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  • FIRST POST
    • muleskinner
    • By muleskinner 10th Oct 17, 5:52 PM
    • 109Posts
    • 104Thanks
    muleskinner
    WON! - Court Hearing vs Gladstones & PPM Ltd
    • #1
    • 10th Oct 17, 5:52 PM
    WON! - Court Hearing vs Gladstones & PPM Ltd 10th Oct 17 at 5:52 PM
    UPDATE 12.12.17

    Court hearing set for 12th Feb. WS needs to be in by 2nd Jan (great timing) so I've started working on it now.

    I've posted my fifth (and hopefully final) draft WS at the end of this thread and would be really grateful for any input. Thanks again for input thus far.

    Thanks in advance.

    ===

    Hi,

    So, it looks like I'm finally going to court to fight a PCN issued by Parking & Property Management Ltd. PCN issued to my wife so I'm basically fighting this on her behalf.

    PCN was issued for five minutes parking in a lay-by opposite a co-op where it had previously been permissible to park for a limited time (20 mins or so) if visiting same. Very poor forbidding signage and absolutely nothing to indicate change of restrictions.

    I've just received the DQ from Northampton as well as an email from Gladstones saying they are applying for 'Special Directions' to have it adjudicated 'papers only'. I know how to fill in the DQ but I couldn't find anything indicating how to respond to these 'Special Directions' - do I just write a covering letter saying I do not consent to this and want an oral hearing?

    Also I will want to attend court as my wife's 'lay representative' and I can't find any info on this anywhere. Do I need to make any kind of special application to do this?

    It seems the next step will be for me to write a witness statement and get evidence together. I would welcome any feedback/advice on this specific to my case. The defence I filed (prepared after much research here and elsewhere) is below.

    The 'particulars of claim' state:

    'The driver of the vehicle registration XXXXX incurred the parking charge(s) on XXXXX for breaching the terms of parking on the land at Kingston Mills Bradford-on-Avon. The defendant was driving the vehicle and/or is the keeper of the vehicle and the claimant claims £160 for parking charges/damages and indemnity costs if applicable, together with interest etc etc'

    I don't have any legal training but have been through the small claims process a few times before, winning two out of three of them!

    =====

    Summary of Defence

    I am XXX of 44 XXX, Defendant in this matter.

    On the 7th January 2017 I parked my car in a unmarked lay-by outside the co-op in Bradford-on-Avon for the purposes of buying groceries from the co-op and delivering a package to the Post Office there. Previous parking restrictions in this spot had always allowed short parking stays on co-op business.

    After less than five minutes inside the shop I noticed one of the Claimant’s operatives approach my vehicle. As it appeared he was about to issue a parking ticket I left the shop immediately and returned to my vehicle.

    I explained that I was unaware of any changes to parking restrictions and would remove my vehicle immediately. Despite this, and whilst in my presence, the Claimant’s operative took photographs of my vehicle and issued me with the Parking Control Notice (PCN) that is the subject of this claim.

    The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which fully negates the Claimant’s case.

    1. A Contract Cannot Exist For Something That Is Forbidden
    The wording on the sign in question expressly forbids parking, therefore it cannot be considered an offer of parking on any terms. Consequently there is no contract and no ‘breach of terms’.

    2. The Signage Is Not of a Standard To Constitue A Contract
    The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

    3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
    If it was assumed a contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. As such I would have had ‘right of cancellation’ from said contract.

    4. The Claimant Has No Standing to Bring a Case
    Despite being asked, the claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question.

    Particulars of Defence

    1. A Contract Cannot Exist For Something That Is Forbidden
    The wording on the sign in question forbids parking other than for disabled blue badge holders and co-op delivery vehicles. There is no meaningful ‘offer’ of parking for other vehicles and the original PCN and Notice To Keeper I was served with refer to the charge in question as being for ‘unauthorised parking’. Without an ‘offer’ or benefit to the consumer there cannot be a contract and simply being told not to do something does not constitue a contract.

    If the charge of £100 for 24 hours was a genuine ‘offer’ then I fail to see how my parking was ‘unauthorized’ (therefore invalidating the original PCN and Notice To Keeper’ I was sent) or how I have commited any ‘breach’ as stated on the particulars of claim. The Claimant’s position on this seems hopelessly muddled.

    There have been at least two other cases where it has been ruled that such ‘forbidding contracts’ cannot be enforced. For examples see ‘Parking Control Management v Bull, Lyndsay and Woolford’ (which refers to signage and wording almost identical to that used in this case) and in which the Judge found as follows:

    “If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

    The only difference with the signage in the above case and this particular case is that here certain vehicles (co-op delivery vehicles and disabled blue badge holders) are permitted to park. However, in ‘Horizon Parking v Mr J. Guildford’ and ‘ES Parking Enforcement v Ms A. Manchester’ it was ruled that any contractual arrangement implied by such signage only applies to vehicles which are ‘authorised’ to park. From ‘ES Parking Enforcement v Ms A. Manchester’:

    ‘I do not find that “Terms of parking apply at all times” in any way invalidates my interpretation of the sign [that it is forbidding] because there are terms which apply to those that are authorised to park.’

    According to the claimant my vehicle was not ‘authorised’ to park as stated in the PCN and Notice To Keeper.

    Note also that in both these cases it was ruled that ‘ParkingEye vs Beavis’ did not apply as in that case there was an ‘offer’ of free parking for a limited period of time. From ‘Parking Control Management v Bull, Lyndsay and Woolford’:

    ‘In the Beavis case the scheme was categorised by the permission the ParkingEye gave Mr Beavis to be in the car park for a limited period of time. So whether you call it a contractual licence or whether you simply call it a contractual permission, as Lord Mance in the end did, that was the consideration and the consideration flowing the other way was Mr Beavis’s agreement to be bound by those terms.’

    2. The Signage Is Not of a Standard To Constitute A Contract
    The signage at the site was not of a standard to constitute a ‘contract’ between myself and the claimant. Without a contract there cannot be a ‘breach of terms’.

    Specifically, the signage at the site falls way short of the characteristics defined in the code of practice of the International Parking Community (IPC) (the industry body to which the Claimant subscribes) in the following ways:

    i) There are no signs at the entrance to the bay indicating one is entering private land

    ii) The bay is unmarked and undifferentiated from the public highway

    iii) The only PPM sign that is in place does not contain a large ‘P’ indicating parking restrictions

    iv) The sign is not in a position’ such that a driver of a vehicle is able to see it clearly upon entering the site or parking a vehicle within the site’.

    v) The sign is not ‘obvious to the motorist’ as it is a small sign containing small text on a post over seven feet high.

    vi) The IPC guidelines explicitly state that ‘Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.’ There was a recent change in restrictions here yet there were, and have never been, any such signs at the site.

    In addition to the above it should be noted that there is additional co-op branded signage at the site that does not mention any kind of charge for parking, this signage is considerably larger and more apparent than the PPM signage that is the subject of this claim.

    3. Consumer Contracts Regulations 2013 and ‘Right Of Cancellation’ Applies
    If , despite the above, it was deemed that a valid contract did exist it would be categorised as a ‘distance contract’ under Consumer Contracts Regulations. A ‘distance contract’ is defined as

    ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’

    This would clearly be defined as an organised service-provision scheme (for parking), the contract is concluded without the simultaneous physical presence of the trader and the consumer and there is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

    As such I would have had ‘right of cancellation’ from such a contract and my communicating to the PPM operative that I was not aware of this supposed ‘contractual arrangement’, followed by the immediate removal of my vehicle, should have been taken as a clear indication that I wanted to excersise this right. As this was done within five minutes of the contracts (supposed) acceptance this falls well within the guidelines set out in part 3 of The Consumer Contracts Regulations 2013.

    In any case it is perfectly reasonable to expect 5-10 minutes to understand and comprehend any potential contract. ‘ParkingEye v Beavis’ makes it clear that if a charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms

    Not also that the signage does not contain the information required by the Consumer Contracts Regulations 2013. As per clause 13(1), without this information any contract is not binding on the consumer.


    4. The Claimant Has No Standing to Bring a Case
    Despite being asked, the Claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question. The Claimant is put to strict proof as to on what terms they are permitted to operate by the landowner by disclosing the appropriate parts of their contract.

    5. Additional Costs
    There is no justification in the particulars of claim for the £60 of ‘damages and indemnity costs’, nor for the £50 ‘legal representatives costs’. Any communication I have received from the Claimant’s legal representatives has consisted of automated letters. The Claimant is put to strict proof as to the validity of these costs.
    Last edited by muleskinner; 12-02-2018 at 5:32 PM. Reason: Update
Page 5
    • muleskinner
    • By muleskinner 3rd Feb 18, 11:20 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    OK - I have gone through this more or less from scratch based on the info in Peperlini's thread.

    I misunderstood the difference between costs under R27.14 and those under the PD. I have split the doc into two sections which deals with each, as per Peperlini's.

    For each point in the PD section I have tried to say how this contravenes the PD or the negative effect it had on the Defendant.

    I have included the case law from Peperlini's thread.

    The PPC weren't as slack here as in Peperlini's case, however I think they have still significantly failed to comply with the PD and behave unreasonable post-action by refusing to narrow down the legal basis of the claim and pursuing action on land on which they have absolutely no authority to operate (from my reading of the docs anyway).

    Any more input much appreciated. I'm afraid to say I'm reaching brain meltdown stage now!

    =====

    Defendants's Costs Application

    1.General costs rule in Small Claims: no costs order. However: 1.1.CPR Rule 27.14(2)(g): costs can be awarded where a party behaves unreasonably. 1.2.Paragraph 16 of Practice Direction !!!8211; Pre-Action Conduct: a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest. Defendant says both apply and seeks a costs order against Claimant.

    Breaches of Pre-action Conduct Practice Direction:

    2. Paras 3, 8 and 12 of the Practice Direction set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to:

    2.1. Understand each other's positions (para 3)

    2.2. Make decisions about how to proceed (para 3)

    2.3. Explore settlement/consider ADR (para 3)

    2.4. Support the !!!8220;efficient management!!!8221; of any proceedings and reduce costs (para 3)

    2.5. !!!8220;Stocktake!!!8221; and review their respective positions after following the Practice Direction by exchanging information, to see if proceedings can be avoided and to !!!8220;at least!!!8221;narrow the issues (para 12).

    3. Paras 6(a) & (c) oblige a Claimant to enter into a meaningful dialogue with a Defendant at an early stage by imposing specific obligations to:

    3.1. Explain the claim in a Letter Before Claim (LBC),

    3.2. Provide relevant core documents, and

    3.3. Answer any questions asked by Defendant in sufficient detail for Defendant to understand and respond

    5. The Claimant has failed to supply until witness statement stage any evidence of authority to enforce any kind of parking scheme on the land in question. This is particularly relevant in this case as the land appears to be public highway. This is a direct contravention of para 6(c) of the Practice Direction ('the parties disclosing key documents relevant to the issues in dispute').

    6. The Defendant explicitly asked the Claimant for such evidence of authority in a letter dated 26.04.2017. The Claimant refused to honour this perfectly reasonable request. There can be no good reason for witholding such important documentation and doing so represents a significant failure to comply with the Practice Direction.

    7. If the Claimant had provided, at an early stage, the details of the contractual relationship they have with the landowner that have been supplied 'at the last minute' in the witness statement it would have been obvious they had no authority to operate on the land in question and litigation could have been avoided.

    8. By refusing to inform the Defendant of who the landowner is, the Claimant has prevented the Defendant from entering into a dialogue with the landowner - a route of appeal that is successful in resolving many of these types of cases at an early stage.

    9. The Claimant's LBC does not provide any details of the legal basis on which this claim is made (e.g. trespass, breach of contract, payment for parkings services and so on). This is a direct contravention of para 6(a) of the Practice Direction ('The Claimant writing to the Defendant with concise details of the claim. The letter should include the basis on which the claim is made').

    10. Failure to supply details of the legal basis on which this claim is made also contravenes para 3(a, b, e and f) of the Practice Direction in that, without detail of the legal basis on which a claim is being made the Defendant cannot fully understand the Claimant's position, cannot make a decision as to how to proceed, and incurs considerable wasted time and energy trying to defend the case 'on all fronts'.

    10. The Claimant's LBC includes spurious additional costs with no explanation as to how these are caclulated. This is a direct contravention of para 6(a) of the Practice Direction ('The Claimant writing to the Defendant with concise details of the claim.. if money, how the amount is calculated).

    11. The Defendant has, in all correspondence with the Claimant, requested arbritration via the Consumer Ombudsman in order to avoid litigation as specified in the Practice Direction. The Claimant has refused arbritration via this body without giving any reasonable explanation as to why. This is a direct contravention of para3(d) of the Pratice Direction ('consider a form of Alternative Dispute Resolution (ADR) to assist with settlement') and also para 8 ('the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings').

    12. Para 13-16 of the Practice Direction refer to sanctions for non-complicance. Compliance with the Practice Direction is not voluntary, nor is it a !!!8220;guide!!!8221; to best practice. It is part of the Civil Procedure Rules and is binding. Parties are expected to comply with it. The court may punish those who do not. Inter alia, the court's powers include a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d).

    13. The Practice Direction's aim is to create an opportunity to resolve matters (or at least narrow issues) in the !!!8220;lower cost atmosphere of pre-action protocol procedure!!!8221;, rather than the !!!8220;higher cost atmosphere of court proceedings!!!8221; (as it was referred to in Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855).

    14. The Defendant relies on the following case law:

    14.1. Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch);Successful Claimant failed to recover costs and ordered to pay Defendant's. Judgment reiterated that the aim of the pre-action requirements was to enable an early exchange of information so that a potential claim could be fully investigated and, if possible, resolved without the need for costly litigation.It clearly demonstrates that litigation should be a last resort, not pursued as a matter of course as Claimant has done in this case, also that key documents should be exchanged early in the proceedings.

    14.2. Daejan Investments Limited v The Park West Club Limited (Part 20) !!!8211; Buxton Associates [2003] EWHC 2872; Punitive costs order against Claimant for failing to comply with the Practice Direction. Paragraph 11: !!!8220;It is abundantly clear to me that..... this is not a series of allegations that had been properly or thoroughly investigated until.... !!!8220; after proceedings had been issued. Paragraph 14:!!!8220;The pre-action protocol provides that there should be a claim letter with a clear summary of the facts on which each claim is based!!!8221;, and !!!8220;the object of the protocol is... to get people to put their cards on the table and to honestly and rationally discuss matters. To that end meetings are provided for, and there is a requirement... which prescribes that there should be a rational and sensible response...the protocol provides the framework for a sensible discussion, or the chance for a sensible discussion so that the option is available to a party to avoid the need for litigation.!!!8221; By witholding key information and refusing to 'narrow down' the issues the Claimant has prevented such a discussion from ocurring in this case.

    14.3.Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855; Defendant awarded costs because of Claimant's failure to comply with the Practice Direction. Judgment reiterates the purpose of the pre-action obligations is for parties to make a real attempt to resolve matters at an early stage. Paragraph 46: punitive costs order was justified by the !!!8220;exchange of information taking place, not in the lower-cost atmosphere of pre-action protocol procedure, but in the higher-cost atmosphere of court proceedings!!!8220;. In this case key documents were not supplied by the Claimant until proceeding were well underway.

    Post-action conduct pursuant to Rule 27.14(2)(g):

    15. The Claimant's unreasonable conduct extends beyond the pre-action phase and has continued during these proceedings.

    16. The Claimant's Particulars of Claim were incoherent and provided no real details of the legal basis for the claim. In fact, the Particulars of Claim seem to contradict all previous correspondence with the Claimant as they refer to a 'breach of terms' (which clearly implies a breach of contract) as opposed to a 'consideration for parking services'. This is a serious and significant breach of CPR Part 16.4.The claim should have been struck out pursuant to CPR 3.4 as this did not allow the Defendant to fully understand and deal properly with the Claim, however the issue fee of £255 prevented the Defendant from making this application.

    16. The Defendant wrote to Gladstones Solicitors on 09.12.17 specifically stating their confusion on the legal basis for the claim and asked , in no uncertain terms, for clarification. They received no response. The Defendant wrote, again, to Gladstones Solicitors on 28.12.17 stating that no response had been received but again received no response. Consequently the Defendant will have no idea when attending the hearing as to on what legal basis this claim is being made which puts them at a distinct disadvantage.

    17. The legal basis for the claim as described in paras 6 and 9 of the Claimant's witness statement differs from that on the Particulars of Claim in that it refers to a 'consideration for parking services' rather than a chanrge for breach of contract. The Claimant seems to change their position on this on a whim.

    18. The Claimant's witness statement is a 'cut and paste job' containing many irrelevant references to case law and rebuttals to points not even raised by the Defendant. The Claimant's evidence bundle contains over thirty pages of completely irrelevant material and doesn't even include a copy of the contract on which their case relies. Filing documents in this manner wastes both the Defendant's time and the court's time and is an abuse of the court process.

    19. The Claimant's claim is entirely opportunistic, vexatious and without merit in that they have no authority to operate in any capacity on the land in question. The entire basis of this claim is either incompentence or blatant profiteering.

    Summary:

    20. The Claimant appears to believe it is immune from steps which each party to litigation is expected and required to take both prior to proceedings being issued, and afterwards. Its attitude to its obligations under the Practice Direction, and under the Civil Procedure Rules, to the court process and the rules of natural justice, is contemptuous and cannot go unnoticed and unpunished.

    21. The Claimant's conduct, both pre- and post-action, has denied Defendant the opportunity to understand and deal with the claim: she has been unable properly to assess the strength of the claim at an early stage, to put her own case to the Claimant and for each party to have entered into dialogue.

    22. Claimant's dogged determination to proceed to court regardless of whatever Defendant has to say has resulted in a significant waste of time and costs and court resources. Defendant has had to submit a lengthy defence statement, a lengthy witness statement, accompanied by a large amount of legislation and case law.

    23. In considering the reasonableness of Claimant's conduct the court should take into account its position as a professional parking company whose day to day business is issuing PCNs and pursuing motorists for payment. It is therefore a seasoned litigant which should be fully conversant with the court rules and its obligations. Additionally, Claimant is specifically bound by its CoP (compliance with which is mandatory) to know the relevant legislation which binds. In comparison, Defendant is a litigant in person, an ordinary person with no experience of the court (yet has managed to comply with all of her obligations and the court rules).

    24. The Claimant has, in the LBC, used the threat of punitive costs for failure to comply with the Practice Direction and Civil Procedure Rules as a method of intimidating the Defendant. There can be no resonable excuse for their own failure to comply.

    25.This case falls comfortably within the category of those in which the court should exercise its powers under R27.14(2)(g) and/or para 16 of the Practice Direction. The Claimant's conduct clearly falls within that contemplated in Mr Peter Mills Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269] as reaching the threshold of unreasonable behaviour and a costs order should be made.

    26. The Defendant relies on the following case law in support of R27.14(2)(g):18.1.Mr Peter Mills Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269;Appeal to overturn costs order made against Mr Dammerman. The appeal was dismissed and the costs order was upheld. Paragraph 20: !!!8220;In a most helpful and clear skeleton argument, Ms Tildesley, for Lanyon Bowdler, having referred to the existing case law on the topic of unreasonable behaviour, submits that the judge's decision on costs should be upheld. She, too, makes three central submissions. Firstly, that Mr Dammermann received Lanyon Bowdler's very clear skeleton argument some six or seven weeks prior to the appeal hearing and, notwithstanding the grant of permission to appeal, he should have understood that, in the light of the law cited in the skeleton, there was no prospect at all of the appeal succeeding. He had therefore unreasonably pursued a losing case!!!8221;
    Last edited by muleskinner; 03-02-2018 at 11:22 AM.
    • The Deep
    • By The Deep 3rd Feb 18, 3:51 PM
    • 9,012 Posts
    • 8,669 Thanks
    The Deep
    Be sure to mention to the Judge the denouncement by MP after MP of this company's MO in the House of Commons yesterday.


    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    They have been reported by an MP to the SRA for involving themselves in this scam, and also their conflict of interest with the IAS and IPC. IMO theyb are on borrowed time.
    Last edited by The Deep; 05-02-2018 at 11:16 AM.
    You never know how far you can go until you go too far.
    • muleskinner
    • By muleskinner 5th Feb 18, 8:08 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Just a friendly bump for this in case anyone has any time to give feedback on the last draft of my costs application. I should get this off today really.
    • The Deep
    • By The Deep 5th Feb 18, 11:12 AM
    • 9,012 Posts
    • 8,669 Thanks
    The Deep
    Have you yet read my link?

    MP after MP stood up and said how unreasonable they thought PPCs' behaviour was, and named two solicitors involved in the scam

    I would bring this to the attention of the judge. It is plainly the will of Parliament that this unregulated industry, which preys on the vulnerable, should be controlled.

    Asking £100 for a few minutes stayin a lay bye is totally unreasonable. even Reading Borough Council's twice convicted for indecent behaviour parking supremo is not that greedy.

    It is time judges aligned themselves with the views of MPs and helped to control these parasites..
    Last edited by The Deep; 05-02-2018 at 12:13 PM.
    You never know how far you can go until you go too far.
    • muleskinner
    • By muleskinner 5th Feb 18, 11:32 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Have you yet read my link?

    MP after MP stood up and said how unreasonable they thought PPCs' behaviour was, and named two solicitors involved in the scam
    Originally posted by The Deep
    Yes thanks, I watched it almost in its entirety with a beer over the w/e. It was very entertaining! Still have to watch the last few mins. My MP (Michele Donalan) spoke, though I thought her contribution was one of the worst, particularly as she started it with a quote from the BPA!

    I guess it wouldn't hurt to put in a reference to this, particularly the singling out of Gladstones/roboclaiming. The terminology is very general though, what I mean by that is that even though it's conduct that any sane person would consider 'unreasonable' it's not necessarily a contravention of the PD or CPR.
    • muleskinner
    • By muleskinner 5th Feb 18, 11:50 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Added:

    28. In considering the reasonableness of Claimant's conduct the court should take into account the fact that the practice of 'roboclaiming' and the predatory practices of many private parking companies have recently been denounced in parliament by a huge number of MPs, that legislation (Sir Greg Knight's Parking Bill) is underway to stop precisely the type of practices evidenced by this claim, and that the Claimant's agents, Gladstone Solicitors, were specifically mentioned in parliament as one of the worst offenders in helping to perpetrate such predatory and unreasonable practices.
    • The Deep
    • By The Deep 5th Feb 18, 12:11 PM
    • 9,012 Posts
    • 8,669 Thanks
    The Deep
    it's not necessarily a contravention of the PD or CPR.

    It is if a judge says it is. Unreasonable behaviour is not defined in the PD, each judge puts their own interpretation on it. However, there is a legal concept of reasonability

    https://en.wikipedia.org/wiki/Reasonability

    which may be of help.

    I would ask the judge "what would TMOTCO think?" and tell him what most of our elected representatives do.,
    Last edited by The Deep; 05-02-2018 at 12:13 PM.
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 5th Feb 18, 3:17 PM
    • 1,995 Posts
    • 3,327 Thanks
    Loadsofchildren123
    Good job muleskinner.


    I'd add after para 19, in the R27 section, that this is a claim which should never have been brought and falls squarely within the test of unreasonable behaviour set out in Dammerman (check spelling of that case). Had the C complied with the PD, this would have been obvious to it, given what has now come to light (namely the lack of any authority to operate on the land on which your car was parked). Therefore, the claim has been unreasonably brought and unreasonably pursued and the C should be penalised on costs under the principles set out in Dammermann (not sure how that should be spelt).


    Attach a copy of the letters/documents you refer to
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • muleskinner
    • By muleskinner 5th Feb 18, 3:30 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Thanks LoC. I have now done this.

    Should I attach copies of correspondence that has already been included in my evidence bundle? I don't want to weight down the judge with paper unnecessarily!
    • Castle
    • By Castle 5th Feb 18, 3:33 PM
    • 1,635 Posts
    • 2,189 Thanks
    Castle
    The "Dammermann" case:-
    http://www.bailii.org/ew/cases/EWCA/Civ/2017/269.html
    • Loadsofchildren123
    • By Loadsofchildren123 6th Feb 18, 4:55 PM
    • 1,995 Posts
    • 3,327 Thanks
    Loadsofchildren123
    either refer to the page in your evidence bundle by page/tab number, or attach it to the costs argument. The point is just to make it easy for the judge to find the relevant piece of paper quickly.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • muleskinner
    • By muleskinner 6th Feb 18, 7:33 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Thanks LoC - I included them all with it in the end, it went off this morning.

    It's a bit of a relief to have everything out of the way to be honest. Now we just have to do the hearing!
    • muleskinner
    • By muleskinner 11th Feb 18, 1:17 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Hi all,

    So - last bit of prep for tomorrow. Just want to make sure I haven't forgotten anything.

    I'm taking...

    - Copy of my WS / evidence and defence
    - Claimant's WS / evidence
    - Originals of all correspondence
    - Copy of Lay Rep order

    About to prepare a short bullet point crib sheet for when I say my piece.

    My evidence bundle includes all transcripts I need to rely on (or excerpts in the case of Beavis).

    Is there anything else I need. I only just found out that I can only act as lay rep at judge's discretion and that this isn't guaranteed? This has me a bit worried!

    cheers
    • Umkomaas
    • By Umkomaas 11th Feb 18, 1:18 PM
    • 17,239 Posts
    • 27,152 Thanks
    Umkomaas
    What about the Defendant's costs schedule?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • muleskinner
    • By muleskinner 11th Feb 18, 1:40 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Aye, yes - that's in there as well.

    I guess I should also include payslips/invoices for proof of income?

    I haven't done this but am I allowed to ask for costs to cover my time as lay rep or will it only cover Defendant's time?
    • Umkomaas
    • By Umkomaas 11th Feb 18, 1:49 PM
    • 17,239 Posts
    • 27,152 Thanks
    Umkomaas
    Aye, yes - that's in there as well.

    I guess I should also include payslips/invoices for proof of income?

    I haven't done this but am I allowed to ask for costs to cover my time as lay rep or will it only cover Defendant's time?
    Originally posted by muleskinner
    I'm not the expert, but I think it's for the D only, but others might advise.

    I also understand that the schedule should be with the court and claimant at least 24 hours prior to the case. If you've not already done that, then getting an email off sharpish (with a pdf of the schedule attached) might help.

    I don't think it's fatal to receiving costs if you fail the 24 hour deadline, but it does give the claimant argue-room.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • muleskinner
    • By muleskinner 11th Feb 18, 2:09 PM
    • 109 Posts
    • 104 Thanks
    muleskinner
    OK, thanks - I have sent the costs app to the Court earlier in the week and to the Glastards on Thursday so well within the 24hr deadline. Got my proof of posting with me too!
    • Coupon-mad
    • By Coupon-mad 11th Feb 18, 4:48 PM
    • 56,085 Posts
    • 69,754 Thanks
    Coupon-mad
    Ask anyway and take wage slips for both of you, if applicable.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • muleskinner
    • By muleskinner 12th Feb 18, 8:01 AM
    • 109 Posts
    • 104 Thanks
    muleskinner
    Thanks.

    When I ask to be lay rep should I give any particular reason? Is it OK to say for example that the case includes a lot of complex case law that the Defendant is unable to fully understand and therefore I have been doing all the paperwork?
    • Loadsofchildren123
    • By Loadsofchildren123 12th Feb 18, 9:33 AM
    • 1,995 Posts
    • 3,327 Thanks
    Loadsofchildren123
    You're wrong about the lay rep point
    The right to have a lay rep is AUTOMATIC in small claims.
    I'll look up the rule now
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
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