Locked in car park

[MARTIN3030]

Very strange-I am at a loss to make any rational formed opinion since its all out of the ordinary.

Usually we can say,ok bad judge...or that it can be better on another day-it seems hard to believe that theres no one with any sound reasoning in this court.

[Patma]

Here's the resume as requested and any legal types who can advise would be much appreciated.

Court claim received, claimant Plymouth College of Art... 27th February 2009

Acknowledgment of service filed........3.3.09 and request for stay in proceedings pending appealing of caution.

CPR 18 letter sent to claimant's solicitors Lyons Davidson.......11.3.09

Allocation questionnaire received 16.3.09 and returned before 7.4.09

Response to CPR 18 received, refusing most of requests........24.3.09

Response to request for stay received.....23.3.09 (ordering a detailed defence to be submitted at which point the request for stay to be considered)

Letter sent to court asking court to enforce CPR 18 request......25.3.09

Special instructions letter and draft order for directions filed.....14.4.09

Defence filed.....14.4.09

Counterclaim filed.....14.4.09

Court Order received saying no AQ filed .......17.4.09 and defence and counterclaim to be struck out if no AQ filed by 30.4.09

Second AQ filed with Draft order for directions......21.4.09

Counterclaim served on Plymouth College of Art.......22.4.09

Notice of Allocation to small claims track received 1.5.09

First request for Judgment by default filed (as no defence submitted to counterclaim).......11.5.09 (ignored by court)

Second request for judgment by default submitted......26.5.09 (also ignored)

Notification of Directions Hearing to be held 1.7.09 received.......21.5.09

 

Hope I've included the most important bits. Fred has written to the court on several occasions asking for info etc for instance what happened to his request for stay/draft order decision, judgment by default requests etc but he has not received and satisfactory response.

Edited August 28, 2009 by Patma

[Patma]

 

Very strange-I am at a loss to make any rational formed opinion since its all out of the ordinary.

Usually we can say,ok bad judge...or that it can be better on another day-it seems hard to believe that theres no one with any sound reasoning in this court.

 

You're not the only one at a loss, Martin, we are too. We haven't had any dealings with the courts before and assumed they would follow their own CPR rules, but, as you know so far it's been a nightmare.

[Patma]

Tried to pm you, Martin but your inbox is full.

[MARTIN3030]

I will make some space now.

[banker_rhymes_with]

Hello Patma!

 

Many thanks for the PM.

 

We have a Directions Hearing on 1st July.

 

Do you think we can raise the question of what's happened to Fred's 2x requests for judgment by default then, as the other side have still not submitted a defence to the counterclaim?

 

The reason he filed 2 is because the first one was ignored, so he then filed a second one together with an explanatory letter pointing out which part of the CPR he was relying one, but they've ignored that too.

 

I think the Court may be gunning for Fred because of all the complaints he keeps making. Unfortunately a barrister isn't going to be an option unless someone wins the lottery.

Hello Patma!

 

I think where I can help is to assist with the strategy ahead of the Hearing. I am not a Lawyer, just another Cagger like you!

 

TLD has helped with the key points of the Defence, whereas my main help beyond this is to advise how it works for the Litigant in Person when in Court. I know a little of what you may see on the day, and what you need to do to try and win on the day.

 

The best I can say is to keep it all in writing, as you have done, and keep it all clinical and polite. But, make absolutely sure everything is included in the Court Bundle so that you/Fred can refer to it. Make sure the Judge has a Copy of the Bundle, and take one for the opposition as well, but make absolutely sure Fred has his own copy on the day. Take an extra copy if needed, just in case...and one for yourself if there helping Fred (you can re-claim the Costs for all of this if Fred wins).

 

With the Bundle in front of Fred, and a matching one in front of the Judge and one in front of the opposition, if Fred needs to mention a key document, he can say, it's on Page 145. Then, while they are thumbing to Page 145, Fred will have time to read Page 145 and see a big Highlighter Box around the key point he wants or needs to make.

 

The only way to win is to stick to the key points like glue, know what they are, and make sure Fred works his way through them clearly, one by one.

 

Draw up a check list of key Titles, and make sure Fred covers each one. Note the Page Numbers of documents that support each key point, and make sure the Documents or references are quoted and drawn to the attention of the Judge each time.

 

Having read your Thread, I think the primary thrust has to be that Fred is not some mindless vandal, he is a former Car Park Barrier Engineer, so knew what he was doing when he gently raised the obstruction so he could get his Car out, having had it obstructed for no valid reason, with no obvious way to have that obstruction lifted.

 

Make it quite clear from the outset that any damage would've been very light indeed, and wholly repairable. Clearly, if a Barrier is not designed to cope with being lifted, i.e. it was never designed to physically stop Exit/Entry, then it is badly designed. It should be built to allow lifting such as, say, in the event of a Power Failure!

 

The Barrier in question was not a true physical barrier, just a token one.

 

Clearly, when the specifications for this Barrier were drawn up, it must've crossed the mind of the designer/engineer that this Barrier needed to cope with the extreme likelihood that someone would want to lift it when it was down...Power Failure being a Safety Feature, and a case in point. What happens if the College is on Fire, power has failed, and people need to get out or Fire Engines need to get in?

 

If it were designed to imprison a Car, and be able to withstand forced lifting, it would've been designed with that in mind, and it would've been made wholly of steel, and it would've been built to a significantly higher standard.

 

By comparison, a Steel Wheel Clamp is designed specifically with combating forced removal in mind and is built to that standard. A token wooden Barrier cannot possibly hope to stop someone, because it is just a signal to stop Exit/Entry. It is not the Berlin Wall.

 

Indeed, was it really down to trap Fred's Car inside, or was it down to stop other people entering the Car Park and so simply trapped Fred's Car by mistake?

 

The mistake being the College's fault, not Freds. It was down to stop Entry not to stop Exit.

 

Furthermore, how many other Cars were left locked in that Car Park after Fred departed?

 

Could it be the case that other people also had to lift the Barrier to get their Cars out?

 

Had other people already lifted the Barrier to get their Cars out?

 

Is this a regular issue, i.e. do people regularly have to lift the Barrier to get their Cars out? Is this a long standing issue, that Fred just happened to walk right into the middle of?

 

If other Cars were left in that Car Park on that Saturday, would it not be possible that the other Driver's may've damaged it, bearing in mind they had no prior experience of Barrier maintenance, as Fred had.

 

Did the opposition actually watch the end of the tape after Fred?

 

Or, did they see Fred, and then not bother to watch the rest after that? Perhaps missing the other six people who also had to lift the Barrier after Fred so that they could get their Cars out too?

 

Thus, was Fred really the person who caused the Damage? A valid question given his experience and the extreme likelihood that this particular Barrier has been lifted in the past, if the College has made a habit of locking Cars in for no valid reason.

 

Finally, if you can obtain some Technical Specifications for identical or similar Barriers, and see if they mention having provision to cope with being lifted. If you can present evidence that a well designed Barrier would normally be designed to cope with being lifted, then Fred can argue that the one he lifted contained a design fault if it was so easily damaged when something wholly expected happened to it. That being the act of being lifted manually.

 

Anyone can see that such a Barrier will end up being manually lifted in the course of normal operation. That should've been allowed for in the basic design.

 

I hope this helps.

 

Cheers,

BRW

Edited June 17, 2009 by banker_rhymes_with
Typo

[MARTIN3030]

Thanks for pms-I am more understanding of behind the scenes plights.-though for obvious reasons cannot comment on them here.

[MARTIN3030]

Yes its important that FRED is able to demonstrate the points made by BRW.

Especially the reference to him being an ex authority in this area,since both the claimant and Court could request that if this was indeed the case,then FRED should have little problem in providing some evidence to support his defence in detail as regards the use of the barrier without power.

[banker_rhymes_with]

Yes, fully agree.

 

Fred needs to become his own Expert Witness, and needs to convince the Court/Judge that Fred knows exactly what he is talking about.

 

Get on the Web, get downloading Technical Manuals and Exploded Parts Diagrams, and start building up a clear set of evidence to support Fred's knowledge.

 

If most such Barriers have, say, a sacrificial Shear Pin that's designed to snap off in the event of being lifted, then produce a working diagram, show the Shear Pin, and show that a replacement Shear Pin usually costs between £1.75+VAT and £4.52+VAT.

 

Total Cost to fix, including call out/labour had to be well under £75 even if there is a hefty Call Out Charge etc.

 

Better still if Fred can get an actual Parts Diagram for the Barrier in question, and show that every single part in the lifting mechanism is designed to be replaced, and show how much the most likely components would've cost.

 

But I think the key is to demonstrate that such a Barrier should be designed to cope with manual lifting. Make sure Fred can show others that have been designed with this in mind. Either designed directly to cope, or fitted with a Shear Pin that is there to snap off to prevent damage to the main components.

 

For example, I bought a Grass Cutter a year or so to go onto a Tractor. That was six foot wide, and cost around £1,000. That has a little Gearbox on top, and a Propshaft to link to the Power Take Off (PTO) of the Tractor.

 

Fitted to the neck of the Cutter's Gearbox input spline is a Shear Pin. I received two Spare Shear Pins with the Cutter. They are there so that if I happen to cut a log, a sleeping DCA in the long grass or a rock, then to prevent damage to Cutter and Tractor, the Shear Pin is designed to snap if the load goes over a certain threshold.

 

OK, let's say I'm a designer, and someone says, design me a Barrier for a Car Park. I ask if it's to lock Cars in no matter what, or if it's there to act as a visual Barrier to show that Entry/Exit is controlled. I'm told it's the latter...just a visual block, it's not there to stop Al-Qaeda doing a Suicide Ram Raid Bombing mission in an 18 ton Truck.

 

So, I think to myself, I'll have to consider the following:

 

• Vans and Cars are likely to nudge the Barrier in the course of daily use, otherwise Vans and Cars would not be fitted with Bumpers, would they. Small accidents happen. So, I'll make my Barrier out of Wood, and I'll make the Wood just thick enough to do the Job, but not so thick that it will not snap off if someone happens to miss the brake pedal. I'll therefore design it to snap off, and not damage the expensive mechanism. Wood is cheap, and won't cost a lot to replace if the actual barrier rots or gets damaged.
  

 

• Talking of mechanism, that will need a Motor to control at least the raising, and it may need to control the lowering too. So, it'll need a gearbox, an electrical motor, plus a stout chassis to plop that in, and a nice cover to protect that lot from the weather. Driver's may nudge that too, so I'll build the chassis to withstand reasonable force, and will make sure the outer cover can be replaced if dented, and I'll make sure the Bolts that secure the main chassis to the concrete are big Shear Bolts so the main Barrier Chassis can be knocked over and not be a total loss.
  

 

• I'll have to think about thieves, as this thing will end up being £2,000-£4,000 retail, so we don't want Barrier Thieves to be able to unbolt it and steal it. So, I'll make the Chassis and Cover reasonably strong, with a Lock to prevent access to the Gubbins.
  

 

• In the lifetime of this Barrier, it's almost certain that someone will want to lift it. Maybe it came down on an old lady as she was pushing her shopping basket in, or it came down on the bonnet of a Car where the Driver didn't hit the brakes in time, or hit the go pedal by accident. So, I won't have a large down force, I will allow the Barrier to come down gently, so as not to maim someone below it, and so as not to sever the front end off a Car that happen not to stop in time. So, my Barrier Mechanism must be able to bob up a bit if it comes down onto something, so that people can pull it up to get something out from under it.
  

 

• The Motor and Gears will be a key Cost, so I'd better make sure they are a little isolated from the bumps and events that can happen to the Wooden Barrier itself. My Grand Pa's Grandfather Clock had hands that he could move to set the time without breaking the Mechanism, so I will make my Barrier Mechanism the same, it can move up/down under power, but can also be lifted manually without trashing the mechanism, gearbox or motor. Seems only sensible to me.
  

 

• In case of extreme force, say, a wedge shaped Car driving in/out by accident forcing the Barrier up, I will fit a cheap Shear Pin so that will snap off and prevent any damage to the Mechanism...that will also cope with a mad vandal who thinks he/she can break my Barrier by pushing up the Barrier by force!
  

 

• I can build all of this for a Trade Cost of around £3,000 and a likely Retail of £4,000. Replacement Sheer Pins are 50p, a replacement Wooden Barrier is £240, a new Chassis is £750, a new Outer Cover is £750, a new Motor is £1000 and a new Gearbox is £1200. Thus, it costs more to build one from Parts than to buy a whole one, just like Cars. Parts are always more than the Car itself, but that's the way Parts are priced. But every item can be replaced if needed, because this is a working machine, designed to give 5-10 years of service with routine maintenance and replacement of peripheral items like Wooden Barrier, Shear Pin and anything else that gets knocked about in normal use.
  

 

If you see what I'm getting at, lifting a Barrier is an obvious issue that any sensible Barrier designer would consider.

 

I hope this gets you started...now get out there and find the evidence and get Fred up to speed on the technicalities!

 

Cheers,

BRW

Edited June 17, 2009 by banker_rhymes_with
Typo

[banker_rhymes_with]

Hello Patma!

 

Just one other comment...who in their right mind would design a Barrier that costs £4,000 that has to be replaced with another £4,000 Barrier every time someone lifts it up manually.

 

This is a complete joke, and they are pulling Fred's leg!

 

They clearly wanted a New Barrier for other reasons, and are just trying to pin the cost of that New Barrier onto Fred.

 

Fred must hit back with clear technical evidence why that is so clearly the case, and force the Judge to turn his attentions to the Claimant.

 

Cheers,

BRW

[MARTIN3030]

Their other claims to be refunded their insurance is quite extraordinary-I havent heard of this one before,it does seem they have gone hell for leather on this-which means Freds determination has to match it just as BRW points out.

[banker_rhymes_with]

Hello Patma!

 

Just entered "Damage to Car Park Barrier" into Google, and lots of interesting things came up!

 

Some kids were swinging on one, and caused, wait for it, just £300 worth of damage:

 

Kendal youths damage car park barrier (From The Westmorland Gazette)

 

Here's a Thread from our very own CAG:

 

I got out of the car and then the security guard came out and lifted the barrier manually and asked me to park.

 

http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/200836-damage-car-whilst-entering.html#post2185317

 

Maybe they wanted to replace the old Barrier because they knew it was dangerous:

 

Woman, 79, killed by blow from car park barrier as she left hospital | Mail Online

 

This link discusses some of the overview issues that need to be considered when installing Barriers:

 

Car Park Safety with Berry Systems

 

This next link mentions a chap who had some beers and smashed the barrier down with his car...and the cost only came to £2110:

 

Driver tried to smash his way out of Aberdeen car park - Evening Express

 

Plan of Action

 

Right, pretend you or Fred are looking to buy a little Shop, with a rear Car Park that you wish to have a Barrier installed. Write to a few people who sell Barriers, and find out the Costs, and ask them all what happens if someone lifts them manually, because that is likely if members of staff need to get their cars out after hours etc.

 

Then take that bumf to Court (having notified the Court ahead of the hearing that this evidence will be submitted).

 

At the very worst, you should be able to get the costs down to just the likely repair costs for reasonable items like Shear Pins etc, or have the Claim thrown out because it is clearly a try on.

 

Cheers,

BRW

[patdavies]

Tongue in cheek, but who in their right mind would design a wooden barrier when plastic (thinking polypropylene here) is cheaper, more durable and lighter for the motor to operate, as well as maintenance-free as regards painting, etc

[buzby]

The ones I've inspected are compressed woodchip (MDF) dipped in uPVC with reflective decals. Plasic barriers 'bend' and are relatively useless.

[MARTIN3030]

I would have though Alu was the most obvious.

[Yorky2008]

The ones I've inspected are compressed woodchip (MDF) dipped in uPVC with reflective decals. Plasic barriers 'bend' and are relatively useless.

 

To be honest this is what you want, in fact the preferable result is they physically snap off. This is how LX barries are designed & manafactured that I mentioned earlier, the reason being that it someone does drive into them by accident or wilfully you do not want them so strong that they wreck everything with nothing salvagable - also there is the safety consideration such as decapitation or in the case of LX barriers, retaining the car the wrong side of a barrier should someone have jumped the lights which would result in a collision with a train.

 

Yorky.

[banker_rhymes_with]

Hello Folks!

 

Good old Wood it is then!

 

Sustainable, snaps off exactly as wanted, as and when needed, and...the remains can go into my Wood Burner when it's broken!

 

Cheers,

BRW

[Patma]

Wow, people! You've come up with some brilliant brainstorming ideas.Many thanks to everyone:D.

I'll get to work on the barrier companies from this fresh perspective and see what can be dug up.

BRW you've got a devious mind! I like it!

Just done a spot of googling myself and found this gem.

This is exactly what Fred did. I guess his big mistake is in not being a celebrity.

John Terry sneaks one under the bar | The Sun |News

Notice it says..."But it's frustrating when barriers are lifted. An engineer often has to be called in to fix it."

That sounds a pretty honest assessment of what's likely to happen and doesn't sound too serious.

[banker_rhymes_with]

Hello Patma!

 

Notice it says..."But it's frustrating when barriers are lifted. An engineer often has to be called in to fix it."

That sounds a pretty honest assessment of what's likely to happen and doesn't sound too serious.

That's exactly the point you need to get Fred to make...take a Laptop if he can, and play that to the Judge to show it's not vandalism, and these Barriers should be designed to cope with being lifted. At the very worst, all that should've been needed was an Engineer being called out to replace a Shear Pin, or similar.

 

These people have clearly made a Mountain out of a Mole Hill.

 

Either they are trying it on, or someone else caused major damage after Fred left it and went, and this later damage is being pinned on Fred unjustly.

 

Reasonable doubt, and the balance of probabilities should swing neatly into Fred's favour.

 

Especially when Fred has explained his past experience, explained how a Barrier should be designed, shown the Judge how a common example is made, shown the Judge plans and parts, shown the Judge lots of pretty Brochures, explained why coping with being lifted is essential if it is simply a visual Barrier and not a NATO Specification Security Barrier, and explained to the Judge that sacrificial Parts ought to be fitted and, if they are fitted, then they are designed to fail and are designed to be replaced and are meant to be low cost because they are sacrificial...

 

...then ask the Claimant if they can explain who the Tosser was who locked Fred's Car in there, and caused all of this fuss in the first place!

 

Take the fight back to them, and ram all of this material down their throats.

 

Cheers,

BRW

[Patma]

Update:

An order has arrived today from the court changing the date of the hearing from 22.07.09 to 2.09.09 due to the fact that the claimant's sols, Lyons Davidson have apparently written to the court to say they aren't available on the original date.

Fred and I are quite pleased at the delay as it gives us longer to prepare, but a bit miffed that the other side get all the consideration and we don't even get responses to important matters and perfectly lawful requests.

Edited August 28, 2009 by Patma

[MARTIN3030]

Yes under the circumstances its of benefit to you-and should give enough time as you say to put together all thats needed.

Again it is frustrating-the other side should out of courtesy have written to Fred to make it known they could not attend-looks like this was NOT done on notice and neither did the Court seek this from the other side-as would be required certainly in my local Court !

[Patma]

Again it is frustrating-the other side should out of courtesy have written to Fred to make it known they could not attend-looks like this was NOT done on notice and neither did the Court seek this from the other side-as would be required certainly in my local Court !

You're right, Martin there was no communication from the other side and yet again this court hasn't shown Fred any consideration.

It's interesting to hear how it should be done and how other courts actually act, because if they were all like ours, things would be grim indeed for litigants in person.

A small point I've noticed is that the court hasn't once acknowledged that Fred is not only a defendant, but a part 20 claimant (due to having counterclaimed, oh and BTW his third complaint, sent to the Area Office has been mislaid.

[MARTIN3030]

Shocking.

I have no words.....I will leave them to those who are more familiar with your Court and those who practice there.

This is a disgrace simple as.

[Patma]

The Directions Hearing is looming now, so I want to make sure we're prepared.

Can anyone give me any idea of what to expect please?Also any suggestions as to what we should ask for.

Is it appropriate for instance to ask why the requests for judgment by default have been ignored etc?

[MARTIN3030]

Of course Fred is perfectly entitled to have some answers to those very questions...and needs to have a bullet point list of these and other questions.

Theres been some good opinion and suggestions made already-what I think would be a good idea (and I have done this in my own cases previously) is to go back through the thread here-in particular recently-and print off those posts that address key points and guidance.

Its much easier to be able to sit down with a coffee and digest than to be scrolling up and down on the PC.

I also suggest that you establish a game plan for the hearing and post it up here before asking those others who have made some posts to give any further thoughts.

You can do this by pming those with a link to here-I will be happy to contact some of those.

First of all lets get some structure.