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A win at Maidstone v AM Parking & Gladstones
post Fri, 5 Jan 2018 - 11:00
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Hi all,

Here's a write-up of our winning day in court, hope it helps someone like the forums helped us occasion14.gif

Link to the original thread here


After almost four years, the day arrived for District Judge Sullivan to decide our fate. The Claimant had already given notice that they would not be attending, and breaking the habit of a lifetime I was letting hubby speak for me, so it was going to be a day of sitting, waiting and listening.

Arriving at court bright and early, we offered a bundle to the usher, but it wasn't accepted as there was no copy served on the other side. This was no big hassle as it was almost all documents that head been served on the other side, including a late flurry by email with a skeleton argument and costs application. What hadn't been previously served was some pertinent case transcripts and the POFA schedule 4. Luckily the latter was included, as DJ Sullivan asked if we did have a copy of that, which we were happy to provide. I was then thrilled to see that our printer had managed not to print the paragraph links, leaving big spaces where some very relevant numbers should be. D'oh! The other half dug out his phone and quickly filled in the blanks on our printed copy ready to refer to.

And then we waited our turn. And waited. And waited... Having been listed for 10am, we were eventually told we would be heard at 2.10. This meant some scrabbling around to sort out our parking - wanted to avoid the irony of getting ticketed while fighting a ticket...

After a lunch at McDonalds over the road, we came back fit and raring, and got our call.

We'd submitted a preliminary matter regarding the claimant's non-appearance, and this was dealt with first. The judge was satisfied that as they had given notice this was permissable under the small claims track, and so we moved onto the main part of the claim. At this point it was clear why a copy of POFA had been requested, as this was going to be treated almost as a preliminary item too. As the judge said, in the absence of any evidence of the driver, if we could show that there was no keeper liability then the whole case fell away.

The other half started to speak, saying that the other side had not evidenced the driver while my witness statement stated I was at work that day. I was asked to take the stand and state under oath that my evidence was true, which I did to the judge's satisfaction. Their use of Elliott v Loake was quickly thrown out so we moved onto the POFA and whether the other side had complied.

Hubby quickly pointed out that the relevant letter (headed 'notice to owner') was inconsistent - AM Parking/Gladstones had submitted a different letter in evidence to that which we had received. Having shown the original to the judge, this did not go down well. Moral of this story is keep all your paperwork! He then proceeded to go through the POFA almost paragraph by paragraph showing what had not complied as a valid Notice to Keeper. Having highlighted several failings, most clearly that it was served out of date, DJ Sullivan was satisfied there was no keeper liability and that I was not the driver, so claim dismissed. The judgement was longer than I expected, and not surprisingly quite damning.

Unreasonable behaviour and costs had been mentioned by the other half during his defence, and so DJ Sullivan invited him to make his case after stating that the usual rule was no costs awarded.

He started by introducing the relevant CPR and the practise direction for pre-action. At this time he drew attention to the letter before claim from Gladstones, and tore it to shreds against the practise direction - the fact that it made a threatening reference to the sanctions for breaching the protocol, but included no information required under paragraph 6 to support the claim. He said that the pre-action protocol was there to try to avoid unnecessary court action, and the judge helpfully jumped in to note that the LBC included that 'you must pay...', which showed no intent towards settlement. He went on to show that I had replied in good time to this, and requested information which Gladstones didn't give when they got around to replying 6 months later, and pointed out the untrue statements in this reply - namely that they stated the POFA had been complied with and and misrepresenting other parts of the Act. He'd also pointed out some other things, like the inadequate original particulars of claim, the unreasonable timescales, that the claimant had not mentioned the POFA at all despite it being in our defence, and that they'd sat on it for 4 years without any evidence. Finally he talked about an acid test for unreasonable behaviour by a claimant (taken from here), and that this claim couldn't be described as merely optimistic, it had no basis for success and was an abuse of process.

At the end of all that, the judge agreed that the claimant had acted unreasonably, and awarded us full costs of £400+. She went on to say that the costs argument was very interesting, and the first time it had been run with in front of her - seems like a good idea to try the same in future folks.

A long day, at the end of a long 47 months, but a happy ending. And a happy new year to AM Parking, who got properly Gladstoned laugh.gif
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post Fri, 5 Jan 2018 - 11:00
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post Tue, 9 Jan 2018 - 01:01
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From: Near Calais
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I had a win in front of DJ Sullivan at Margate on another matter while ago; again she tore the other side's case to shreds.

A good win for you. smile.gif
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The Rookie
post Tue, 6 Feb 2018 - 13:57
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From: Warwickshire
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Just read this, and a great right up, well done......AM will be about £700-800 form having their day in court, maybe not so keen to repeat that little exercise!

There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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post Wed, 7 Feb 2018 - 10:53
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Lovely, thanks for the write up! Glad it finally got resolved!
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