Court Claim Form received - advice please.

cosmic4z · 17 January 2018 at 1:59PM

I'm feeling a bit lost here (not to mention stressed and anxious). A bit like I've wondered down a massively complex rabbit hole, and I'm not sure where to start. Would totally appreciate a little friendly guidance.

Broadly speaking, I'm struggling with the following:

1. Not sure if I need to (or how to) request a copy of the NTK (that we don't have).

2. Not sure if I need to tell the court I suspect the claimant may be in breach of the pre-action protocol (or do I just mention that as part of my defence).

3. I don't understand the difference between my Defence, Witness Statement, Skeleton Argument. Are these 3 separate items, is there a link explaining what goes in which?

Thank you for your patience, and taking the time to help.

Loadsofchildren123 · 17 January 2018 at 2:19PM

Write to the court enclosing a copy of the LBC and your response in which you asked for information:

Dear Sirs,

Claim xxxxxx

I am writing to request that the court orders a stay of the above Claim due to the Claimant's refusal to comply with its obligations contained in paragraphs 6(a) and (c) of the Practice Direction - Pre-Action Conduct, and paragraph 5.2 of the Protocol for Debt Claims which was in force on the day the Claim was issued.

I enclose copies of the Letter Before Claim and my response, in which a series of questions were asked which were designed to help me to understand the claim, consider my position in relation to it, to put any defence to the Claimant and to then enter into meaningful dialogue with the Claimant in an effort to resolve matters, or at least narrow the issues (paragraphs 3, 6(b), 9 and 12 of the Practice Direction and paragraphs 2, 4.1, 5.1 and 6 of the new Protocol).

Paragraph 7 of the new Protocol makes it clear that paragraphs 13-16 of the Practice Direction continue to apply. Paragraph 13 is clear that parties are expected to comply with their pre-action obligations and paragraph 15 gives the court the power, inter alia, to stay any claim to force a party to comply with those obligations.

It is my view that a stay is entirely appropriate in this case. The Letter Before Claim, and now the Particulars of Claim, reveal very little about what the claim is. Without the information requested I am prevented from defending it properly. This must be against the rules of natural justice, and is a scenario with the Practice Direction and now the Protocol are expressly designed to prevent.

I ask that the court considers the matter and orders a stay of the proceedings.

Yours faithfully etc.

This will probably be ignored at MCOL, so get on and file your defence etc. Then at the DQ stage write this letter again with your DQ (this is the first time a judge is likely to look at the claim/your defence). You may be lucky and get a stay, you may not. I's worth a try and very little effort to write the letter.

Loadsofchildren123 · 17 January 2018 at 2:27PM

cosmic4z wrote: »

3. I don't understand the difference between my Defence, Witness Statement, Skeleton Argument. Are these 3 separate items, is there a link explaining what goes in which?

Defence: filed after your AoS. Sets out your LEGAL arguments. So eg. the Defendant denies liability for the charge because she did not enter into any contract with the Claimant because no contract was offered by the Claimant's signage/Claimant's signage was inadequate. etc. or the D denies liability..... because she was not the driver at the relevant time and cannot be liable as keeper because the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 have not been complied with by the Claimant.

In your defence you must also make clear what you admit, do not admit or deny, and what aspects of the C's claim you put them to full proof of. Eg the D admits that she is the registered keeper of vehicle xxxxxx but denies that she was driving it on the day in question.

WS: filed later on. This contains all the FACTS to back up your legal arguments. It tells your story. So eg if you are defending on inadequate signage, you would say what signs were there, where they were, what they said, and why they cannot have offered a contract. If you were defending as keeper and say POFA not complied with, you'd say when the NtK was received and so on.

Skeleton: this is not required by the court. However, where you are acting in person and not used to arguing court cases, it is a helpful document because you can hand it up and the judge will read it and you can either more or less read out from it (or use it as an aide memoir) or you can sometimes (if the judge has read it properly) simply ask is there anything unclear in it or which (s)he would like you to expand upon. It makes your job easier on the day. Not everyone does one, but I always recommend it. It will go further than your Defence and WS because it will tie both of those in together, and to the Claimant's evidence too. And it will refer the judge to the relevant parts of your defence/WS in relation to each issue, so it helps the judge navigate his way easily around your case. The easier you can make the judge's job, the more favourably he will look on your case.

cosmic4z · 17 January 2018 at 10:17PM

Thank you Loadsofchildren123. That really helps to clarify things and puts my mind at ease.

I've sent off the query to the court, regarding claimant's possible breach of protocol.

Should I also be asking the claimant for a copy of the NTK?

Kind Regards,

Coupon-mad · 17 January 2018 at 10:33PM

cosmic4z wrote: »

At the time of the incident, she was suffering with Cervical Spondylosis, and also Chest Infections.

The former is a long term arthritic condition, meeting the definition of disability under the Equality Act:

https://www.healthline.com/health/cervical-spondylosis

She is disabled, if her arthritic neck causes her chronic, severe pain and stiffness that affects her moving around in daily activities, and if it is recurrent or likely to continue or recur, over a period of 12 months or more.

I'd say yes, it probably will recur, because it doesn't heal/go away. Do you agree? If so, she cannot legally be fined for taking a bit longer to go about her shopping, or the time taken to get to the PDT machine and pay, or the time to get comfortably back into the car after shopping, and leave.

Service providers MUST make a 'reasonable adjustment' of any arbitrary time limit, allowing for disabled population at large, in anticipation of them needing to take longer than other able-bodied people. No blue badge needed on private land. This case is worth citing to show that paid-for time should in fact buy MORE time for such people:

http://www.wake-smith.co.uk/news/council-car-park-case-settled-a-victory-for-blue-badge-holders/

In that case it was about Council parking (where Blue Badges apply, but that's not the case on private land) and the campaigners forced a policy change to allow an extra hour's parking on top of paid-for time. The case supports an argument for YOUR case too (no blue badge needed, the statutory duty to make adjustments is for any person with relevant 'protected characteristics').

The retail park is jointly and severally liable for indirect discrimination for having no policy of reasonable adjustment offering more time for this section of the population, many of whom would be elderly shoppers. So hardly an unexpected element of people at that retail park!

You need to communicate this in your Mum's name, to the Claimant and to the Retail Park, citing their liability for failures under the Equality Act 2010. Urgent! Tell them, in writing, and remind them that the Claimant will be unable to rely on the Beavis case, not least because the Supreme Court Judges remarked that:

105. 1) The test of “significant imbalance” and “good faith” in article 3 of the
Directive (regulation 5(1) of the 1999 Regulations) “merely defines in
a general way the factors that render unfair a contractual term that has
not been individually negotiated” (para 67). A significant element of
judgment is left to the national court, to exercise in the light of the
circumstances of each case.
2) The question whether there is a “significant imbalance in the parties’
rights” depends mainly on whether the consumer is being deprived of
an advantage which he would enjoy under national law in the absence
of the contractual provision (paras 68, 75). In other words, this element
of the test is concerned with provisions derogating from the legal
position of the consumer under national law.

106. In determining whether the seller could reasonably assume that the
consumer would have agreed to the relevant term in a negotiation, it is important to
consider a number of matters. These include;
“whether such contractual terms are common, that is to say they
are used regularly in legal relations in similar contracts, or are
surprising, whether there is an objective reason for the term and
whether, despite the shift in the contractual balance in favour
of the user of the term in relation to the substance of the term
in question, the consumer is not left without protection”

The charge in the Beavis case did not breach the Equality Act 2010, but your Mum's does, so when the Supreme Court Judges decided the following, they had considered the facts in that case alone and the part in bold is highly relevant:

107. In our opinion the term imposing the £85 charge was not unfair. The term
does not exclude any right which the consumer may be said to enjoy under the
general law or by statute. But it may fairly be said that in the absence of agreement
on the charge, Mr Beavis would not have been liable to ParkingEye.

In your Mum's case the charge for minor 'overstay' is IMHO illegal and she should have been offered a 'reasonable adjustment' to the disabled population at large.

This offer could be say, on a simple sign/at the CS desks, or clealry stated at the PDT machines themselves, or printed on the PDT tickets, and/or printed on any receipt as a wealth warning: - ''Are you elderly/disabled? If you need more time in the car park, to avoid being penalised unfairly, please ask so we can extend the time limit for you.''

The charge in THIS case, does 'exclude any right which the consumer may be said to enjoy under the general law or by statute'.

It was for overstay at a retail park in Sheffield, is it okay to say which one?

Yes, I guess that'll be Lamilad's favourite place (apart from Elland Road and Skipton Court)!

cosmic4z · 18 January 2018 at 7:41PM

Thanks once again Coupon-mad.

It was Parkway Central Retail Park.

I'm struggling to track down the postal address for their management / legal people. Best I have so far is: Parkway Central Retail Park, Sheffield, S2 5AU. This is the location of the retail park site; I imagine their management may be off-site? I'll ring around some of the retail units and ask.

I've drafted a letter based on your post. I have to confess though, I'm unfamiliar with some of the legal terminology used; and so, my draft may or may not make sense, be appropriate and effective. Also, not sure if I posted the relevant clauses of the Equalities Act. I'll post below.

Anyhow, thank you once again for all your help.

==========

Dear Sirs,

Be advised that the defendant is (and was at the time of the alleged parking incident) suffering with Cervical Spondylosis, a long term arthritic condition causing pain and stiffness, which meets the definition of disability under the Equality Act.

She therefore, cannot legally be fined for taking a bit longer to go about her shopping.

Service providers MUST make a 'reasonable adjustment' of any arbitrary time limit, allowing for the disabled population at large, in anticipation of them needing to take longer than other able-bodied people. No blue badge is needed on private land.

In a case involving Norwich Council parking (where Blue Badges do apply, but that's not the case on private land), campaigners forced a policy change to allow an extra hour's parking!on top of!paid-for time. This case supports an argument for our case too (again, no blue badge needed, the statutory duty to make adjustments is for any person with relevant 'protected characteristics').

In addition, the retail park is jointly and severally liable for indirect discrimination for having no policy of reasonable adjustment offering more time for this section of the population, many of whom would be elderly shoppers. So hardly an unexpected element of people at that retail park!

I refer you to the Equality Act 2010.

20. 3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

20. 4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

20. 5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

21. 1) A failure to comply with the first, second or comply with a duty to make reasonable adjustments.

21. 2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

Also be advised, the Claimant will be unable to rely on the ParkingEye v Beavis case, not least because the Supreme Court Judges remarked that:

105. 1) The test of “significant imbalance” and “good faith” in article 3 of the Directive (regulation 5(1) of the 1999 Regulations) “merely defines in a general way the factors that render unfair a contractual term that has not been individually negotiated” (para 67).!A significant element of judgment is left to the national court, to exercise in the light of the circumstances of each case.

105. 2) The question!whether there is a “significant imbalance in the parties’ rights” depends mainly on whether the consumer is being deprived of an advantage which he would enjoy under national law!in the absence!of the contractual provision (paras 68, 75). In other words, this element of the test is concerned with provisions derogating from the legal position of the consumer under national law.

106. In determining whether the seller could reasonably assume that the consumer would have agreed to the relevant term in a negotiation, it is important to consider a number of matters. These include; “whether such contractual terms are common, that is to say they are used regularly in legal relations in similar contracts, or are surprising, whether there is an objective reason for the term!and whether, despite the shift in the contractual balance in favour of the user of the term in relation to the substance of the term in question, the consumer is not left without protection”.

The charge in the ParkingEye v Beavis case did not breach the Equality Act 2010, but in our case, it does. When the Supreme Court Judges decided the following, they had considered the facts in that case alone and the part in bold is highly relevant:

107. In our opinion the term imposing the £85 charge was not unfair.!The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute. But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye.

In our case the charge for a minor 'overstay' is IMHO illegal and the defendant should have been offered a 'reasonable adjustment' to the disabled population at large.

This offer could be say, on a simple sign / at the CS desks, or clearly stated at the PDT machines themselves, or printed on the PDT tickets, and / or printed on any receipt as a wealth warning: - ''Are you elderly/disabled? If you need more time in the car park, to avoid being penalized unfairly, please ask so we can extend the time limit for you.''!

The charge in THIS case, does 'exclude any right which the consumer may be said to enjoy under the general law or by statute'.

Yours faithfully etc

Coupon-mad · 19 January 2018 at 2:31AM

Don't use 'IMHO' in a formal letter.

If this is addressed to the retail park, make the beginning have an introduction about the issue,m and the end should point the way forward to what you want - cancellation - and by when (name a date - 31st maybe).

cosmic4z · 19 January 2018 at 6:36PM

Thanks Coupon-mad.

I've found the contact details for property management company responsible for the retail park. No joy regarding contact details of the owner (have tried google, calling the various businesses at the park, the council, planning dept, etc).

I'll send the letter to the property management company, should I also send copy to the law firm (BW legal)?

Thanks again for all your help.

Quentin · 19 January 2018 at 6:45PM

In para 2 you assert she cannot be fined......

She isn't being fined,!!

cosmic4z · 19 January 2018 at 6:57PM

Quentin wrote: »

In para 2 you assert she cannot be fined......

She isn't being fined,!!

Thanks Quentin, it's in the post now! I haven't sent copy to BW legal yet though.

I'm not sure it will make much difference in any case (in terms of getting the property management firm, or the owner, to withdraw the claim), though some of the points I image will go in to my defence.

Court Claim Form received - advice please.

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