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Appealing a UK cpm ticket on land they don't manage.
ben1191
post Sun, 28 May 2017 - 09:29
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Hi,I've had trouble from these idiots for a while now where I live,I tried to find my old topic but couldn't.

I own a non sign written long wheel base Mercedes sprinter that I use for work,holidays and social use,even shopping.I park it on the t junction where I have been told via email by the agency countrywide that the council owns and manages. UK cpm have errected signs roughly 3m in the air on lampposts all across the estate and t junction as well as at the entrance to the road. Last Sunday I received a ticket over night at 04:01 AM,I want to appeal this ticket the best way I Can,I can only appeal via post so it needs to be handwritten,can anybody help me with how to word my appeal please.

Here is the email I received from the landowner/management;

We do not own any land, however we are responsible for the running of the estate which does not include the T shaped part of the road, which is Council adopted. There is no parking enforcement on this part of the estate as it does not form part of the development. The signs erected are a warning to people wishing to park within the maintained estate.

The agreement that you have with your letting agent does not transcend the law. You are actually placing the owner of the property in breach of their terms and conditions, however it is their responsibility to ensure that the letting agents form your tenancy agreement based on their Deeds, which they haven’t so therefore it would appear that your tenancy agreement is voided in parts, again I would contact them about this, there could be other parts of your tenancy agreement that are also void so it is in your interest as a tenant to review this, for your rights.



Your comment regarding being ticketed in the homeowner’s parking space is also incorrect. We would not take the homeowner to court regarding a parking ticket, however we would have grounds to take them to court if they continue to allow a tenant to park commercial vehicles on the development.

Thanks for any help in advance.

Edit: the road is Mercer close larkfield so you can Google street view it for a better idea.

This post has been edited by ben1191: Sun, 28 May 2017 - 09:31
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SchoolRunMum
post Sun, 12 Nov 2017 - 17:38
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OwlGirl, I wrote you a counter-claim, so your WS also needs a section in full support of the compensation you seek as a remedy for DPA breach and harassment.

See Henry Hippo's WS in his thread (he has one about DE and one about a residential ticket, both with counter-claims). One of his threads has a WS from this week he's working on, with evidence to try to really swing it with the counter-claim for distress (lay it on thick and you MUST have the case law added too).
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OwlGirl
post Mon, 13 Nov 2017 - 06:34
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Ok, I'll look it up, thank you
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SchoolRunMum
post Mon, 13 Nov 2017 - 11:03
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Great - I want you to have a chance of having your counter-claim heard and possibly won. It's why it was part of your defence - nothing to lose.
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OwlGirl
post Mon, 13 Nov 2017 - 18:46
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Have been working on it this afternoon & will post asap - I have recieved their witness statement today which had been an eye opener - rather short & lots of 'he's instead of shes' & even, at one point when referring to the Beavis V Parking Eye case, says that whilst the terms of parking are different, in the Beavis case it was maximum stay 2 hours, but in the defendants case it was to display a permit....erm, nope it wasn't. The whole things a copy & paste botch job to be honest

This post has been edited by OwlGirl: Mon, 13 Nov 2017 - 18:48
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OwlGirl
post Mon, 13 Nov 2017 - 22:00
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Can I email this to the court? Or do I have to post? I have tomorrow to get it there!!


WITNESS STATEMENT OF XXXXXX

1. I XXXXXXXX of XXXXXXXXXXXXXX am the defendant in the claim. The facts in this statement come from my personal knowledge.

2. On the evenings of 13/11/2016 and 20/11/2016 my vehicle XXXXXXX was parked on Mercer Close and received two separate Parking Charge Notices from the Claimant. I have attached a map showing the location. (NW001).

3. Since receiving the Parking Charge Notices, I have been in contact with Mr Scott McCulloch, AIRPM Property Estate Manager of Countrywide who manages the site. He informed me that the claimant should not be issuing Parking Charge Notices at the location ‘Mercer Close’ because it is public highway. I have attached a map, sent to me by Scott McCulloch, which the claimant was provided with too, and which shows the areas the Claimant was authorised to ticket in, shaded in grey. (NW002).

4. I also contacted my local Borough Council and my enquiry was passed on to Mr Stuart Edwards, Property Services Officer for Tonbridge and Malling Borough Council who has also confirmed the location of Mercer Close as public highway. I attach a copy of the Kent County Council Kent Roads list, showing the roads that are maintainable at public expense. Mercer Close appears on page 1161 of this list. (NW003).

5. Despite the Claimant knowing the above, I saw that signs were put up on the lampposts on Mercer Close forbidding commercial vehicles to park there. My vehicle XXXXXXX is a Citroen Nemo van – not a commercial vehicle. I attach a photo taken on 4th June 2017 of the sign on the lamppost in Mercer Close. (NW004.) I have also attached a photo taken by the dashcam of my neighbour’s vehicle, showing a UKCPM warden photographing his vehicle before ticketing it whilst it was parked on Mercer Close. (NW005).



6. Since receiving the Parking Charge Notices, I have received numerous letters whereby the Claimant has stated that the charge is for a breach of terms and conditions. It is my belief that no contract could possibly exist for a breach of terms and conditions, as the Claimant is not authorised to be ticketing on Mercer Close. (NW006).

7. In the letters I have received and the Particulars of Claim the Claimant states that two separate amounts of £160 for Parking Charges/Damages and Indemnity costs are owed. The original Parking Charge was £100 and I therefore have the reasonable belief that the additional £60 is for Indemnity costs. It is my understanding that legal costs cannot be recovered in the Small Claims court. (NW006).

8. Since the Claimant ticketed my vehicle, no action has been made by them to gain evidence of the driver’s identity. As the registered keeper I have no obligation to name the driver. There is no lawful presumption that a registered keeper was the driver, in relation to private parking charges (evidenced by barrister Henry Greenslade in the POPLA Annual Report 2015, where he also confirmed that a keeper cannot be held liable within the scope of the POFA, schedule 4).

I believe that the facts stated in this witness statement are true.

Signed,


12/11/2017.









COUNTERCLAIM OF WITNESS STATMENT

I XXXXXXXXXX am Counter Claiming in this case and will say as follows


1. On the evenings of 13/11/2016 and 20/11/2016 the vehicle XXXXXXX of which I am the registered keeper was issued with 2 separate Parking Charge Notices.

2. After receiving these, I phoned the Managing Agent Scott McCulloch, explaining the situation I now found myself in. He told me I was not the first person he had heard from in relation to this complaint and that he has instructed the Claimant multiple times, not to ticket there. I was shocked to learn that UKCPM were acting in breach of its own client agreement with Countrywide, as well as against the law, in issuing 'private' parking charges on public highway. We were in email correspondence, and he provided me with the same map as UKCPM were provided with when they were contracted to ticket on the site owned and managed by Countrywide and confirmed to me that the location my vehicle was parked in on above dates was in fact public highway. I also contacted my local borough council who also confirmed the above.

3. On 18/01/2017 I received a letter from DRP (Debt Recovery Plus Ltd) (NW008) ‘demanding’ payment for an unpaid Parking Charge Notice on 13/11/2017, of £149. I was alarmed at that point as UKCPM had got my address and were now pursuing what I considered to be an unreasonable sum, £49 more than the original PCN. I was now aware of UKCPMs unlawful infringement of my right to privacy by misusing my private information to obtain my name and address.

5. On 25/01/2017 I received a letter from DRP (Debt Recovery Plus Ltd) (NW009) ‘demanding’ payment for an unpaid Parking Charge Notice on 20/11/2017, of £149. I was equally if not more alarmed to be receiving this letter. Once again, UKCPM had misused my personal data, breaching the Data Protection Act. Once again, they had increased the money owed by £49.

6. On 09/02/2017 I received another letter from DRP informing me of intended court action if the £149 PCN was left unpaid. This was for the PCN dated 20/11/2017. This was my third letter from DRP in 3 weeks and I was starting to feel extremely harassed by their correspondence. I dreaded going to pick the post up from the floor and seeing one of DRPs tell-tale brown envelopes.

7. On 20/02/2017 I received yet another letter from DRP, a fourth letter in just over a month, offering me a ‘final settlement offer of £126.65 to avoid court action.’ I was extremely shocked to be receiving this letter with threats of pursuing court action, for PCNs they had issued unlawfully, on public highway. The letter came across as threatening and felt as if DRP were trying to scare me into paying a slightly reduced amount (which was still more than the original PCN) that would be withdrawn if their offer was not taken up by myself by 03/03/2017. The letter speaks of such ‘debts’ and ‘court judgments’ ‘seriously affecting future creditworthiness and employability.’ (NW010) I was quite taken-a-back at the use of language and maliciously persuasive nature of the letter. I noticed on the reverse of the letter, something which also shocked me, knowing that absolutely no attempt had been made by UKCPM to identify who was driving the vehicle at the time the PCNs were issued: ‘Liability for this charge in England and Wales’ which states that ‘the driver of the vehicle at the time of this charge was issued is responsible for payment of the charge detailed overleaf.’

8. On the 20/06/2017 I received a letter from Gladstones Solicitors ‘Letter Before Claim.’ (NW011). The letter speaks of a failure to settle the ‘debts’ or provide a valid reason for non-payment. The letter speaks of ‘debts related to parking charges’ dated 13/11/2017 and 20/11/2017 at Location ‘Mercer Close – Mercer Close, Larkfield, Aylesford, ME20 6QY.’ I knew this location to be public highway. I was extremely distressed by this letter and the evidence that UKCPM had decided to escalate these unlawfully issued PCNs to a solicitor. Once again, the letter came across as an attempt to scare me into paying the now £320 ‘debt’ even ‘referring me to the Practice of Direction for Pre-Action Conduct under the Civil Procedure Rules’ which, as someone who has no legal experience, felt like a way to intimidate me with legal “jargon”.

9. On 11/07/2017 I received the Claim Form from The County Court Business Centre (NW012). This was very distressing for me, I am a law-abiding citizen who has never been threatened like this before. Having had no previous legal experience I had no idea of the proper channels or manner in which to defend legal action and I was afraid that with the superior experience of Gladstones Solicitors that they would somehow be able to win in court and I would stand to lose out financially and have a blighted record. I spent numerous hours researching similar cases to mine, and my rights, to reassure myself that I was in a legally defendable position. Despite my research I was still worried that I would fall foul of a legal loophole and be liable for the parking charge and an excessive costs charge from Gladstones Solicitors. The amount claimed had now amounted to £419.00. I could not afford to seek professional legal advice from a solicitor. I am self-employed and any time spent researching the above, putting together my defence and counterclaim, tirelessly researching my lawful rights, was time I should have otherwise been spending working. When one is self-employed, not working means loss of earnings and I found this an extremely hard time financially, having to work unsociable hours in order to make up for this loss of time and earnings. This added greatly to the stress of the whole situation, meaning that I had difficulty sleeping, especially as I was often dealing with the case in the evenings before bed, and found it problematic to socialise with friends and family or enjoy time with my young son as I always had the Court Case at the back of my mind. First and foremost, I have felt anxious whenever I have left the house, at fear of finding another PCN on the windscreen of the vehicle, and the subsequent DRP letters that follow.


10. My partner, who I live with, and is the father of my son, is equally anxious for me and we worry about how, if I were to lose the case, we would afford to make up the shortfall in our monthly earnings. He is concerned that I will lose the case, knowing that I, as a self-employed individual, who works around caring for and bringing up our son, can’t afford to pay the penalty. My partner who already has difficulty sleeping due to a medical condition Elhers Danlos Syndrome, has been experiencing insomnia that is affecting his quality of life and performance at his already stressful job as an Assistant Headteacher. In the last week he has had to take two sick days due to ill health brought on by his complete lack of sleep.

12. Each stage in the legal process has been new, daunting and intimidating to me, and whilst it undoubtedly would have been easier for me to pay the unfair charge in the first place, I refuse to do this on principle and to let the bullies win. I have spent thirty to forty hours researching and working on my case, affecting how much time I have been able to spend working, being with my family, as well as a loss of sleep. Just putting the attached evidence together alone, was a stressful and time consuming task, as I tried to sift through nearly a years’ worth of correspondence with multiple parties. I continuously worry that I will lose the case due to a loophole like missing evidence on my part or lack of experience. I am both mentally and physically exhausted upon preparing the proper documentation and trying to submit it all in a timely manner to the Court.

13. From my point of view this whole case has been a relentless attack from UKCPM and Gladstones Solicitors demanding money from me with menace and manipulation for an offense that they should have never been coming after me for as they have abused my personal data without reasonable cause. It is evident that UKCPM have accessed the DVLA database to identify myself as the registered keeper without reasonable cause, and have been using and processing my information unlawfully, in contravention of the Data Protection Act to pursue a distressing and fanciful claim, bombarding me with demands for money, leaving me feeling harassed and targeted. UKCPM have unlawfully captured and stored the VRN and an image/images of the vehicle (both confirmed by the ICO, as 'personal data' relating to a keeper), following which they obtained my name and address from the DVLA. UKCPM have no grounds to pursue me, the purpose of such data being supplied to a parking firm is only valid on private land. The data should not have been stored, nor processed and should certainly not be being used as evidence in a witness statement in Court. If UKCPM felt the vehicle was parked unlawfully, they should have contacted the Council requesting them to persue the driver/owner under the Traffic Management Act 2004, the correct route would have been for the Local Authority to have issued a statutory Penalty Charge. There was no reasonable cause to photograph the vehicle, nor to collect the VRN, nor to store that data and those images, nor to process that data in any way.

14. After being given a Court date in late November, I am nervous and frightened as I have never been in court before, let alone represented myself in a legal capacity. I will undoubtedly face many sleepless nights between now and the court date. I anticipated that on the day of Court I will be extremely nervous. By contrast the Judge will be in Court every day and the representative from Gladstones Solicitors will be very familiar in this environment. I will be only one new to the experience, not comfortable in this environment and I already feel vulnerable in this attack on myself and the unwarranted demands for money.

15. I am claiming for the sum of £500 due to the Claimant breaching the Data Protection Act and also for a breach of the Protection from Harassment Act for significant distress caused by breach of statutory duty pursuant to Section 13(1) of the Data Protection Act 1998 and/or misuse of private information. An order pursuant to Section 14(4) of the Data Protection Act 1998 is also sought for the blocking and/or erasure and/or destruction of data, whether stored as digital data or otherwise and any photographs or other relevant material. It is my belief that UKCPMs claim falls within the scope of exemplary/punitive costs. A sum of double the amount claimed is suggested as not unreasonable, given that the claim is for two separate PCNs, however, the Judge is invited to use discretion to grant such costs in this case as are deemed warranted, pursuant to the ruling in Rookes v Barnard 1964 in that the conduct of this Claimant was unwarranted, unlawful, wholly unreasonable, vexatious and misleading. I would like to draw upon s13 of the DPA, “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.

15. I also rely on three binding authorities in support of my Claim, the first two of which are Vidal-Hall v Google Inc [2015] EWCA 311, and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, and that it was not necessary to quantify a direct pecuniary loss. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’. Both of the above cases arose as a result of material breaches of the DPA by the respective defendants, and can be considered to provide binding precedents for my own situation. My claim is for £500, at the lower end of the scale and not a sum that appears excessive, given the circumstances of harassment and DPA breach by a Claimant pursuing a wholly vexatious claim and unreasonable three-figure sum.

16. The third authority relied upon is the judgment in 2017 at the Leeds County Court, 3SP00071 - BLAMIRES v LOCAL GOVERNMENT OMBUDSMAN which followed the final hearing of the Claimant’s claim issued on 4 June 2013, for remedies including a claim under the Data Protection Act 1998 whereby a four figures sum was granted as compensation for distress. As is now relatively well known, the DPA’s original drafting appeared to exclude compensation for distress alone, but the Court of Appeal, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that this was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for “pure” distress. The award in Blamires was of “Vidal Hall” compensation, with the judge saying there was ''no doubt in my mind that the data breaches have caused distress to the claimant in their own rights as well as as a result of the consequences that flowed.'' The judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, although being told by the Claimant that its conduct/data was wrong, it took nearly two years for the Defendant to admit the mistake. This failure to admit its mistake and take appropriate action, appears to be comparable to this counter-claim, since the managing agent client has admitted to having clearly instructed UKCPM on more than one occasion, that they must not issue tickets at the T Junction, which is public highway.

17. Comparable claims to this have been made in the County court, for example, a ruling was made by a District Judge at Liverpool County Court on 7 December 2016, in case no. C9DP2D6C, VCS v Mr. M. Also, more recently in Claim No D6GM2199 in May 2017 at the County Court at Bury Court: Civil Enforcement Ltd v Mr B, where District Judge Osborne accepted the argument about the DPA breach by a Parking Company who could not hold a registered keeper liable, yet still pursued that party. He accepted the tort of damages as averred in the counter-claim. He agreed £500 not unreasonable, given the distress of demands of defending a court claim. He said he was disappointed in the claimant bringing an unfounded case.

18. The assertion that this land is 'private land' and a right to issue parking charges at this location was misrepresented on the signs and the subsequent demands were issued unlawfully, purely calculated to make a profit for the Claimant which far exceeds any loss they could possibly suffer. This appears to be a matter for the Police and/or Action Fraud, and certainly the DVLA who are able to ban operators for six months (or permanently) for such conduct. However, the remedy for me as an individual is to claim compensation, hence this counter-claim.

19. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed and had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.



STATEMENT of TRUTH
I believe that the facts stated in this Witness Statement are true


13/11/2017
Signed


……………………………………
(Counter Claimant)
Of XXXXXXXX
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nosferatu1001
post Tue, 14 Nov 2017 - 09:36
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You have to email your WS PLUS any documents you reference , not just the WS!

Yes you can of course email. Print, sign, scan and email as PDF
Serve on BOTH tthe court AND the claimant.
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OwlGirl
post Tue, 14 Nov 2017 - 10:53
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Great thanks
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SchoolRunMum
post Tue, 14 Nov 2017 - 14:40
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Seriously, in a case like yours with a wealth of evidence needing to be printed, would not email to your local court, who almost certainly have a 'maximum page' rule on email attachments they'll print out. You could find all your evidence excluded/not printed, just due to that - don't chance it.

By all means email it to Gladstones, but the best advice is to print out your WS and all evidence and put it in a cheap plastic stationery folder, or ring binder with all pages in order so the Judge can't go wrong. And get someone to take it in person to the Court before 2pm tomorrow, ideally in the morning in case the Court draw the line early for files to be considered delivered on a weekday.

The file should have numbered pages as well as separately numbered evidence, with a simple and helpful 'contents' or index page giving page numbers, and a draft costs schedule listing all your costs, travel to court for the proposed hearing, your time spent on all this at £19 per hour. As you are self employed you will need to think how you can evidence that you would normally be working on that day, and how much you earn per day, otherwise a Judge might not grant loss of earnings. You can also claim child care for the time to attend court, and parking/fares.

Also add in your court fees (so far you've paid the initial £25 for the counter-claim? ...and there may be a second £25 if you have to force a hearing if they discontinue - see below) printing and postage costs (examples of a costs schedule are here in post #2):

http://forums.moneysavingexpert.com/showthread.php?t=4816822


Re your WS, I would change this which is part of #7, and make it 7.1 and 7.2:

7.1 The original Parking Charge was £100 and I have the reasonable belief that the additional £60 is a sum plucked out of thin air, which was never incurred (if this is alleged to be 'costs' of debt collection, it is averred that such firms operate and issue demands on a no-win-no-fee basis and the Claimant has incurred no fees that can be pursued). The Claim for such costs is an abuse of process and a breach of the indemnity principle. If costs are notional or predictable, these should appear on the sign if they are to be capable of agreement, and they were not stated on any signs, which in any case had no legal application on non-private land.

7.2 Nor can this be a sum in damages, because the Claimant is not the landowner and already runs the scheme using a minimal-cost business model whereby the majority of the sum of the 'parking charge' is profit (as was held by the Supreme Court in Beavis, where ParkingEye were only allowed to recover £85 and no costs, and their charge was only uniquely saved from the 'undoubtedly engaged in parking cases' penalty rule, based on the 'complex' facts surrounding a free parking licence in a particular retail park location). Legal costs are not recoverable in the small claims track pursuant to Part 27 CPR (NW006).


Have you got evidential proof of the following things and case law, which are not listed as having evidence numbers in your Counterclaim WS (they need including, lots of printing I am afraid):

QUOTE
I also contacted my local borough council who also confirmed the above.


Rookes v Barnard

Vidal Hall

Halliday

(the above may well be hosted by the BMPA if you Google BMPA then the case law)

The DPA Principles (Google them, also find the explanatory notes about each principle).

The Protection from Harassment Act (not the whole thing, find a relevant section about remedies and about definition of written harassment from companies demanding money from consumers, etc)

Blamires (easy to Google)

Ferguson v British Gas (easy to Google and find the transcript - important as it's case law about claiming for distress for harassment by debt demands).


Finally, I expect Gladstones MIGHT rush to discontinue the entire case, late in the day, a week before the hearing. No breathing a huge sigh of relief because they will be hoping to avoid the counter-claim by sweeping the entire thing under the carpet. You must be ready for that and call the court to insist your counter-claim is still heard and have a card ready to pay £25 over the phone to keep your counter-claim live (this extra £25 is the hearing fee that will fall to you only if the claimant discontinues).

After all this hard work, be ready to get that counter-claim heard and to stand/sit there and personally show your genuine distress.

This post has been edited by SchoolRunMum: Tue, 14 Nov 2017 - 14:44
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OwlGirl
post Tue, 14 Nov 2017 - 17:23
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Thank you, another late night ahead of me by the looks of it!
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SchoolRunMum
post Tue, 14 Nov 2017 - 18:08
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You can do it, make sure you have plenty of printing ink and think of the counter claim - it is worth a very strong shot.

And as I said, be ready for a possible late discontinuance. Given the amount of time spent on this already, if you end up with a discontinuance and then have to proactively remind the court that the counter-claim remains open, and pay a £25 hearing fee to have the case continue on your counter-claim alone, it has to be worth the punt.
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OwlGirl
post Tue, 14 Nov 2017 - 19:14
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Thank you. Here's hoping...

If it does make it to court, what does their error in the witness statement where they put that in my case it was to display a permit mean for me?
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ostell
post Tue, 14 Nov 2017 - 19:44
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It shows that their evidence is not to be trusted
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OwlGirl
post Tue, 14 Nov 2017 - 20:22
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Oh one more thing, should I put the original letters, paper work etc in the folder? Seeing as I'm now hand delivering it
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ostell
post Tue, 14 Nov 2017 - 20:40
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You keep all originals yourself and just attach copies. You take any originals with you to court in case sight of them is asked for
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ben1191
post Tue, 14 Nov 2017 - 21:41
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Owlgirl,my van was broken into lastnight,make sure you dont leave anything valuable in yours.
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OwlGirl
post Tue, 14 Nov 2017 - 22:14
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Witness Statement, Evidence etc handed by myself to the reception of the County Court first thing this morning, now to read up on what to expect on the day....Any links to relevant threads would be appreciated x

This post has been edited by OwlGirl: Wed, 15 Nov 2017 - 10:19
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OwlGirl
post Wed, 15 Nov 2017 - 13:10
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QUOTE (ben1191 @ Tue, 14 Nov 2017 - 21:41) *
Owlgirl,my van was broken into lastnight,make sure you dont leave anything valuable in yours.


Sorry to hear that sad.gif disgusting
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SchoolRunMum
post Wed, 15 Nov 2017 - 20:48
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The NEWBIES thread on MSE has some happy court reports linked in post #2, talking about what to expect on the day.
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OwlGirl
post Wed, 15 Nov 2017 - 20:53
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Fab
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OwlGirl
post Mon, 27 Nov 2017 - 10:44
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So, looks like it's really happening on Wednesday sad.gif

What do I need to take with me please? & any MUST dos?

Thank you
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