Locked in car park

[MrShed]

What I would say Patma is that the criminal aspect MUST be addressed first, as it will have a massive impact upon the civil case.

 

If there is doubt as to the legitimacy of the criminal caution, then that should be addressed first, and a request made to put on hold the civil action, as the matter is still subject to criminal proceedings.

 

I must admit, I was not aware that you could get such "convictions"/cautions overturned at a later date after admitted?

[Patma]

Thanks for that, Mr Shed, good thinking. Apparently it's not often done, but is possible that a caution can be overturned. It seems to me that he needs to get some really sound advice, but the problem is he's on jobseekers allowance and can't afford legal fees.

[Its WAR]

When you aknowledge receipt of your claim and indicate you intend to defend, the case will be automatically transfered to your local court.

[MrShed]

What about legal aid or similar?

 

At this stage, I think it is important to progress quickly.

 

I would be writing to the court, copying in the college, stating that you (him, obviously, but will simplify by saying "you") are intending to challenge the criminal damage offence. As such, as the caution for the offence has a major impact upon the bearing of the civil case in question, you would ask for a stay in the proceedings until the criminal case is fully resolved. I would think that the CC will have difficulty in doing anything other than staying the case.

 

Then, the question of the criminal case will need to be addressed as quickly as possible.

[Patma]

I would be writing to the court, copying in the college, stating that you (him, obviously, but will simplify by saying "you") are intending to challenge the criminal damage offence. As such, as the caution for the offence has a major impact upon the bearing of the civil case in question, you would ask for a stay in the proceedings until the criminal case is fully resolved. I would think that the CC will have difficulty in doing anything other than staying the case.

 

That's an excellent idea, thankyou Mr Shed. It makes a lot of sense and thanks also, Haydn for your info.

I'm beginning to feel a bit less panicky now as things are getting a bit clearer. My friend is relying on me for advice and support because of my membership of CAG, but my experience doesn't extend to this sort of thing, so I'm relying on all the help I can get.

[MrShed]

Patma, I've been doing a bit of reading on this.

 

Quote:

 

The police can only give a caution if there's a realistic prospect of conviction, the person getting the caution admits the offence, and it's clear they understand what a caution is and give informed consent.

 

Is it the case in your friends case that any of these aspects were not correct? Was the caution in question given actually in a police station, and signed?

[buzby]

I'm still not clear - is the Summons for criminal damage, or for civil recovery for the costs of repair? I assumed the latter, and it is the costs (in what it an action for debt) that are being challenged.

[MrShed]

It is important to note that as it stands, the caution is a full and unequivocal acceptance of guilt for the offence. Therefore, not only is your friend accepting that he damaged the barrier, he is accepting that he UNLAWFULLY damaged the barrier in an act of criminal damage.

 

Hence why it would have such a major impact upon a civil case. There could be no defence whatsoever in a civil case against the charges as a whole, merely a debate about the actual out of pocket charges incurred.

[MrShed]

I think it is the latter buzby, at this stage the criminal damage aspect is actually complete, in so much that the person in question has accepted a caution for the offence, but now has an aim to reopen this and get it re-addressed - which will be no mean feat it must be said, but if they genuinely believe the caution is wrong, then it should be attempted.

[Patma]

Hi Buzby,The summons is for civil recovery of the costs of repair (allegedly).

 

I think the reasonable prospect of conviction is in doubt, Mr Shed, as there was apparently no actual evidence of actual damage being caused.

The police showed my friend cctv footage of him simply lifting the barrier. He was not seen to do anything heavy-handed nor was there any sign, on the footage, of damage being caused.The police did not inspect the barrier themselves to see the extent of any damage, or indeed whether there was any at all.

I'm not 100% sure he was fully grasping the implications of the situation, at the time. He was provided with a duty solicitor who urged him to accept a caution and get it all over with.

It was all done in the police station.

Edited August 28, 2009 by Patma

[MrShed]

In that case, I think you MAY have a case to apply to the police force in question to have the caution overturned.

 

As to the process - I have no idea unfortunately. It isnt neccessarily a "complaint", so unsure if it goes down the complaints process, but ultimately this is perhaps the only route which will not involve a costly solicitor.

 

The police should not have produced a caution if there was not a genuine chance of conviction, and on the evidence available AT THE TIME, this would appear to have not been the case. Therefore, I guess that this might well be a police complaint issue, as they have breached their own procedures.

[Patma]

Thanks, Mr shed that makes sense and sounds worth trying.

[Patma]

Hi I have an update now.

We sent the following letter to Lyons Davidson solicitors........

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

List everything required here.........

Here we listed everything which was relevant to their claims

 

. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

We also submitted an application to the court for a stay in the proceedings pending the result of appealing the criminal caution.

 

 

Today a reply has arrived from the claimant's solicitors and I quote....

 

"We are in our rights to object and not comply with your request as the vast majority of the items you have requested are irrelevant to the claim. We do not act on your behalf."

All they have actually sent is an invoice for the amount they wish to claim.

 

I feel a bit confused now about what needs to happen next. My friend's defence needs to be submitted asap as the deadline is looming fast, but besides the other sides refusal to comply with request for info, there has been no response to the application for a stay in the proceedings on account of the criminal caution being challenged.

The claimant's particulars of claim contain outright false statements which they would not be able to prove if challenged to do so. I don't know if it would be wise to post the particulars up here but I can do if it will help.

[Patma]

We did our utmost to get legal representation btw. The list of solicitors we were given by the Community Legal service who supposedly offer legal aid services produced no-one willing to give us an appointment, so we approached the CAB who told us they don't handle cases of that sort, so it's very much down to a DIY effort and all the help we can get from the CAGgers.

[Patma]

Could do with some advice here please

[Patma]

As court proceedings are ongoing, help needed please.

[MARTIN3030]

Ok so they have refused your part 18 request,thats their choice but they dont appear to have given good reasons,they will probably say it does not apply since the case hasnt been allocated.

The Court will more than likely await the defence and may deal with your request for a stay in proceedings at allocation stage.You say that theres flaws in their POCs ?

We could do with seeing this-I think it would help to post it up taking out any identifiers-just the wording of the Pocs will do.

Have you got some evidence that you are challenging the caution-and what stage is this at ?

A poster earlier indicated that the damages for repairs being claimed are not in proportion to what should be considered reasonable-expert witness on this would be worthwhile for later-perhaps that poster could advise further,given that its their line of work.

You could file a draft for disclosure of the info that you have previously asked for,theres also the question as to whether pre action protocols were followed before the claim was issued-since you appear to have been asking.

Civil damages claims are something that frequently succeed following a criminal conviction,but are less frequently taken through the courts in the absence of that.Its a little Bizarre why its taken them so long to file this.

Many of these civil recovery agents work on a no win no fee for their clients-often their clients are not party to any proceedings-that is to say theres not much in the way of transparicy as to what the client actually gets out of any monies recovered.certainly this is the case we have discovered with Retail Loss Prevention who we currently have many members with ongoing issues with.

 

Getting the caution overturned will obviously be a main factor.

Its reasonable to expect a stay to be granted in the circumstances,although they look set to oppose it given their attitude up to now.

 

Will ask other team members to come and look.So please post up their pocs (removing any identifiers)

and can you give the deadline for defence to be submitted .

[Patma]

Hi Martin, Thanks for your help.

 

First off here are the POCs

[MARTIN3030]

Ok thanks.

Did signage indicate that students could not use the car park,and also give the operating times ?

They are stating that the incident was filmed on CCTV -are you sure that they dont have this-This surely is their main evidence in the absence of any witnesses.

 

So a great proportion of this is the insurance !

[Patma]

Item 3 in the POCs states that it was a staff car park and this is untrue. it was in fact for the use of students and anyone else visiting the college.

It did not normally close at 12 pm because the classes ran until 12.30 and it closed some time after that to allow everyone time to depart.

On 4th March for some reason the car park was closed early but the message that it was closing early was not passed to the class my friend was attending. When he went to collect his car therefore the barrier was down.

There were no details provided as to who to contact contrary to the assertion in the POCs. (We have photographs taken shortly after the event which prove this point) My friend tried to find somehow who could help, but without success. He then walked over to the barrier and lifted it.

The CCTV footage shows him lifting the barrier and nothing else.

 

As far as challenging the caution is concerned, so far he has contacted the solicitor who represented him at the police station, at the time and requested that all the info they have be sent to him. He also spoke to the solicitor about it and has been told that the only evidence the police offered was CCTV footage in which he is seen to walk over to the barrier and lift it. There is no sign of obvious damage apparently. Other than the CCTV footage the word of the Plymouth College of Art was accepted that damage had been caused, but no evidence was presented as to the extent of it.

We have also been finding out how to begin with the appeal and are thinking it might be ok to start with the Police Complaints Commission.

 

I'm not sure what the pre-action protocols are but what has happened consistently since 2006 when this took place, is that a demand for payment is sent, which my friend responds to by asking for full details of the damage caused and an itemised breakdown of costs and then everything goes quiet. The pattern has been that they seem reluctant or unable to provide this information.

 

His part 18 request asked for this same info and again it has been denied and the reasons given as irrelevant or already provided, which is just not true.

I'll get the previous correspondence and post it here, because it shows more clearly how they have tried to avoid giving any proper info and how the cost magically escalatated.

The role of the insurance company is a bit confusing in all this, because initially he was told that the insurers (Royal and Sun Alliance) would be reclaiming their outlay from him and that the college was claiming the policy excess of £2500, but this court claim doesn't mention the insurer, only the college.

If the insurer has paid out the £968.60 then shouldn't they be the ones claiming it and not the college?

Thanks again for all your help

Patma

Edited August 28, 2009 by Patma

[Patma]

He asked for a copy of the CCTV footage and their response is that it will be provided in due course when the CD Rom is ready.

[Patma]

There was no signage indicating that students could not use the car park and we have photos to prove it. There are still no signs to that effect in fact, although 2 signs have now been put up with the phone number of the security company to call in the event of a problem. The solicitors for Plymouth College of Art, Lyons Davidson, have sent pics of these, and are trying to claim they were present in March 2006, but we have our own photos which show they were not.

Edited August 28, 2009 by Patma

[Patma]

I have a new update now.

A letter has arrived from the court today which states the following....

 

"Upon consideration of the defendants application to stay the proceedings, it is ordered that:-

NO1. The defendant is to file a detailed defence setting out why he is not responsible for the damage by 9th April.

NO 2.The Application to stay the proceedings to be dealt with upon receipt of a detailed defence.

[My Real Name]

My thoughts on why the defendant might not be responsible for the damage would be along the lines of removing a clamp from an unlawfully immobilised vehicle.

 

By lowering the barrier, the car park owner was effectively immobilising the vehicle, or, at the very least, unreasonably restricting it's movements.

 

In order for that to be lawful, it would require implied consent from the vehicle driver that they had agreed to have their vehicle immobilised.

 

Consent might be implied from appropriate signage, that is both visible and understandable to a reasonable person (cf Vine and Anker).

 

Furthermore, the signs must have contact details.

 

(See the sticky in the parking for for details on immobilisation and the law.)

 

You have already mentioned that no signs were visible, which suggest that the immobilisation of the vehicle was unlawful.

 

That being the case, it would appear entirely that your friend's actions were entirely reasonable. He was not trying to damage the barrier, and was instead attempting to retain utility of his vehicle.

 

The acceptance of a caution does not help their case much, and is yet another sad example of why summary justice is a bad idea, and often is used for convenience and box ticking.

 

Had your friend had refused the caution, it is unlikely that the CPS would have prosecuted, given the circumstances. I would strongly advise them to seek legal counsel on this matter alone, if nothing else, and seek to have the caution rescinded.

[Yorky2008]

Not sure if has been asked before but following the supposed 'damage' to the barrier did the operator have an INDEPENDANT engineer provide a report?

 

In addition I find it strange (I am an engineer myself but not on car park barriers but have dealt with level xing barriers), that lifting the barrier would cause so much damage. From the systems I have dealt with I would expect that something such as a locking pin to fail which may render the barrier inoperative but stops major damage to the machinery - prehaps the barrier expert could confirm? If this is the case then replacing the pin (or whatever they use), should be a relatively simple matter.

 

Just my 2p worth!

 

Yorky.