County claim VCS

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  • Coupon-madCoupon-mad
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    The word 'reinstate' is wrong.

    I will have a look on my laptop later.
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  • edited 28 November 2021 at 12:08PM
    UmkomaasUmkomaas Forumite
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    edited 28 November 2021 at 12:08PM
    The word 'reinstate' is wrong.
    Restates?  Reiterates?
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
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  • bitbibitbitbibit Forumite
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    Thanks @Coupon-mad and @Umkomaas.
    I made the suggested change and I assume the statement about confirmation from Driver should no in that paragraph as there is no comment on that. And I should not include the logs provided earlier in SAR. Please advise if my assumptions are not right, thanks.
  • Coupon-madCoupon-mad
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    Actually I would provide both sets of logs side by side plus the two pages of the Excel v Ambler appeal Judge's decision. I checked and don't have any transcript of the hearing and am in touch with @Lamilad, so if it existed I'd have had it.  Must have imagined it from his account, which I have repeated below from the one he provided off-forum.


    Court Report:
    Excel Parking Services Ltd vs Ambler. E1DP2061
    17/07/18. Skipton County Court. Judge Skalskyj-Reynolds, presiding
    Claimant represented by Ms Peabody
    Lay Rep for the defendant – Ian Lamoureux

    Background:
    Ms Ambler was a member of Sports Direct Gym at Cavendish Retail Park (CRP), Keighley.
    Members are allowed 2 hours free parking provided they enter their full VRM into one the
    terminals in the gym entrance. She visited the gym on 5/5/16 and shortly after received a
    PCN for ‘failure to purchase a valid pay and display ticket’

    Ms A appealed stating that she had entered her full VRM (to get the free parking) but the
    terminals were prone to malfunction and members regularly received PCNs despite entering
    their VRM. She enclosed records from the gym confirming that she was there at the material
    time.

    The appeal was rejected and the case eventually passed to BW Legal who commenced
    the usual debt collection process followed by an LBC and finally court papers in Jan ‘18

    The defence was filed shortly afterwards focussing on mainly on the fact it was Excel’s failing
    terminals that had caused the PCN to be issued and that D had in fact fully complied with the T&Cs.
    Also disputed were – incoherent PoC, CPR/ PaP failures, signage, contract and unrecoverable added
    costs. On allocation to Skipton court, an ‘unless order’ was issued by Judge Wright instructing the
    C to provide further and better particulars.

    These were provided along with an evidence pack containing photos and the full VRM logs from
    CRP on the material date. An amended defence was submitted and a hearing date was scheduled.

    The Ds WS gave more detail about her visit to the gym and the well-known issue of the
    malfunctioning terminals, as well as her attempts to engage with the C and the fact she’d
    given them sufficient reasons and evidence to cancel the charge. 

    Appended as evidence was a WS from the gym manager confirming the terminals were
    prone to malfunction and his own frustrations in having to deal with angry gym members and
    Excels stone-walling when he tried to resolve issues with them; a WS from another gym
    member in exactly the same position as Ms A; the gym logs confirming Ms A’s attendance,
    and Ms A’s pre-action comms with Excel and Sports Direct.

    The Cs WS was the usual dross from BWL. Appended as evidence were more photos, all
    previous documentation, the contract with the landowner and another copy of the VRM logs.

    It was immediately apparent that there was an issue with the VRM logs

    ...they did not match the previous copy sent with the further PoC. The WS copy had
    over 40 VRMs removed that were in the first copy. I took the view that the C had deliberately
    falsified the logs in order to make them support their claim and this was stated in the
    Skeleton, filed a few days before the hearing along with the costs schedule.

    The skelly also mentioned the Cs failure to comply with r27.9 regarding their non-attendance
    at court – notice was received 3 days before the hearing rather than 7 as required by the rule.


    The Hearing
    Keen to get on SR didn’t bother asking Ms P to state the Cs case; she summed it up herself
    and asked me for a response which was the D had done everything right, the terminal had
    failed to register her VRM and the PCN was issued incorrectly. Asked if I had any proof of
    this I replied that it was impossible for any gym members to prove they had entered their
    VRM as the terminal doesn’t issue a receipt or any form of tangible confirmation. I went on
    that the defence would prove on the BoP that the machine failed to register the Ds VRM
    based on, inter alia, the 2 additional WS’s and comms with SD discussing the terminal’s
    frequent and well known failings.

    SR then wanted to look at the logs to confirm the Ds VRM wasn’t there. She commented ‘I
    believe, Mr L, that you say there is something wrong with these logs’.

    I explained the mismatch between the 2 copies and the missing VRMs. At first she was very
    confused and, believing there must be a rational explanation, she began bombarding Ms P
    with questions about the logs, looking for some clarity.

    Ms P couldn’t answer and eventually mumbled something about the C ‘truncating’ the logs to
    avoid unnecessary printing/ wasted paper. I actually gasped at this response. The bombardment
    continued with SR becoming increasingly frustrated and Ms P sinking further into her seat.
    This went on for several minutes until SR, by now very angry, reached the conclusion that the logs
    were not reliable, she was ‘displeased’ that evidence appeared to have been ‘messed with’ and
     if she couldn’t trust this evidence how could she trust anything from the C.

    SR noted that the missing entries were all before the Ds entry time (9.25am) so she flicked
    through the logs to see if there was a record of the Ds VRM on either copy or something
    similar (perhaps a wrong digit was entered). Here she spotted that 4 VRM entries that were
    on the first copy had been removed from the second, between 9.24 and 9.31. She was fuming,
    she launched a furious attack on Excel about the fact the evidence had been ‘altered’. She
    said she was already ‘deeply concerned’ that earlier entries were missing but to see that
    entries at the ‘material time had been removed was absolutely shocking and very troubling.

    Her voice was strained, she was practically shouting. She was saying that ‘messing with
    material evidence’ was completely unacceptable and something that the C ‘must not do’…
    They cannot and must not alter evidence to suit their case. SR said she was ‘disturbed’ by
    this; it was ‘absolutely inexcusable’.

    This tirade went on a while I missed parts of it as I was looking at the floor trying hard to
    hide my obvious grin, but it was absolutely brutal, I have never seen a judge so angry and
    appalled. That said I felt sorry for Ms P who was visibly shaking and tapping her foot at the
    end – SR did apologise to her saying ‘I appreciate you are a solicitor’s agent and none of this
    is your fault’ SR ended her rant by saying ‘this claim is obviously dismissed and I will award
    costs for the Cs clear unreasonable behaviour, I do not feel I need to give a full judgement
    unless one is requested’.

    Ms P, from almost underneath the desk squeaked that she ‘would need a full judgement’. SR
    was just starting to calm down but got fully worked up again as she revisited the details in her
    judgement. Now on to costs I referred SR to the Ds schedule which was bold but genuine.
    Ordinary costs were awarded for loss of a day’s leave, travel and, parking. 40 hours LiP costs
    were awarded under r27.14(2)(g) (after breaking the costs down for the judge). A further
    £120 was awarded ‘in principal’, pending further submissions in the next 14 days. £15 for
    stationary, printing and copying was refused. 

    Total costs £989 (£120 reserved) £869 to be paid to the D within 21 days.

    Thankfully there was a ‘anything else’ at the end so I grabbed it to refer SR to paras 9 and 10
    of the skelly which quoted r32.14 in relation the apparent falsified evidence and the Ds view
    that it crossed the threshold of Contempt of Court. SR agreed that it could be contempt and
    she would send a letter along with the case documents to a civil judge who would make a
    decision (not sure if she meant to say circuit judge). Don’t know if the D will be kept in the
    loop about this but I hope so.

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  • D_P_DanceD_P_Dance Forumite
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    Excellent, consider passsing this to your local paper.
    You never know how far you can go until you go too far.
  • edited 29 November 2021 at 12:50AM
    Coupon-madCoupon-mad
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    edited 29 November 2021 at 12:50AM
    No, that's the Excel v Ambler case court report from a couple of years ago!
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  • bitbibitbitbibit Forumite
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    Thank you everybody, especially @Coupon-mad. I have sent WS with suggested updates to both court and VCS and their legal representative. 
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