Post CCJ set aside - final hearing preparation

Coupon-mad

I think it'll be easier if you show us the paragraphs you intend to add to the Template Defence (don't show us our whole template!).

When the Judge was making his judgement under 13.3 he specifically asked if there were any costs being claimed - to which I said yes and referred to the initial application to set aside, iirc he then said it could be decided in the judgement from the next trial.

Aha! So costs were reserved!  GOOD.

See the defence following CCJ set aside hearing in the thread by @Zbubuman which, IIRC, includes mention of 'reserved costs'.

Mega_Maniac

@Coupon-mad

I can't find any reference to reserved costs in the thread by @Zbubuman - as far as I can tell they have only submitted their initial WS and are waiting on their first hearing?

Mega_Maniac

So... I am really struggling to absorb the right information to get this defence written up properly. I am in complete information overload and struggling to really understand what applies to me and my case.

Having recently read the thread by @Khayman I have drafted this 'drop-hands' offer to send to them by email:

"Dear Sir/Madam,

I am writing with regards to the above case, the hearing for which took place this past xx October 2024.

As you are no doubt aware, the original CCJ has been set aside under rule CPR 13.3, with expenses reserved for the final hearing. I presume your advocate will have provided a report on the details discussed in the hearing.

I have been instructed to provide my draft defence by the 4:00pm on xx October 2024, but in the interests of saving all parties, and the court, any more time and expense, and because mediation was explicitly encouraged by the Judge prior to the final hearing, I am writing to you in the hopes that we can reach a settlement before then.

I would like to make a 'drop-hands' offer, whereby we agree that neither party owes the other anything, and the claim is discontinued. I believe this is reasonable as the amount for the claim itself is relatively small, and as your advocate may have reported to you: the Judge intimated that there was a strong chance of defence due to inadequate/unclear signage and a "confusing" mobile app experience. As such, and because I am more interested in saving everyone any more time and expense on this matter, I am willing to drop my expense claims if SiP will agree to do the same, and discontinue the claim.

I would be grateful if you could respond by EoB Monday 24th October, otherwise I will have to consider additional expenses based on having to prepare for and attend the final hearing.

I look forward to hearing from you soon.

Sincerely,

----"

I realise this is very unlikely to save me any work, as I can't wait for the response before writing up my defence. But it feels like it can't hurt at this stage... even if they are likely to reject?

Coupon-mad

Why do you want to write off your reserved costs?  That REALLY hurts you. Why do that?

You simply need to end your defence like this:


30.  In the matter of costs, the Defendant asks:

(a) The previously reserved costs of £xxx, and

(b) standard witness costs for attendance at Court, pursuant to CPR 27.14, and(c) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance after causing an unjustified CCJ, with the associated waste of days of court time. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

Statement of Truth

I believe that the facts stated in this defence statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 

Signature

Date

Mega_Maniac

Oh ok, after I read the thread by @Khayman I thought it was similar, so the offer he had made was an option. I would only want to write off the reserved costs if it was the end of it - hence the 'drop hands' offer.

My understanding from reading about costs is that the other party has to act wholly unreasonably - as the judge did not accept the 13.2 defence I thought they would have to conclude that SIP acted wholly unreasonably in some other way to award costs? I realise if they don't turn up that would constitute it, but I didn't see how else I might actually get awarded costs in this case. 

I'm dedicating time tomorrow to get this defence written up, I've been flooded with work now as well so it's the last day I can really get it done. Hopefully that pressure will get me there.

Coupon-mad

No, you already have reserved costs in your pocket, so you said recently.  They are there for you to claim at the next hearing if what you recall the Judge saying was correct.

Mega_Maniac

Coupon-mad said:

No, you already have reserved costs in your pocket, so you said recently.  They are there for you to claim at the next hearing if what you recall the Judge saying was correct.

I actually realised it says it on the order, I had understood it to mean the judge will decide at the next hearing whether to award costs based on evidence at that hearing. Are you saying that the following means costs have already been awarded? Or that they are awarded if I 'win' at the next hearing?

"It is ordered that:
1....Set aside under rule 13.3
2... file and serve...
3. Costs of the application to be reserved until the final hearing."

Mega_Maniac

For my defence, the text from the "Template Defence" thread - the fees requested by SiP are as follows:

Amount Claimed: £160 (Parking fine £100 (as per on site signs), £60 'debt damage costs' (I'm assuming these are the exaggerated fees) £35 Court fee.
£195 Total.

The Defence:

Facts known to the defendant

1. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

2. On 2nd December 2019 the Defendant parked their vehicle in a car park run by SiP Car Parks Limited on Tariff Street Manchester. They paid for this stay using the Paybyphone app, using what they understood to be the correct location code for the car park.

3. Unbeknownst to the Defendant, during their stay here they were issued a ticket which was affixed to their windscreen. They were unaware of this however as when they returned to their vehicle there was no ticket on the windscreen. 

4. 5 years later - on 21st March 2024 the Defendant discovered a CCJ had been obtained against them, in this time period they had received no communication from SiP regarding this ticket nor their intention to take them to court. 

5. The Defendant's address was updated several times during this period with both the DVLA as well as banks and other organisations, resulting in the defendants credit file being updated with the most recent address. There were many simple ways to find the Defendants correct address not employed by SiP.

6. The signage in the SiP car park is inadequate

7. The information presented to the driver in the pay-by-phone app is inadequate and confusing. 

8. The contract signage (See DE1) within the car park states the following term relevant to the Defendants choice of payment:
   
   “Parking is permitted for…
   
   …Vehicles with an electronic ticket purchased by phone in advance of the vehicle being left unattended, remaining valid for the duration of the vehicles stay…"
   
   The Defendant had purchased an electronic ticket purchased by phone in accordance with these terms. There is no reference in these displayed terms to there being different tickets for different types of vehicle. There is no terminology which would lead the Defendant to conclude the ticket they purchased was not valid.
   
   There are two other terms referred to in the same section of this sign which refer to paper tickets and SiP Parking Permits, both of which refer to “valid ticket”, the terms for the digital payment do not make this distinction.

9. The payment website; “https://www.paybyphone.co.uk” provides no information to the driver that the session they are purchasing may be different for a van. When using the paybyphone website, vehicles are added under the customers account. Under vehicle type there are 4 options: “Car, Motorcycle, Electric motorcycle, Heavy goods vehicle” (DE2) - as there is no specific designation for “Van” or “LGV” (light goods vehicle), selecting “Car” is the most appropriate option.
   This is true of both location codes provided on the Tariff sign, the second of which the Defendant was unaware of (see 12.)
   
   

10. When using the paybyphone website a pre-registered user who has selected a vehicle type before does not have to do this again for another parking session. This means that when the Defendant paid for their ticket, they were never presented with the vehicle options at all.
    
    

11. It is also possible that the Defendant had parked at the location previously in one or another vehicle, and used the location code within their user account to park again (DE5) . This would result in the user having no need to view the tariff sign at all, and given the website does not present an alternative tariff, nor the contractual sign suggest there is one, the Defendant would have had no ability to understand the terms, as they were never presented to him during the payment process.

12. The Defendant is likely to have viewed the sign from a distance before exiting the open-sided car park (DE3).
    When looking at the sign, the most legible and largest text is at the bottom of the sign in black - which shows the location code “88841” (DE4)
    The next most legible text is at the top of the sign printed in black - which once again shows the same location code “88841” (DE4)
    There is then further text below this, the least legible text on the sign, printed in a separate colour to the rest of the sign, which goes on to state that there is a separate location code for “Van/Minibus/Motorhome”. (DE4)
    
    The Claimant did not see this less legible text when exiting the car park, was not informed by the contractual signs that there were separate terms to be aware of, and when using the paybyphone website to pay for the parking was given no indication by the website that there were separate terms to be aware of.
    

13. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

**Section fully included**

CRA breaches

**Section fully included**

ParkingEye v Beavis is distinguished

**Section fully included**

Lack of standing or landowner authority, and lack of ADR

**Section fully included**

(Including section about appeals process - I don't know if it is relevant)

Conclusion

**Section fully included**

Added to costs:
" (c) The costs reserved from the previous hearing"

(I assume I need to do a costs form of some kind)

DE1:


DE2:
*image of 4 vehicle types*

DE3:
*Image of open-sided car park with no tariff sign*

DE4:


DE5:
*image of website showing location codes in customer account*

Le_Kirk

Unbeknownst to the Defendant, during their stay here they were issued a ticket which was affixed to their windscreen. They were unaware of this however as when they returned to their vehicle there was no ticket on the windscreen. 

This doesn't make sense!  If there was no ticket in the windscreen when they returned to the car how do they know a ticket was issued and affixed to the windscreen?

Mega_Maniac

Le_Kirk said:

Unbeknownst to the Defendant, during their stay here they were issued a ticket which was affixed to their windscreen. They were unaware of this however as when they returned to their vehicle there was no ticket on the windscreen. 

This doesn't make sense!  If there was no ticket in the windscreen when they returned to the car how do they know a ticket was issued and affixed to the windscreen?

As this is a defence for a second hearing, I have already had the Witness Statement and supporting evidence from SiP showing their images of my vehicle with the ticket affixed to the windscreen. 

So although it was not there when I returned, I know (from the current evidence) that the ticket was affixed there. 

I can change that line to 

"Unbeknownst to the Defendant at the time, but shown by photos provided by SiP at the hearing to set aside the CCJ, during their stay here they were issued a ticket which was affixed to their windscreen. "

If you think that it's necessary, but its a bit of a word salad. 

edit: or should I just remove it?