County claim VCS

Umkomaas

Coupon-mad said:

The word 'reinstate' is wrong.

Restates?  Reiterates?

bitbibit

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-mad

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.

D_P_Dance

Excellent, consider passsing this to your local paper.

Coupon-mad

No, that's the Excel v Ambler case court report from a couple of years ago!

bitbibit

Thank you everybody, especially @Coupon-mad. I have sent WS with suggested updates to both court and VCS and their legal representative. 

bitbibit

Hi again, my last hearing was cancelled by court saying the judge is not available. Today I got email saying please find the link for tomorrow meeting attached. But there is no information about time. I have replied to email asking about time. What are my options if they don't respond before hearing time.

KeithP

You need to be on the phone to the court at 8am tomorrow.

Obviously you need to know the time of the hearing and clearly there is only one place that can tell you that.

You ask about other options. Go to the court at 8am, hammer on the door and ask the same question.

Umkomaas

Make yourself available all day. But on the phone to the court first thing in the morning - urgent!

bitbibit

Thanks guys, I had hearing over the phone where Judge dismissed the claim in short judgement but there is no email or letter from court and no contact from claimant about awarded costs. Do I need to contact court for confirmation?