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barnet hospital parkingEye parking charge court case, i never parked - only waited inside the car park
chawal2
post Tue, 12 Jun 2018 - 15:02
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please can you review and comment on the final defence i prepared and shared below? should i add, edit or remove something? thanks,
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parking eye (PE) manages barnet hospital car park. car park has no barriers. on 8 feb 2017, i waited in car park for 46 minutes to get a parking space desperately - as were several other drivers. i never parked nor i got out of the car. then i left car park to park somewhere else as i was getting late for my hospital appointment. PE sent me the parking ticket which i appealed against but both PE and POPLA rejected my appeal. then i got letter before action and now court letter. i have sent AOS online. i need your help to know if my defence is robust or can i add or remove something.

PE signage:

I have got the terms and conditions of PE from POPLA Appeal document: I have typed relevant text below from PE terms and conditions signage:

*PE is authorized by landowner to operate the private car park for and on its behalf. We are not responsible for car park surface, damage or loss to and from motor vehicles or general site safety. Parking is subject to the terms and conditions that apply are set within this notice (The Parking Contract). By parking, waiting, or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the Parking Contract) and are authorized to park only if you follow these correctly, including making payment where directed... and so on. If you fail to comply, you accept liability to pay the fee for unauthorised parking (the Parking Charge)
This Parking Contract shall form the entire agreement between the parties.
...more text but irrelevant to our case...

By entering this private car park, you consent, for the purpose of car park management to: capturing of photographs of vehicle and registration by APNR cameras and/or by the attendant and for sub-contractor to check compliance with the Parking Contract.
Furthermore, you consent to the processing of this data to request registered keeper details from DVLA, where the Parking Contract is not adhered to and a) enforcement is undertaken remotely via ANPR; or ...;

Parking charges incurred: a) will be notified to the registered keeper by post, where ANPR system identifies non-compliance with the Parking Contract,...;

------------------------------------
based on above, my defence is:

Background:

Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment with the nurse. Defendant entered car park and saw that many other cars were waiting to get a vacant parking bay to park car. Defendant too waited in the car park hoping to eventually find a vacant parking bay to park car and visit the hospital dermatology nurse. Defendant desperately waited inside the car along with his son but when in 46 minutes no parking bay became available, then rushed out of the car park to avoid losing the hospital appointment slot. Defendant then found a parking bay in a street and ran with his son to visit hospital nurse. Defendant did not leave car or get any parking bay to park so there was no contract formed to pay to land owner of car park or claimant.

Defence:

1. This claim should be rejected by court as no parking took place due to absence of a vacant parking spot. No contract formed between Claimant and Driver/Defendant
1. signage does not talk about grace period so waiting or grace period does not form part of contract with driver
2. signage does not mention any contract for waiting so waiting does not form terms and conditions or contract.
3. parking charge - as mentioned in signage is for parking and since no parking took place for lack of space, no contract formed or got violated so this charge is unlawful
4. PE has violated consumer contract regulations: consumer-contract-regulations-2013

In this case, a parking charge for breach of the terms and conditions (i.e. the charges of £100) would be.

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]


5. Claimant has failed to provide any evidence that Defendant parked in the parking area. The APNR images showing the time car entered and exited car park do not prove if i parked so this parking penalty is unlawful.
6. The signage has very small letters and cannot be read unless driver comes out of the car. Without getting opportunity to park the car, it is not possible to read the signage so no contact can be formed until car was parked and since in this case car was not parked, no contract was formed.
7. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.


Due to these significant breaches of the Regulations, it is submitted that Defendant cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

8. Defendant is yet to have knowledge of all documents provided to the court in support of the application, despite sending an email request to the claimant's website contact form in first week of June.
9. In the pre court stage the Claimant refused to provide defendant with the necessary information requested in order for defence by Defendant against the alleged debt.
They did not send following to defendant:
9a. evidence that the occupants of car left the car.
9b. the car was parked in the Private Eye Car Park
9c. there was any vacant parking bay during the time of alleged use of car park.

10. no parking space was provided by claimant and no service was used by defendant so no contract applies in this case.

11. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
11.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
11.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.


12. The contract displayed on the signage by Claimant was actually discharged by frustration. The contract into which Driver (defendant) may have been willing to enter with the Claimant while entering the car park, was frustrated immediately upon entering car park - by the Claimant's lack of a parking space in the car park for the whole of the time when Defendant was there. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
This proves that this claim is unlawful.


13. Claimant has failed to provide following details in the claim:
a) Full particulars of the parking charges
b) Who the party was that contracted with Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that Claimant had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

14. the claimant is not trading responsibly and has clearly failed to secure its parking area by allowing every car to enter its premises - irrespective of whether any parking bay is vacant or not. Claimant should be forced to put barriers in its parking are and allow a car inside only if there is a vacant parking bay. the parking contract is frustrated as soon as claimant allows a car inside when no parking bay is available.

15. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.



16. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.


17. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

18. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer made nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

19. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

20. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Hayes County Court on 17
th March 2014 Case No: 3JD08399 where a similar claim by the Claimant failed, as the Defendent was not parked (she only waited in car park like Defendent in this case) and therefore Claimant could not prove that any parking took place.

21. Claimant has failed to comply with the following documentation which specifically addresses hospital parking and are at least as authoritative as the Code of Practice: '07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
This failure disqualifies ParkingEye from relying on the Beavis decision

22. Appeal Court, considering Beavis, stated that the penalty could never be disengaged for a pay car park



Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.
Signature and Date

This post has been edited by chawal2: Sun, 17 Jun 2018 - 19:47
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post Tue, 12 Jun 2018 - 15:02
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chawal2
post Sun, 23 Sep 2018 - 16:51
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QUOTE (ostell @ Sun, 23 Sep 2018 - 17:32) *
You are correct, there was no need to send a defence to PE when you respond to the initial claim. If they have not seen the defence then how do they know it exists? Did you actually submit an additional defence to the court?

Could you scan the document in PDF form. You may be able to add multiple pages to the PDF which will make life easier. My scanning program requires that it is operation in "Professional Mode" to be able to do this. I am also able to select high compression for the document, which could save some space and time


i did not send additional defence. i emailed defence pdf document to court with name of case as subject. should i attached pdf document here?

how should i respond to parking eye claim of not receiving defence?
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ostell
post Sun, 23 Sep 2018 - 20:10
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You did the correct thing. The court then forward the defence you submitted to the claimant. PE are talking out of there *****s. Point out that the do not seem to know the correct procedures. (all documents after the first have to be sent to court and claimant).

To see the document sent to you by PE it would be easier if it was a multiple page PDF doc.
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chawal2
post Sun, 23 Sep 2018 - 20:37
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QUOTE (ostell @ Sun, 23 Sep 2018 - 21:10) *
You did the correct thing. The court then forward the defence you submitted to the claimant. PE are talking out of there *****s. Point out that the do not seem to know the correct procedures. (all documents after the first have to be sent to court and claimant).

To see the document sent to you by PE it would be easier if it was a multiple page PDF doc.



thanks Ostell.

What should i do with PE response. what is their purpose of PE sending me reply to my defence please? do i need to respond to their reply in any way?

i think they just send same document to everyone and change address

thanks a lot.

i will send u scanned document tomorrow
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ostell
post Sun, 23 Sep 2018 - 21:46
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You can pull it to pieces in your witness statement to show how out of contraol they are.
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nosferatu1001
post Mon, 24 Sep 2018 - 10:56
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1) You have to respond to their claim. You point out the MCOL process is very clear, and if they wished a copy of the defence, then they need to check with the Court. It is not your responsibiltiy to ensure this is served on the C
2) You go through the docs, line by line, and summarise
a) blatantly wrong - wrong car park, facts that are just nothing to do with the case, etc
b) blind assertions with no evidence
c) new arguments not present in the cause of action. PE are great at doing this. If it wasnt in their intiital pleadings - and they have the chance to send further and better paticulars of clam so cannot complain otherwise if yo upoint this out! - then the court should not entertain this AMBUSH of a defendant. You ask the court to strike out these new pleadings OR to require the C to make a formal application to the court, which you will of course oppose as there is no new info from your defencce (WHICH THEY DONT HAVE!) that would result in new pleadings being required.
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chawal2
post Mon, 24 Sep 2018 - 14:22
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QUOTE (nosferatu1001 @ Mon, 24 Sep 2018 - 11:56) *
1) You have to respond to their claim. You point out the MCOL process is very clear, and if they wished a copy of the defence, then they need to check with the Court. It is not your responsibiltiy to ensure this is served on the C
2) You go through the docs, line by line, and summarise
a) blatantly wrong - wrong car park, facts that are just nothing to do with the case, etc
b) blind assertions with no evidence
c) new arguments not present in the cause of action. PE are great at doing this. If it wasnt in their intiital pleadings - and they have the chance to send further and better paticulars of clam so cannot complain otherwise if yo upoint this out! - then the court should not entertain this AMBUSH of a defendant. You ask the court to strike out these new pleadings OR to require the C to make a formal application to the court, which you will of course oppose as there is no new info from your defence (WHICH THEY DONT HAVE!) that would result in new pleadings being required.


thanks a lot Nosferatu.

1. can i respond by email to parking eye? i assume yes.
2. when u say in your point (2) that i need to summarise, u mean in my email response to PE, or in witness statement or evidence pack?
3. regarding your point ©, what u refer to their initial pleadings is the case filed to court, right? that only had one liner. i have lost that letter from court though it seems. i am not sure how to implement your point © to be honest. they do not have any case i know well.
4. i am concerned that PE will keep sending me documents and waste my time and energy in going through that pile of trash.




QUOTE (ostell @ Sun, 23 Sep 2018 - 22:46) *
You can pull it to pieces in your witness statement to show how out of contraol they are.


thanks I will keep in mind Ostell

i also received following meaningless information by post from PE in june/july.

it is completely useless, unless someone of you experts can point out if it is of any significance to me or do i need to use this information for my benefit somehow? thanks


please help me asap. many thanks in advance.



https://ibb.co/gdXu7U

QUOTE (nosferatu1001 @ Mon, 24 Sep 2018 - 11:56) *
1) You have to respond to their claim. You point out the MCOL process is very clear, and if they wished a copy of the defence, then they need to check with the Court. It is not your responsibiltiy to ensure this is served on the C
2) You go through the docs, line by line, and summarise
a) blatantly wrong - wrong car park, facts that are just nothing to do with the case, etc
b) blind assertions with no evidence
c) new arguments not present in the cause of action. PE are great at doing this. If it wasnt in their intiital pleadings - and they have the chance to send further and better paticulars of clam so cannot complain otherwise if yo upoint this out! - then the court should not entertain this AMBUSH of a defendant. You ask the court to strike out these new pleadings OR to require the C to make a formal application to the court, which you will of course oppose as there is no new info from your defencce (WHICH THEY DONT HAVE!) that would result in new pleadings being required.


regarding your point ©, very valuable, but i am thinking how and when to get court involved please??? u mean i email PE and then in hearing tell the court? please help and advise asap. thanks
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cabbyman
post Mon, 24 Sep 2018 - 14:24
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I take it that the 'stay duration' for two of the data entries is in seconds, presumably driving through a section of the hospital grounds on entry to and exit from the parking area.

If so, it's somewhat coincidental that it takes exactly 10 seconds to transit the area, regardless of the traffic conditions. Or is their ANPR system in error? It may be worth asking what those entries mean, without telling them why you want to know.


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chawal2
post Mon, 24 Sep 2018 - 14:51
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QUOTE (cabbyman @ Mon, 24 Sep 2018 - 15:24) *
I take it that the 'stay duration' for two of the data entries is in seconds, presumably driving through a section of the hospital grounds on entry to and exit from the parking area.

If so, it's somewhat coincidental that it takes exactly 10 seconds to transit the area, regardless of the traffic conditions. Or is their ANPR system in error? It may be worth asking what those entries mean, without telling them why you want to know.


hi Cabbyman,

since it is about 10 seconds only, can i ignore this document as it is of no benefit for me.

so much wastage of time when i know i did not park so how can they prove i parked. thanks
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cabbyman
post Mon, 24 Sep 2018 - 14:56
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It may be that you can raise the point in your defence.

If one part of the ANPR system is set to a default then why shouldn't the rest of it be? Maybe go back and make your own timings of the transit and see how they compare with PEs' submissions.


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chawal2
post Mon, 24 Sep 2018 - 15:15
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QUOTE (cabbyman @ Mon, 24 Sep 2018 - 15:56) *
It may be that you can raise the point in your defence.

If one part of the ANPR system is set to a default then why shouldn't the rest of it be? Maybe go back and make your own timings of the transit and see how they compare with PEs' submissions.


thanks Cabbyman.

But I already filed my defence in july so i believe i cannot add this information in my defence.
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cabbyman
post Mon, 24 Sep 2018 - 15:20
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Others may comment about your options.


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chawal2
post Mon, 24 Sep 2018 - 20:36
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QUOTE (nosferatu1001 @ Mon, 24 Sep 2018 - 11:56) *
1) You have to respond to their claim. You point out the MCOL process is very clear, and if they wished a copy of the defence, then they need to check with the Court. It is not your responsibiltiy to ensure this is served on the C
2) You go through the docs, line by line, and summarise
a) blatantly wrong - wrong car park, facts that are just nothing to do with the case, etc
b) blind assertions with no evidence
c) new arguments not present in the cause of action. PE are great at doing this. If it wasnt in their intiital pleadings - and they have the chance to send further and better paticulars of clam so cannot complain otherwise if yo upoint this out! - then the court should not entertain this AMBUSH of a defendant. You ask the court to strike out these new pleadings OR to require the C to make a formal application to the court, which you will of course oppose as there is no new info from your defence (WHICH THEY DONT HAVE!) that would result in new pleadings being required.


thanks a lot Nosferatu.

1. can i respond by email to parking eye? i assume yes.
2. when u say in your point (2) that i need to summarise, u mean in my email response to PE, or in witness statement or evidence pack?
3. regarding your point ©, what u refer to their initial pleadings is the case filed to court, right? that only had one liner. i have lost that letter from court though it seems. i am not sure how to implement your point © to be honest. they do not have any case i know well.
4. i am concerned that PE will keep sending me documents and waste my time and energy in going through that pile of trash.







regarding your point ©, very valuable, but i am thinking how and when to get court involved please??? u mean i email PE and then in hearing tell the court? please help and advise asap. thanks

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nosferatu1001
post Tue, 25 Sep 2018 - 07:19
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Please stop asking for help "ASAP". Its not necessary. We help as soon as we can, regarldess

You cannot stop PE senidng you document.s Complaining about htem sending you documents, when this may help you to reconsider your position, is in fact the OPPOSITE of what the court wants - they WANT the two sides to talk, as then you or PE might settle the case before it hits valuable court time.

You are not corresponding with PE directly, youre filing a set of documents in front of the court.

So you should know by now when your WS and other evidence has to be in? It is in your hearing letter. When is that date?

If you questioned the ANPR system in your July defence - which i HOPE You did! - then of course you can add that their own evidence suggests that every vehicle, regarldess of time of day, always takes precisely the same time to transit areas of the car park. This suggests that this is not REAL live actual data from a real live set of moving cars, but a system default -meaning the data is not reliable. It cannot be.

By now you are expected to know the steps of the court process. You cannot keep flailing asking questiosn that are basic - MSE Forum, NEWBIES thread, Post 2. Book mark it. It explains EVERYTHING about the court process. Read it 25 times if necessary, and before asking questions here, read it again just in case.

You need to be compiling your own bundle

In your WS you can of course reference THEIR evidence, since you have sight of it. So implementing my 3 points is easy, you now know how to do it, and where.
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chawal2
post Thu, 11 Oct 2018 - 02:19
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Hi all, i was expecting court to send me hearing date. Instead i have been sent below court order:
"... defence form is struck out pursuant to CPR 3.4 as disclosing no reasonable ground for defending the claim."
Please find photo of letter uploaded here:
https://ibb.co/feRzuU


I am surprised my defence has been struck out and will appreciate if someone can advise what changes to defence can i make now. I have upto 13 october to act if i want to vary or stay or set aside this court order. But i believe i do not need to do either of these. Thanks all for your time and help once again

This post has been edited by chawal2: Thu, 11 Oct 2018 - 03:20
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chawal2
post Thu, 11 Oct 2018 - 03:04
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*latest position of case:

1. Case is with uxbridge county court
2. My witness statements and evidence pack are ready but i was waiting for court to ask me for these along with telling me hearing date - so i did not email them yet. Uxbridge court had not asked me for anything till now.

**please help me with my queries***:

1. Is it safe to email the court the updated (no idea how to update) defence and witness statement and evidence pack? I ask because they do not ever respond to emails.
2. Am i right i do not need to fill any* form- as i am happy with court order?
3. Is it correct that all i need to do is to send updated defence statement, evidence pack and witness statement?
4. Is it ok that my witness statement is essentially further details of contents of defence statement?
5. Do i need to email PE (on their normal email id) all of documents in point 1 to too?
6. How to update defence statement please? Since i had filled the defence as best as i could, and also put it for review in this forum i really do not know how to improve defence?
I will appreciate if i can get some help.
Thanks once again

This post has been edited by chawal2: Thu, 11 Oct 2018 - 03:27
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ostell
post Thu, 11 Oct 2018 - 07:51
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Forget about witness statement etc for the time being, they will be due probably 14 days before the hearing date that will be given, you need to get a defence in to the court. What exactly did you send as a defence?

This post has been edited by ostell: Thu, 11 Oct 2018 - 07:52
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nosferatu1001
post Thu, 11 Oct 2018 - 09:47
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Indeed, we need to know what you sent, to try to fathom why they think you havent got a defence

Ignore WS for now. Entirely. Deal with what the court has TOLD YOU TO DO - which is the defence

In order to amend a defence, you start with your original defence, strike through any deletions, and add in red any additions. I would suggest you HAND DELIVER it to court
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chawal2
post Thu, 11 Oct 2018 - 09:53
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Dear ostell...the defence that i sent is exactly as pasted by me as 1st post on top of this thread of mine. Please can u review and let me know where i went wrong? To best of my memory none gave any comments on this and i also found this defence comprehensive and fit for purpose. I did not do any blind copy paste as such. Thank you once again
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ManxRed
post Thu, 11 Oct 2018 - 09:55
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Has it been truncated somewhere in the MCOL system?


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chawal2
post Thu, 11 Oct 2018 - 09:59
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QUOTE (nosferatu1001 @ Thu, 11 Oct 2018 - 10:47) *
Indeed, we need to know what you sent, to try to fathom why they think you havent got a defence

Ignore WS for now. Entirely. Deal with what the court has TOLD YOU TO DO - which is the defence

In order to amend a defence, you start with your original defence, strike through any deletions, and add in red any additions. I would suggest you HAND DELIVER it to court

Thanks Nosferatu...
I can hand deliver. No problem. Kindly have a look at my first post in this thread. That is the defence i emailed court as pdf document. I can share that pdf too if it is preferred.
Also is it ok to email PE the updated defence?
Could it be that judge is trying to reduce workload by rejecting defence?
I am wondering what if this imp letter was lost in post? sad.gif


QUOTE (ManxRed @ Thu, 11 Oct 2018 - 10:55) *
Has it been truncated somewhere in the MCOL system?

Dear Manxred... i had emailed the document to court.
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