PCN Request for disclosure

Coupon-mad

We know the track allocation of parking cases under the £ ceiling = small claims, without a shadow of doubt.

StudentatLaw

Coupon-mad said:

You also don't need an extension.  Trust us.

Everything you need is covered in the template defence.  I'm not legally trained but as long as you add the facts that the Defendant DOES know - e.g. what sort of car park this is, and if known, whether it was dark/a fluttering ticket case/that they were permitted/maybe just dropping a passenger off for mere minutes/if they know they were driving, or alternatively if they do not know anything about the event and 'put the Claimant to strict proof' then that will cover it.  

You will see that the wording of the template defence has sufficient admissions and denials of the allegations in the Particulars, to pass as a defence and get to witness statement and evidence stage in the Spring, even if the Defendant ends up saying in #3 of this defence that they have no idea about any facts, have been ambushed with this claim without any information having been served with the supposed Letter before Claim and deny that the Claimant is entitled to any relief and put the C to strict proof of all allegations.

This is down the tracks where I got stuck - the requisite understanding of the process is where I fall short. 
Does the witness statement allow for new points of defence i.e. can we make LEGAL points of defence within the witness statement? - Only once I have inspected the evidence could I accurately argue that there was no contract because of X or the contract was frustrated because of Y. Surely the witness statement is not for this purpose? 

 Will I have the evidence that C relies on by the time we submit the WS? 

For your reference, D knows nothing of the event, was not the driver and informed C of this fact a long time ago. 

Redx

No extra legal points can be raised plus no amended defence unless a fee is paid , unless the claimant opens the door with their WS , or a judge demands that new POC are submitted due to those comments coupon mad said , at which point an amended defence can be ordered by the judge too

The WS can address new evidence , exhibits , statements or newfound points raised from the claimants exhibits and WS

Both parties have the same deadlines , so sometimes it's who blinks first , thereafter you can add a supplementary WS if required , to address those points

Coupon-mad

Does the witness statement allow for new points of defence? 

No.  But there won't be any new points, just expanding upon the generic defence.

Only once I have inspected the evidence could I accurately argue that there was no contract because of X or the contract was frustrated because of Y.

Yes, because in the Defence the D says that they deny any contract was formed with the driver (thus putting the C to strict proof) and that they were not the driver and informed C of this fact a long time ago.   Then they can state that they do not believe the C complied with the POFA 2012 for 'keeper liability' and will expand upon the failures to meet Schedule 4 of the POFA, at WS stage, because much of the detail will depend upon sight of the documents and data requested in their Subject Access Request.

Then at WS stage, the 'because of X/because of Y' comes into play and is allowable because the D has already denied there was any relevant contract/relevant obligation (see POFA, Schedule 4 - denying that is good enough for a keeper).

Will I have the evidence that C relies on by the time we submit the WS? 

Yes because the SAR will arrive next month and WS and evidence stage comes way down the line in the Spring, once the case is allocated to the D's chosen local court.   The SAR will be enough to shed light on the scam.  You might even get their WS and evidence first, as well, but the SAR is sufficient, if not.

NB: at Directions Questionnaire stage, DO NOT AGREE TO MEDIATION.  
As a law student that might be an alien concept, not to mediate.  DON'T!

StudentatLaw

Redx said:

No extra legal points can be raised plus no amended defence unless a fee is paid , unless the claimant opens the door with their WS , or a judge demands that new POC are submitted due to those comments coupon mad said , at which point an amended defence can be ordered by the judge too

The WS can address new evidence , exhibits , statements or newfound points raised from the claimants exhibits and WS

Both parties have the same deadlines , so sometimes it's who blinks first , thereafter you can add a supplementary WS if required , to address those points

Helpful. Thank you.

Coupon-mad said:

Does the witness statement allow for new points of defence? 

No.  But there won't be any new points, just expanding upon the generic defence.

Only once I have inspected the evidence could I accurately argue that there was no contract because of X or the contract was frustrated because of Y.

Yes, because in the Defence the D says that they deny any contract was formed with the driver (thus putting the C to strict proof) and that they were not the driver and informed C of this fact a long time ago.   Then they can state that they do not believe the C complied with the POFA 2012 for 'keeper liability' and will expand upon the failures to meet Schedule 4 of the POFA, at WS stage, because much of the detail will depend upon sight of the documents and data requested in their Subject Access Request.

Then at WS stage, the 'because of X/because of Y' comes into play and is allowable because the D has already denied there was any relevant contract/relevant obligation (see POFA, Schedule 4 - denying that is good enough for a keeper).

Will I have the evidence that C relies on by the time we submit the WS? 

Yes because the SAR will arrive next month and WS and evidence stage comes way down the line in the Spring, once the case is allocated to the D's chosen local court.   The SAR will be enough to shed light on the scam.  You might even get their WS and evidence first, as well, but the SAR is sufficient, if not.

NB: at Directions Questionnaire stage, DO NOT AGREE TO MEDIATION.  
As a law student that might be an alien concept, not to mediate.  DON'T!

The reason I even bother bringing this up is that I am able to spot where claims fall short in a point of law. I think if I have their argument (and evidence) in front of me, I should be able to pick up on the flaws (from an academic sense anyway). Knowing that I can add a supplementary WS, in order to respond to evidence helps. Thank you.
Thanks for pointing me to the POFA sch 4 - I do need to go through that. 

On the point of mediation. What's the harm? Especially since it's likely they will deny mediation anyway? It should only be another aggravating factor on their part, right? 

Coupon-mad

I think if I have their argument (and evidence) in front of me, I should be able to pick up on the flaws (from an academic sense anyway). 

Yes - but  a SAR won't give you their 'argument' or much in the way of evidence (except for pics of the car and a copy of the NTK and the D's letter pointing out they weren't driving).  A SAR doesn't give you pics of the signs, unless the car was photographed next to one.  The photos of the car and the letters/PCN/NTK is all it will give you.  Not vital at this stage but it will help you to explain at WS stage why the POFA has not been met for keeper liability (as covered in the defence).

On the point of mediation. What's the harm? Especially since it's likely they will deny mediation anyway?

No, they may well agree, because they know what mediation is = bullying the Defendant to settle and telling them they have no case due to ParkingEye v Beavis (search the forum for Mediation Mary!).  Horrible waste of time in a case where the claim is a scam PPC one.

It should only be another aggravating factor on their part, right? 

Nope, because Mediation can't be discussed in court.  Leave it.  The reasons are explained by bargepole in the NEWBIES thread.

Redx

The mediation factors have been done to death on here

A mediator expects the defendant to agree to some or all of the claim total , a defendant believes they owe zero pounds , the claimant expects full payment , no common ground exists , if it did the defendant would have paid the £60 in the first place

The claimant wants the full amount and rarely budges

The core terms are never debated , because a mediator does not debate them , the judge does , in court , with both parties present

In your usual litigation , the defendant has signed a contract , or similar , owes some of all of the money , the core terms are not in dispute , just the value of the claim , so mediation may offer a compromise for rent arrears , mobile phone contracts , failures to pay some instalments for a £500 laptop etc

if you were defending a divorce action , you may be helping a husband to negotiate (to mediate) for half and half, in a case where the wife wants the house , the car , the dog , the kids plus alimony too , even if its to avoid a court case

Not with private parking charges

StudentatLaw

I'm not trying to get academic on people, but from a legal POV, you shouldn't just assume a case will be allocated to a certain track. There are plenty of cases which are "expected" to be allocated to a track because of their value, but then arent for one reason or another. For that reason, I expected the C to comply with CPR 31.4 and 31.5 and furnish copies of their evidence. Can anyone correct me from a Legal POV? It should really be feasible to argue that a claim could be any track until it is allocated. - Non-compliance shouldn't be taken lightly.

I just want to clarify, I'm not here to argue with anyone. I wouldn't be on the forum if I assumed "I knew better". I'm sorry if its coming across that way, but evidently that isn't the case. I'm grateful for everyone's input. 

Coupon-mad

It is a small claim so s31 won't apply. 

I see what you are saying that it is not allocated to track yet, but don't hold your breath, you won't get disclosure.  This is just from my experience and as I say, I am not legally qualified.

StudentatLaw

Coupon-mad said:

I think if I have their argument (and evidence) in front of me, I should be able to pick up on the flaws (from an academic sense anyway). 

Yes - but  a SAR won't give you their 'argument' or much in the way of evidence (except for pics of the car and a copy of the NTK and the D's letter pointing out they weren't driving).  A SAR doesn't give you pics of the signs, unless the car was photographed next to one.  The photos of the car and the letters/PCN/NTK is all it will give you.  Not vital at this stage but it will help you to explain at WS stage why the POFA has not been met for keeper liability (as covered in the defence).

On the point of mediation. What's the harm? Especially since it's likely they will deny mediation anyway?

No, they may well agree, because they know what mediation is = bullying the Defendant to settle and telling them they have no case due to ParkingEye v Beavis (search the forum for Mediation Mary!).  Horrible waste of time in a case where the claim is a scam PPC one.

It should only be another aggravating factor on their part, right? 

Nope, because Mediation can't be discussed in court.  Leave it.  The reasons are explained by bargepole in the NEWBIES thread.

Redx said:

The mediation factors have been done to death on here

A mediator expects the defendant to agree to some or all of the claim total , a defendant believes they owe zero pounds , the claimant expects full payment , no common ground exists , if it did the defendant would have paid the £60 in the first place

The claimant wants the full amount and rarely budges

The core terms are never debated , because a mediator does not debate them , the judge does , in court , with both parties present

In your usual litigation , the defendant has signed a contract , is similar , owes some of all of the money , the core terms are not in dispute , just the value of the claim , so mediation may offer a compromise for rent arrears , mobile phone contracts , failures to pay some instalments for a laptop etc

if you were defending a divorce action , you may be helping a husband to negotiate (to mediate) for half and half, in a case where the wife wants the house , the car , the dog , the kids plus alimony too , even if its to avpid a court case

Not with private parking charges

Understood guys. Last line particularly useful. It's helpful to be able to articulate why mediation was not undertaken IF the question was ever raised.