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  • FIRST POST
    • rizla01
    • By rizla01 9th Dec 17, 7:46 PM
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    rizla01
    Will they go to court or not?
    • #1
    • 9th Dec 17, 7:46 PM
    Will they go to court or not? 9th Dec 17 at 7:46 PM
    Bit of a sticky one here. Sorry its so long and drawn out.


    Daughter left parking area over alloted 2hr time because she drove her car to the takeaway (located within the parking area) and had to wait to be served. She didn't realise that counted. (Me neither tbh)

    So far, on my instruction she has not responded to any letters from PE except the one from small claims court which also asked for reasons that she contests the charge. (initially 60 if paid within...etc then went up to 120 and then threats of Court Costs Etc to be added could increase this to 250 ish) and after the letter was returned to the court she had a FINAL letter from PE offering her the opportunity of just paying 60 again 'Based on further information that we have received' and that was followed by the self same letter two weeks later.
    Not stating what the 'Further Information ' is. I.e. What, that the time clock was wrong? Wrong Car? What?

    Two days ago she received a 'Proposed Allocation to the small claims fast track service so I need to deal with this rather urgently.

    I understand that I cannot appear in court on her behalf without her being present which is not going to happen.

    Just wondered - How likely are they to pursue this.

    Any advice very gratefully received.
    Last edited by rizla01; 10-12-2017 at 12:44 AM.
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Page 11
    • nosferatu1001
    • By nosferatu1001 22nd Mar 18, 5:16 PM
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    nosferatu1001
    You can certainly give medical grounds. I imagine youd need a signed statement saying youc an act on her behalf.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Mar 18, 10:34 AM
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    Loadsofchildren123
    Very sorry to hear about your daughter. You'll need to get permission to attend as her lay rep without her on medical grounds. Inform PE and the court. I suppose you'll need to get a letter from the GP.


    Not sure what you mean by this? Phoned court and they had not received confirmation that the defence had been sent to PE and that is because no letter asking for us to reply was ever received. Did you file your defence at court as well as sending it to PE?


    If you want to ask for a strikeout you need to write a sensible letter to the court pointing out that there seems to be no case to answer and asking the court to exercise its inherent case management powers by striking it out.


    Procedurally, if you want the court to make an order you are supposed to make an application on form N244 and pay a fee (255 if you want a hearing, 100 if you ask for it to be dealt with on paper). However, the court does actually have the power either to make an order of its own volition, or to treat a letter as an application (and therefore waive the fee). So you need to write a persuasive letter asking the court to make an order and asking it to do so either by exercising its inherent powers or by treating your letter as an application.


    You will need to refer to the court rules.


    The relevant rules are these:


    Court's power to exercise its inherent powers, of its own initiative, as part of its duty of active case management are set out in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1, namely to summarily dispose of issues which do not need full investigation and trial. The court!!!8217;s powers include striking out a claim (or part of it) under CPR Rule 3.4 and Summary Judgment under CPR Rule 24. [Strikeout would be where no case is made out, summary judgment would be where it is clear that there is a strong defence and therefore the court should just throw it out rather than follow through with a trial]

    If the court is not minded to make an order of its own volition, then the court has the power to treat this letter as an application rather than asking the Defendant to issue a Notice of Application !!!8211; the power to do this is contained in CPR Part 23.3(2)(b) which provides specifically that the court may dispense with the requirement for an application notice.

    I'll copy and paste from the letter I did to the court when I asked it to do this.

    Just be warned, the court is unlikely to make these orders without an application. So you have to decide whether to apply or not - if you won you'd get the 100 back (as long as you seek an order for costs in the application itself).
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Mar 18, 11:45 AM
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    Loadsofchildren123
    Suggested letter: the part about breaching the practice direction/protocol may not apply, so just delete it.




    Dear Sirs,


    I refer to my Defence filed on [date] and am writing to ask the court to strike out or summarily adjudge the claim. The court has the following powers:-

    1. The court has a general duty of active case management and under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 it may make an order of its own volition, without requiring an application. The court's active case management duties and inherent powers include the summary disposal of issues which do not need full investigation and trial.


    2. The court's powers include striking out a claim (or part of it) under CPR Rule 3.4 and Summary Judgment under CPR Rule 24.


    3. The court's powers to strike out a claim are contained in CPR Rule 3.4 and the "test"; is if:
    (a) the statement of case discloses no reasonable grounds for bringing a claim; or
    (b) the statement of case is an abuse of the court's process; or
    (c) there has been a failure to comply with a Rule, Practice Direction or Order.
    All three of (a)-(c) above apply in this matter: the Claim Form fails to disclose the grounds for bringing the Claim (or even what the claim is), the statement of case is so deficient that it amounts to an abuse of process, and the Claimant is in flagrant breach of almost every aspect of the CPR which apply to the bringing of a claim. Specific examples of breaches are set out below, but this list is not exhaustive.



    4. The court's power to order summary judgment is in CPR Rule 24. The "test" is in Rule 24.3(a)(i) - namely, whether the Claimant has no real prospect of succeeding. The Claim form/Particulars of Claim makes out no prima facie case, and it is clear from the Defence that it cannot succeed in making out its claim. The claim should be summarily adjudged now (if not struck out).

    5. If the court is not minded to exercise those powers of its own volition, then CPR Part 23.3(2)(b) provides specifically that the court may dispense with the requirement for an application notice and that it has the power to treat and deal with this letter as an application rather than requiring me to issue a Notice of Application. One of the reasons why the court should exercise this power is in light of the fact that this is a small claim for [x], which has cost the Claimant an issue fee of 25, whereas the fee for an actual application would be 255, which is clearly out of all proportion.

    This next part may not apply to you:
    Set out below is a list of the various deficiencies in the Claimant's Claim Form, Particulars of Claim and its various breaches of the CPR. Most seriously, the Claim Form/Particulars of Claim disclose no cause of action and are unintelligible. They contain no details, and give no indication, of the basis under which the claim is brought (breach of contract, trespass or any other basis). All the Particulars state is "[date] [reg] [some unidentified reference number which must have been internal] [xxx] [more unintelligle numbers] Total due [x]", followed by wording stating that the claim is for a total of xxx which it says is "for Parking charges and indemnity costs; plus interest.". The Claimant has refused to elaborate on its claim or to produce, at the pre-action phase, any documents and information on which it relies. It has refused to engage in any discussion or exchange of information designed to narrow the issues or to settle the claim.

    I have already drawn these breaches/deficiencies to the Claimant in some detail, in a letter dated [x], and have given the Claimant a reasonable opportunity to remedy them. However, they have simply ignored the letter. Not only that, they have failed to provide the most basic of documents which have been requested of them so that I may understand and deal with the Claim and present a defence to it. It is of course a Claimant's duty to provide such documents at the pre-action stage of proceedings, as required by the Practice Direction - Pre-Action Conduct and Protocols (paragraphs 3 and 6) and the new Protocol for Debt Claims. Yet the Claimant has chosen to ignore those requirements, considering itself somehow immune from them.

    Paragraph 15 of the Practice Direcction (which still applies to claims governed by the Protocol for Debt Claims) provides that where there has been non-compliance, the court may order that the proceedings be stayed while particular steps are taken to comply with it, and/or may order sanctions (for instance, an adverse costs order).


    you may also want to insert here why you say your defence can't be defeated (eg is it a POFA defence and they're out of time on the NtK and can't prove keeper was driving?)
    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.
    • Coupon-mad
    • By Coupon-mad 16th Jun 18, 6:04 PM
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    Never mind the deadline, write and object to the non-oral hearing and remind the court that the facts of this case can be fully distinguished from the ParkingEye Ltd v Beavis case and as well as the facts significantly differing, this case hinges upon the driver's statutory rights under the Equality Act 2010, and she wants her voice to be heard at an oral hearing.

    Include proof that she was away, so has replied as soon as she received the Order.

    Or is she so incapacitated that she does want the case heard on the papers?
    Last edited by Coupon-mad; 16-06-2018 at 6:07 PM.
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    • IamEmanresu
    • By IamEmanresu 17th Jun 18, 7:13 PM
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    but am concerned that the Judge might not pass judgement fairly.
    The judge will always pass judgment fairly - based on the facts presented and the applicable law.

    If you feel otherwise - without proof - then go along with the defendant and find out.

    We live in a fair society and we are bound by its laws. We are not a banana republic yet.
    About me: Capricorn. Likes: Tight defences, the tighter the better. Lucidity. Dislikes: Loquaciousness and magic words. WLTM: Someone with the facts, a private income and their own copy of the White Book.
    • rizla01
    • By rizla01 17th Jun 18, 8:48 PM
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    rizla01
    I am pretty certain that in an ideal world that may be the case and a circumstance I would like to believe, but that i have heard of several incidences where even cast iron defences have been unfairly judged and found in favour of the claimant.
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    • beamerguy
    • By beamerguy 17th Jun 18, 9:52 PM
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    I am pretty certain that in an ideal world that may be the case and a circumstance I would like to believe, but that i have heard of several incidences where even cast iron defences have been unfairly judged and found in favour of the claimant.
    Originally posted by rizla01
    That is because some judges are out of date and
    should be farmed out to grass
    I have watched them, looking over their bifocals wondering
    what's for lunch that day

    Our legal system does not keep up to date and is flawed
    in so many ways

    The county court system is a one man/woman band and
    if he/she did not get it last night or the kids played up,
    who knows what rational they will use

    Relying on one person to make the correct decision
    is a flaw to which innocent people can suffer.

    I doubt Oliver Cromwell ever envisaged such rubbish
    Last edited by beamerguy; 17-06-2018 at 9:57 PM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 17th Jun 18, 10:32 PM
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    Umkomaas
    but that i have heard of several incidences where even cast iron defences have been unfairly judged and found in favour of the claimant.
    Hope for a Judge who's brandied up and freshly spanked then.
    Last edited by Umkomaas; 17-06-2018 at 10:40 PM.
    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.
    • Coupon-mad
    • By Coupon-mad 17th Jun 18, 11:07 PM
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    Coupon-mad
    The rare ones we've seen where Judges err, are usually unpicked afterwards, only to find that the Defendant just didn't use the case transcripts, the POFA, or the other arguments that were in their defence, properly or strongly enough.

    We have even heard of (somewhere, it wasn't a poster here, think I might have sen PE adduce the case in evidence in anther case) ParkingEye win a case against a disabled person for an 'overstay', which is ILLEGAL under the Equality Act. They argued bare-faced to the Judge, that they didn't know about the disability at the time so didn't do anything wrong...that simply screams out for a clued up D to retort ''there is no such excuse or justification for indirect discrimination...'' and point to the real rules, with knowledge.

    Preparation is key: think ''what if they ask that, how will I counter this?'' and plan it, and have a crib sheet in your bundle.

    What will you/she say when they try to throw PE v Beavis at it, to 'justify' the charge? Did you know at the Supreme court, the Judges did remark that Mr Beavis was not 'denied any rights' he might have enjoyed under statute? Or words to that effect...but this Defendant WAS discriminated against, 'indirect discrimination' is a thing.

    Be VERY familiar with the Equality Act 2010; e.g. 'indirect' and 'direct discrimination' are different things and the former does not allow a service provider to justify it by bleating that they ''didn't know'' about an individual's disability.

    Be familiar with - and have in your bundle - the EHRC Equality Act Code of Practice for Service Providers, and be confident is is statutory, mandatory and creates a set of legal duties. It's not guidance and nor is it open to interpretation.

    So if she's now turning up and wants an oral hearing, she must object to the case being heard 'on the papers' for the reasons mentioned and explaining that she missed the court letter until this weekend, because she's been away to recuperate from this:
    My daughters car was written off and she has been very severely injured. She will be a good year before recovering from this and a 'broken in two' patella means that it will be a long time before she can walk unaided and not in pain plus she is suffering concussion and whiplash, broken ribs and smashed teeth.

    they will not deal with anyone other then the defendant or their legal rep
    Of course they won't/can't. On the day of an oral hearing she must attend, but can have you with her as a lay representative, to speak instead of the Defendant, if that's what she wants.

    Make sure her objection to the Order is taken in person in the morning, to the local court. It worries me that a Judge who thinks a PE claim with the complicated facts of your case (about signage, the two sections of the car park, and the Equality Act issue) can be decided without an oral hearing, might just be blinded by the Beavis case and against you from the start.

    Just a niggling feeling that the Judge hasn't actually looked at it and might be one who tends to wave through any PE case in their favour, due to the Supreme Court decision (which OF COURSE ParkingEye will use).
    Last edited by Coupon-mad; 17-06-2018 at 11:15 PM.
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    • IamEmanresu
    • By IamEmanresu 4th Jul 18, 4:29 PM
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    IamEmanresu
    i have heard of several incidences where even cast iron defences have been unfairly judged and found in favour of the claimant.
    The court will only find on the facts. It helps to be there to present them and to clarify the issues. Judges are not mind readers and are sincere in finding the right result.

    If there is any failure, it will be a presentational one.
    About me: Capricorn. Likes: Tight defences, the tighter the better. Lucidity. Dislikes: Loquaciousness and magic words. WLTM: Someone with the facts, a private income and their own copy of the White Book.
    • Coupon-mad
    • By Coupon-mad 4th Jul 18, 5:28 PM
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    Coupon-mad
    Anyone suggest anything else?
    The Equality Act 2010 section about 'indirect discrimination' with clear reference to the fact that there is NO justification in saying they 'did not know' about an individual's disability at the time of the parking event (you need to spell out why that is not an excuse for indirect discrimination).

    Read it, understand it, highlight the relevant bits and refer to that Act in the WS.

    As I said before, the Beavis case has a quote or two that will help you:

    Did you know at the Supreme court, the Judges did remark that Mr Beavis was not 'denied any rights' he might have enjoyed under statute? Or words to that effect.
    So read that decision, understand it, find the bit about Mr Beavis not being denied any rights he would have enjoyed 'under statute' and point out that here, this is exactly what has happened and that is unconscionable. And then there is a second quote from the Beavis decision where one of the Supreme Court Judges remarks that 'what is required in every case' is an examination of the facts and to consider whether there is a legitimate interest excuse that would disengage the penalty rule, that overrides the rights of the consumer. If the consumer rights prevail (as here, statute law regarding disability provisions must prevail over 'contract') then the charge is 'unconscionable'

    And I also said you need to include the EHRC CoP for service providers, which has imposed statutory duties since 2010:

    Be familiar with - and have in your bundle - the EHRC Equality Act Code of Practice for Service Providers, and be confident is is statutory, mandatory and creates a set of legal duties. It's not guidance and nor is it open to interpretation.
    Read it, understand it and highlight the example about TIME LIMITS! Yep, there is one, if you search the EHRC Equality Act Code of Practice for Service Providers for the word 'TOURS'. Use it!

    Your evidence should also prove her medical needs, to show that she does indeed have protected characteristics under the EA and should have been offered on the signage a method of extending her free stay, regardless of whether she even moved the car to the takeaway. A reasonable adjustment provision of offering extra time (maybe at the shop customer service desks) should have been extended to her whether she carried on shopping or moved to the takeaway.

    Put PE to strict proof on that point.

    And use Google Streetview to make up a signed/dated (by the Defendant) aerial photo of her own, showing the takeaway within the site, and some photos proving that area is NOT signed so doesn't fall within the 2 hour shopping area. Marked with a x to show where she parked.

    Daughter left parking area over allotted 2hr time because she drove her car to the takeaway (located within the parking area) and had to wait to be served
    And I would include and refer to the ICO Code of Practice for Surveillance cameras, stating that this was not tested in the Beavis case but clearly the Claimant has been 'excessive' in using unjustified surveillance 24/7 over a location where takeaway users are not reasonably informed that their shopping 2 hour parking time is still being applied while they eat, despite the lack of signs in what looks like a separate section.

    Excessive and unjustified surveillance, or unfairness of processing data contrary to statute law (like the EA) is illegal. Put PE to strict proof of their impact assessments undertaken regarding this site before enforcement began, that considered how to avoid intrusive data processing and unfair use of images to issue 'fines' even to disabled people.

    The ICO CoP explains that - again, read it, understand it and highlight the relevant failings by PE!

    All of those go into numbered evidence with her WS, alongside her photos and proof of medical needs. All into a ring-binder for the court, with a contents page and numbered pages.
    Last edited by Coupon-mad; 04-07-2018 at 5:36 PM.
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    • rizla01
    • By rizla01 5th Jul 18, 12:19 PM
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    rizla01
    Phew!. Thanks CM. That is a huge list of instructions.
    I will need to get you to clarify some of the points that you make at a later stage but for now will do what I can and refer back over the past pages for this post.
    For now, one query I have is how to mention the Beavis case? Am I to assume that the judge will know what that is all about or do I just quote 'In the case of XX v beavis dated the ? it was said........?
    I would think the first page would be an intro as to who I am and that i contest the charge against me on the following grounds - then a numbered list and making reference to enclosed documents and BPA CoP. plus ICO CoP.

    Does that sound about right so far?
    (Me being my Daughter of course lol)
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    • Coupon-mad
    • By Coupon-mad 5th Jul 18, 4:18 PM
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    Coupon-mad
    Witness Statements are easy to Google to see how to set it out:

    https://www.justice.gov.uk/courts/procedure-rules/civil/standard-directions/general/witness-statements

    The Beavis case is something the Judge will know about, and you refer to it as:

    ParkingEye Limited v Beavis [2015] UKSC 67
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    • rizla01
    • By rizla01 5th Jul 18, 5:11 PM
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    rizla01
    Thank you CM.
    Is it OK for me to post a draft on here before sending off, for you to cast you eagle eyes over?

    SOON this will be over and it cant come soon enuff.

    Fingers crossed on the outcome. After all this it would be SO-o-o-o nice to come out on top.
    Last edited by rizla01; 05-07-2018 at 5:18 PM.
    "Unhappiness is not knowing what we want, and killing ourselves to get it."
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    • Coupon-mad
    • By Coupon-mad 5th Jul 18, 5:29 PM
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    Coupon-mad
    Yes show us, and it needs to refer to the evidence by number (Defendant's initials then 1, etc.).

    A WS and the evidence tally together. One refers to the other.

    As IamEmanresu said, the Judge is not a mind reader so you need to show the facts of why she is not liable in law, etc. Hence why I listed lots of things to make the Judge think about the EA, especially as I read that PE won a case (wrongly) by saying they ''didn't know'' about the victim's disability so the EA didn't apply/wasn't discrimination.

    I am sure plenty of Judges would swallow that when stated authoritatively, so you need to take to Judge to the exact section of the EA itself, about the duty to make reasonable adjustments in advance, in anticipation of disabled visitors, and the section in the EA Service Provider's statutory Code where it gives a time limits example of indirect discrimination.

    And for good measure the ICO ANPR surveillance camera CoP because at this site where a section is not signed/allows for takeaways to be collected, surely blanket ANPR enforcement breaches the CoP - put PE to 'strict proof' of all this.
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    • rizla01
    • By rizla01 5th Jul 18, 6:34 PM
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    rizla01
    Also CM, was it you that said ( Or have I read somewhere ) that my daughters cancer, though now 'Cured (or in remission) she can STILL be classed as disabled as she lives in fear of a return, and has treatment that weakened her bones causes tiredness Etc.

    Is this what you are referring to and would any Judge not want proof of when the cancer was diagged and when she was given the 'all Clear'?
    Last edited by rizla01; 05-07-2018 at 6:48 PM.
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    • Coupon-mad
    • By Coupon-mad 5th Jul 18, 6:53 PM
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    Coupon-mad
    Also CM, was it you that said ( Or have I read somewhere ) that my daughters cancer, though now 'Cured (or in remission) she can STILL be classed as disabled as she lives in fear of a return, and has treatment that weakened her bones causes tiredness Etc.
    Yes. The treatment that has weakened her bones and caused longterm physical fatigue (and maybe concentration issues that could slow down purchasing decisions?) mean she has chronic medical symptoms as a result of the cancer and treatment that impact on her daily life.

    Any condition that does that and is likely to continue for at least 12 months, meets the definition of disability (but I will let you look that up in the EA)! Search the Act for 'protected characteristics' so you use the right terminology.
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    • rizla01
    • By rizla01 5th Jul 18, 7:06 PM
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    rizla01
    Aha. Good. Does it not matter that I have not mentioned that before and that the WS that will now be sent to PE & the judge will be the first time PE have heard of it and argue that it is ME(Her) that has wasted the courts time in NOT mentioning that fact beforehand or is it suffice to say that she didn't realise the implications in relation to this occurrence until recently advised?

    And as I said, wil she not need to prove that she had Cancer?
    Just looking for the pitfalls in advance
    "Unhappiness is not knowing what we want, and killing ourselves to get it."
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    • Coupon-mad
    • By Coupon-mad 5th Jul 18, 7:10 PM
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    Coupon-mad
    And as I said, will she not need to prove that she had Cancer?
    Yes, my long list of instructions said:

    Your evidence should also prove her medical needs, to show that she does indeed have protected characteristics under the EA and should have been offered on the signage a method of extending her free stay, regardless of whether she even moved the car to the takeaway. A reasonable adjustment provision of offering extra time (maybe at the shop customer service desks) should have been extended to her whether she carried on shopping or moved to the takeaway.

    Put PE to strict proof on that point.
    will be the first time PE have heard of it
    I suggest you start reading the things I said you need to read & understand...indirect discrimination!

    There is no lawful justification to say they ''didn't know'' or to pass the blame to her for ''not telling them''. Read about it in the EHRC Equality Act Service Providers' Code of Practice, the thing you need to search for 'TOURS' to see why an arbitrary time limit is discriminatory at source (regardless of whether they know the needs of individuals).

    Also, anything goes in small claims, PE ambush people all the time. Ambush them.

    You could always say in the WS that she was loathe to mention this to ParkingEye because she is a private person and it brings back bad memories of a recent traumatic time...blah blah...but she realises that the Court must take account of the overriding rights she enjoys under statute law, and wants the Judge to have all of the facts and to give due consideration to the EHRC duty/law that the Claimant has breached, whether they knew about her medical issues, or not.
    Last edited by Coupon-mad; 05-07-2018 at 7:14 PM.
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    Advice to ignore is WRONG, unless in Scotland/NI.

    • rizla01
    • By rizla01 6th Jul 18, 12:20 AM
    • 6,868 Posts
    • 7,480 Thanks
    rizla01
    !!!8220;
    Your evidence should also prove her medical needs
    Thats the bit I am struggling with.

    Not sure how I can do that. She tires and truly does suffer from anxiety issues but to demonstrate those facts with evidence, is difficult.
    "Unhappiness is not knowing what we want, and killing ourselves to get it."
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    Women and cats will do as they please, and men and dogs should relax and get used to the idea.

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