Set aside granted, What to put in the defence statement? |
Set aside granted, What to put in the defence statement? |
Tue, 23 Jan 2018 - 17:12
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#1
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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 At the time the car park was overseen by Parking Eye, but now I read that they have been replaced by SMART?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 |
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Tue, 23 Jan 2018 - 17:12
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Tue, 23 Jan 2018 - 17:16
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#2
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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?
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Tue, 23 Jan 2018 - 17:20
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#3
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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.
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Tue, 23 Jan 2018 - 19:37
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#4
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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.
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Tue, 23 Jan 2018 - 19:40
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#5
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Member Group: Members Posts: 41,510 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
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. |
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Tue, 23 Jan 2018 - 19:55
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#6
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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 -------------------- |
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Tue, 23 Jan 2018 - 22:12
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#7
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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. |
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Wed, 24 Jan 2018 - 08:10
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#8
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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. |
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Wed, 24 Jan 2018 - 09:13
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#9
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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. |
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Wed, 24 Jan 2018 - 10:40
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#10
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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.
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Wed, 24 Jan 2018 - 11:48
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#11
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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. |
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Wed, 24 Jan 2018 - 14:38
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#12
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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 |
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Thu, 24 May 2018 - 16:25
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#13
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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 |
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Thu, 24 May 2018 - 17:08
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#14
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
Nice going!
Did you get your costs? |
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Thu, 24 May 2018 - 22:06
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#15
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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.
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Thu, 24 May 2018 - 22:15
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#16
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Member Group: Members Posts: 13,735 Joined: 22 Oct 2007 Member No.: 14,720 |
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 -------------------- |
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Fri, 25 May 2018 - 06:28
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#17
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Member Group: Members Posts: 41,510 Joined: 25 Aug 2011 From: Planet Earth Member No.: 49,223 |
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. |
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Fri, 25 May 2018 - 07:20
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#18
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Member Group: Members Posts: 28,687 Joined: 27 Nov 2007 Member No.: 15,642 |
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! |
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Fri, 25 May 2018 - 09:29
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#19
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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 |
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Fri, 25 May 2018 - 09:38
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#20
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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. |
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