Multiple FCNs from Napier Parking

Fruitcake

Para 8. I wouldn't use the word, "violation." Perhaps something like an alleged breach or similar would be better.

Violation makes it sound far too onerous event to me.

Otherwise I think it is most excellent.

Le_Kirk

imulsion said:

@1505grandad
It's an interesting point and one that I thought over myself while writing. I know it's for non-payment of charges because that was what was on the notice to keeper, however this precise point is raised in Akande (para 11) and the Judge is very clear: just because the nature of the breach is set out in pre-action does not mean the requirements of CPR can be ignored. On that basis I thought it would be OK to say what the breach was, however I'd be interested in everyone's opinion as to whether that ought to be rephrased

You are defending against what was written in the claim form, i.e. the POC, not what was in the NTK.  Providing that you wrote about it in your defence, it is OK to use your WS to back up and support, with evidence, what you wrote in the defence.

1505grandad

"It's an interesting point and one that I thought over myself while writing. I know it's for non-payment of charges because that was what was on the notice to keeper, however this precise point is raised in Akande (para 11) and the Judge is very clear: just because the nature of the breach is set out in pre-action does not mean the requirements of CPR can be ignored. On that basis I thought it would be OK to say what the breach was, however I'd be interested in everyone's opinion as to whether that ought to be rephrased"

My take on this is:-

Not clear from the Judgment as to whether the DEFENDANT stated in their Defence/WS that they knew from NtK the reason for the breach (as you have) under a SoT

OR

Is the quote from the case solely because previous correspondence re breach is raised only in the CLAIMANT'S WS and not mentioned anywhere by the D. 

If the latter is the case would the Judgment have been qualified if the former scenario applied.

imulsion

I have just returned from the hearing, and am elated to be able to tell you that I won!

To my surprise, the hearing was mostly focussed around the point of inadequate signage, which I felt was one of the weaker arguments I made in the Defence/WS. The Judge disagreed however, and after some back-and-forth with me and the Claimant, referring to our evidence bundles, he came to the conclusion that the signs were not sufficient to constitute the formation of a contract, and dismissed the claim. 

I was also surprised that he did not concern himself particularly with the CEL v Chan or CPMS v Akande based arguments, aside from mentioning briefly that the POC (and the Defence) were "boilerplate". His position was that the case had already been accepted by the CNBC, and he didn't want to overrule that decision ("appeal by the back door" in his words). 

I asked for costs at the end and he asked for my argument that the Claimant had behaved unreasonably, warning me that this was a high bar. I attempted to make the point of the unfairness of the £120 extra "Debt Fees", but he remained unconvinced and dismissed the argument. I think someone better educated in the law than me could have made the point better, but in the end no costs were awarded.

All I have left to do is express my deep and heartfelt gratitude to everyone here who has replied and helped me through what has been a difficult 14 months. There is no doubt that if it wasn't for the tireless work of everyone posting here I would have lost nearly £1,000. I can't even begin to thank you all.

Finally, I believe there are 5 specific words that must be said - but I'll leave that honour to @Coupon-mad

Coupon-mad

Congrats, @imulsion - a great win!  I've never succeeded with costs either. It's a high bar.

A good win. And quite typical. Adequacy of signage is always considered carefully as the contract is the crux of parking cases.

Drum roll...

ANOTHER ONE BITES THE DUST!

Worzel_

hey there @imulsion is it possible for me to crib your WS and adapt to my needs - would you share the google doc or word file with me?

Coupon-mad

It's in the thread!