Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

Coupon-mad said:

Yes you can do all of the above, except that there is no question of 'illegally' issuing charges or getting it thrown out without a hearing.  But yes you can use all of the above at the hearing as long as you now do a defence, new WS and evidence about the defence this time, not the set aside address stuff. 

Sitting on a potential claim can be called 'warehousing' and Judges frown upon it even though there are 6 years to bring a claim.  And no doubt interest has bern added at 8% as some sort of financial reward for sitting on their hands.  You can object to all that.

Thanks. Defence is drafted. Witness statement is being worked on. Will be posting on forums today asking for advice from others who have used the same car park, for pictures etc.

I also wrote to my MP, see post above yours.

EDIT: @Coupon-mad - Nothing useful coming up with searches unfortunately, however have posted a thread on PePiPo asking for historic/info on the specific car park etc.

I found the following on here:

Link 1 - Seems most relevant for me. Looks very helpful, have contacted original thread poster too, although he is no longer active it seems.
Link 2 - Same location but less info to go on.

From link 1 (case dismissed) - 

The four main points relied on were:

1. Poor signage, 

2. Lack of evidence I was driving, 

3. Lack of the landowner contract and 

4. Lack of proof I did not pay.

These match with what I have said all along.

Further quote of Judge's comments from aforementioned link:

"The Judge ruled that the signage was indeed too poorly lit, poorly placed and too space to form a contract.

He never said whether he agreed with my arguments that POFA 2012 wasn’t followed as once Excel said they weren’t relying on POFA the judge said there was no point in discussing whether they did actually follow it or not.

He ruled that the law of agency certainly did not apply to this case. However, on the balance of probabilities he decided Excel probably did have the authority to operate the site even without showing the contract and that a ticket probably wasn’t purchased.

He said that I would have needed some sort of positive proof that a ticket was actually purchased in order to pursue the point that the records could have been altered or that the equipment was faulty.

It was never discussed whether the £60 admin charge was allowed and I forgot to push it at the time. I did try claim punitive costs but the Judge didn’t read my application which I forgot to submit three days before the hearing and he believed Excel had behaved reasonably. I did get my £5.90 travel expenses though which have since been received as a cheque! I don’t even want to cash it in just so I can frame it haha!"

milkybk

@Coupon-mad Could I refer the Judge in my case to the Judge's rulings in the case above from our other poster? I.e. it was at night etc all same conditions and that the Judge threw the case out.

Also the Judge in my set aside hearing said I need to submit an N294 with my costs statement. However this form doesn't look correct, have you ever had dealings with this? When I go online to Gov UK it directs me to an online portal to start a claim where i can fill in details etc. However that seems like it to start claims proceedings, rather than to be heard in court with an existing claim. Image for reference (haven't completed it).

KeithP

This what a N294 form looks like...

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688607/n294-eng.pdf

Coupon-mad

Judge got it wrong. Must mean a costs assessment form.  No idea what number.

milkybk

KeithP said:

This what a N294 form looks like...

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688607/n294-eng.pdf

Hi Keith, yes, that's the form I originally found and I agree with @Coupon-mad it doesn't look like the correct one.

Johnersh

It's possible he meant an n260, but frankly that's anyone's guess! 

milkybk

Johnersh said:

It's possible he meant an n260, but frankly that's anyone's guess! 

I'll ring the court Monday to check. I need to ensure they made the requested changes to my Order to set aside the CCJ anyway.

So I got some replies on PePiPo, regarding old images etc. They are saying that showing this info would conflict with me not admitting liability of being the driver. However this contradicts the successful thread I linked to on here - link - Where the defendant admitted liability of NTK but denied being the driver.

Given the success I have had with the advice on this forum I am sticking with our plan. However it does raise the point of my original question, that it feels odd to produce pictures of signs etc when I am not admitting to being the driver. However I suppose if it shows breaches in ICP code etc then it may help the Judge sway in my favour.

Interested to hear your thoughts on the thread I linked and the above. @Johnersh @Coupon-mad @KeithP - I can see both sides of the argument. I would like to plan for worse case e.g. an unfavourable Judge or awkward claimant lawyer (seems unlikely, as they appear to be historically incompetent). 
 

Coupon-mad

I'd just repeat what I said here, earlier on your thread. it's an important POFA liability point:

https://forums.moneysavingexpert.com/discussion/comment/78631032#Comment_78631032

and the most fundamental point about any private parking case: were the signs prominent and clear?  If not, whether the defendant was driving or not, the claim is dead unless the (rare) Judge relies on hundred years old ticket cases because he hasn't grasped the CRA 2015.  There was one such Judge...luckily most understand the need for terms to be prominent.

Johnersh

It's perfectly possible to run alternative arguments (provided that is pleaded). If so, it's as simple as it is on all cases:

1. C can pursue D as keeper only if the strict requirements of PoFA are met. That is because there is no presumption of driver (and similarly that even for speeding offences and the like there is a request to name the driver first) 

2. If C needs to prove D as driver, they can be put to proof. There is no presumption and C may struggle with that evidence. However, the judge may be invited by C to draw a conclusion on balance of probabilities. 

3. If the court makes a finding of fact as to the driver, it is then for C to prove that a contract was formed via the signage in place. That can be rebutted - if D was never there, that would usually involve Google time and/or a site visit and some interpretation as to what a reasonable driver would have done.

One should be careful not to mislead the court at any stage. 

Le_Kirk

You may have visited the car park at a later date for research purposes once you received the PCN!  This does not make you the driver on the day.