Locked in car park

[Yorky2008]

Patma,

 

Thanks, if you can find some pics of the old barrier, showing manafacturer, model, etc, it may then be possible to find out some info on it.

 

Yorky.

[Patma]

Hi Yorky,

Haven't had a lot of success trying to track down the make and model of the original barrier. All I can say for sure about it is that it matched the one in the second pic in post 90. We've been back today to see if we could identify the make and model, but that barrier is no longer there now. It's been replaced with a new one. which has no identifying details other than the letters BFT running along the arm (We're wondering if Fred is being billed for both of them being replaced lol)

 

The barrier which replaced the one Fred allegedly damaged likewise has no info on it other than the letters RIB which are on the main box part.I had a good look at it, but that's all I could find. Incidentally that barrier is now broken and is minus it's arm. (Nothing to do with Fred).

I'm sure the claimant's Plymouth College of Art have a duty to disclose all the details of what they're asking him to pay for, so we're hoping the court will see sense and order them to produce this info. If we can get our hands on this we can then get a better idea of how to fight this.

Edited August 28, 2009 by Patma

[Patma]

Fred has been working on his defence and has come up with some preliminary ideas.

I think it needs more details myself and I think he should point out that the car park was for students use and not just for staff only, but he hasn't mentioned that.

He's asked me to post it and ask for comments/criticisms/ideas please. He says thanks to everyone for all your help and support too. He's never had to write a defence before and I've never had to either, so it's a case of the blind leading the blind.

Thanks,

Patma

 

This is it so far..............

PRELIMINARY DEFENCE

1) The defendant was a registered, part-time student attending the claimant's property.

2) The defendant denies the claim that he is liable for causing any damage to any any property of the claimant's. The reason being that he was moving an obstruction which was causing the unlawful immobilisation of his vehicle.

Any alleged damage would therefore be secondary to the original tort of unlawful immobilisation and a direct result of remedying that trespass.

In addition, no evidence of any component damage has been produced to the defendant, by the claimant or by the police, in spite of repeated requests for evidence.

3)The defendant has been presented with two conflicting invoices for new property, yet no proof of any damage has been presented. The defendant puts the claimants to strict proof of their losses.

4)The defendant will counterclaim against Plymouth College of Art and Design for failing in it's duty of care to him, attempting to impound a student's private property without authorisation and for making false claims.

5)The defendant reserves the right to submit a detailed defence at a later date when all CPR18 requested information has been obtained.

7) This incident was the claimant's fault because they:

Failed in their duty of care.

Intentionally attempted to unlawfully immobilise a rgistered student's vehicle.

Furthermore they have attempted to unjustly enrich themselves at the defendant's expense.

This concludes the defendant's basic defence, as the defendant is unable to produce a detailed defence until the claimants comply with the defendant's lawful CPR18 request, which the claimant has refused to do.

The defendant has made a written request to the court asking that the court order the claimant to comply with the CPR 18 request.

[Patma]

Still trying to get this defence together and am hoping for some ideas please.

[Toulose LeDebt]

Hi.

 

I've jotted down some ideas for you below, they're in no apparent order but I think it's important to let them know that Fred is/was a service engineer for these thing.

 

The most interesting part I find to be the invoice and the quote. I think you've got some good ammunition in there because:

 

A quote exists for repair work to the barrier. This quote is dated 22nd March 2006. The invoice for a replacement barrier is dated 17th March 2006 some 5 days before the company quoted for repair work.

Now why would a company come out and quote for a major and expensive repair 5 days after a brand new barrier has been fitted and invoiced for?

Is it because the minute Fred got that invoice he said what the flip and queried it????

 

It looks to me like they do not have a quote for the original damage. They've just gone straight out and bought a new one off the insurance. When the claim has been queried either by Fred or the insurance company they've got their friendly security company to knock them up a quote.

 

They replaced the barrier prior to invoicing Fred on 17/03/2006.

22/03/2006 an engineer assesses the damage at circa £1500.

 

This can not be the damage caused by Fred because the replacement barrier has already been fitted.

 

No quote exists for the damage allegedly caused by Fred. Could this be because as Fred has alleged all along there was none?

 

I think Fred should also be writing to the insurance Company and reporting a possible insurance fraud. They have claimed a large amount of money to replace a barrier that did not need replacing and then involved the security Company again by getting them to produce what is either a fraudulent quote or a quote for damage caused by somebody else after 17/03/2006 passing it off as damage to the old barrier on 04/03/2006.

 

Does the barrier invoice have the company name on it? Can you phone (and write) to them and find out exactly what date that barrier was fitted?

You will cause the solicitors many problems proceeding if the barrier was already in place by the time that quote was knocked up.

 

 

Other things to consider in defence:

 

a) The defendant in common with other students at this college was permitted to park in this car park on the time and date of the alleged offence.

 

b) The defendant has photographic evidence to show that contrary to what is shown in the more recent photographs supplied to the Court by the claimant on 04/03/2006 not one single notice was in place in the entire car park with the contact details of the company in charge of locking and unlocking the barrier.

 

c) The defendant had prior to this date worked in the capacity of service engineer for a car park barrier company and was thus in privileged position of knowledge in respect of their workings and mechanisms and was able to make good use of this knowledge to release the barrier without damage.

 

d) As stated in c as a former car park barrier service engineer the defendant is in a good position to know the extent of cost of particular repairs, repair parts and/or the cost of an entire replacement unit and avers that the cost claimed by the claimant is wholly disproportional to the amount of damage anyone could possibly cause to a barrier of this type and indeed is far more than one might expect to be charged for a brand new and much better barrier.

 

e) As stated in c as a former service engineer for these types of barriers the defendant states that it is possible to purchase spare parts for each and every mechanism part of these barriers and that replacement of the entire barrier was wholly unneccesary and simply amounts to an attempt at betterment of the original barrier with the intention of getting the defendant to pay for this action.

 

f) On the day in question the car park was closed earlier than is normal for a saturday and no advance notice of this was displayed by the operator or passed to the defendant verbally or by any other means.

 

g) The CCTV footage of the incident clearly shows the defendant raising the barrier easily, there is no sign of any damage being done and most certainly no sign of damage significant enough to warrant replacement at the defendants cost.

 

h) The cctv footage mentioned in g has despite frequent request not been made available to the defendant.

 

i) The defendant has failed repeatedly to explain to the claimant the level of damage claimed simply stating that a new barrier had to be purchased.

 

j) The defendant is concerned that a large insurance excess was in force and is further concerned that the work might have been exaggerated to ensure that the claimant received a net payment from their insurers. To substantiate this claim the defendant encloses some costings from barrier supply companies for a normally priced replacement barrier.

 

k) The defendant has also written to the claimants insurer under CPR to see if the insurer might be able to supply further details surrounding this claim which the defendant feels to be artificially high. The defendant has several times attempted to gain this information from the claimant without success.

[empowered]

Another aspect to look at is the high cost of the claim which includes £2500 excess ..... some insurance companies will make the policyholder pay the excess amount and then the excess has to be reclaimed from the third party (Fred).

[Toulose LeDebt]

Another aspect to look at is the high cost of the claim which includes £2500 excess ..... some insurance companies will make the policyholder pay the excess amount and then the excess has to be reclaimed from the third party (Fred).

 

Exactly Empowered, the policyholder should pay the excess and that should be the sum total of his liability.

 

The college claim to have paid the excess of £2500 YET the college are also attempting to claim the balance of the cost of work from Fred.

 

Any liability over £2500 was paid for by the insurers and only the insurers have a right to action for recovery of this sum.

 

Effectually the college are attempting to double claim the difference between the excess and the total cost of the work, claiming it once from the insurer and a second time through the Court with Fred.

 

The claim should be for the excess only. Anything else is fraudulent!!!!

 

I strongly suggest that Fred collaborates with the insurers to determine

 

i) Whether an insurance claim was ever made in the first place

 

ii) To inform the insurers that having collected a payout upon the premium that the college are attempting to reclaim this amount from Fred.

 

 

I think you could use CPR on the grounds that you need to establish whether the insurer should be named as co-claimant in this case. If it transpires that the claimant has already received the insurance payout and is attempting further enrichment by claiming any amount other than the excess then surely it should be for the insurer not the college to reclaim?

 

I see this as a no win for the college.

 

If they have not claimed on insurance then they are guilty of providing false documentation.

 

If they have claimed on the insurance then

 

(i) The insurer should be Co-claimant or:

 

(ii) Any claim can only be for the recovery of the excess.

 

(i) Is not true.

(ii) Fred has been billed for the full amount.

 

 

Dodgy quotes produced after the fact will do the college no favours here if used correctly.

 

It would not hurt Fred if he were to attend the local Police station with the documents and ask the constable on the desk if they feel a breach of Section 17(2) of The Theft Act 1968 or Sec 2 Fraud Act 2006 has occured.

 

IMO somebody at the college is 'at it' in collusion with the security company.

 

Insurance companies are particularly good at investigating fraud.;-)

[Patma]

Thankyou for your very helpful suggestions, Toulose Le Debt and empowered. We've been getting a bit panicky about what to put in this defence.

The insurance question is a bit puzzling, because back in 2006 the solicitors, Lyons Davidson, were acting for Royal Sun Alliance and now they are acting for Plymouth College of Art and Royal and Sun Alliance seems to have disappeared from the radar.

If Plymouth College of Art has claimed on the insurance, then they would presumably claim back their excess from Fred and the insurer would claim back their outlay.

We're wondering if the insurer refused to pay out.

Edited August 28, 2009 by Patma
edit spelling

[Patma]

Fred was in touch with Royal and Sun Alliance backalong when they first claimed, and pointed out to them the inconsistencies in the claim. He also spoke to their fraud department, who were unhelpful. Since then however the insurer, has done a disappearing act, so when he got the court claim, he rang again and asked whether they were involved in the claim against him.

He wasn't able to get a straight answer from them. He told them that Lyons Davidson were Plymouth College of Art's solicitors and then they just clammed up and said evrything must be above board if they are involved.

In his CPR18 request Fred asked for Royal and Sun A lliance's documents and Lyons Davidson's reply was that these were "irrelevant"

Edited August 28, 2009 by Patma

[Toulose LeDebt]

We're wondering if the insurer refused to pay out.

 

Me too.

 

That's why I think the original quote was manufactured after the date of invoice for the new barrier.

 

I think the college thought 'great we'll get a new barrier and claim on insurance' the barrier was installed, the clim was sent and the insurers refused the claim because it was repairable. The insurers will know exactly how much damage can be caused to one of these things.

 

If the insurers paid out then their claim is fraudulent because it includes invoiced amounts other than the excess.

 

If the insurers did not pay out then the claim is fraudulent because they have submitted documents to the court claiming 2.5k for the excess.

 

You really need contact with the insurers, preferably their investigation team.

[Patma]

It's a good idea to contact the police about this. Good thinking, thanks.

[Patma]

Yes I agree, you're rght. I think Fred should speak to them again and see if they will be more co-operative this time.

[Toulose LeDebt]

Yes I agree, you're rght. I think Fred should speak to them again and see if they will be more co-operative this time.

 

They might be more cooperative if Fred tells them that he is defendant in a Civil Court case involving the college in the matter and from documentation supplied to him he feels it might now be neccesary to involve the police with a view to a criminal investigation of fraud.

 

The solicitor and the college are being unhelpful to the point of obstructive whe Fred asks about the damage and need to replace, if you dented the wing on my car and months later I sent you a bill for a brand new car claiming the insurance wrote it off I think you would be fairly quick going to the police and averring fraudulent behaviour on my part.

[Patma]

They might be more cooperative if Fred tells them that he is defendant in a Civil Court case involving the college in the matter and from documentation supplied to him he feels it might now be neccesary to involve the police with a view to a criminal investigation of fraud.

 

If that doesn't wake them up, nothing would I guess. Your quote did make me smile. In fact it's cheered me up no end, thankyou. CAGGERS are no wimps.

 

I think Plymouth College of Art might regret taking on Fred and the might of CAG;)

[bedlington83]

i) Despite several written requests, the claimant has failed repeatedly to explain to the defendant the level of damage claimed and simply states that a new barrier had to be purchased.

You had claimant and defendant the wrong way round. The rest is just suggestions to make it read better, which I'm happy for you to ignore if you wish (I only put them in 'cos I was pointing out the reversed claimant and defendant)

[empowered]

 

 

 

Insurance companies are particularly good at investigating fraud.;-)

 

 

Well it is my day job;) This stinks:cool:

[Patma]

Thanks bedlington, well spotted.

In Lyons Davidson's response to our CPR18 request, they haven't included a "statement of truth".

I spent all last night reading up on CPR and.........

Rule 22.1(1) sets out the documets which must be verified by a statement of truth.

Amongst these is (2) A response complying with an order under rule 18.1 to provide further information.

The reply we got doesn't have a statement of truth in it, so I don't know whether that's something we should challenge or not. It might not be important at all, but I just wondered.

Edited August 28, 2009 by Patma

[Patma]

Really? Empowered, What would you do then if someone brought this to your attention?

[Toulose LeDebt]

 

 

 

Insurance companies are particularly good at investigating fraud.;-)

 

 

Well it is my day job;) This stinks:cool:

 

 

Am I correct in averring that any amount over and above the excess is for the insurer to reclaim if they feel it's possible?

 

This looks to me like the college are claiming monies which if due are the property of the insurer yet the insurer is not named as co-claimant.

The college have no right to action for anything other than the excess.

 

As an investigator would you raise an eyebrow if you saw a quote for a repair dated after an invoice for replacement was presented?

 

Are there specific laws relating to insurance fraud or do you just go with the theft and fraud act ones?

 

 

 

And cheers Bedlington83 I'm always doing that.

[Toulose LeDebt]

Thanks bedlington, well spotted.

In the solicitor's response to our CPR18 request, they haven't included a "statement of truth".

I spent all last night reading up on CPR and.........

Rule 22.1(1) sets out the documets which must be verified by a statement of truth.

Amongst these is (2) A response complying with an order under rule 18.1 to provide further information.

The reply we got doesn't have a statement of truth in it, so I don't know whether that's something we should challenge or not. It might not be important at all, but I just wondered.

 

Well spotted mate. Another nail in the claimants coffin.

 

Don't worry too much about docs not being supplied under CPR as once the defence is submitted they'll issue an aq and Fred will be including a request for special instructions at this stage.

I think there's enough doubt surrounding the case facts at the college end that Fred would be well within his rights to ask for quite a few documents and other pieces of evidence to be disclosed.

(And sufficient concern about the validity of the claim for the Judge to agree to the draft presented at this stage).

 

I can see Fred requiring the college to prove that an insurance claim was made, the amount claimed, the exact date the barrier was installed, whether the insurers refused payout, a quote for the original damage such quote to be prior to the date of barrier replacement, etc. etc.

 

I think a well written defence might give the claimants sols something to think about and a well written aq with the right special instructions will force them to discontinue. As sols for insurers and the college it will be hard for them to pretend they do not know the circumstances surrounding the claim and whether a payout was made or refused and if refused on what grounds.

[Patma]

Thanks Toulose, love the name btw. Last night I was feeling a bit despondent about the whole thing and trawling through the CPR was getting me tied up in knots, but all the great support this morning has given me a new lease of optimism and determination.

I'll keep you all updated on the progress. Fred and I can get down to writing a cracking defence now with all these new ideas. Thanks to one and all.

When we've got something together, I'll run it by you all if that's ok.

Edited April 12, 2009 by Patma
typo

[Patma]

I've just realised something. Fred has been sent an AQ already and was ordered to send it back a few days ago.

[Toulose LeDebt]

I've just realised something. Fred has been sent an AQ already and was ordered to send it back a few days ago.

 

:eek:

 

Has he done this yet?

 

No defence but aq sent out????

 

Here's a quick go at a defence for Fred.

 

 

1) The defendant was a registered, part-time student attending the claimant's property.

 

2) At the time and date at which the claimant alleges the damage was caused the defendant was permitted to park in the car park in question.

 

3) Since the claimant has been the beneficiary of an insurance settlement in this matter the claimant has no right of action in respect of the total sum claimed.

 

4) Since the claimant has been the beneficiary of an insurance settlement in this matter the claimant has no cause of action to bring this matter before the Court in the total sum claimed.

 

5) Without entering into litigation as co-claimant with Royal Sun Alliance the claimant is effectively attempting to double claim the balance of the insurance payout over and above the policy excess fee.

 

6) The claimant has failed to supply a valid response to a request made of him under CPR 18 notwithstanding a large amount of the requested documentation not being disclosed the claimant has failed to support this response with a statement of truth.

 

7) The defendant was formerly employed as a service engineer by a car park barrier company and thus was able to use this privileged knowledge to ensure no damage was done to the barrier when he raised it.

 

8) As a former engineer of car park barriers the dfendant is in a position to know the cost of service parts and replacement units and avers that any costings quoted have been grossly overstated.

 

9) CCTV camera footage exists of the incident and clearly shows no damage being done, this video footage has not been disclosed to the defendant.

 

10) The claimant disclosed a quote for repair and yet is now claiming for replacement in a substantially greater sum the defendant avers this to be betterment.

 

12) No quote exists for repair work dated between the 4/03/2006 and the date of the barrier replacement, thus no damage can be attributed directly to the claimant.

 

11) Notwithstanding the point raised in (10) the only quote disclosed was dated 5 days after the new barrier was invoiced and could therefore only either relate to damage to the new barrier or have been produced after the fact and without reference to the barrier the claimant alleges was damaged.

 

12) The claimant avers (and has disclosed photographic evidence to support this claim) that the car park carried signs with a contact number for the car park security firm and instructions on what action to take in the event one is trapped therein. The defendant avers this to be untrue and can produce substantial photographic evidence taken shortly after the 04/03/2006 which shows that such signage was not in existence at the time of the incident.

 

 

 

 

And a final thought......

 

 

If Fred was a student at the college at the time of the incident, and the incident for which he is being taken to Court happened on college property then........

 

Is he not entitled to claim off Royal Sun Alliance as a third party for legal aid in the matter under the terms of the Colleges third party insurance policy????

[Patma]

SHEER BRILLIANCE TOULOSE! Your defence is a great assessment of the situation and is put so much better than we could have done ourselves.

 

Yes he was sent the allocation questionaire (form149) and ordered to return it by 7.4.09 (yesterday).

He filled it in and sent it off.

He thought it was sent to him in response to his request for a stay in proceedings pending the outcome of appealing against the caution he was given. We had no idea his defence should precede it.

Edited April 12, 2009 by Patma

[Patma]

Has that messed things up? I'm worried now. I can post what he put in the AQ if it helps.