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Can anyone look over this WS? Was: Taken some bad advice... too late to win?

245

Comments

  • stek2008
    stek2008 Posts: 95 Forumite
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    Yes, the nudge was in my last reply.

    Tells you everything you need to know, including an a-f list of suggested exhibits.

    hoping there's something I'm so far missing that makes the 5 minutes allowed to pay unfair somehow
    Yep, the Consumer Rights Act 2015 which is already in the exemplar WS x 5 linked in the 'WS stage' section of the NEWBIES thread.
    Thank you so much for your patience here Coupon-mad - I hate to add the voices not following instructions. I'm so foggy of the brain at the moment I somehow read but didn't take in those details. 

    Will try again now. 
  • stek2008
    stek2008 Posts: 95 Forumite
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    I've had a go at adapting one of the example WS now - is anyone able to look it over for me?

    I'm a little unclear particularly on whether I've put some of my points in an appropriate place, and regarding the claims about the signage not being fair...

    Any help is much, much, appreciated. 

    S



  • stek2008
    stek2008 Posts: 95 Forumite
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    edited 5 February at 12:26PM
    One other question - the evidence pack from the claimant advises all correspondence should be by post. 
    But their own website has the text:

    PLEASE NOTE: If you have recently received a County Court Summons OR a County Court Judgement (CCJ) relating to Excel Parking Services Ltd, DO NOT use this contact form to get in touch as it will not be answered, instead email directly to:

    litigation@excelparking.co.uk


    Is that reasonable to take as consent to receive the WS by email?

  • Fruitcake
    Fruitcake Posts: 58,206 Forumite
    Name Dropper Photogenic First Anniversary First Post
    edited 5 February at 12:33PM
    Yes. If the clamant has been corresponding and responding via email, it is reasonable to believe it is acceptable by the claimant for the defendant to do so.

    In any case, they have provided a specific exclusion that permits contact by email.

    It would be very useful for you to post a redacted copy of the claimant's WS. It will be interesting to see if a landowner contract has been included. If so, please tell us what redactions if any have been made by the claimant.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • stek2008
    stek2008 Posts: 95 Forumite
    Name Dropper First Post First Anniversary Combo Breaker
    Fruitcake said:
    Yes. If the clamant has been corresponding and responding via email, it is reasonable to believe it is acceptable by the claimant for the defendant to do so.

    In any case, they have provided a specific exclusion that permits contact by email.

    It would be very useful for you to post a redacted copy of the claimant's WS. It will be interesting to see if a landowner contract has been included. If so, please tell us what redactions if any have been made by the claimant.
    Thanks so much.
    I've scanned the WS with my phone (not the neatest) - but here you go:

    https://www.dropbox.com/scl/fi/nii0thu72kcmciu4rg1h6/ws.pdf?rlkey=jxqul0h2e4j0pykisi3th59hs&dl=0


    It does include a mysteriously redacted 'Leaseholder Witness Statement'. 

    I haven't scanned the 20 or so pages of images - they are a diagram of the car park, lots of photos of the car park generically, signage (similar in my WS in above post) and some photos of my actual car entering/existing. 
  • Fruitcake
    Fruitcake Posts: 58,206 Forumite
    Name Dropper Photogenic First Anniversary First Post
    edited 5 February at 2:00PM
    Your WS is very long, and I am concerned it contains points not previously mentioned in your defence. This is not permitted so you should be prepared for the claimant to ask for those points to be dismissed, and for the judge to agree.

    You can argue points that are unfair and must be allowed by the court in accordance with Para 71 of the CRA 2015, which states they must be considered even not previously mentioned by either party.

    Make a crib sheet and note all the points you want to make, including the above, and include a printout of the relevant part of the CRA.


    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • stek2008
    stek2008 Posts: 95 Forumite
    Name Dropper First Post First Anniversary Combo Breaker
    Do you think I should proactively strip those points out? Unfortunately the bad advice on the initial defence was going to bite me at some point I suspect.

    Thanks for the tips on the CRA - I'll make some changes shortly and get it sent off. 
  • Fruitcake
    Fruitcake Posts: 58,206 Forumite
    Name Dropper Photogenic First Anniversary First Post
    stek2008 said:
    Fruitcake said:
    Yes. If the clamant has been corresponding and responding via email, it is reasonable to believe it is acceptable by the claimant for the defendant to do so.

    In any case, they have provided a specific exclusion that permits contact by email.

    It would be very useful for you to post a redacted copy of the claimant's WS. It will be interesting to see if a landowner contract has been included. If so, please tell us what redactions if any have been made by the claimant.
    Thanks so much.
    I've scanned the WS with my phone (not the neatest) - but here you go:

    https://www.dropbox.com/scl/fi/nii0thu72kcmciu4rg1h6/ws.pdf?rlkey=jxqul0h2e4j0pykisi3th59hs&dl=0


    It does include a mysteriously redacted 'Leaseholder Witness Statement'. 

    I haven't scanned the 20 or so pages of images - they are a diagram of the car park, lots of photos of the car park generically, signage (similar in my WS in above post) and some photos of my actual car entering/existing. 
    We have seen similar leaseholder statements before. It is written for, by, signed, and dated by the claimant. This is not a contract with or flowing from the landowner. Therefore there is no proof the landowner has granted any rights to the claimant. Neither is there any proof that the alleged signatory has the right to form contracts with a third party. 
    It would be unfair to assume otherwise. If a contract with or flowing from the landowner did exist, there would be no reason not to produce it. It is therefore reasonable to believe that on the balance of probabilities, no such contract exists.

    In addition, there is no end date or contract term given, so there is no proof that alleged agreement had not already expired before the date of the alleged event.

    Furthermore, the alleged agreement has been redacted, which the courts have determined is unreasonable in the case of Hancock v Promontoria (Chestnut) Limited.

    Further information can be found in this thread, including the judge's comments. This was an appeal case and therefore persuasive on the lower courts. Redactions being unreasonable would constitute an unfair contract term, and therefore the CRA 2015 means its rebuttal should be allowed.

    Redactions in Disclosure — MoneySavingExpert Forum

    This then leads the defendant to introduce the Companies Act 2006, Sections 43 and 44 that specify who can sign a contract with another party or who can authorise the execution of documents. Since the identity of the person who allegedly sign the alleged agreement has been redacted, there is no proof they had the authority to do so, and in any case, both sections of the Act require both parties to sign.


    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • stek2008
    stek2008 Posts: 95 Forumite
    Name Dropper First Post First Anniversary Combo Breaker
    Fruitcake said:
    Yes. If the clamant has been corresponding and responding via email, it is reasonable to believe it is acceptable by the claimant for the defendant to do so.

    In any case, they have provided a specific exclusion that permits contact by email.

    It would be very useful for you to post a redacted copy of the claimant's WS. It will be interesting to see if a landowner contract has been included. If so, please tell us what redactions if any have been made by the claimant.
    After submitting the best I could do by the deadline - the out of office from Excel came back claiming:

    "Please note that we do not accept service of documents by email."

    Do I need to take any action or is this their problem?
  • Fruitcake
    Fruitcake Posts: 58,206 Forumite
    Name Dropper Photogenic First Anniversary First Post
    edited 5 February at 5:25PM
    Excel/VCS have a nasty habit of claiming in court that they never received certain documents. 

    Take a screenshot of the website where it specifically says to use the litigation@ email address and also print it off. Send the WS again to Excel and the court, but include a copy of the screenshot, and also send it to yourself. If you and the court receive it, then on the balance of probabilities, so did the claimant.
    You will then also be able to show the judge the print-off from the website that instructs defendants, online, to send correspondence online by email.

    If it still worries you, you could print the WS and send it by post, but not signed for, but that is costly and time-consuming, and in my opinion is an unfair contract term, as well as being contradictory.

    Personally I would only email it as I have advised, and make sure the judge is aware. You could even bring it up as a preliminary matter with the judge before the case begins, and/or ask an usher to make the request to bring it up in prelim.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
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