PePiPoo Helping the motorist get justice Support health workers

Welcome Guest ( Log In | Register )

Set aside granted, What to put in the defence statement?
mip19lot
post Tue, 23 Jan 2018 - 17:12
Post #1


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



Hi everyone,

It was nearly 4 years ago since I was last needing to make use of the valuable advice found on this site and things have changed.

The Judge has granted a set aside, of a CCJ issued 4 years ago but has referred it back to court, where the defence has to be submitted within two weeks time.

I am reasonably happy to produce a Witness statement, but any advice offered would be gladly received.

Basically, it concerns an alleged overstay in a pay and display car park at Fistral Beach, Newquay.

At the time the car park was overseen by Parking Eye, but now I read that they have been replaced by SMART? Would this have any bearing on the new hearing?

Many thanks
Go to the top of the page
 
+Quote Post
2 Pages V   1 2 >  
Start new topic
Replies (1 - 19)
Advertisement
post Tue, 23 Jan 2018 - 17:12
Post #


Advertise here!









Go to the top of the page
 
Quote Post
ostell
post Tue, 23 Jan 2018 - 17:16
Post #2


Member


Group: Members
Posts: 17,088
Joined: 8 Mar 2013
Member No.: 60,457



So some more information is needed. What was PE claiming you did or didn't do to breach the contract? Have you got any of the original paperwork?
Go to the top of the page
 
+Quote Post
kommando
post Tue, 23 Jan 2018 - 17:20
Post #3


Member


Group: Members
Posts: 4,167
Joined: 6 Oct 2012
Member No.: 57,558



Smart being there now would make no difference. Do a search on Fistral Bay on this forum as there have been a few cases over the years.
Go to the top of the page
 
+Quote Post
mip19lot
post Tue, 23 Jan 2018 - 19:37
Post #4


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



Ostell - Parking without purchasing a valid ticket because the ANPR cameras show an overstay of around 12 minutes.
Go to the top of the page
 
+Quote Post
Jlc
post Tue, 23 Jan 2018 - 19:40
Post #5


Member


Group: Members
Posts: 41,510
Joined: 25 Aug 2011
From: Planet Earth
Member No.: 49,223



QUOTE (mip19lot @ Tue, 23 Jan 2018 - 19:37) *
Parking without purchasing a valid ticket because the ANPR cameras show an overstay of around 12 minutes.

12 minutes is quite sharp practice. The minimum recommended grace period is 10 minutes. (The BPA Code of Practice states this, it may not have been in the CoP at the material time but it would generally be accepted as the norm)

Also throw in that such a contract will not be commenced until the payment was made. (Although they may try to argue the contract says the time 'parked' began at the perimeter which is generally an unfair contract term imho)

Do you still have the ticket?

This post has been edited by Jlc: Tue, 23 Jan 2018 - 19:42


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
Go to the top of the page
 
+Quote Post
peterguk
post Tue, 23 Jan 2018 - 19:55
Post #6


Member


Group: Members
Posts: 13,735
Joined: 22 Oct 2007
Member No.: 14,720



...

This post has been edited by peterguk: Tue, 23 Jan 2018 - 19:57


--------------------
Go to the top of the page
 
+Quote Post
mip19lot
post Tue, 23 Jan 2018 - 22:12
Post #7


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



I am posting on behalf of my daughter and son in law. They moved abroad and rented their house out on a long term let via a letting agent. During this time, Parking Eye sent out a NIP, but the occupants of the house didn't forward any correspondence to the letting agent, as stipulated in the rental agreement. hence the court hearing went ahead without their knowledge. It was only when they returned to the UK, they became aware that there was a CCJ filed against them.

The Judge has agreed to set it aside, but they have 1 week to prepare a defence, before it goes back to court.

They have no original documentation, so don't know precisely what they are being accused of, other than what Northampton Bulk Court have told them.

It was nearly a week ago when we went to court to argue a case for getting it set aside and the judge said the court would write to my daughter providing instructions to follow. They are still waiting.

Go to the top of the page
 
+Quote Post
nosferatu1001
post Wed, 24 Jan 2018 - 08:10
Post #8


Member


Group: Members
Posts: 28,687
Joined: 27 Nov 2007
Member No.: 15,642



It wasn’t a NIP.

Well defence would be that the overstay was not an overstay but within the required grace periods of ten at the end at least, and time in entry to find a space, flare, find signs and read them

Also 10 is a minimum at the end, for busy car parks such as fistful longer is needed. Have a search as you will find a fistful or other beach car park case where it was determined queuing to leave isn’t Parking and doesn’t count against any item limit.
Go to the top of the page
 
+Quote Post
Jlc
post Wed, 24 Jan 2018 - 09:13
Post #9


Member


Group: Members
Posts: 41,510
Joined: 25 Aug 2011
From: Planet Earth
Member No.: 49,223



As above, I would stick to a fairly simple defence unless there's a killer point such as lack of keeper liability.

I'm not so sure they'll want to take this one to a hearing, but assume they will. They are of course happy to collect default judgments but getting them paid is often another matter. (Although many recipients of a CCJ only find out when they try and get credit later)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
Go to the top of the page
 
+Quote Post
mip19lot
post Wed, 24 Jan 2018 - 10:40
Post #10


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



Thanks for the advice. I will adopt that argument along with poor signage. As pointed out by Parking Prankster, PE changed the wording on their signs, due to ambiguous wording that lost them a case some years ago. At the time in question, the old signs were in place.
Go to the top of the page
 
+Quote Post
Jlc
post Wed, 24 Jan 2018 - 11:48
Post #11


Member


Group: Members
Posts: 41,510
Joined: 25 Aug 2011
From: Planet Earth
Member No.: 49,223



'Poor' signage is one thing - do you have pictures of the material wording? (As it may not mention the parking begins at the perimeter clause)

But definitely include the stuff above around grace periods and especially pre-contract stuff - i.e. entering, parking, looking at terms and then paying. Contrary to any clause mentioning the paid time has already commenced it would be perfectly reasonable for the contract to begin upon paying. (Subject to this commencing a short period after entering)

You didn't answer if you still have the ticket?


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
Go to the top of the page
 
+Quote Post
mip19lot
post Wed, 24 Jan 2018 - 14:38
Post #12


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



There isn't a ticket as it was over 4 years ago.

I have a picture.

[attachment=53072:pl_fistral.jpg] (this was the sign on the day)

[attachment=53073:Exhibit_...new_sign.jpg] (this is what PE changed it to)

According to Parking Prankster, the case was won because the wording of the old sign contained the sentence 'failure to comply with THIS will result in a parking charge of £90.....what does this mean?

Furthermore, there is no mention on the sign that you have to purchase a ticket to cover all your intended stay within the confines of the car park.

I may be wrong, but I think they were also asking for £100, not £90 as indicated on the sign.

The mere fact that PE changed the wording, indicates to me that they thought the wording was ambiguous and misleading and therefore not worthy of establishing a mutually understood contract.

This post has been edited by mip19lot: Wed, 24 Jan 2018 - 14:43
Go to the top of the page
 
+Quote Post
mip19lot
post Thu, 24 May 2018 - 16:25
Post #13


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



For anyone that is interested in the outcome of our case.

My son-in-law and myself attended court today in order to defend his case against Parking Eye.


The arguments put forward were:


1) Lack of standing in order to present the case.


2) Poor signage.


3) Definition of a Parked Vehicle
.

4) Poor ANPR notification.



The first exhibit in the Witness statement, presented to the court by Parking Eye, was a contract authorising Parking Eye to manage the car park on behalf of the owner.


The contract was dated sometime in 2015, but this historical case dates back to 2013. This fact was pointed out to the judge, who acknowledged this and asked the
Parking Eye representative if he had a contract pertaining to 2013, which the reply was he didn't. The representative tried to argue that it would obviously have been in place
but the judge wanted evidence that a contract was in place at this time.


The judge then informed us that this claim was unsuccessful and fell at the first hurdle.


The whole process lasted approximately 15 minutes.


Thanks, Mike


Go to the top of the page
 
+Quote Post
nosferatu1001
post Thu, 24 May 2018 - 17:08
Post #14


Member


Group: Members
Posts: 28,687
Joined: 27 Nov 2007
Member No.: 15,642



Nice going!
Did you get your costs?
Go to the top of the page
 
+Quote Post
whjohnson
post Thu, 24 May 2018 - 22:06
Post #15


Member


Group: Members
Posts: 442
Joined: 14 Feb 2015
Member No.: 75,738



He probably didn't know he could claim costs back in 2013, even though the case has only just ben heard now.
Go to the top of the page
 
+Quote Post
peterguk
post Thu, 24 May 2018 - 22:15
Post #16


Member


Group: Members
Posts: 13,735
Joined: 22 Oct 2007
Member No.: 14,720



QUOTE (nosferatu1001 @ Thu, 24 May 2018 - 18:08) *
Did you get your costs?


I assume there is not an automatic entitlement to refund of set aside fee if case won following a set aside? Seems unfair if its not refunded in cases such as this one.

This post has been edited by peterguk: Thu, 24 May 2018 - 22:20


--------------------
Go to the top of the page
 
+Quote Post
Jlc
post Fri, 25 May 2018 - 06:28
Post #17


Member


Group: Members
Posts: 41,510
Joined: 25 Aug 2011
From: Planet Earth
Member No.: 49,223



QUOTE (mip19lot @ Thu, 24 May 2018 - 17:25) *
The representative tried to argue that it would obviously have been in place

Do they seriously believe this would wash?


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
Go to the top of the page
 
+Quote Post
nosferatu1001
post Fri, 25 May 2018 - 07:20
Post #18


Member


Group: Members
Posts: 28,687
Joined: 27 Nov 2007
Member No.: 15,642



QUOTE (peterguk @ Thu, 24 May 2018 - 23:15) *
QUOTE (nosferatu1001 @ Thu, 24 May 2018 - 18:08) *
Did you get your costs?


I assume there is not an automatic entitlement to refund of set aside fee if case won following a set aside? Seems unfair if its not refunded in cases such as this one.

Im guessing there isnt - and frankly how set asides costs 10x the fee to file a claim of the lowest value is also unfair!
Go to the top of the page
 
+Quote Post
Pensioner
post Fri, 25 May 2018 - 09:29
Post #19


Member


Group: Members
Posts: 124
Joined: 22 Jul 2017
Member No.: 93,141



Set aside fee should be claimed as a cost of defending the claim.

You could try by just writing to the court with a list of your costs (include copy receipts) relating to claim number XXXX Parking Scum v Youself.


Don't be to hopeful but 60p stamp with a chance of £255.00 is 425/1
Go to the top of the page
 
+Quote Post
nosferatu1001
post Fri, 25 May 2018 - 09:38
Post #20


Member


Group: Members
Posts: 28,687
Joined: 27 Nov 2007
Member No.: 15,642



Plus the half day loss of leave / earnings, capped at £95 - incliude copies of this.

I really wish judges would raise the question of costs - its small claims, not everyone there can be expected to know every detail.
Go to the top of the page
 
+Quote Post

2 Pages V   1 2 >
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Friday, 29th March 2024 - 06:42
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.
IPS Driver Error

IPS Driver Error

There appears to be an error with the database.
You can try to refresh the page by clicking here