Submitted Witness Statement and and Draft Order by Email - Judge Unwilling to Strike Out

simplegeeza

I really should have potsted on here earlier, but I have been so busy it's a miracle I have even got this done to this standard.

I am heading to Newport, Gwent County Court for an alleged breach of contract for not displaying a valid permit at one of Excel's car parks. I never recall having a windscreen ticket and didn't receive any NTK to my address before an LBC from ELMS Legal back in Feb - my address commonly misses mail due to confusion with the adjacent properties. I replied to this, asked them to send a LBC that complied with the Pre-Action Protocol for Debt Claims, which they did not do, and instead issued a CC claim around 6 months later. I acknowledged reciept, submitted defence based on the abuse of process template on time, questionnaire etc. The court requested that I state my preference for hearing on papers due to covid, I refused and was granted a cloud video platform hearing scheduled for January 2021. The deadline for the submission of witness statements and evidence was 24th November. I waited as long as I could to submit, as prior to this date, I had received absolutely zero evidence from Excel. I had an inkling they were waiting till the last moment to show their hand. Low and behold, at 4pm on the 24th they sent the witness statament through, around 30 mins after I had submitted my own. Given all I had received was a LBC before this point, my witness statement was very vague, although I covered the main points of abuse of process, landowner conract etc. I genuinely had no idea which Swansea car park they were referring to up to this point - not that it particularly matters as the main grounds of my defence are that the whole claim is tainted by abuse of process for the global sum of £130, i.e. £60 over and above the terms and conditions ststed amount of £70.

Has anyone experienced anything like this? I also when submitting my WS included the pre-liminary matter email submitted by coupon-mad and a word editable draft order, however today I got an email from the Judge saying that this is noted but they cannot conduct litigation by email and they cannot strike it out with a formal application. However, he also said this is not an invite for the defendant to submit a strike out application. Anyone heard of this? Hope I haven't disgrunted the Judge in any way. I have included my witness statement bundle (which includes my defence) as well as the draft order I sent to the Judge and the court's response via Email. What do you think?

simplegeeza

Also I should add there is a square piece of paper in Excel's bundle that looks like my ticket, but they haven't got a close-up of it.

D_P_Dance

Wrong statement of truth?  Have you complained to your MP?

Umkomaas

D_P_Dance said:

Wrong statement of truth?  Have you complained to your MP?

How can a Cilex qualified Associate Legal Executive possibly fail to use the correct Statement of Truth when it's been in play for well over 6 months- and Excel are issuing court claims like confetti.  Oh, I've got it - this is a copy and paste ripped from an old case, and I suspect that Jake Burgess has absolutely no involvement or oversight of this one.  Far from the truth covered by that Statement. 

Coupon-mad

Has anyone experienced anything like this? I also when submitting my WS included the pre-liminary matter email submitted by coupon-mad and a word editable draft order, however today I got an email from the Judge saying that this is noted but they cannot conduct litigation by email and they cannot strike it out with a formal application. However, he also said this is not an invite for the defendant to submit a strike out application. Anyone heard of this?

You won't get a strike out due to the added fake costs these days, since the Semark-Jullien appeal where strike outs for this were deemed draconian by a Senior Judge who (as usual) had no working/regular knowledge of parking cases and was therefore unable to conclude that parking firms KNOW this is an abuse. 

This is covered in the example WS in the NEWBIES thread and I'm surprised you thought it would be struck out now.  Time moves on, approaches change on here to suit.  Anyway forget that, and prepare for the hearing.

simplegeeza

Apologies, I have read the newbies thread but looks like the template defence has changed quite considerably since I wrote and submitted mine back in September. I did use the example witness statement to write mine though - i must have misunderstood. So is the abuse of process defence still valid? From what I can tell the additional charges can be found to be double recovery, but abuse of process requires proof that it parking companies knew that to ask for such sums was unlawful?

Also, could I ask for everything in the witness statement to be thrown out given that it has an outdated statement of truth? That would make all the evidence on which they intend to rely invalid, surely?.

beamerguy

simplegeeza ...... try and understand what Umkomaas is saying above.

The Burgess chappie has for a long time been a huge joke and indeed a huge liability for Excel

It is no wonder that Excel and VCS keep losing in court

Redx

Abuse of process is an objection to the additional charges in a claim , the ones that should not be allowed

Abuse of process is not a defence to the core terms because it does nothing to address the PCN or particulars of claim

henrik777

32. It is settled that individuals may enter into a contract with a sign and reference is made to

Thornton v Shoe Lane Parking 1971 2 QB 163. The sign was the offer and the act of

parking the acceptance of the offer on each occasion. The signage is prominently

displayed on site. The Claimant has done what is reasonable to draw attention to the

existence of the contractual terms and therefore has given sufficient notice of them.

None of those cases has any application to a ticket which is issued by an automatic machine. The customer pays his money and gets a ticket. He cannot refuse it. He cannot get his money back. He may protest to the machine, even swear at it. But it will remain unmoved. He is committed beyond recall. He was committed at the very moment when he put his money into the machine. The contract was concluded at that time. It can be translated into offer and acceptance in this way: the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made: see Olley v. Maryborough Court (1949 1 K.B. 532). The ticket is no more than a voucher or receipt for the money that has been paid (as in the deckchair case, Chapelton v. Barry U.D.C. ...1940 1 K.B. 532), on terms which have been offered and accepted before the ticket is issued.

D_P_Dance

The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. 

Hang on, what about when the T&C are deemed/aopear  to be unfair under consumer legislation or POFA, etc., too high, too low, obscured by foliage, wrong colour, contain unacceptable terms, et. etc., etc.  

AnotherForumite

Coupon-mad said:

Has anyone experienced anything like this? I also when submitting my WS included the pre-liminary matter email submitted by coupon-mad and a word editable draft order, however today I got an email from the Judge saying that this is noted but they cannot conduct litigation by email and they cannot strike it out with a formal application. However, he also said this is not an invite for the defendant to submit a strike out application. Anyone heard of this?

You won't get a strike out due to the added fake costs these days, since the Semark-Jullien appeal where strike outs for this were deemed draconian by a Senior Judge who (as usual) had no working/regular knowledge of parking cases and was therefore unable to conclude that parking firms KNOW this is an abuse. 

This is covered in the example WS in the NEWBIES thread and I'm surprised you thought it would be struck out now.  Time moves on, approaches change on here to suit.  Anyway forget that, and prepare for the hearing.

There is also case law that allows for the recovery of the £60.