6 PCN's and a historic CCJ

63realfan

Le_Kirk said:

63realfan said:

What I meant was that CM said if she was challenged as a rep, she would show an order to the judge. I just wondered if there was an order I could print just in case that happens as opposed to my draft outlining that I want to be his rep

Try this, it is only one page: -
https://www.legislation.gov.uk/uksi/1999/1225/made

That’s the one I used, thank god 👊🏻

63realfan

@Coupon-mad

We won the set aside however ran into a whole host of issues that we didn't expect. 

To start, my friend thought that I would do all the speaking and I did mention to him that the judge will most likely want the hear side of things from the defendant. I spoke to the Usher and informed them I was his lay rep. When I suggested I was his lay representative to the judge, she demoted me the the "Mckenzie friend" of which I contested that I am his lay representation and had a copy of the order. The judge still declined this despite me mentioning of the language barrier however she did allow me to speak. 

So the judge, I'm sure was the same one I had. She kept muddling the facts and dates up with the case and what was the old address what was the new address. 

She said that without the full case notes of the Chan v CEL case that it was not valid for this case and that she has never heard of it. Obviously I did not have a full print out of the case so she would not strike out based on that. 

As I guided my friend through, the judge decided to not read the full witness statement or did but didn't comment on it. She then bought up the LBC letters which were sent to his new address and questioned why he did not respond to these. I then butted in as my friend started panicking and I stated the odd timings and reasonings around the two letters and that they did not evidence the traces that were carried out. Judge asked what an address trace was which I had to explain over and over again about 4 times. I told my friend to explain a page full of points picking holes in Gladstones LBC's and WS. As he started reading the first paragraph, the judge interrupted asking why he didn't respond to the letters that were clearly sent so i contested my version of which was written down without even looking at the notes I printed off and explained the odd times and that the previous address resident clearly sent the claim back and that our suspicion is that the claims were never sent to the new address as he had not received them and that Gladstone's knew the address wasn't good for service and lied to D and the courts. The judge was not having any of it, everything she was saying wasn't against that idea and that nothing looked fishy. It also looked like the judge didn't want to hear all my facts and evidence and wanted to get the hearing over with as soon as possible. I couldn't have spelt out my facts any clearer. I had like a whole page to go through too but the judge just rushed it through. She then said at the end that all original PCN were sent to new address mixing the old address as the new address. When we corrected her she was like "Oh yes, I know".

Anyway, we got past the point after I tried my best to make it clear that Gladstones were the ones to blame with the LBC's not being sent out and that D would swear on oath he did not receive them. Was hard as I wanted to talk and judge kept limiting what I was saying as I was only the "Mckenzie friend".

The next part stopped us in our tracks and I had a feeling it would bite us on the !!!!!!. I did suggest @Coupon-mad if I should have done a defence for him for the original PCN's and you said no. I done one for mine so was wondering if we should have done one for his. The judge asked my friend what defence he has for the original parking charges and he just froze. I blipped in and said that he does not have a defence yet but will look at the particulars in full and create a defence as he does wish to defend the claim. She then absolutely grilled him asking what his defence was, that his car has the terms and conditions in the background, that he has 6 of these from similar times. He then stated what I said which was the letters looked like a scam when he first got them and I hinted that we would look at the evidence that he did not breach the terms and conditions. The judge asked what hadn't he breached and what was his defence. Got a bit awkward as he was looking at me, he had absolutely no clue what to say. The judge reiterated that the put the CCJ aside there must be a prospect of him defending the original claim. It got dire in there and I did say that he has been spending a lot of time on his set aside paperwork and the evidence that was sent for the 6 PCN were overwhelming and over 300 pages to read through and that he wishes to defend. 

The judge gave her summary, I was very nervous she wasn't convinced of the defence for the PCN's but she ultimately did set the judgement aside. She refused to the strike the claim out as per the CEL v CHAN. She said that the costs will be recovered from whoever wins the small claims court case. I did contest this and ask the Judge surely if he has won the CCJ set aside he should have his costs refunded and she denied this and said it'll be up to whoever wins in court with the original PCN's..I am sure that was still not right but I didn't want to argue with her and the most important thing was is the 2 CCJ's were put aside not the £550 n244 application fee. Another thing was, the original draft order we put in was for refund of 1x n244 set aside fee for £275. I did say to the judge since then 2x fee has been paid and she said at the start of the case this would be decided at the end yet she did not award or dis-award the costs and said it will be decided when it goes to small claims court for the original PCN's. 

If I'm honest, there's 6 PCN's and Gladstones think the evidence is compelling and we'll for sure lose. I am absolutely dreading this next part, mine was different as there was only 1 and was there for 10 minutes. Really going to need full support for the defence statements as the judge said we should get these submitted to the courts within 14 days. 

The judge also said on the side at the end that small claims court can be expensive and based on what we said, we should ideally settle outside of court with the solicitors if possible. 

FOR THE CCJ, THANKS AGAIN ALL. THE MOST IMPORTANT PART WE SMASHED I JUST HOPE WE CAN MAKE A STRONG DEFENCE AND HAVE GLADSTONES PULL OUT OF COURT PROCEEDINGS!!

Coupon-mad

Well done!  CCJs set aside.

The Template Defence includes the Chan images, if he uses the hharry100 version linked there.  Easy to do.

IT IS A GOOD THING that no draft defence was presented (I advised this deliberately due to this exact sort of scenario) because that can give a bad Judge the opportunity to dismiss the whole application AND deal with the claim at that hearing today.

And you know how well that would have gone with that judge misreading everything and starting on the side of the Claimant.

The D was meant to know enough to speak about the basis of his probable defence though!  He was meant to be able to say 'the signs were unclear / I was authorised to park' or whatever is true, just to show he wasn't some sort if bilker and that there's an arguable defence case.

She said that the costs will be recovered from whoever wins the small claims court case.

Good. That's OK.

So when her written Order arrives in March, ask him to show it to you immediately to check that it includes the words 'costs reserved' or 'costs in the case'.

He'll get a different Judge deciding the actual case. I reckon she's a part-time rookie Judge who handles applications.  And not very well, by the sound of it!  So breathe a sigh of relief that he HADN'T provided a template defence for her to misread and rant about!

Le_Kirk

.... and once again a judge who hasn't' read/heard of/understands Lay Rep and rights of audience even when faced with a printed document which is legislation from the Government.

63realfan

Le_Kirk said:

.... and once again a judge who hasn't' read/heard of/understands Lay Rep and rights of audience even when faced with a printed document which is legislation from the Government.

Not good!!

63realfan

Coupon-mad said:

Well done!  CCJs set aside.

The Template Defence includes the Chan images, if he uses the hharry100 version linked there.  Easy to do.

IT IS A GOOD THING that no draft defence was presented (I advised this deliberately due to this exact sort of scenario) because that can give a bad Judge the opportunity to dismiss the whole application AND deal with the claim at that hearing today.

And you know how well that would have gone with that judge misreading everything and starting on the side of the Claimant.

The D was meant to know enough to speak about the basis of his probable defence though!  He was meant to be able to say 'the signs were unclear / I was authorised to park' or whatever is true, just to show he wasn't some sort if bilker and that there's an arguable defence case.

She said that the costs will be recovered from whoever wins the small claims court case.

Good. That's OK.

So when her written Order arrives in March, ask him to show it to you immediately to check that it includes the words 'costs reserved' or 'costs in the case'.

He'll get a different Judge deciding the actual case. I reckon she's a part-time rookie Judge who handles applications.  And not very well, by the sound of it!  So breathe a sigh of relief that he HADN'T provided a template defence for her to misread and rant about!

The Template Defence includes the Chan images, if he uses the hharry100 version linked there.  Easy to do. - Is this in relation for the defence for the PCN's? I've scoured the hharry template defence, can you confirm if this matches my friends case? He breached the conditions as he didn't have a permit for the area he was parked in, no stories seem to match that kind of breach

Coupon-mad

The Template Defence itself doesn't include the Chan images and will be suitable.

I assume he does know the basis of claim from their WS bundle so it would be a bit disingenuous to try arguing CEL v Chan applies now.

He'll be using the Template Dedence with - off the top of my head - stuff about Pace v Lengyel to support the argument that the contract was void for impossibility.

Search the forum. Read the transcript.

63realfan

Awesome stuff. Apologies, also forgot to say thank you about the defence, that makes complete sense. Was just worried the judge at the time was going to dismiss the set aside! Completely understand though.

He'll get a different Judge deciding the actual case. I reckon she's a part-time rookie Judge who handles applications.  And not very well, by the sound of it!  So breathe a sigh of relief that he HADN'T provided a template defence for her to misread and rant about! - Totally agree!

In regards to the stage that we're at, would it be feasible to approach the land owner and ask them at this point if they can cancel the 6 PCN's. Is this worth a shot or is it at a point where this isn't possible? My friend said he would be prepared to lose £550 for his set aside application costs if Gladstones are happy to settle outside of court on a no cost basis once we've submitted a defence. I can't see Gladstones settling unless they get some form of money back however could be that they have to cover extra costs such as the set aside fee if they do lose in court. 

I will look into PACE v LENGYEL and see where it applies on his case. If it doesn't I'll see what else applies. 
Another thing which I queried is that the operator has taken the picture of the car each time rather than an ANPR camera picking up the ''breach''. Surely it would have been more beneficial leaving something on his windscreen no?

Will update within a few days what I can find without being too needy on yourself. 

Thank you

Coupon-mad

Under current rules they don't have to put a PCN on the windscreen but under the new DLUHC CoP they will (except in extreme circumstances) as it is in there.

63realfan

Seeing as the judge wasn't convinced with the address situation we had, is it NOW worth emailing Gladstones asking for evidence of the two ''traces they completed''?  Just had the thought if it would help at all as I know the CCJ has been put aside but wasn't sure what you would think. Maybe disproves honesty for the judge?