PCM/Gladstones Court Claim

DrAculaGonzo

Guys, feeling somewhat unloved by the forum - not sure if it's something I said or done or not done. 

Either way I worked through everything I wanted to (still some reading to do on CRA and POFA but otherwise now comfy with where I am). I produced below defence strategy / skeleton argument. I'm not suggesting I submit it anywhere unless you tell me that would be beneficial. Please also tell me to remove it from here if this is going to be detrimental to my case. Latter parts are some minor points we should not even get to but in case I fell I'm ready...

Let me know your thoughts

A.    Raise objection to a very later supplementary witness statement:

·       breach of the deadline on the Hearing Order

·       besmirching with some printed posts from an online forum, which do not assist the case and are hearsay

·       request Judge to consider dismissing the supplementary WS and instead Claimant to rely on the original WS

 

B.    Lay out the defence as follows:

 

1.     No contract was formed; signage is unclear and forbidding in nature

Details: Claimant offers nothing of value for unloading, their signs are strictly punitive since no permits can be obtained for the bays in question. It’s a forbidding offer, which isn’t an offer at all.

Exhibit:

I.                N/A, these are basics of contract law

II.             PCM v Bull - case number B4GF26K6  ???!!!

 

2.     Stopping to unload is not parking

Detail: Jopson v Homeguard Court of Appeal decision established stopping to unload is not parking

Exhibit:

I.                Exhibit LM 3 Jopson v Homeguard - points 19/20 – not parking, but stopping/pausing

 

3.     Lease takes precedence

Detail: My lease rights (easements) include enjoyment of the Premises (Schedule 3, point 1)

Exhibit:

I.                Exhibit LMA1 of Supplementary Evidence Pack

II.             Exhibit LM 3 Jopson v Homeguard, particularly:

a)     point 14 – not a simple case of parking without permission on somebody else’s property, but right of way through the lease

 

4.     Additional charges of £70 constitutes abuse of process

Detail: As per Excel v Wilkinson additional charges are unjustifiable and constitute abuse of process, they breach CRA and are against Supreme Court case law.

Exhibit:

I.                Exhibit LM 6 Excel v Wilkinson, particularly:

a)     Points 14 – 36 – additional contractual costs are not recoverable

b)    Point 37 – 44 – inclusion of additional costs constitutes abuse of court process

 

5.     No landowner authority

Detail: Contract with freeholder not evidenced

Exhibit:

I.                Point 36 of Defendant’s WS

II.             Exhibit GS 1

 

 

6.     No Notice to Driver affixed

Detail: No notice affixed to the vehicle – claim of avoiding confrontation pathetic

Exhibit:

I.                IPC Code of Practice – Schedule 3

II.             PoFA 2012 – Schedule 4, Point 7(4)

 

7.     No grace period granted

Detail: Photographs taken appear to span 4 minutes which is materially shorter than the 10 minutes prescribed by IPC Code of Practice

Exhibit:

I.                IPC Code of Practice – Point 13, Definitions

 

C.    Address other minor points re Claimant’s Witness Statement:

 

1.     False claim in 22 – PCN was not appealed; it’s a proof od “robo-claim”

2.     Point 33 costs claimed – interest rate changed therefore acknowledging the unlawfulness of the initially claimed charged

3.     Exhibit GS 4 – last page; postal notice to avoid conflict with driver, laughable as referred to in my WS; indirect evidence of the business model of quickly photographing vehicles at a point of time and issuing fake fines en masse subsequently later in the day.

4.     Exhibit GS 5 – other than first two pages, most of this concern apparently a completely different case. On top of breaching GDPR it is a further proof of the robo-claim and lack of any real knowledge of particulars and any proper consideration of the merits of the case by the Claimant or their solicitors.

 

D.    Address other minor points re Claimant’s Supplementary Witness Statement:

 

1.     Slanderous allegation in point 5 –

a)     Defendant’s WS fully based on fact and best knowledge

b)    as opposed to the robo claim which didn’t even succeed in pulling together the correct documentation and

c)     instead (in breach of GDPR) exposed personal details of another driver

d)    help from a reputable online forum is perfectly allowable

2.     Exhibit GS 7  - highlighted statements fall into one of the categories:

a)     Have been made before full understanding of the legal position and therefore in their naivety may appear to contradict or not fully support the WS (Page 74 of GS TB)

b)    Have not been used in Defence therefore are not contradictory or in any way relevant to the Court and the hearing (Page 74 of GS TB)

c)     Are mental shortcuts or simplifications for the purposes of discussion on an online forum (Page 82 of GS TB)

d)    Have been made by others (Page 81 of GS TB)

3.     Point 6:

a)     Points made before knowledge and understanding of Jopson v Homeguard – irrelevant

b)     ditto

c)     no contradiction apparent – forum statement does not confirm letter was received, but as a matter of fact my WS not comprehensive so far clarity:

o   Notice of intended introduction received from GHA in October 2014

o   No subsequent comms received therefore start date not known

o   First found out about scheme going live in December 2014 when 2 x PCNs have been affixed to the car

o   From subsequent discussion with HA found out about letters which I was meant to receive, but never did.

o   All of this is evidenced in supplementary evidence pack handed at the beginning (to be handed over if we reach this point of discussions)

d)    Pathetic manipulation taking sentence out of context to give it a completely different meaning

e)     Perhaps a linguistic error/inaccuracy on my part, but statement was meant in a sense of being able to identify legal points which overrule the signage. Either way my defence does not rely on signage not being visible.

4.     Point 8 - The name for the space in question is purely a semantical exercise. The term ‘loading bay’ was clearly attributed to the spaces by myself in my WS however this is irrelevant.

5.     Point 9:

a)     There is no distinction between the two areas in signage therefore Claimant’s suggestion that the bays are for different purposes is false

b)    If parking is not permitted within the loading bay in question then signage must be completely wrong as it implies permit may be obtained

c)     If on the other hand parking is permitted in the other bay invoked by the Claimant how does one obtain a permit?

d)    While loading bay in question is narrower than the “evidenced loading area” it still comfortably fits a car, has clearly been designed for cars and is frequently used by cars including residents, traders and delivery drivers with vehicles of various sizes

e)     This is evidenced in Exhibit GS8 where multiple cars are stationary in the loading bay

f)      If Royal Mail vans, Tesco food delivery trucks and DfS sofa delivery lorries can park in those bays (and they clearly can, as they continue to do so) do not obstruct travel along the road in a meaningful way I don’t see how my small family car can

g)     If genuine safety concerns were involved such larger vehicles would not be allowed to park there and such rule would have been enforced (by PCM?) then such parking would not be observed on a virtually daily basis.

6.     Point 11 – not really relevant under the circumstances discussed as no obstruction has occurred

7.     Point 15 – while statutory parking code of practice haven’t been passed yet, the document clearly demonstrates the public and government’s sentiment towards the industry that the Claimant and their solicitors are core part of. This should be something that the Courts consider.

8.     Point 16 – not claiming this is a distance contract

9.     Point 17 – Defence remains unchanged, no admissions have taken place and any posts on an online forum cannot be construed to be such admissions. Defence is clearly laid out.

10.  Point 18 – at once relying on Beavis in last part of point 16 and yet “denying” any relevance (?) here

 

E.    If won ask for following costs:

a)     Research and preparation of defence - £250 day rate x 3 shifts (= 24 hours) = £750

(spent several weekends on this so this estimate is light)

b)     Printing costs - £10

(estimate)

c)     Day off work – £125

(based on £250 day rate and half a day of work lost)

d)     Mileage & car parking – 8 miles @ £0.45 per mile = £3.6 + £8 parking = £11.6

(estimate)

e)     Total costs = £896.6

Le_Kirk

You last posted on Friday evening and are now posting at two o'clock in the morning, small wonder that no-one has answered ..........yet!  In my view, if the claimant has issued a late witness statement, then you ask the judge to strike it out for the reasons you state, although if it is a supplementary WS, based on new information then the judge might accept it.  Do not be tempted to send in your own supplementary WS as judges dislike WS ping-pong.
Is the hearing to be a virtual hearing (telephone/video) as that is the usual reason for there being a bundle and it usually results from court directions. Do what you have been ordered to do by your notice of allocation.
In my view, unless it is a very complicated case, a skeleton argument is not required for the court but may be useful for you as a crib sheet to make sure all your points are put across to the judge (if you are given the chance) and they should be in the order that you put in your defence and it seems that primacy of contract is first, then loading/unloading is not parking, then signage etc.  The skeleton argument by its very definition should be a skeleton and should be shorter than your defence and WS.

DrAculaGonzo

Hi, I don't want to sound ungrateful - because I am for everything that you guys have offered so far - but I messaged with various questions/concerns/requests since 26th August here without any response and I got to say that having that lack of critique and guidance, which you all provided throughout (and usually quite promptly), just at the death makes me uneasy.

I tried really hard and spent most of Sat and Sun to prep what I posted last night (effectively a crib sheet as you called it), but all this legal stuff is not  really my forte and I worry I'm getting it all wrong - I hope someone will be able to give me some final thoughts before the imminent hearing so I can get it right.

B789

You seem to be well prepared and have enough knowledge of the procedure and your defence. If it is just morale boosting that you need, you would appear to be ready for whatever is thrown at you.

However, remember that most judges are going to be aware that you are a LiP and will guide you as necessary. Just make sure that you are ready to put your case forward and don't be intimidated by the opposition.

Good luck.

DrAculaGonzo

Thanks B789, I am not as confident about my state of preparedness as you are although you are right that I need morale boost. I feel I prepared best I could and will still do some more reading to make sure I know the underlying laws and acts better.

Thank you.

B789

That is all you can do. This is civil law, nothing criminal about it (except the scamming low-life ex-clampers). The more you understand, the better you will feel about it.

We await your court report in due course.

DrAculaGonzo

So, no good news. Hearing delayed by nearly 3 hours and I lost.

Argued all points, perhaps not with massive conviction (i.e. rather sheepishly), but I tried. Judge was helpful (I think) in listening to some and dismissing some others pretty much immediately. Guided by him I therefore did not elaborate enough on some of the points as much as I hoped for.

Point of defence and how they have fared:

1) Lease takes precedence - judge concluded there are provisions in the lease which allow landlord to alter the common parts and introduce new regulations etc so point was not taken

2) Stopping to unload is not parking - could have been a winner, but... given I wasn't the driver I should have had a written statement from my wife to say that. Without it this point of defence was not accepted as I was not the driver.

3) No contract - dismissed out of hand as allowable only if judge agreed on point 1 (i.e. lease taking precedence). Shot down like that I did not elaborate or argue further.

4) Additional charges - agreed they are ambiguous and therefore not contractual and did not award them. He did note of some appeals process in Southampton were these charges were apparently allowed...? Not sure why he ended up agreeing with me then.

5) No landowner authority - short down as soon as I started talking. Apparently dealt with in Court of Appeal of Supreme Court (didn't quite catch which one). Judge admitted it's rather odd, but that there is no need for explicit authority or something along these lines if I understood correctly

6) No notice to Driver - pointed to para 9 of PoFa where this is allowed via alternative route of postal notice to keeper

7) No grace period - not proven by me to be under 10 minutes therefore not allowed.

Judge's summary was that mine was a good attempt of defence however lacking evidence from wife and having found that lease alterations (i.e. introduction of parking regulations) did not make life substantially less convenient for us he found against me and awarded Claimant £221.66. Claimant sought £236.66 (allowing for denied £70), but both me and the judge challenged the interest and judge reduced it by £15. I am now scratching my head how they both got to the awarded value. I can account for:
A. principal debt £100
B. court fees £35
C. legal rep costs on claim form - £50
D. Interest £9.66 (reduced from £24.66 by £15 by the judge)
This totals £194.66 so what am I missing? £27 lost somewhere...

The judge also refused to award costs to the Claimant.

either way, on the whole this one isn't a success story I'm afraid, but I hope it acts as a bit of a guide for posterity... 

B789

Thank you for the report. It's never good news when we read that a judge has not fully understood or decided to ignore a point of law regarding primacy of contract. Was there any mention in your defence or WS about the Landlord and Tenant Act 1987, Section 35?

Regarding point #2, that's a real bummer. Perhaps something we need to stress in the future for victims defending as the RK.

Point #3 is also surprising. Irrespective of the lease, surely the claimant must have a valid contract to be able to operate at the location.

Point #4 is a small victory for you. It's a pity that the judge did not consider it unreasonable behaviour by the Claimant to add them in the first place. There should have been something in your defence and WS covering that point.

In point #5, was the judge referring to the Beavis case?

Re point #6, was the original NtK PoFA compliant? Did the driver receive a windscreen NtD at the time of the event.

It is possible that the extra £27 is a fee for the judgment.

Thank you for the report. Win or lose, it is always valuable for everyone to learn what happened and why.

DrAculaGonzo

L&TA was mentioned in standard template defence, not s35 specifically though. Not repeated in WS as I am actually a leaseholder. Judge accepted primacy of contract, but concluded the lease allowed my landlord to alter arrangements and one of those was to introduce parking management.

Re #2 - deffo should be stressed in the future, this could have saved the situation!

Re #3 - can't say I understand these things fully - judge concluded that if PCM was employed by landlord to manage the parking than they could validly enter into contract on the basis that they could offer something of value - a parking permit.

Re #4 - yep, small sweetener to bitter day. there was a point about abuse of process, but clearly did not sway the judge

Re #5 -  no, he didn't call out any specific case, just mentioned one of the higher authorities and said this was already dealt with. He did not even let me finish the point and did not register this as my point of defence in his summary.

Re #6 - if you mean whether NtK was received within 14 days then yes it was compliant. Not sure if you mean anything else. NtD was not given (to avoid conflict)

Re £27, not sure, i guess i will find out once i get the judgement.

Thanks

Coupon-mad

The £27 was the hearing fee.  So it does add up.  You need to phone up the solicitor or pay it straight away on their portal.

So sorry to hear you lost.

And you are a leaseholder too so you certainly had primacy of contract IMHO and the right to unload, like in Jopson v Homeguard.

So glad the Judge disallowed the fake £70.