Having a PCN CCJ Set Aside and Defending

bohomark

Coupon-mad said:

Plus £212 costs?  Should only be £112:

Capped legal fees - £50

Claim filing fee - £35

Hearing fee - £27

This is bad luck but the judgment should only be £212 (total); you can only appeal if the Judge 'erred in law' which is rare.

Sounds like he concluded - on the balance of probabilities - you didn't pay the £15 fee, even though there was no evidence either way.

The solicitor said that ample warning had been given on the signs regarding legal proceedings and therefore I was liable to pay his fees of £150. The judge said he could claim £100. plus all other fees.

bohomark

Coupon-mad said:

Sounds like he concluded - on the balance of probabilities - you didn't pay the £15 fee, even though there was no evidence either way.

No, she specifically said that it was not the Claimant's responsibility to prove that I didn't pay. She said you can't prove a negative, and that I had to prove that I had paid. I said, the Claimant asserted that I did not pay, and it was therefore their responsibility to prove the assertion. She dissagreed. 

bohomark

I think that the main point is that I gave some evidence that there was very little signage, and what there was, was poorly maintained. They gave very little evidence that there was signage. Maps indicating where they intended to put signs, several months before the incident, but no proof that they were ever installed. Photos of signs, with no evidence that they were even at that location. I even used their own photos to prove that they could no one could be expected to read them from a moving vehicle, since they were not readable on a photo, taken at a standstill, two meters away, but yet she decided that she believed them not me. I think that she made an error, and her decision was not right. I think that she decided that, on the balance of probabilities, I had seen signs and that I was not telling the truth. This is simply wrong, and there is no evidence that I have seen that proves that it is not. If I had seen the signs, I would’ve paid the fee, extortionate as it may have been. I would therefore like to appeal, but I do not know how to do that, or if I can. I think that if I had the opportunity to appeal, I could address her notion that I may have seen signs on other trips to other services, et cetera.

Coupon-mad

bohomark said:

Coupon-mad said:

Sounds like he concluded - on the balance of probabilities - you didn't pay the £15 fee, even though there was no evidence either way.

No, she specifically said that it was not the Claimant's responsibility to prove that I didn't pay. She said you can't prove a negative, and that I had to prove that I had paid. I said, the Claimant asserted that I did not pay, and it was therefore their responsibility to prove the assertion. She disagreed. 

That's arguably an error in law.

There was also no grounds to order more than the capped £50 legal costs, because to reach that high bar (extra costs) you would have to be deemed to have acted 'wholly unreasonably'.

Was that argued by the rep?

It is the Claimant's claim to prove breach: not only that your car was there over 2 hours but in this case, that a £15 tariff wasn't paid.  You couldn't be sure, because you were not the only occupant of the car and you were asleep.

You asked them to prove that £15 wasn't paid, and they didn't.  It would have been easy. They CAN prove that negative, from their logs.

Parking firms (as Claimants in court) in a 'tariff unpaid' case, always have the legal burden of showing that a defendant did not pay.  Parking firms take similar pay & display cases to court regularly and ALWAYS simply show the machine log of payments made.  They failed and she applied an incorrect burden.

You could ask:

- Contestor Legal (a specialist parking case service)

and 

- Nicholas Bowen KC : see below:

https://amp.theguardian.com/money/2017/aug/26/parking-eye-takes-on-top-barrister-85-fine

...if they can help you to appeal and if they agree with the above. Potentially: Error on costs as they apply in small claims, and error in the correct application of the burden of evidence.

bohomark

That's great. Thank you. I'll keep you posted.

bohomark

Well, it was going to be too expensive to appeal, although the solicitor said we had a good case, based on what we discussed. To be honest I'm just tired of all the stress now. They offered to settle for £160 before court, and I wish I'd just accepted their offer. I paid them £312 today. I think the lesson is, it doesn't matter how strong your case is, it only takes one judge to take a dislike to you, and it's all over. Bear that in mind when deciding whether to settle.