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

rdr

milkybk said:

Snakes_Belly said:

https://www.google.com/maps/place/Eurospar/@53.3778054,-1.5018755,3a,75y,171.35h,77.74t/data=!3m7!1e1!3m5!1s4sES7cGANB9n6lWSu64SMQ!2e0!5s20170701T000000!7i13312!8i6656!4m14!1m7!3m6!1s0x487983e1b8593ff7:0xd8500c0d74952807!2sBroomhill+rooftop+car+park!8m2!3d53.3776982!4d-1.5018221!16s/g/11js8pgg8n!3m5!1s0x4879826d2f58003f:0x9c26bfb02e4224e5!8m2!3d53.3773396!4d-1.5019522!16s/g/1tdjwjn6

Image from 2017. 

I have not read all the thread and I am unsure what the actual transgression is. The signage at the entrance (where the contract is formed) does not indicate that it is a pay car park unless the large P in car Park is a clue.  I cannot see from that signage on entry how a contract could have been formed.   

Hi - Yes, that image you sent is the same as the sign looked when my alleged event occurred (Jan 2017), it's also the same it looks now, just more faded. The main terms are "hidden" on this wall:



So as you turn in as a RH car driver, your lights only illuminate the main sign you highlighted, you never see the sign on the LH side and it has no illumination etc on it. Here's one from my WS showing it at night (and one with flash showing terms I changed this for my submission, this was from a draft):


And here's a video from a drivers perspective driving into the car park at night - link

I would argue that you cannot read the sign from the driver's seat while driving into the car park due to the distance and the difficulty of stopping a steep ramp and also that it would be unsafe to stand, on foot, on a blind bend, in the main access to the car park to read it. Therefore it is incapable of forming a contract.

Fruitcake

Yes you should send a supplementary WS to the court and claimant. Whether it will be allowed cannot be guaranteed.

You can challenge/refute anything stated in their WS or by their advocate at the hearing, but you cannot introduce new evidence.

milkybk

rdr said:

I would argue that you cannot read the sign from the driver's seat while driving into the car park due to the distance and the difficulty of stopping a steep ramp and also that it would be unsafe to stand, on foot, on a blind bend, in the main access to the car park to read it. Therefore it is incapable of forming a contract.

Quite, I agree and it was why I showed it from a drivers point of view at night in a video too. You're correct, the steepness of the ramp, tightness of the entrance etc all make the placement of sign even more illogical. All points I will be highlighting at the trial. Ironically, Excel's large picture of that sign is just a PC image, not the installed sign itself and the image is stretched and poor quality. The additional points you made about having to actually stand there etc to read and see it are valid too, thank you.

Fruitcake said:

Yes you should send a supplementary WS to the court and claimant. Whether it will be allowed cannot be guaranteed.

You can challenge/refute anything stated in their WS or by their advocate at the hearing, but you cannot introduce new evidence.

Cool, will do. I'll draft something this week and post it here for review. Thank you. 

Snakes_Belly

The case that Excel often cite Thornton v Shoe Lane was a case that defines where the contract between the driver and the PPC is formed. The car park in the case was a barrier car park whereby the driver is forced to stop and read the sign.

The scenario in Excel's claim against you is totally different from the Shoe Lane case as it is not a barrier car park and you could not stop on that incline and read the sign on the left hand side even if it was visible at night. You would have to execute a hill start. The other sign on the right does not indicate that the car park is a pay car park. I cannot see how a contract could be formed. 

They also somethines cite the Vine case but cite the intial hearing not the appeal which Miss Vine won.    

The district judges and the deputy district judges come from a broad church with regard to the law but all will understand contract law. 

Jenni_D

Snakes_Belly said:

The case that Excel often cite Thornton v Shoe Lane was a case that defines where the contract between the driver and the PPC is formed. The car park in the case was a barrier car park whereby the driver is forced to stop and read the sign.

The scenario in Excel's claim against you is totally different from the Shoe Lane case as it is not a barrier car park and you could not stop on that incline and read the sign on the left hand side even if it was visible at night. You would have to execute a hill start. The other sign on the right does not indicate that the car park is a pay car park. I cannot see how a contract could be formed. 

The also somethines cite the Vine case but cite the intial hearing not the appeal which Miss Vine won.    

The district judges and the deputy district judges come from a broad church with regard to the law but all will should understand contract law. 

Minor edit ... there have been some cases where the judge clearly doesn't understand it.

Snakes_Belly

"Minor edit ... there have been some cases where the judge clearly doesn't understand it."

@Jenni_D  I think that is why there is a tendency to go for the "grapeshot approach". 

milkybk

I think the points you've all made is why I would like to create an amended WS to go along with my existing already submitted one. Obviously I would create it this week and get it sent to the Claimant and Court ASAP, I wouldn't wait until nearer the date.

If I can reference certain points from the Claimant's WS and then have a new Exhibit that e.g. overrules it, then if I have a Judge who maybe isn't familiar with some pervious case law, then the additional WS would help expediate any ruling on aforementioned Claimant's point.

It also just heaps more and more pressure on Excel leading up to the trial date, we know they aren't going to do any additional work in terms of evidence or WS's etc - Just look at the images they've used as evidence currently.

Snakes_Belly

I don't know what others think but you could do a skeleton which drills down to the main issues.

Judges often have a very short reading time for these cases which is why images are good. That video will save a lot of reading and it's good to vary the delivery. 

The rep will probably only receive Excel's WS on the day before the hearing, on the day of the hearing or not at all. The reps (often from Elms) seem to focus on one thing. You will be much better prepared than the rep.

milkybk

Snakes_Belly said:

I don't know what others think but you could do a skeleton which drills down to the main issues.

Judges often have a very short reading time for these cases which is why images are good. That video will save a lot of reading and it's good to vary the delivery. 

The rep will probably only receive Excel's WS on the day before the hearing, on the day of the hearing or not at all. The reps (often from Elms) seem to focus on one thing. You will be much better prepared than the rep.

Ok makes sense. When you refer to a skeleton argument, is that something I would submit to the Claimant and Court or is it just something I would have ready for myself to refer to come the hearing date?

Yes, at the Set Aside hearing the rep was from Elms legal and she 100% hadn't read the Defence or WS's from either party, as she couldn't reference paragraph numbers etc when I was raising points to the Judge to counter the rep's standard Court script they clearly use for every case.

Snakes_Belly

You would need to send the skeleton to all parties but I am unsure of the timescale.