Locked in car park

[Toulose LeDebt]

TLD spring cleaning needed:D

 

Springs duly cleaned.

[Patma]

Well the deadline we gave Lyons Davidson in which to discontinue their claim expires tomorrow, unless I'm very much mistaken, and there has been no response.

The next phase will therefore be activated shortly.

Edited August 28, 2009 by Patma

[grockle]

I got to thinking , (ouch) could the damaged barrier have been a very old mechanical model, this would account for the engineers report on the broken linkage and motor casing.

Just a few minuets research proves that FAAC have used hydraulics for their barriers since 1965.

It’s all very strange.

[Patma]

Good thinking, Grockle. I wouldn't have thought of that and it all helps our case. Thanks for thinking, you're obviously good at it.

[Toulose LeDebt]

I got to thinking , (ouch) could the damaged barrier have been a very old mechanical model, this would account for the engineers report on the broken linkage and motor casing.

Just a few minuets research proves that FAAC have used hydraulics for their barriers since 1965.

It’s all very strange.

 

I checked this before writing my little 'beginners guide to hydraulic barriers' at the weekend. I think Faac were actually formed in 1965 and as they've been using hydraulics since that year thought it a little odd that the college had a mechanically operated (non hydraulic) Faac barrier.

Not long to wait for disclosure on the old barrier itself now anyway.

 

As you and others have observed Grockle: 'Very strange'.

[Patma]

Fred needs to file an application and witness statement with the court asap and we're onto that now.

Also an update just arrived.

Fred has received a letter from The Solictors Regulatory Authority saying they are investigating his complaint.:D

Edited July 22, 2009 by Patma

[Toulose LeDebt]

Don't worry Patma it's well in hand (have pm'ed you).

 

The next issue to contend with is that despite being able to prove the instances of false statements in the claim this in itself is not sufficient to ensure the claim is struck out. We have to make sure that once whatever can be discredited is removed from the POC there is insufficient substance remaining in the POC for the case to proceed. I think the manufacturers response will be very useful for this purpose.

 

 

1999 Chancery case Arrow Nominees Inc v Blackledge [2000] 1 BCLC 709, in which Evans-Lombe J, at first instance, held that it was not a proper exercise of the court’s power under the rules or its inherent power to strike out Arrow Nominees Incorporated’s petitioner under section 459 of the Companies Act 1985, where it was found to be in contumacious breach of the Rules or an order of the court, if it could be shown that notwithstanding the claimant’s conduct there was no substantial risk that a fair trial could not follow. The fraud in that case was gross misconduct namely the disclosure of forged letters in discovery. In allowing the trial to continue, Evans Lombe J agreed with the dictum of Laddie J in Re Swaptronics Ltd (The Times August 17th 1988) that to conclude that a contemnor should have his case struck out by reason of his contempt notwithstanding that the court took a view that a fair trial could follow, was likely to be a breach of article 6.1 of the European Convention on Human Rights as being a breach of the contemnor’s right to a determination of his civil rights and obligations at a fair and public hearing within a reasonable time by an independent tribunal.

 

 

It seems to many odd that a party to a contract might have the whole of a claim under that contract dismissed for breach of a term of the contract; often a misrepresentation about the risk to underwriters at the proposal of the policy, or falsification or exaggeration within the process of a claim itself, even if the claim is essentially ‘genuine’. This position, which comes from the operation of the doctrine of utmost good faith contrasts with the general position of claims in tort which on the whole result in a Claimant being compensated for that part of his claim which is genuine even if he has exaggerated or even made up another part of it. It is correct to say that in a claim against a tortfeasor there is no contract and no such duty of utmost good faith. The injured party owes no relevant duty of care to the tortfeasor; the injured party’s claim will thus be governed by the rules of court. For the most part, the penalty tends only to be in costs, if at all. This general position is now being challenged in a growing number of cases.

 

Tainted by fraud

 

Defendants may try and resurrect the old Privy Council authority of Hip Foong Hong v H Neotia and Company [1918] AC 889 in which Lord Buckmaster comments on the issue of tainting in the following way:

 

A Judgment that is tainted and effected by fraudulent conduct is tainted throughout and the whole must fail …

 

However, that case dealt with the opium trade and was an appeal from a decision in the Shanghai Supreme Court and is arguments along these lines is probably unlikely to find favour at first instance in English law by itself.

 

Defendants may also try to draw an analogy not only with the insurance line of cases but also with cases in which the courts as a matter of public policy have refused to enforce contracts tainted by illegality (e.g. an illegal purpose). An example is that of Birkett v Acorn Business Machines Ltd [1999] 2 All ER (Comm) 429 in which the Court of Appeal held that the court would not assist the enforcement of a contract tainted by illegality, even where illegality was not pleaded by either of the parties.

 

Abuse of process

 

Another potential argument is that the claim should be struck out under CPR 3.4(2)(b) on the basis that arguing that the statement of case is an abuse of process and also limb © referring back to CPR 1.1 (the overriding objective) and 1.3, which requires the parties to help the Court to further the overriding objective. In support, a Defendant may also cite Arrow Nominees Inc v Blackledge [2000] 2 BCLC 709 and advance two arguments:

 

1.

 

It is impossible to have a fair trial of the issues and/or;

 

b. The Claimant’s conduct amounts to an abuse of the Court’s process; paragraphs 54 & 55 of Arrow Nominees state:

 

... the object of the Rules is to secure the fair Trial of the accident in accordance with the due process of the Court and that accordingly a party is not to be deprived of its rights to a proper Trial as a penalty for disobedience of those Rules, even if such disobedience amounts to contempt for or defiance of the Court……….. But, where a litigants’ conduct puts the fairness of the Trial in jeopardy where it is such that any Judgment in favour of the litigant would have to be regarded as unsafe, or amounts to such abuse of the process of this Court as to render further Proceedings unsatisfactory, and to prevent the Court from doing justice, the Court is entitled, indeed I would hold bound, to refuse that litigant to take part in the Proceedings and (where appropriate), to determine the Proceedings against him.

 

The Court may consider, in such cases, two issues in particular:

 

a. To what extent a Claimant has failed to help the Court to further the overriding objective; and

 

b. Whether to exercise the discretion to strike out statements of case under CPR 3.4.

 

Claimants may argue that the appropriate penalty (if any at all) is in costs if the Court accepts that part of the claim is false or exaggerated - see Painting v University of Oxford [2005] EWCA Civ.161 also Molloy v Shell UK Limited [2000] PIQR 56. The Defendants may argue that this might encourage people to use the Court’s process to ‘try it on’ and then still to succeed in part of a claim even if another part of it is presented fraudulently; as Ward LJ put it in Arrow Nominees:

 

… the attempted perversion of justice is the very antithesis of the parties coming before the Court on an equal footing

 

An interesting comment from the Court of Appeal on this issue was made by Laws LJ in the case of Molloy v Shell UK Ltd [2001] EWCA Civ 1272 in the Court held that in a claim for damages for personal injury arising out of an accident at work, where a Claimant had deceived the court by exaggerating the extent of those injuries, the judge's discretion had to be exercised so as to award the Defendant its costs in full. However, Laws LJ went further when he stated:

 

For my part I entertain considerable qualms as to whether, faced with manipulation of the civil justice system on so grand a scale, the court should, once it knows the facts entertain the case at all save to make the dishonest Claimant pay the Defendant’s costs.

 

The Claimant's position

 

The Claimant will argue that a conduct point should not influence the Court’s decision in the award of damages and that an overstatement or fabrication of a small part of an otherwise genuine claim, should only result in that part being struck out. The result of the strike out may be that the Defendant succeeds on that issue in costs, though not necessarily. Indeed a Claimant may be entirely innocent in the fraud and in those circumstances his argument becomes even stronger. Further, there may be human rights arguments such as the right to a fair trial if the tainted with fraud argument were to succeed. There may also be more imaginative arguments which may develop. A good example of litigation in which imaginative human rights arguments went all the way to the House of Lords is that of Wilson v Secretary of State for Trade & Industry [2003] 3 WLR 568.

 

Credibility

 

Ultimately, this whole issue may boil down to one of the Claimant’s credibility. If one part of a claim is fraudulent, it is likely to affect the credibility of the rest of the Claimant’s claim. Faced with a fraudulent part of a claim the courts can either dismiss just that part or they can knock down the rest of the claim. The easiest way is through finding that the Claimant’s credibility was so affected that the rest of his claim was not believable. Alternatively, a court may decide to strike out the claim as an abuse of the process of the court. Beyond this, it remains to be seen whether the courts decide to extend the effect of tainting further, by analogy either with insurance contracts, illegal contracts or old Privy Council authority.

 

 

 

In summary it is important that any claim for the case to be struck out is made on the grounds that that the case has little or no likelihood of success/ and or non compliance with CPR, no cause etc in the POC rather than the obvious 'abuse of court process' claim. The judge would be correct to refuse to strike out the claim for abuse of process.

Edited July 22, 2009 by Toulose LeDebt

[Patma]

It's great to see you back with a vengeance TLD.

Got your pm, thanks. This a big read and will take some time to digest, so I'm going to get a cuppa and let it all sink in.

Did you see my mention that The Sols Regulatory Authority have taken up the complaint? (BIG CHEERS)

[Patma]

BTW, TLD Congrats on reaching your gold

[Toulose LeDebt]

This a big read and will take some time to digest, so I'm going to get a cuppa and let it all sink in.

 

It's basically just an explanation of why a Judge would be correct not to strike out the claim simply on the grounds that the false statements represent an abuse of Court process. Not saying the court would not act upon them but under HRA 1998 the claimant is still entitled to have a hearing if enough exists in the claim AFTER the false statements are removed for the claim to proceed in accordance with CPR. Just saying 'strike it out because this, this and this are not true' is not in itself sufficient grounds, we have to get enough removed from the claim that it cannot proceed then seek the ruling for that reason.

 

Did you see my mention that The Sols Regulatory Authority have taken up the complaint? (BIG CHEERS)

 

I hadn't until you just mentioned it. I should think so too, if you look back through the documents you've scanned up for us there is sufficient evidence in there to prove that the solicitors were aware that certain statements made could not be correct quite some time ago. To further proceed having been made fully aware of the innacuracies in their statement of case appears a little contemptuous to me. They really should not be left in any doubt that all these matters are going to be brought to the attention of the Court in a seperate application and quite what they hope to achieve by allowing themselves to face such a hearing is beyond me. As solicitors they will of course pass the blame onto the claimant should any contempt of court issues arise, but I have to wonder just who is instructing who when I look at the case in depth.

[Patma]

It's basically just an explanation of why a Judge would be correct not to strike out the claim simply on the grounds that the false statements represent an abuse of Court process. Not saying the court would not act upon them but under HRA 1998 the claimant is still entitled to have a hearing if enough exists in the claim AFTER the false statements are removed for the claim to proceed in accordance with CPR. Just saying 'strike it out because this, this and this are not true' is not in itself sufficient grounds, we have to get enough removed from the claim that it cannot proceed then seek the ruling for that reason.

Yes one cuppa down and I've understood the situation. Thanks for the very clear explanation of how the law stands in this regard.

It makes complete sense and I'm confident that we can fully comply with the letter of the law in demolishing Plymouth College of Art's claim. More and more evidence is coming in nearly every day now and we're going to make full use of it thanks to you. Thanks too to the other canny caggers who support this thread and give their input.(you know who you are:D)

Edited August 28, 2009 by Patma

[Toulose LeDebt]

Gold, have I missed something?

 

(BTW the barrier on the other car park is blue if that helps, there's a pic of it somewhere in this thread).

[Patma]

Yep you have missed something LOL:D.

[Patma]

(BTW the barrier on the other car park is blue if that helps, there's a pic of it somewhere in this thread).

Thanks TLD. Fred thought they both were, that was what was puzzling him lol

[Patma]

TLD I've just sent you a couple of emails to decipher. More technical stuff.

[JonCris]

I don't think for a moment that TLD has but it I think it's still worth mention that if valid namely the claimants have misled a civil court, which would be bad enough on it's own, they would have also misled the police by claiming criminal damage & as the cases cited by TLD do not include matters where false criminal charges have been brought I don't think a court would allow the guilty litigant to proceed at all - We aren't exactly just alleging they are only exaggerating an injury are we!

[Toulose LeDebt]

TLD I've just sent you a couple of emails to decipher. More technical stuff.

 

Just seen them.

 

The engineer simply confirms what the other engineer had already stated and explains that there is no direct connection beteen the barrier arm and the motor (as I explained at the weekend). Very useful 2nd professional opinion, we can't all be wrong can we?)

 

Sadly the version on youtube is missing the very last piece where the barrier can be seen to reset itself after Freds exit

 

The second email mentions the free exit loop.

This is an induction coil fitted under the road in the approach to the barrier. It can sense a large metal object such as a car above it and is supposed to trigger the exit cycle. As the engineer states it didn't!

Only two reasons why:

1) You need to physically activate the release mechanism with a swipe card or similar ie. free exit was disabled in the controller

2) The barrier was broken.

 

I see no sign of a card reader on the inside of the barrier just one (keypad?) on the outside so suspect that free exit was activated and was not working because............

 

The barrier was already broken.

 

FYI I've highlighted the telltale marks in the tarmac inside the red box on this photo. You can see a loop in the road leading back to the barrier control mechanism.

 

Edited July 22, 2009 by Toulose LeDebt

[Toulose LeDebt]

I don't think for a moment that TLD has but it I think it's still worth mention that if valid namely the claimants have misled a civil court, which would be bad enough on it's own, they would have also misled the police by claiming criminal damage & as the cases cited by TLD do not include matters where false criminal charges have been brought I don't think a court would allow the guilty litigant to proceed at all - We aren't exactly just alleging they are only exaggerating an injury are we!

 

We still don't know which way the police are going to go with this. The original ellegations of fraud were made many months ago and tbh not taken too seriously at the time I belive. The disclosure of the cctv footage and accumulation of other evidence might now give the police something tangible to woork with in making a decision whether to investigate the matter from that perspective.

Likewise as it stands Fred still carries the caution but it is looking very hopeful for him on that front. After a sceptical 20 minutes last weekend a police sergeant started to understand where Fred was coming from and some time later having heard all the issues Fred raised the sergeant has agreed that the matter should be refferred to an Inspector or higher for investigation of the circumstances surrounding the original 'investigation'.

They are reviewing all evidence offered them originally with a view to corroborating the original evidence against the 'new' cctv evidence and other documents. They will primarily be looking to see if they would have even arrested Fred since the cctv clearly shows the barrier was broken prior to Fred entering the car park, whether they would have charged him etc. etc. and they shall be cross checking the original statements and cctv footage supplied them to see whether anything untoward occured.

The engineers 'quote' and 'explanation of the damage' are two potentially powerful documents for Fred which at the moment have not been entered into evidence. We have two independent engineers reports stating the damage claimed could not possibly have happened (and why) and we are awaiting a reply from the barrier manufacturer themselves on the subject. It will be for the police to decide whether an anachronistic quote for 'non existant damage constitutes an offence under say Sec 2 Theft Act 1968,it is after all the only 'evidence' that any damage existed.

 

So for now there is no criminal case other than against Fred, anything else is just speculation at the moment so we cannot rely on being able to refer to the claimant being in breach of criminal law in the application.

 

Of course were the police to launch an investigation or charge anybody with evidence offences this would all change dramatically but as it stands Fred simply has the evidence in his possession to prove to the Civil Court that certain statements contained in the POC are false. It would be most helpful indeed if the police move quickly enough in the matter that Fred can make use of any developments in his application.

 

For now I'm assuming this will not be the case.

Edited July 22, 2009 by Toulose LeDebt
Dreadfull spilling.... Ooh I give up

[JonCris]

To clarify TDL I'm referring to their allegations of criminal damage which resulted in Fred being Cautioned

[Toulose LeDebt]

To clarify TDL I'm referring to their allegations of criminal damage which resulted in Fred being Cautioned

 

Right I see now but as it stands weren't these allegations justified (in the eyes of the law anyway) since there has been no formal action as yet to overturn the caution or do anything other than accept these allegations as being true? Will he not need an Inspector or above to overturn the caution in order for him to be able to declare the allegations malicious?

 

 

Speaking of the allegations, funnily I read a letter from PCAD earlier in which they threaten to tell the police about the criminal damage. Now this letter was written on the 23rd March 2006 giving Fred 30 days to apay the amount quoted for the alleged repair of the barrier. But we subsequently know that the barrier had already been replaced by this time for the invoice for the replacement was dated 17th March.......

 

It seems strange that the college would wait until some 49 days after the incident and 36 days after the barrier was repaired and all the evidence of the alleged crime had been removed from the site before informing the police of the 'crime'. If I had a crime committed against me I would want the police to investigate whilst the evidence was there and as fresh as possible. If they turned up seven weeks later when all the evidence has been deliberately destroyed and removed by myself I couldn't really expect them to take any action whatsoever no matter how much I wanted them to.

 

[Toulose LeDebt]

And just to illustrate how curious a business this is here's the invoice dated 17th March, and stamped by the college on the 20th March.

You'll notice that both the invoice and the letter carry the same signatory (Mr Carter head of finance).

Now can anyone explain to me how Mr. Carter could have forgotten that he had just paid £3468 for the replacement of the barrier by the time he wrote the letter just three days later??

How many car park barriers get replaced in the average week at that college?

 

[JonCris]

My God are you saying they threatened Police action unless he paid then took it when he didn't ....I have to ask do the police know about this if not I think it'll be good idea to tell them. I can tell you they won't like be used as a threat to extort money from someone

[Toulose LeDebt]

My God are you saying they threatened Police action unless he paid then took it when he didn't ....I have to ask do the police know about this if not I think it'll be good idea to tell them. I can tell you they won't like be used as a threat to extort money from someone

 

:grin::grin: I'm so glad you said that JonCris because tbh I've been cagbotted to death this week.

 

{insert angelic smilie here] Hmmm. I can see where you're coming from JonCris, yes they did kind of threaten him with reporting him to the police if he didn't pay in full within 30 days now you mention it.

 

ps That's a very good idea, we missed that particular angle before.

[JonCris]

TLD I assume you or Fred have their demand in writing cos if so it won't be an allegation will it. Any chance of posting it removing the ID of anyone named or alluded to of course

[Toulose LeDebt]

TLD I assume you or Fred have their demand in writing cos if so it won't be an allegation will it. Any chance of posting it removing the ID of anyone named or alluded to of course

 

It's just here paragraph 3.