BAckdoor CCJ HIGHVIEW/DCB(L) ANPR PCN- set aside hearing -17 min overstay - Urban Exchange M4 Manchester

[brassnecked]

Hopefully what is submitted is enough to at least get the Set Aside given their knowledge you were not at the addrees they sent the papers to.

[evilmrkipling]

It's all been emailed in now to the court and to the claimant. The claimant has agreed to a telephone hearing so hopefully the court will accept and it will be interesting to see what happens at the hearing. 

[FTMDave]

So have you contacted the court to request a telephone hearing?

[evilmrkipling]

Yes I called them today and have emailed them a request for a telephone hearing today along with the aceptance from the claiment.

 

Here is a redacted version of the documents I filled today. 

WS Defence Redacted.pdf

[brassnecked]

The Voucher system could well put somebody over the free parking time if the store was busy at any time, that might help for sure.

[FTMDave]

Good point BN!  I'd thought more about it being unreasonable for a motorist to go through all that rigmarole, it hadn't clicked with me how much time someone might waste with all the faffing about.  A point for the WS if the case goes that far.

 

 

[FTMDave]

I haven't got time to read through everything you sent - but it looks superb.

 

I presume you didn't send the covering letter we prepared but rather a request for a telephone hearing?

 

What worries me is that you are cutting it ultra-fine with this not attending court stuff.  Remember if you don't attend without informing the court properly the judge is entitled to just chuck your application in the bin.  Court staff are overworked and may read your mail days late.  I would very strongly suggest sending this tomorrow before 12:30 should you hear nothing tomorrow morning:

 

Due to being abroad I will not be able to attend the hearing and am therefore informing the Court more than seven days prior to the hearing Pursuant to CPR 27.9 No disrespect is meant towards the Court.  I have requested a telephone hearing with the consent of the Claimant but at the time of writing have not yet received a reply.  Should the telephone hearing request not be granted I would ask that the Court decide regarding set aside based on the papers I have submitted.

 

[evilmrkipling]

Good thinking! I only requested the telephone hearing (in the body of the email) and will send the further note tomorrow to cover all bases!

[evilmrkipling]

i was able to have the hearing today over the phone, to my surprise the claimant actually attended the court physically.

I was able to hear the judge clear enough but I was not able to hear what the claimant was saying at all. I expressed this to the judge and she said that the claimant was repeating what was said in the witness statement already.

 

The judge accepted that I was not in receipt of the court papers as I was clearly out of the country at the time. However she rejected my defence of the claim and on that basis rejected the motion to set aside.

 

The judge went through each of my arguments for defence and disregarded each item as not being a valid defence.

1. Disregard for Schedule 4 of the Protection of Freedoms Act 2012

The judge stated that the time period is 28 days that the initial PCN was dated in 27 days

 

2. The claimant has no standing to bring a case

The judge stated that the claimant had shown that they had the permissions to act on behalf of the land owner.

 

3. No public record of planning permission being granted for the site to be used as a parking business 

The judge stated that the claimant does not need planning permission to operate as a parking business. I refuted this that they did indeed need planning permission to install ANPR cameras and advertising signage but the judge believed the claimant. I'm ......

 

4. Escalation of costs

 

       5.Unfair Practice

I'm not sure what was said on these last two points but the judge concluded that I had no viable defence.

 

In the end I was not able to set this aside and the judgement by default stands. I expressed that I did not think it was fair that my credit file be ruined for the next six years and the judge said I had two options, either to file an appeal or to have the claimant agree to an order to set the claim aside.

 

It seemed to me that the claimant was relying on a new witness statement produced after my own that countered all my points. I have not seen this new witness statement not was I even able to hear the claimant at all on the call. Is it possible to request this from the court along with the recording of the call? This may give me grounds for an appeal.

 

Or shall I just admit defeat and offer to pay on the basis that they agree to having the claim set aside.

 

More to the point the claimant Cleary lied stating that they do not need planning permission to operate as the ANPR cameras they rely on Cleary need planning permission,

 

if the ANPR camera was installed on a pole and not the building they need planning permission which has not been granted as I checked the public record.

 

I can get Manchester council to comment on this given time for them to respond.

 

I was in shock that the judge just took the claimants word on this when he lied and stated "they did not need planning permission"

[brassnecked]

Sorry to hear that looks like Judge Lottery, but you still didn't have their WS?

[evilmrkipling]

I had the WS statement that I attached here 1st draft but I suspect that the person who attended the hearing submitted another WS draft that I haven't seen before that rebutted my defence.

[AndyOrch]

You should have informed the judge immediately that the claimant was referring to a different WS ( if you were sure) to the one served on you.

A party cant use rely on a statement not served on the other party ...it was most probably a supplemental witness statement.

 

As for judge .......

 

Quote

 the judge said I had two options, either to file an appeal or to have the claimant agree to an order to set the claim aside.

 

And what would be the point as she had already found in their favor on the same points ?  Im sure she wasnt referring to credit cleansing...surely not.  

[evilmrkipling]

I wasn't able to hear anything the claimant was saying at all, I informed the judge of such.

I wasn't sure what statement the claimant was reliant on.

 

I presume it had to be supplied to the court in advance and I can request the documents that have been supplied?

 

3 hours ago, Andyorch said:

And what would be the point as she had already found in their favor on the same points ?  Im sure she wasnt referring to credit cleansing...surely not.  

 

I specifically mentioned the damage to my credit file when I was given the two options.

[dx100uk]

credit cleansing....is a no no. the...paying of a fee to remove something and suggested ? by a judge when they have already said its there lawfully, then saying try giving 'em a bribe a backhander they might remove it....

 

5 hours ago, evilmrkipling said:

3. No public record of planning permission being granted for the site to be used as a parking business 

The judge stated that the claimant does not need planning permission to operate as a parking business. I refuted this that they did indeed need planning permission to install ANPR cameras and advertising signage but the judge believed the claimant.

 

he is quite correct to state the claimant does not need planning permission , the land owner does.

 

the claimant needs perm for their signs poles etc, two totally different things.

...was there a mistake in defence/your WS made here?
 

loss by judge lottery yes.... but worthy of note?.

 

dx

 

 

 

 

[evilmrkipling]

There is no public record of planning permission being granted for the site to be used as parking 

1. I refer to Exhibit D which shows the public planning permission records for the address in question 100 Great Ancoats St, Manchester M4 6DE. 15 planning applications can be seen but there is no evidence of planning permission for the site being granted for parking signage nor for ANPR cameras.
2. On the basis of the lack of planning permissions it is believed that this site is being operated by Highview Parking Limited illegally as a parking business without the required planning permissions.
3. The claim is for breach of contract. However, it is denied any contract existed. The Claimant states, in their Particulars of Claim, “The vehicle was parked in breach of the terms on CS signs (the contract)”. The necessary elements of offer and acceptance to form a contract were not present. Even if they were, the claimant is relying on signage that has been installed without the correct permissions being obtained in the first instance making them null and void.
4. The signage can not possibly offer a contract with the motorist under the circumstances that the lack of permissions for the signage and ANPR cameras means they simply should not have been installed on site in the first place.
5. The claimant is put to strict proof that they have the correct permissions from Manchester City Council.
    

[FTMDave]

I'm really sorry to hear about this result.

 

I have no idea what mania was going through the judge's head.

 

It's the first time since I've been on the site that we've seen a well-argued set aside application be turned down.  The judge isn't even supposed to go into the intricacies of the defence, but rather just see if you have a reasonable defence which you had.

[dx100uk]

whoa evilmrkipling

slow down

this is not a critique of you nor your work.

its a critique how, we, CAG , operate, advise and help going forward - as we always do following a 'loss' and what might need to be done.

 

there is, as always, the expected odd case that no matter what is put, loss is down to judge lottery, they play golf together, are related or WHY? we just don't know what are behind these rulings, they happen.

 

as @FTMDave has pointed too, this is the first judge lottery incident since his joining with the excellent work of taking on these threads, that prior to his joining of the team, had at best been piecemeal by CAG, but nevertheless again was in the main successful. bar judge lottery or OP mistakes out of our control.

 

there is a but mind...we state on CAG not to use hosting sites to post up documents, one of the reasons being is anyone, a member or not, can click the link and download the file. the file in question in post 1 has also been redacted using a PDF editor, with one simple click all the redactions can be removed.

 

had the file been redacted as jpg, then to an uploaded PDF attachment , then only registered members could have downloaded it and we can see who they are and cut them off if we have a rouge member. 

 

all of this is in our upload guide.

could this have helped them in only 12 days, who knows...

..............

now back to the judge...

defendants docs stated..

 

3. No public record of planning permission being granted for the site to be used as a parking business

 

The claimant is put to strict proof that they have the consent of the land owner and the correct permissions from Manchester Council in order to operate the site as a parking business.
 

3. There is no public record of planning permission being granted for the site to be used as parking 

a. I refer to Exhibit D which shows the public planning permission records for the address in question 100 Great Ancoats St, Manchester M4 6DE. 15 planning applications can be seen but there is no evidence of planning permission for the site being granted for parking signage nor for ANPR
cameras.

 

b. On the basis of the lack of planning permissions it is believed that this site is being operated by Highview Parking Limited illegally as a parking business without the required planning permissions.

 

e. The claimant is put to strict proof that they have the correct permissions from Manchester City Council.

 

and the judges comment:

 

3. No public record of planning permission being granted for the site to be used as a parking business 

The judge stated that the claimant does not need planning permission to operate as a parking business. I refuted this that they did indeed need planning permission to install ANPR cameras and advertising signage but the judge believed the claimant. I'm ......

 

................

 

pers i think we need to tighten up on what we are actually stating or claiming is required ....in our WS's in the future?

 

IMHO the judge is quite correct to state that the claimant does not need planning permission to operate the SITE as a parking business.

they don't, surely the land owner does? or, more correctly, is it - there is more truth in the judge's statement than meets the eye here? ...

 

i'e - there is NO requirement at all for planning permission for anyone to operate the SITE as a parking business, and once that was decided/ realised by the judge, everything else in the same point is immaterial.... i'e - the claimant has to have planning permission for their signs/cameras and their poles?

 

i'm also thinking that set asides / statements should be cut down to the bear minimum, the less mentioned, the less that becomes a part of the initial hearing and the less BS the defendants can introduce. bit like their initial pocs in CCJ claims.

 

the very basic needed to set aside, i was abroad , did not could not defend. papers sent to wrong address, guaranteed provable non debatable facts.

 

then a basic few lines of defence for the initial claimform POC, casting just enough doubt on the claim to force a further hearing and a set aside granting, is it possibly that we are back to throwing everything at the wall in a scatter gun approach hoping something will work, overloading the judge... when in all essence this is a short timeslot hearing deciding yes or no. everything else is for the further hearing.

 

just musing CAG.

 

dx

 

[brassnecked]

makes sense DX concentrate on the inability to defend for whatever reason for Set Aside, and enough skeleton to show has a defence that's tenable.maybe leave Planning out for time being concentrate on POFA and other factors.

[evilmrkipling]

Sorry if I was curt in my earlier response, I was just copy and pasting that part of my defence for you to double check it. Everyone here has been great and I would truly like to thank everyone for all the fast responses and help I've received on the forum. I have no issues at all in tearing this apart if it will help others in the future who find themselves in similar situations. 

 

The judge opened by asking me directly if I was the driver at the time and I confirmed that I was the registered keeper and that anyone could have been driving the car. I don't think she liked it much that I did not declare who the driver was.

 

Another thing the judge mentioned is that normally somebody would defend on the basis of their own personal circumstances and not try to bring the entire ability of the parking operator into question. Maybe she just thought I was being a bit of a smart arse here and didn't like that much either!

 

The fact that I was not able to attend in person and that I couldn't hear anything the claimant was saying on the phone didn't help much. I'm sure they relied on an updated WS that if I was actually there with my own paperwork I could have seen with my own eyes.

 

The day of the hearing I had a power cut and had to go sit in the car in order to charge my phone and when the court called it cut off my internet on my phone to be able to take the call, so I had no paperwork in front of me, no internet to see any of my own files and I had no idea what the claimant was saying. It's fair to say I was a bit flustered and was relying on the fact the judge had in front of her the paperwork I had sent in.

 

I did try to bring up the fact that I had only submitted a draft defence and that I would submit a more detailed one later but the judge was having none of it and stated that the defence was lengthy. So maybe there is something to be said there for more basic draft defences in future. 

 

 

[FTMDave]

Thank you for taking the time to report back in such depth.

 

We are all a bit shocked - nothing like this has happened certainly in the six years I've been on the site.

 

It may be that you just got an insane judge.  But there might be more to it.  Plenty for us to consider.

 

We're just sorry the outcome was so bad for you.

 

 

[dx100uk]

god what a situation to happen like that.

hindsight is a wonderful thing, but for future ref, if this were to ever happen again, simply explain you are unable to continue at this time with the case as you've had a powercut and are without home internet and thus your documents and cannot move fwd. you should also have interrupted and stated you cannot hear the claimant.

 

now all those are reasons to appeal. 

if it's worth it, is another matter.

 

[FTMDave]

As dx says, when we have a defeat of such magnitude we need to reflect and try to understand why.

 

It might be of course that this was just judge lottery - certainly making up utter nonsense that POFA allows 28 days for delivery and immediately asking if the OP was the driver heavily hint at a dodgy judge.

 

It could also be that mistakes were made.  The proposed defence that the OP filed was far, far more detailed than the site originally suggested.  If this was a mistake by the OP then responsibility for the mistake is shared as I for one referred to it as "really good work", "cracking", "brilliant work" and "looks superb".  But I agree with dx that in the future the bare minimum should be argued in set aside hearings.

[FTMDave]

Also court hearings are back to being face-to-face now.  Anything that disadvantages a Cagger during a face-to-face hearing such as them being on the phone or submitting their evidence only on the papers should be heavily discouraged. 

[brassnecked]

Any suggestion of "On The Papers" should be resisted at all costs, no opportunity to challenge any fabrications they include with that.

[AndyOrch]

Still a few courts still issuing directions for tele hearings Dave.