Court report: Excel vs Mr C: Excel lose another SD gym claim at Skipton (woeful evidence bundle)

Lamilad

Court Report

Excel vs Mr C 

04/12/20. Skipton Law Court (telephone hearing). Before DDJ Teeman

Claimant represented by Mr Khan (instructed by DCBL)

BACKGROUND:

Mr C visited Sports Direct gym at Cavendish Retail Park in Nov 2016. He entered his VRM into the touchscreen terminal to get his 2 hours free parking. A few days later he received a PCN from Excel. He appealed stating he was using the gym at the time (enclosing evidence from their computer records) and had correctly entered his VRM. Excel did not reply and he assumed that was the end of it.

In early 2020 he received an LBC then a claim form. He sought help from a Facebook group. A defence was submitted and later a WS. Both documents were ‘kitchen sink’ statements when, in reality, they probably only needed to mention the well documented issue with the VRM terminals and maybe 2 or 3 other points.

 

Concerned about the D’s lack of confidence and knowledge I was asked, by his Facebook helper, to act as Lay Rep. A skeleton argument and costs schedule were submitted before the hearing date. The Cs bundle from DCBL was woeful. The WS was the usual, cobbled together, generic, template dross. It was largely irrelevant and didn’t challenge any of the defence points or evidence from the WS, save for 1 brief para. which stated the Ds appeal was rejected and he didn’t appeal to the IPC (well he never received a response to his appeal). Their evidence included: -

-          a contract to manage parking at a different site in the name of VCS

-          pictures of signs that did not show any T&Cs relating to free parking for gym users… In fact, they didn’t mention the gym at all.

-          The Ds appeal rejection letter (which he never received)

A notable exclusion from the evidence bundle was the VRM logs. I was very interested to see how the C would convince the court that the D hadn’t entered his VRM without these (I’m not sure if the “scout’s honour” technique works in court).

 

3 days before trial JB of Excel filed and served 2 additional pieces of evidence by email. A supplementary WS was submitted on behalf of the D objecting to the late evidence - describing it as an ambush - and requesting it be struck out.

 

The hearing started with DDJ Teeman launching straight into Mr Khan demanding to know how they could possibly know Mr C hadn’t entered his VRM. The next 20 mins consisted of the judge interrupting Mr K and asking him to speak more slowly and/or repeat himself because his line was so bad, we couldn’t understand what he was saying. His argument was that Excel had stated in the appeal rejection that they had checked his VRM against their logs and it wasn’t there. My response was that without the logs they had no evidence to prove their case and this was fatal to the claim. I went on to describe the well-known and well documented issues with the gym terminals and the numerous other identical cases. I pointed to the Ds evidence which included a statement from the gym manager saying that the machines are prone to failure and a sign displayed by the gym informing members that they were aware of issue with the machines and were working with Excel to address them.

 

The judge continued to challenge My K on how they could evidence that Mr C had not complied with the terms for free parking. I couldn’t hear most of what he was saying but I clearly heard the judge repeatedly stop him with, “but that’s not evidence”. The DDJ asked Mr K if the C knew that there were issues with the machines to which he replied they didn’t. She referred him to the “innumerable” similar cases that had come before this court and suggested that they must have been aware. Irrespective of the bad line, Mr K did nothing to convince the judge and his reply to all the questions about lack of evidence was “this is the bundle I have been given”. Granted, he didn’t have much to work with but he really didn’t try hard to persuade her.

 

It was obvious from an early stage which way this was going and I didn’t have too much to say or do, so my mind was very much focussed on claiming costs at the end – the case for which was covered in some detail on the schedule. I was feeling confident considering the judge had described the claim as “unreasonable” 2 or 3 times during the hearing. The judgement took about 45 seconds and felt rushed. Then she ended with “thank you, goodbye”

 

I quickly jumped in with “Madam, if I could refer you to the costs schedule….” I was cut off abruptly with “there’ll be no costs, I don’t find unreasonable behaviour and this is a telephone hearing, goodbye…… [judge Teeman has left the call]”

 

Strangest ending to a case I’ve experienced. Quite frustrating considering the D had taken the day off work and I didn’t even get chance to ask for that. Still, a win’s a win, and the D was very happy, so I’ll take it.

Coupon-mad

Brilliant news!   Well done - a sterling effort, as ever - and I am so glad you are still actively lay-repping in your neck of the woods.

The bit at the end of your report mirrors the frustrating knockback I usually experience in Sussex and you simply cannot get blood out of a stone when a DDJ won't listen about costs and ends the call.  I find it is more common with some Deputy (part time) Judges who don't seem to realise the severe, life-interrupting impact these cases have on consumers' lives and that they still have to take a day (or half day) off for a telephone hearing.

I was interested to see this (below).  Lamilad, can you provide the forum - or me/the BMPA - with a redacted copy of these 2 pieces of evidence so others can use them for ANY VRM keypad cases to show they are prone to malfunctioning.  This will be really useful for ParkingEye and CEL cases, as well as Excel and VCS ones:

I pointed to the Ds evidence which included:
-  a statement from the gym manager saying that the machines are prone to failure and
- a sign displayed by the gym informing members that they were aware of issue with the machines and were working with Excel to address them.

Snakes_Belly

Well done Lamilad?

Was this the same gym as in the Ambler case? You would have thought that Excel would have learned their lesson after fudging those records in the Ambler case.

I get the impression that some judges see these cases as a waste of court time. They think that these claims should have been sorted out before reaching court. They don't realise how aggressively these companies pursue the claims and the fact that the defendants do not see this as a debt that they owe. There will always be an impasse in these cases until things change. 

There was a summary from a judge of a case involving a defendant employed in the arts. It was a good report which described the type of defendant that is pursued through the courts by a PPC. That judge was very perceptive and understood that it was not just about the money but about the principle. Hard though when fighting companies who have no ethics or principles whatsoever. 

Umkomaas

Nice one @Lamilad, I bet SRS and JB love seeing your name listed in their court cases!

bargepole

A good result and a great report, well done. Shame about the costs.

You do have to wonder why Excel bother to pay the hearing fee, and the fee for an advocate, when their case is clearly so utterly hopeless. Especially at Skipton, a well-known graveyard for PPC claims. Perhaps they are hoping that the Defendant will get cold feet and fail to turn up for the hearing.

In most cases, the Judge will have 90% made up his or her mind about the case from reading the papers before the hearing starts. That's why a well-constructed WS, with relevant evidence attached, is so important - far more so than any oral submissions made by the parties.

Snakes_Belly

"In most cases, the Judge will have 90% made up his or her mind about the case from reading the papers before the hearing starts. That's why a well-constructed WS, with relevant evidence attached, is so important - far more so than any oral submissions made by the parties."

Images are important in the WS as the judge will probably have never visited the car park and may not have much reading time. Not all car parks are a large rectangle with clear signs as many of us have found. 

Daniel produced some very good images for Chelsea's case against Excel in Derby which was successful. 

 

Redx

Well done Mr L !!

Another one bit the dust !!

The problem with JB is that he uses his position as a qualified lawyer to abuse the system on behalf of his employer against those who are not lawyers , plus uses dubious methods with staff incentivised to pounce like wolves on an elk with a broken leg that stops for a rest !!

I believe there was once a Dr Mengele who did the same for his boss , especially on twins !!

I wonder what happened to them ???????

Jake , shame on you , get a proper job like conveyancing or wills and probate , something honourable !!

D_P_Dance

you simply cannot get blood out of a stone 

Yes you can, but you need to be very very persistent. 

Many years ago imported a car from Spain..  HMCE tried to charge me nearly £1, 000 more in v.a.t.  than I calculated as owing.  It took  them nearly nine months to agree my calculation.

In the above case, imo, both the PPC and the judge behaved unreasonably.  At the very least I would make a complaint to her line manager.   Refusal even to discus costs is unacceptable behaviour.  

Uptown_Boy

Another "Well Done" from me.  

Unfortunately the number of claims which reach the hearing stage are still relatively small, so the PPCs see the losses as merely a cost of doing business. Enough people pay at PCN/LBC/Claim form stages for the court losses to be a mere ripple in the pond. (Even the ones they win they still lose money on but .... pour encourager les autres) 🤔

D_P_Dance

But if they continue to lose ill considered cases surely there must come a time where judges consider vexatious litigation?

Castle

Lamilad said:

Court Report

Excel vs Mr C 

04/12/20. Skipton Law Court (telephone hearing). Before DDJ Teeman

A notable exclusion from the evidence bundle was the VRM logs. I was very interested to see how the C would convince the court that the D hadn’t entered his VRM without these (I’m not sure if the “scout’s honour” technique works in court).

No, that only works at the IAS.