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Introducing Ws info not used in defence

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Comments

  • B789
    B789 Posts: 3,441 Forumite
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    This is the best I could find and how I think it could or should be interpreted:

    The Pre-Action Protocol for Debt Claims does not specifically mention "harassment" or "communication" that could be deemed as not allowed during the period in which the debtor is seeking debt advice. However, the protocol does require the creditor to act proportionately and not to take any unfair advantage of the debtor, which could cover the kind of communication the OP is referring to.

    Additionally, the Practice Direction on Pre-Action Conduct and Protocols does not contain a specific provision that prohibits harassing or aggressive communication during the period in which the debtor is seeking debt advice. However, the general principles of the Practice Direction do require parties to act in a reasonable and proportionate manner which could be interpreted to include no unnecessary correspondence or taking any other steps which could be construed as harassment.

    Paragraph 4 of the Practice Directions states:

    "Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues."

    Additionally, paragraph 6 of the Practice Direction states:

    "Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

    (a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;"

    It could be interpreted that these provisions suggest that the creditor should not engage in any unnecessary or disproportionate communication during the period in which the debtor is seeking debt advice. While the protocol does not explicitly prohibit communication during this period, the emphasis on fairness, proportionality and avoiding unnecessary correspondence implies that any communication should be reasonable and relevant to the matter at hand.

    Overall, it is important for the creditor to act in good faith and to avoid any communication or action that could be viewed as harassing or aggressive during the period in which the debtor is seeking debt advice.

  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    All very interesting reading, I appreciate everyone's time. I was assuming it may be too late to mention it in court as I've already entered my ws, but at the same time the more ammunition I have to fight this the better.
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    Right, we can ignore that previous question regarding pap, just searched through my emails and I made a spelling mistake in their email address so they never received it!
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    I've received an email today from Gladstones with a skeleton argument and supplementary ws, I haven't opened the attachments yet as I'm at work and need to be in the right head space to take in whatever it says, is this standard practice  for them to do this?
    Court date isn't until 31st july
  • Coupon-mad
    Coupon-mad Posts: 139,881 Forumite
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    It'll be a template load of rubbish we've seen before.  Don't be scared, open it with confidence. 
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    Below is the supplememtary ws i have received.
    My first note is #4 - at no point have I claimed not to be the registered keeper, and I stated that I was the registered keeper, however, I was not the legal owner of the vehicle, this was owned by the company I worked for and I included documentation to prove this.
    Is the rest just the standard copy paste as cm explained?

    THE CLAIMANTS RESPONSE TO THE DEFENDANT’S ALLEGATIONS
    3. The issues raised within the Defendant’s witness statement which are not dealt with in the Claimant’s witness statement dated 13th April 2023 shall be detailed herein.

    4. The Defendant claims that they were not the Registered Keeper of the vehicle. Upon the charge being incurred the Claimant applied to the DVLA for the Registered Keeper details and in turn, was provided with the Defendant’s name and address. Therefore, it is the Claimant’s position that as the DVLA identified the Defendant as the Registered Keeper at the time of the contravention, they are liable for the charge.

    5. It is the Defendant’s obligation and responsibility to ensure that they comply with the terms and conditions displayed at the site. The signage clearly states that the loading bays are for commercial vehicles only. Therefore, as the Claimant has highlighted in their appeal response, it is their positon that the vehicle is not commercial. The Defendant is thus in breach of the terms and conditions irrespective of the parking circumstances.

    6. The Claimant avers that there is sufficient signage displayed around the site. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage, location, size, content and font has been audited and approved by the British Parking Association. It is the driver’s responsibility to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle.

    7. The Claimant rejects the assertion that no contract was entered into. It can be said the Claimant grants a contractual license to all; this license allows anyone permission to be at the site. This is inferred by the nature of the land and the lack of any general prohibition of entry on the signage. In this regard, the Defendant (as were all motorists) were offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point the Defendant decided to park, having read the sign, and the consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. The Claimant’s consideration is the provision of parking services.

    8. Alternatively, it can be concluded that any person can use the site provided they do not exceed the licensed activity as set out on the sign and in failing to comply with the license granted to them, they agree to the Claimant’s entirely distinct offer from that license which is ‘to park otherwise than in accordance with the license for a charge of £100’.

    9. The rule of interpretation require simply that the parties knew of their obligation to one-another. The Defendant was offered to use the land and thereafter either follow the rules and park for free or in breach of the rule and agree to pay £100.

    10. The Claimant will also rely on the case of ParkingEye v Beavis (2015). In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

    11. In the above regard, we hold that a valid contract was formed between the Defendant and the Claimant.

    12. The Claimant notes the Defendant makes multiple inferences that this case is distinguishable from the Beavis Case. In this regard, it is the Claimant’s view that this is not the case. In the VCS case, Judge Saffman found at paragraph 52 the following;
    "In the particular circumstances of the case, as was the case indeed with Mr Crutchley, the outcome, to the effect that Mr Ward is penalised for stopping for no more than 4 seconds to deal with the unforeseen illumination of his car's engine management light, may be seen to be a harsh one. Nonetheless, that is where the authorities clearly lead me. I really cannot find any basis for a proper distinction between this case and Beavis. It is true that one relates to overstaying in the car park for almost an hour and the other relates to stopping on a road for a matter of seconds but the principles in both are identical. Not only are the principles in Crutchley identical, but the facts are almost identical."

    13. It is therefore the Claimant’s view that the principles of the contractual license in this matter are no more or less different than in the VCS Appeal and therefore, this matter cannot be distinguished from the Beavis case.

    14. The Claimant denies the assertion it is pursuing a ‘hugely disproportionate fixed sum’

    15. The Claimant seeks its legal costs which are recoverable pursuant to CPR 27 and CPR 45. In this regard, the Claimant relies upon CPR 27.14 (2)(a)(i) and CPR 27.14 (c).

    16. The Claimant confirms where it seeks recovery of legal costs, it relies on CPR 45.2 (1) (a) and (b), as these rules allow for the appropriate fixed costs on commencement of a claim for the recovery of money or goods in accordance with Table 1 to be sought. As £50 is identified as a recoverable sum within Table 1 as a recoverable sum and therefore does not require substantiation; as it is provided for in the CPR.

    17. The Claimant’s Court fees in respect of this matter are recoverable pursuant to CPR 27.14 (c).

    18. The Claimant is further able to seek recovery of interest of the Claim amount at a rate of 8% pursuant to S.69 of the County Courts Act 1984.

    19. With respect to the sum sought, The Claimant denies the Defendant’s assertion it is pursuing a ‘hugely disproportionate fixed sum’

    20. The Claimant’s position is that the Defendant is not entitled to the costs they are seeking. The charge was issued correctly as the driver was parked in clear contravention of the terms and conditions applicable at the site. The driver accepted the charge stated on the signage by parking in clear breach on the applicable terms. The evidence exhibited within this statement proves that the driver without a doubt parked in contravention of the terms and conditions applicable at the site. Proceedings have been issued as a result of the Defendant’s unwillingness to pay the outstanding sum. The Claimant submits that the Defendant’s attempt to recover costs is completely without merit.

  • Coupon-mad
    Coupon-mad Posts: 139,881 Forumite
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    They haven't added anything.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    They haven't added anything.
    OK, thanks, I'm still confused by the false claim that I said I wasn't the registered keeper, surely lying in a witness statement isn't acceptable?
  • Punkstig
    Punkstig Posts: 38 Forumite
    10 Posts First Anniversary
    Hi folks
    My court case is next week and I have received their trial pack.
    Some questions if I may-
    The parking contract between the landowner and pps is still redacted (names and signatures)
    Should I expect a copy of the original at court without redaction, if the one provided is still redacted can I question its validity?
    Fyi it is signed by only one chief executive officer if that has any additional relevance?

    When in court do I get to question some of the things they've stated even if I've not put it in my own ws?

    I've been checking on here regularly and reading other threads to try and get advise for myself without bothering anyone but if there's any last minute words of wisdom it would be very much appreciated! 

  • Coupon-mad
    Coupon-mad Posts: 139,881 Forumite
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    Yes you can raise points about their WS when it's your turn to speak.  The Judge will guide you and you should address the Judge, not the hired gun rep.

    You can't actually question their rep because he/she isn't a witness.  They can question you, though.

    There are hearing tips in the NEWBIES thread.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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