this case is being echoed by other judges

     

    19.       Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Britannia Parking v Crosby case (Southampton Court 11.11.19) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.  

     

    20.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para

    419):  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

    ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  

     

    21.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both. 

     

    22.     This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit 6), the earlier ParkingEye Ltd v

    Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

  • Le_Kirk
    Le_Kirk Posts: 25,069 Forumite
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    If @Coupon-mad @Umkomaas @Le_Kirk et al. can all have a read over and provide any advice that would be really appreciated. Thanks in advance. I plan on sending it via email (same way as I did my defence) tomorrow at mid day (4pm deadline) to both the Court and DCB Legal
    If you send it the same way as you did your defence, it will end up at CCBC and not the court where your hearing is being held/conducted.  Did the court show you an e-mail address to use on your notice?
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