OK whats my next move?

sparkyhx · 11 November 2018 at 6:21PM

.................Judges are well versed in the "shifty" and will take this into account with the way they weigh the arguments.

Not 100% sure what you mean? Are you saying if we are shifty in avoiding a direct question about the driver that they will look badly on that - or that they are well versed in people being shifty in this circumstance and 'ignore it' as long as you don't say who was driving?

Is it worth adding in a counterclaim?
is a counterclaim only for 'DPA data misuse and harassment - or can you add time in spent researching and preparing various documents/evidence?

Can you add a counterclaim later than the AoS or does it have to be done then?

Still confused as to which route to go down and running out of time on the AoS
- keep it simple - signage
- add in POFA
- Add in Pre Action Practice and general not following any rules or providing documents etc

sparkyhx · 12 November 2018 at 7:31PM

anyone able to answer the above?

I personally (from my very limited knowledge) think the case is slam dunk on just the basics - but very happy to take more guidance on adding layers of defence on top

sign at entrance says - full T&C on P&D ticket machine sign. Sign does not mention the grace period. Another sign withion the site mentions the grace period.

End of

Umkomaas · 12 November 2018 at 7:57PM

The intention to counterclaim has to be included at the time of the AOS, then included as an addendum to your defence - and you have to pay your filing fee (sliding scale depending on how much you are counterclaiming).

You need to be clear about what it is your counterclaim is for, but it won't be these:

or can you add time in spent researching and preparing various documents/evidence?

...... they would be submitted as part of your costs schedule should you win via your standard defence in court.

What and for what reason(s) would you wish to counterclaim for? You need a clear understanding and be able to articulate a good case.

Litigation carries a risk - and if your counterclaim is lost, the PPC could pile in for their costs against you in defending it. Not to be taken lightly, or a knee-jerk to being peed off with the PPC.

Coupon-mad · 12 November 2018 at 8:15PM

No counterclaim is recommended because as Umkomaas says, costs are paid when you win, when you ask.

You need to read stevey's thread - your case is EXACTLY like his and his wife insisted on being the admitted driver, and he was her lay rep and they lost in front of a Judge who knows about the POFA.

I know IamEmanresu has court experience and that Judges don't like shifty Defendants but stating that there can be no 'keeper liability' due to the POFA is a reasonable defence point IMHO. I do not consider it 'shifty', by that's just my opinion.

A Defendant doesn't have to comment as to who was driving unless asked directly by a Judge.

If the Judge asked them directly (then answer truthfully), and there are plenty of Judges who know that a D doesn't have to volunteer that info so why not use that in the defence, unlike stevey, who would not even try to take that stance.

Please read that thread - no link, find him in the members' list and read it... a cautionary tale.

By comparison, then read a case someone won v HX on the POFA point alone, by searching the forum for that Judge's surname, I remember she did decide one (before stevey's case) purely on non-compliance with the POFA, which is why I was disappointed when he and his wife insisted on defending as 'driver' which narrowed the issues far too much - IMHO.

And here is one today on pepipoo (not about HX, but about Excel who do not use the POFA), which shows how a clued up Judge handles it:

http://forums.pepipoo.com/index.php?showtopic=118794&st=40&p=1433452&#entry1433452

She then asked me why I claim to be unable to name the driver but added the caveat that she was not obliging me to name the driver. I said that my wife worked shifts and therefore we rely on 3 different grandparents to provide childcare on an ad hoc basis dependant upon my wife's shift pattern and that the vehicle in question had the infant car seats in and that it is easier to swap vehicles that car seats. (the judge indicated she would have been happy with the reply "multiple possible drivers!")

The C's advocate then said that I appeared to have personal knowledge of the incident and knowledge of the signage which I claimed to be inadequate and therefore must either be the driver or know the driver. At this point I burst out laughing and pointed out that when someone takes you to court you do your research! I then indicated the size of the file I had produced and pointed out that the C had sent me images of the signage in their amended PoC!

Still confused as to which route to go down and running out of time on the AoS
- keep it simple - signage
- add in POFA
- Add in Pre Action Practice and general not following any rules or providing documents etc

Use bargepole's concise defence in the NEWBIES thread, then add the fact that this Claimant do not use the POFA, and the fact of this case that the signage does not create any offer of total stay.

As IamEmanresu said, it is a parking offer at the machine, the point of sale at the terms that apply are only read when standing at the machine (Thornton applies) and there is no known 'total stay' offer from any signs, certainly not when driving in, a driver would have no idea they were being timed already while driving round looking for a space.

sparkyhx · 13 November 2018 at 10:41AM

Thanks Coupon-Mad,

I was going the counterclaim route to upset their business model and the fact that this whole case is unnecessary had a bit of common sense been applied. Ticket bought that more than covered the parking period and the waiting time. Had we broken the rules fundamentally - not bought a ticket, overstayed etc then I would have simply paid up.

I've seen stevey's from very early on. Its particularly relevant cos it is the same car park.

However - his was a real contravention (accidental underpay/overstay?) and he was relying on POFA and poor signage totally. I don't mean that to sound "holier than thou", but in our case the only contravention was in rules not listed at the P&D. TBH from my understanding of Steveys case I would have paid after the first appeal.

On entering any P&D car park I would expect to be fined for not paying enough or overstaying irrespective of whether the signs were correct/legal/contradictory etc. I would never go into one say - that signs not right and then blatantly not pay. Yes I am relying on a technicality, but only cos we followed the 'rules' like any reasonable person.

And coming back to Stevey case - both myself and my wife are not convinced if asked "were you driving", "do you know who was driving" without 'blabbing' hence why I keep coming back to the question of using this or not.

Obviously if its taken at face value - no harm done and can only enhance the defence, however if we use it even as a secondary argument and were asked and 'blabbed' what damage could it do to what I think is a fairly good case.

sparkyhx · 13 November 2018 at 2:48PM

Disclosure -
Ok getting confused here as well
CPR 31.14 doesnt appear to be valid for small claims and also only applies to solicitors documentation? and not that held by PPC - contract, etc)
CPR 18 - possibly valid, but recommendation appears to be do it after CPR 31 has failed - if so why not start with this - also does this only apply to solicitor docs. - so whats the use?
Subject Access Records - this appears to be the route I need for most of the docs/lack of info - but as this is GDPR related they are not going to give me contracts etc so how do I get those?
- contract with landowner
- planning permission for signs
- additional photo video evidence to confirm driver
- evidence of time synchronisation between camera and D&D machines
- evidence of when a ticket was bought for car in question - (thrown away in the period between parking and getting PCN)

all the above has been asked for in correspondence on 3 occasions with firstly HX CPM and then Gladstones

Should I just pursue HX CPM with the SAR or also Gladys with the CPM 31 then 18,
how do I attempt to get at the contract/planning permission
looked on local council planning system and there appears to be none for signs although there are 'get outs.'. The only planning apps appear to be several to enlange the car park from 30 to >200, add 37 spaces etc)

sparkyhx · 14 November 2018 at 11:23PM

anyone on the last 2 posts?

Umkomaas · 14 November 2018 at 11:36PM

sparkyhx wrote: »

anyone on the last 2 posts?

You're trying to take this stuff into legal arenas/legal arguments which this forum is not designed to deal with. The more legally complex you try to make this, the less likely you are going to get anyone providing advice.

The forum is simply about fighting parking charges, primarily at the front-end of the process.

If you want freebie legal advice, I suggest you try the Leagle Beagles website where you might have more legally expert advice. Or pay a professional ....

HTH

sparkyhx · 15 November 2018 at 10:28AM

@Umkomaas - not sure I understand what you are referring to
you asked why I wanted to counterclaim - so I told you - anyway given up on that idea - too much faff. So yes thats probably a legally complex area

But I don't understand why the rest is going into legally complex areas?

The main thrust of the past few posts was :-
around inclusion of POFA in the defence and the fact that neither myself nor my wife, feel we could be suitably evasive if asked the straight 'where you the driver' question by the Judge..............................as per Stevey's case which was lost for exactly the same car park as our case, albeit in slightly different circumstances

At the moment I have both the excellent Coupon-mad and Iamerasmus arguing different things, both for totally the right reasons. Coupon Mad referred me Stevey's case which they lost, largely due to the keeper 'owning up' to be the driver when asked the straight question.

So the ask is - given what I think is a strong case to start with about the signage inconsistency and the adherence in broad terms to the T&C (we bought a ticket for the right car and it covered the time in the car park) Do I include POFA to increase the weight of the defence but risk 'the question' or leave it out as not necessary

Are you saying SAR and CPR is not part of the tactics of getting relevant info and causing additional hassle for the claimant? from reading on the forum I thought this was a recognised tactic.....maybe I've gone down a particular rabbit hole somewhere along the lines? Pretty sure I got there via the newbies thread though

Claimant has basically ignored all requests for info so far (as expected), all requests made at the recommendation of the forum and pro forma letters etc. So what do I do if they land a ***t load of stuff on me in court? and I get flustered (dont think on my feet very well).

KeithP · 15 November 2018 at 6:20PM

sparkyhx wrote: »

So what do I do if they land a ***t load of stuff on me in court? and I get flustered (dont think on my feet very well).

You object robustly.

Nothing, absolutely nothing, should be a surprise to either side at a hearing.

OK whats my next move?

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