- and - Mr Fagan, Litigant-in-person. Hearing date: 10 th January Proceedings

Transcription

1 Case No: Case No: 2XV00523 IN THE CANTERBURY COUNTY COURT The Law Courts Chaucer Road Canterbury CT1 1ZA BEFORE: DEPUTY DISTRICT JUDGE OMOREGIE BETWEEN: East Kent Hospitals NHS Foundation Trust Claimant - and - Mr John Fagan Defendant Mr Michael Sobell (Solicitor) on behalf of the Claimant Mr Fagan, Litigant-in-person Hearing date: 10 th January 2013 Proceedings The Transcription Agency, High Street, Hythe, Kent, CT21 5AT Tel: No of folios in transcript 135 No of words in transcript 9,661

2 Thursday 10 th January 2013 Deputy District Judge Omoregie: Good afternoon, do come in and take a seat please. Mr Sobell: Thank you. Deputy District Judge Omoregie: Good afternoon. Mr Fagan: Good afternoon, Sir. Deputy District Judge Omoregie: Do come in and take a seat please. (parties settle) Deputy District Judge Omoregie: Right, we ve got quite a few people in the room. Can you identify who s giving evidence? If there s anyone giving evidence then they need to wait outside. If there s anyone here who s going to be giving evidence they need to be waiting outside. Mr Sobell: Yes, well I m a solicitor Your Honour -- Deputy District Judge Omoregie: You re Mr Sobell. Mr Sobell: That s correct yes. Deputy District Judge Omoregie: OK. Mr Sobell: Mr Doe is giving evidence and -- Mr Futter: Mr Futter. Mr Sobell: Yes, Mr, Mr Futter is giving evidence. Deputy District Judge Omoregie: Right. If they can wait outside and we can call them as and when required. Mr Sobell: OK. Deputy District Judge Omoregie: There s a gentleman also sitting at the back of the Court there. Mr Sobell: Yes, he s the driver. Deputy District Judge Omoregie: Right OK, and -- Male: (inaudible) driver, not a witness. Deputy District Judge Omoregie: You re not a witness, very good. OK and you are? Female: I m John s partner. 2

3 Deputy District Judge Omoregie: Right, OK, you re going to be giving evidence? Female: No. Mr Fagan: And I m the Defendant. Deputy District Judge Omoregie: Yes, I know you Mr Fagan, yes. OK. You re not going to be giving evidence? Female: No. Deputy District Judge Omoregie: Right OK, fine. Right, so given the witnesses are waiting outside we can proceed. This is claim reference 2XV The Claimant in this matter, East Kent Hospitals NHS and the Defendant, Mr John Fagan. Is that correct? Mr Sobell: That s correct. Deputy District Judge Omoregie: And this claim is for an amount of 234, is that correct? Mr Sobell: Yes. Deputy District Judge Omoregie: And that amount arises in respect of two notices which were issued to vehicle registration R959BTM on or about the 29 th May 2012 and the 10 th May 2012 at Zone 11, is that correct? Mr Sobell: That s correct, yes Your Honour. Deputy District Judge Omoregie: Right OK. In due course someone will perhaps explain to me what Zone 11 is, but you ll probably put it -- Mr Sobell: I can give, be able to explain that, yes Your Honour. Deputy District Judge Omoregie: Right, OK, right. Mr Fagan, you re not represented. You haven t got a solicitor or barrister with you today -- Mr Fagan: No. Deputy District Judge Omoregie: OK, and therefore I would usually explain to you what this, what the procedure is at this Court. Mr Fagan: Yeah. Deputy District Judge Omoregie: Do you understand? Mr Fagan: Yes Sir. Deputy District Judge Omoregie: OK? This is a small claims matter -- 3

4 Deputy District Judge Omoregie: OK, and therefore there are no strict rules in terms of how the procedures are adopted. OK? We would usually hear from the Claimant first, the Claimant gives evidence first. Deputy District Judge Omoregie: And you would have the opportunity to put questions to the Claimant on the basis of what you ve heard. As I understand there are two witnesses for the Claimant, is that correct? Mr Sobell: That s correct Your Honour. Deputy District Judge Omoregie: There are two witnesses. As the witnesses give their evidence you have the opportunity to put questions to them if you need to clarify any points. Questions and not specific statements, OK? Mr Fagan: Would it be, sorry to interrupt you, would it be possible Sir to hear the Claimant s side and then I can put my side? Deputy District Judge Omoregie: Yes, I m coming to that. Mr Fagan: Right. Deputy District Judge Omoregie: OK, so the Claimant would put their side first and then you would have the opportunity to ask them questions. OK? First of all. And thereafter you can then put your side across, your side, and, and Mr Sobell would, on behalf of the Claimant, I imagine, ask you some questions. Deputy District Judge Omoregie: OK? As you go along I would ask some questions as well. OK? Deputy District Judge Omoregie: Equally I would do that for the Claimant s witnesses as well, do you understand that? Deputy District Judge Omoregie: OK? Thereafter we come to what we call submissions. This is where you tell me how you wish for me to decide the case. You summarise your case and you tell me what you want me to do, in terms of how you wish me to decide this case. Thereafter Mr Sobell has the last word, on behalf of the Claimant, and he makes his submissions, he tells me how he wants me to make the case, OK? 4

5 Deputy District Judge Omoregie: I may give my judgment straightaway, OK, or I may send all the parties out in order to give my judgment, OK? Deputy District Judge Omoregie: Now, whilst other parties are speaking it s useful not to interrupt because you get the opportunity to listen to what the other parties are saying, do you understand that? Mr Fagan: Yes Sir. Deputy District Judge Omoregie: Do you have any questions at this stage? Mr Fagan: No Sir. Deputy District Judge Omoregie: Very good. OK. Mr Sobell: Your Honour -- Deputy District Judge Omoregie: Good may we proceed? Mr Sobell: Yes. As you have rightly said this is a, this is a case in relation to two parking offences, that is that the Hospital have set up car park for their employees and sometimes visitors. So far as the employees are concerned they are required to obtain a parking permit, and only with that permit can they park in the car park. On the -- Deputy District Judge Omoregie: Can I just stop you there? Mr Sobell: Sorry. Deputy District Judge Omoregie: In terms of the documents that we ve got I can see that you and the Defendant have both got identical binders. There was a letter which was produced today, which was brought in by my usher, which stated that it enclosed the Claimant s bundle, I haven t got that bundle. Mr Sobell: The Claimant s? Deputy District Judge Omoregie: The, the bundle of documents that you re -- Mr Sobell: Oh. Deputy District Judge Omoregie: I haven t got that. So do you have a spare copy at all? Mr Sobell: I don t have a spare copy Your Honour. Deputy District Judge Omoregie: Now, because you ve got one, Mr Fagan s got one - - 5

6 Mr Sobell: Yes. Deputy District Judge Omoregie: I haven t got one. Mr Sobell: Oh right. Mr Fagan: Would you like to borrow mine while Mr Sobell s speaking Sir? Deputy District Judge Omoregie: Well -- Mr Fagan: Because they re exactly the same. Female: Yes. Deputy District Judge Omoregie: We would need to refer to, I could make (inaudible) Mr Sobell: Yes, that s probably... Deputy District Judge Omoregie: Thank you. Right, we can share your bundle. Mr Fagan: Thank you. Deputy District Judge Omoregie: Right. So staff or visitors can only park with a permit? That s what it was? Mr Sobell: That s correct, yes. All right. Mr Sobell: And so, so far as the Defendant is concerned, a car was parked, R959BTM, on the 19 th May, and again on the 29 th May 2012 that was not displaying a permit. Mr Sobell: Tickets were issued. Mr Sobell: And no payment was made in respect of the charges that were displayed on the sign, signposts. Mr Sobell: Showing what the charges would, would be incurred if no permit was displayed in the car. 6

7 Mr Sobell: And no, no communication was made by the keeper of the vehicle and the DVLA gave my clients the information that Julie Elizabeth Fever was the keeper of the vehicle. She was duly written to and she telephoned Roxburghe UK Limited, who are my clients debt collection company, and informed them that although she was the registered keeper of the vehicle, the vehicle is actually owned by her partner, John Fagan, and he was driving it on the days, on the relevant days, the 19 th and 29 th May. Mr Sobell: And that he worked at the Queen Elizabeth Hospital and was waiting to receive a parking permit which had not yet, at that time, been issued. Mr Sobell: Letters were then written to John Fagan. Mr Sobell: And no payment has been made. Various telephone calls have been made by John Fagan to Roxburghe, 66 in all, many of them abusive, none of them offering payment and in the end my clients instructed me to issue proceedings for the recovery of the sums due. Deputy District Judge Omoregie: Yeah, thank you. Good. You may wish to call your first witness. Mr Sobell: Right, I would like to call Nicholas Doe. (pause) Mr Sobell: Would you like Mr Doe to read out his witness statement? Deputy District Judge Omoregie: No, I would like him to, he doesn t need to be sworn, I would like him to confirm his employment address and his signature on the witness statement and you may ask supplemental questions on the witness statement, but the witness statement can stand as evidence in chief. Mr Doe: My name s Nicholas Doe, I m employed as parking services manager for East Kent Hospitals NHS Foundation Trust. I haven t, I m based at QEQM Hospital but have overall responsibility for all the hospitals within East Kent Hospitals. The statement I made was made in the belief that it was true and a factual record of my understanding of these events. Deputy District Judge Omoregie: OK, signature, do you want to show him the statement? (pause) Mr Sobell: Is that your statement and is that your signature? 7

8 Mr Doe: That is my signature and that is my statement, yes. Mr Sobell: I think we wanted to know what Zone 11 was, or car park 11. Mr Doe: Car park 11 is the car park which faces down towards the Ramsgate Road, so its nearest building is the, the hospice, which is not on hospital land but adjacent to it, and that is a car park which is allocated to staff permit holders. Mr Sobell: So far as your witness statement is concerned you ve set out the situation but I d just like you to repeat, really, in regard to the set up of the parking arrangements, that no one can, well who can park in the, in the car park itself? Mr Doe: The, the car, the car parks at the hospital are divided between staff and patients and visitors, and there is a high demand for staff parking which means that we have to restrict the number of staff permits which are issued. Only staff who have received a permit and have paid for it, because they meet the criteria for grant of permit, are entitled to park in the staff allocated areas. Mr Sobell: And Mr Fagan is a, a member of staff? Mr Doe: I understand he s a member of staff, yes. Mr Sobell: And he d applied for a permit but it had not been issued, is that correct? Mr Doe: That is correct. Deputy District Judge Omoregie: But, right OK. When did he apply for a permit? Mr Doe: I believe that he applied for a permit, I, I, I m not 100% accurate about this, but I believe he applied round about June/July time and was initially placed on the waiting list for permits. He would have qualified for a permit on the basis of the criteria that we apply. Mr Sobell: But the offences that we are talking about today are in May. Mr Doe: Yes. Mr Sobell: Do you know what the position was in May? Mr Doe: No I don t know what Mr Fagan s employment record with the Trust is. Mr Sobell: But he did not have a permit, permit on the 19 th May or the 29 th May? Mr Doe: That, that is correct, yes. Deputy District Judge Omoregie: Any other questions? Mr Sobell: No I think that that, that is sufficient -- Deputy District Judge Omoregie: Good I ve got -- 8

9 Mr Sobell: Together with his statement. Deputy District Judge Omoregie: Just a few questions for your Mr Doe. You describe the parking arrangement, car park 11 or Zone 11, is for staff members only. Mr Doe: Yes. Deputy District Judge Omoregie: And not for visitors. Where a contravention has occurred, where, where someone s parked there and they re not entitled to park there, a parking ticket is issued. In this case 3632 (sic), which was the penalty notice number, and were issued. Now where payment is not received from the offender, what happens? Mr Doe: OK. When a ticket s been issued there are two options, one is if you feel it s unfair you can use the appeal process that we have. The second one is that there s a two phase payment, at that time you could pay 15 to settle the account within 14 days, or 30 to settle the account within 28 days. If after the 28 th day there s been no payment or an appeal then the ticket is sent to Roxburghe debt management who then take over the management of that particular ticket. Deputy District Judge Omoregie: Right OK. And when you re, when correspondence have been sent out because reference is made to DVLA, when correspondence have been sent out who do you consider liable, the registered keeper of the vehicle? Mr Doe: Yes, on the ticket it does say that the details will be sought from the DVLA for registered keeper, and then Roxburghe write to the registered keeper, if the registered keeper says they re not the driver then Roxburghe ask them to identify the driver. The Trust doesn t become involved in that process, in, in the detail, Roxburghe manage that. We, the Trust do not seek to gather the information as to who the registered keep is in its own right. Deputy District Judge Omoregie: But in terms of liability, in terms of say, as in this case, Mr Fagan is liable, what s your authority for saying that he s liable? Where is the written evidence that you ve got would suggest that there s a connection between East Kent Hospitals and Mr Fagan? Mr Doe: Right, initially, when, when this was being pursued the vehicle, registered vehicle owner was I think a Miss or Mrs Fever. Mr Doe: And when the Trust was approached to whether to pursue this, it gave authority to do so on that basis, on the understanding that Mrs Fever was the registered keeper. 9

10 Mr Doe: I think subsequently to that it, it turned out that, that, that she wasn t the driver and she d identified somebody else, but at that particular time Roxburghe were, were, were processing the recovery of outstanding costs. Deputy District Judge Omoregie: OK. Do you have a copy of the penalty charge notice, is there any? Mr Doe: There is, there is one in the, I think it s in the bundle. Yeah, it s in (inaudible) EXC. Deputy District Judge Omoregie: EX, what was that sorry? Mr Sobell: (inaudible) Deputy District Judge Omoregie: EX1C. Mr Sobell: 1C. (pause) Mr Sobell: Do you have that Your Honour? Deputy District Judge Omoregie: I do, EX1C, yes. You ve got that in front of you, which has the picture of the -- Mr Doe: Yes. Deputy District Judge Omoregie: Of R959BTM next to it. Mr Doe: That s right. And then you ve got the front part of the, the parking charge notice. Deputy District Judge Omoregie: Yeah. Right are you able to, are you able to point to where it states within that that the registered keeper is the one liable, or in terms of where liability rests? Mr Doe: The, unfortunately it appears that only the front side of this is actually showing, because there is more information on the tickets on the, on the, on the reverse side. Here it just says that, that East Kent Hospitals would commence collection procedures, but on the reverse of the ticket it does say that the application will be made to DVLA for the registered keeper. Deputy District Judge Omoregie: Well, where is that information? Mr Doe: That isn t in, in this bundle I m, I m afraid. Mr Sobell: But I think it s on the sign post isn t it, isn t it on the signage? Mr Doe: It is on the signage yes 10

11 Deputy District Judge Omoregie: Do you have the signage? Mr Doe: Yes Sir, that s exhibit B, and which says here that a reduced charge of 15 if you settle within 14 days, the vehicle keeper details will be requested from the DVLA for tickets outstanding after 28 days. Deputy District Judge Omoregie: Right, OK. So that would support your view that the registered keeper is the one that s pursued? Mr Doe: Yes. Deputy District Judge Omoregie: Yeah? Mr Doe: Yes, yes. (pause) Deputy District Judge Omoregie: Right OK, thank you. Mr Sobell: OK, would you mind asking Jonathan -- Mr Doe: Yeah, yeah. Deputy District Judge Omoregie: Take a seat please. Mr Sobell: Oh sorry. Deputy District Judge Omoregie: Just take a seat for a minute. Mr Doe: Sorry. Mr Doe has just finished giving his evidence. Mr Doe has just finished giving his evidence, now is your opportunity to put questions to Mr Doe on the basis of what you ve heard so far. Mr Fagan: Is it OK with the Court if I commented once the Claimant has presented the entire case? Deputy District Judge Omoregie: No. As we go along, as -- Deputy District Judge Omoregie: Each witness finishes giving their evidence -- Deputy District Judge Omoregie: You put questions to them. If there are things which Mr Doe has said, either within his witness statement or what he s said so far, you can ask questions on those points. Are there any issues or has he made -- 11

12 Mr Fagan: Yes, Sir, yes. Deputy District Judge Omoregie: Is he giving clear evidence and is not going to need to clarify? Mr Fagan: I would need my bundle on that one Sir -- Deputy District Judge Omoregie: There you go. Mr Fagan: Thank you. Right. If we can first of all look back at EXC. This is a photograph of R959BTM, that is my partner s car and she is the registered keeper. Deputy District Judge Omoregie: What s the question? Mr Fagan: This, this photograph is timed at 1:28 pm on the 10 th May. Parking charge notice 36232, which is the other photograph in question, that is timed at 13:30, also on the 10 th May. The first point I would like to make is today s claim relates to the 10 th May and the 29 th May. Now, addressing Mr Doe s statement, he obviously confirms he is the parking manager, he does not state if he witnessed these tickets issued, and he states in his witness statement that the ticket on the 10 th May was issued at 11:40, but the photograph shows 13:28 and 13:30. We do not have any photographic evidence whatsoever for the 29 th May, which is the other issue in question. Deputy District Judge Omoregie: I reminded you to put questions, what s the question you want to put to Mr Doe? Mr Fagan: Mr Doe, how can your times be incorrect in your statement than what is printed on the ticket? The ticket says that it was issued at on the 10 th May, not 11:40. I, I cannot see a vehicle registration number on that ticket. Mr Doe: No I, I can t answer that. I, I, it s obviously an error on my side, I, I had the tickets in front of me at the time, I, I really can t explain what, how that error s occurred, I m, I m sorry, I can t really give you a satisfactory explanation to that. Mr Fagan: OK, Sir -- Deputy District Judge Omoregie: And your next question? Mr Fagan: My final question Sir, where is the photographic evidence from the 29 th May, which is the second issue in question? Mr Doe: I, I have not got that, that was, as far as I was concerned, sent out to Roxburghe so, you know, I don t have a copy of that in front of me. Deputy District Judge Omoregie: OK fine, good. Fine, that s your evidence you ve given, OK, fine, you may wait outside -- Mr Doe: OK. 12

13 Deputy District Judge Omoregie: Or you can stay behind if want to, it might be better if you waited outside actually. Mr Doe: Yes, OK, thank you. Deputy District Judge Omoregie: Good, thank you. Mr Sobell: Actually it might be helpful, if you don t mind Your Honour, if he stays in, it, if there are any questions come up that he can answer. Deputy District Judge Omoregie: Well he s given his evidence, that s the end of his evidence. Mr Sobell: OK. Deputy District Judge Omoregie: This matter s listed for an hour, we re not going to extend it longer than an hour. Good, next witness please. Mr Sobell: Mr Futter. Deputy District Judge Omoregie: Could I have your bundle back please? Mr Fagan: I m sorry Sir, yes, absolutely. Deputy District Judge Omoregie: Thank you. (pause) Deputy District Judge Omoregie: Come and sit down Mr Futter. Mr Futter: Thank you. Mr Sobell: Can I ask you your name? Mr Futter: My name s Jonathan Futter. Mr Sobell: And your employment is? Mr Futter: I m employed by the East Kent Hospitals as a traffic, I look after the car park basically at the Queen Elizabeth the Queen Mother Hospital. Mr Sobell: And is that your statement and your signature? Mr Futter: It is Sir, yes. Mr Sobell: I just want to ask you a couple of questions, so far as you are concerned you delivered this statement in which you stated that you patrolled the car, the, the car park, noticed the vehicle R959BTM on the 19 th and the 29 th May, and you issued notices, charge, parking charge notices in respect of both times, and affixed them to the vehicle. 13

14 Mr Futter: I did, yes. Mr Sobell: That s correct, right. You obviously noticed that there was no parking permit in the vehicle at the time. Mr Futter: Correct. Mr Sobell: And that was the reason for you issuing those notices. Mr Futter: Yes, it was parked in a staff car park without a valid staff permit. Mr Sobell: Which was contrary to the contract that had been entered into, between the, the driver of the vehicle and the car park. Mr Futter: That is the parking policy, yes, correct. Mr Sobell: That s all Your Honour. Deputy District Judge Omoregie: Oh good. You look after the car parks. Mr Futter: I do Sir yes. Deputy District Judge Omoregie: Right. And when you issue tickets you carry around an attendant badge, you have on a badge which has got your number on it. What s the registration number on that badge? Mr Futter: On this badge? Deputy District Judge Omoregie: Yeah. Mr Futter: This badge is Deputy District Judge Omoregie: And how long have you had that badge for? Mr Futter: Well they, they get updated periodically Sir, so I couldn t tell you exactly how long -- Deputy District Judge Omoregie: When was the last time you updated it? Mr Futter: Probably about two years ago. Deputy District Judge Omoregie: And when you issue the penalty charge notices do you put your, did you include your badge number on there? Mr Futter: No Sir, the number that s on the penalty charge notice was the number that I was allocated to use on penalty tickets when I was first employed, which is Deputy District Judge Omoregie: What s that, what is that number? Mr Futter:

15 Deputy District Judge Omoregie: OK, very good, because the number that you ve just, the number you ve given me matches the number on the penalty charge ticket, the number on the penalty charge ticket does not match your Mr Futter: No Sir. Deputy District Judge Omoregie: Right, good. Did you see, you clearly say that you saw the vehicle, the blue BMW vehicle on the day, is that correct, when you issued the ticket? Mr Futter: As, as best as I can recollect Sir yes. Deputy District Judge Omoregie: You did, right. OK. And did you see Mr Fagan? Mr Futter: Not to my knowledge, no. Deputy District Judge Omoregie: No. Did you see anyone else? Mr Futter: No Sir. Deputy District Judge Omoregie: And Mr Sobell has shown me your statement which you ve written, in paragraph 2 of your statement you say on the 19 th May whilst patrolling the staff car, staff car park you observed a blue, blue BMW at 11:40. At 11:50 you say you issued penalty charge notice -- Mr Futter: Yes. Deputy District Judge Omoregie: Is that correct? Mr Futter: To the best of my knowledge yes, but without seeing the ticket I couldn t confirm it to you. Deputy District Judge Omoregie: Well you would have seen the ticket in order to be able to prepare your statement. Mr Futter: Well I would, but, yes Sir, that s correct. Deputy District Judge Omoregie: You wouldn t have prepared your, your statement by guessing about what the time was. Mr Futter: I, I, I was advised Sir what the time was. Deputy District Judge Omoregie: You were advised? Mr Futter: Yes, because I hadn t got the ticket at that stage. Deputy District Judge Omoregie: Right, OK, because the ticket states that the car was parked between 13:25 and 13:30, which is two hours after you said it was issued. The ticket, a copy of the ticket, which appears in exhibit EX1C, which your solicitor s just 15

16 about to show to you, states that the vehicle was parked between 13:30, 13:25 and 13:30 pm. But on your statement, which you ve written and which you ve signed and which you say it was correct, you ve included that you saw the car at 11:40, noted the vehicle was not displaying a staff parking permit and so at 11:50 you issued a penalty notice. Mr Futter: Well... Deputy District Judge Omoregie: Are you able to clarify why there s an inconsistency in the statement you ve just confirmed -- Mr Futter: Well only at the time when I did the statement Sir I wasn t in possession of the tickets. I was advised that that was the detail of the tickets. Deputy District Judge Omoregie: Would you usually do statements without having a copy of the ticket in front of you? Mr Futter: Well, I was asked to do it by my superior and so I assumed that the detail he gave me was correct. Deputy District Judge Omoregie: So how can you be so sure that the ticket you issued was on that particular day or was that, was that particular vehicle? Mr Futter: Well because the ticket s there Sir. Deputy District Judge Omoregie: Yes, the ticket s there. Mr Futter: And that s my handwriting and that s my signature on the ticket. Deputy District Judge Omoregie: Right. Very well, very well put. The ticket s there. The only thing that s missing from the ticket is the ticket does not contain the registration number of the vehicle. Mr Futter: Does it not? (pause) Mr Futter: Well that s only a, a photocopy of the ticket Sir, isn t it? The, the ticket number is, is at the top. The vehicle registration is at the top. (pause) Deputy District Judge Omoregie: There were two tickets issued, one was issued on the 29 th May 2012, we do not appear to have a copy of that ticket. Mr Futter: Well I, once, once I have taken the, the ticket and processed it, I put the top copy onto the wind, onto the vehicle, which on this case was on the driver s window, and then the, the two copies of the ticket get forwarded to the office at Ross House at Folkestone where they re processed. Deputy District Judge Omoregie: Two copies? 16

17 Mr Futter: Yes Sir. Deputy District Judge Omoregie: Right, so the two copies forwarded 29 th May, where are they? Mr Futter: I honestly don t know Sir, because once I ve forwarded them on to the office I don t have any more dealing with it from there. Deputy District Judge Omoregie: Did you see those when you were preparing this statement dated the 11 th December? Mr Futter: No Sir. Deputy District Judge Omoregie: Are you able to explain why you haven t seen the, the tickets for the 29 th May when you were preparing this statement? Mr Futter: Well I asked if they were available and I was advised they were the dates of the tickets, the ticket numbers and the dates. Deputy District Judge Omoregie: But you issued them. Mr Futter: I did issue them Sir. Deputy District Judge Omoregie: So why would you complete a statement which you knew was going to be used at Court, when you haven t actually seen the, a true copy of the statement and relying on someone else s evidence? Mr Futter: I m afraid I took that in good faith from my manager. Deputy District Judge Omoregie: Your manager wasn t the one who d issued the ticket. Mr Futter: No Sir. Deputy District Judge Omoregie: You were the one who d issued the ticket. Mr Futter: But he was the one who gave me the details for the statement. Deputy District Judge Omoregie: Right, very good. OK, good. I haven t got any other questions for you but I m sure Mr Fagan may have some questions for you. Mr Fagan: Yes, Mr Futter, good afternoon. Mr Futter: Hi. Mr Fagan: I just have one, one question for you. You have said in your statement, which you have signed, that the first ticket was issued at 11:40 on the 19 th May. That s what it says here. The 19 th May at 11:40. Yet that ticket says the 10 th May at 13:30. That s not a clerical error, how can there be such a time difference? 17

18 Mr Futter: I can t answer you that Sir. Mr Fagan: On the 19 th May whilst patrolling the staff car park I observed a blue BMW at 11:40, not the 10 th May at 13:30. Deputy District Judge Omoregie: He, he s not able to, you re not able to answer that - - Mr Futter: I, I can t give you a plausible answer. Deputy District Judge Omoregie: OK very good. Right, OK. So is he staying in or is he going back out? Mr Sobell: No he s, he s leaving Your Honour. Deputy District Judge Omoregie: All right very good, thank you for coming. Is that case there, is that his? Mr Sobell: Mr Futter? Mr Futter: I beg your pardon? Mr Sobell: Is that yours? Mr Futter: It is, thank you. Mr Sobell: Thank you. Deputy District Judge Omoregie: Do you have any other witnesses? Mr Sobell: No I have no other witnesses Your Honour. Deputy District Judge Omoregie: Right, fine, good. Mr Fagan, this is now your opportunity to outline your case. Mr Fagan: Yes Sir, well I would first like to refer the Court to exhibit D in the Claimant s bundle. This is a copy of the court claim sent to Northampton County Court, which clearly states that the claim relates to the 29 th May and the 10 th May for breaches of contract. That is what the Claimant s solicitors brings me before the Court. Mr Fagan: I would now ask you to look at W3 in the Claimant s bundle. I will be as quick as possible Sir. Mr Fagan: W3. This is a witness statement from Mr Sobell, the Claimant s solicitor. He also states that the first event was on the 19 th May. We have no evidence from the 18

19 19 th May. We have nothing from the 29 th May and we have three witness statements that all contradict each other with times and dates. My, my name is John Fagan Sir. I work as a staff nurse at the Queen Elizabeth the Queen Mother Hospital. My employment commenced on the 2 nd July This is a copy of my employment contract. Deputy District Judge Omoregie: I don t need to see that. Mr Fagan: OK Sir. Sir the way this came about was when I started my job on the 2 nd July, a couple of days later, my partner, who s the registered keeper, got various phone calls from Roxburghe asking for 78 from the 10 th and the 29 th May, although the matter (phone sounds) Mr Fagan: From the 29 th May was not brought forward -- Deputy District Judge Omoregie: Just one second. (judge takes call) Deputy District Judge Omoregie: Apologies, that shouldn t ring. Mr Fagan: OK. Deputy District Judge Omoregie: Yes, right. Mr Fagan: Yes, so the first I knew about it was, you know, cor blimey what s this about, because I wasn t there in May, I wasn t even living in Kent in May. I didn t move to my partner s address until the 1 st July. Mr Fagan: And my contract of employment didn t start until the 2 nd July. Mr Fagan: So I couldn t possibly have been there on the 10 th or 29 th May. Mr Fagan: I ve, we ve already addressed the witness statements Sir. Can we now first look at exhibit E, exhibit 1 in the bundle? (pause) Mr Fagan: This is a letter before claim issued by Mr Sobell on the 14 th September. 19

20 Mr Fagan: Have you got the letter, that s the letter Sir. Mr Fagan: Now this, I won t go through the entire letter, but it briefly says that this letter complies with the pre-action practice directions and we act on behalf of our client Roxburghe, who act on behalf of East Kent Hospitals. The letter goes on to state, my client and my firm have written to you on several occasions and you have not paid despite offering to pay. Mr Fagan: That s what the letter says. Mr Fagan: Can I draw the Court s attention to exhibit H in the Claimant s bundle? Mr Fagan: These are several template letters that the Claimant claims he sent to me. Are these the letters in question Mr Sobell? There s no name. No address. No date. Nothing. Mr Fagan: Yet the Claimant claimed they ve written to me on several occasions, which is incorrect. Mr Fagan: So that implies, to me, that it s possible that they, this might be an abuse of the Court process in order to extract money out of me. The Court will also note that in exhibit H, after the letter before claim I responded to that letter. Deputy District Judge Omoregie: I, I ve seen yours. I ve seen yours. I told them that I did not start my job and that if they pursued this matter I would make a counterclaim. But the Claimant chose to ignore that letter and not respond to me, and escalate the matter to Northampton County Court and increasing the charge of 234. Mr Fagan: And I believe by doing so that this is in breach of the pre-action practice directions by virtue of the fact they have ignored my complaint and have escalated matters through the Court, and refused to -- 20

21 Deputy District Judge Omoregie: Did you ever get any response to your complaint? Mr Fagan: No. Deputy District Judge Omoregie: Right, OK. Go on, yeah. Mr Fagan: I will be as quick as possible because I am aware of time, Sir. I would like you to look at exhibit K in the Claimant s bundle. Mr Fagan: This is the British Parking Association code of practice. Mr Fagan: Which all car park operators and their debt collectors abide by. Deputy District Judge Omoregie: Yeah. Mr Fagan: I would draw the Court to page 20. Mr Fagan: B1483. Deputy District Judge Omoregie: About appeals, yes? It says if you receive a challenge or appeal you must stop work on processing the charge and stop escalation proceedings and reply in writing within 35 days. Mr Fagan: This company did not do that. All it was from this company was pay up or we re taking you to Court. Mr Fagan: So therefore the company is in breach of the British, British Parking Association guidelines. In 2011 Roxburghe UK had their licence revoked by the Office of Fair Trading, pending appeal, for their debt collection activity. Mr Fagan: More recently, on the BBC programme Watchdog, in October

22 Mr Fagan: They have been suspended by the DVLA from obtaining registered keeper details for the period of three months for gross misconduct. That brings their behaviour, I believe, into question. Mr Fagan: Finally Sir, may we finally address the issue of the charge? Deputy District Judge Omoregie: No, you don t need to -- Mr Fagan: I -- Deputy District Judge Omoregie: Address me in terms of the issue of the charge, it s, it s a case of liability. Deputy District Judge Omoregie: About whether or not you say you re liable. Your, your, the, the main crux of your defence is that you were not living in Kent during that period, you were not the registered keeper of the vehicle and you say there are inconsistencies with the tickets which -- Deputy District Judge Omoregie: They ve issued and their statements. Mr Fagan: OK Sir, I won t, I won t address the charge then. Deputy District Judge Omoregie: Yeah. Mr Fagan: I would like to bring -- Deputy District Judge Omoregie: If, if you had accepted that you thought that a charge was payable, then, I, I ve read the previous papers which you ve written to the Court -- Mr Fagan: I do, I do Deputy District Judge Omoregie: So -- Mr Fagan: I think it is penal. Deputy District Judge Omoregie: So, you would probably question the fact that either the charge, you re not liable for the charge, which is the main crux of your defence, or that the amount which they ve requested far exceeds -- Deputy District Judge Omoregie: What would have been the penalty, I suppose that s what your next point is going to be. 22

23 Mr Fagan: I would, I would say that both apply to me. Deputy District Judge Omoregie: Yes, right. Mr Fagan: The only other thing I would bring the Court s attention to, if we go back to exhibit K, the British Parking Association code of practice. Mr Fagan: Page 8. Page 8, 14(4). Mr Fagan: Which clearly states you must not use terms which imply you are acting under statutory authority, this will include terms such as fine, penalty or penalty charge. Exhibit E, in the Claimant s bundle, finally Sir. Mr Fagan: The East Kent Hospitals parking policy for the whole of their sites, page 3 of the parking policy in exhibit E. Mr Fagan: Somewhere down the page it clearly says there is an appeals process -- Deputy District Judge Omoregie: Yes, I ve read that previously, yes. Mr Fagan: Built into the penalty system. Mr Fagan: You must not use the word penalty. Deputy District Judge Omoregie: Good. Any other point? Mr Fagan: I don t know if, if the Court was aware of the case of Hetherington-Jakeman -- Deputy District Judge Omoregie: All right, yes all right, we don t need to get into that -- Mr Fagan: OK. Deputy District Judge Omoregie: Both of you have, I ve seen your case transcript which you ve provided, I ve read that with interest. Mr Fagan: Thank you. 23

24 Deputy District Judge Omoregie: OK? But I think this goes to one about liability -- Deputy District Judge Omoregie: Whether or not you re liable or not. Right good. You ve given your evidence. Now Mr Sobell is going to have the opportunity to put any questions to you that he may have. Mr Sobell: You say that you were not the driver. Mr Sobell: On the 10 th May. Mr Sobell: But your car was in the car park. Mr Fagan: I don t own a car Sir. Mr Sobell: But your partner does. Mr Fagan: My partner owns a car, yes. Mr Sobell: And your partner has stated, in telephone conversation with Roxburghe, that you were the driver. Mr Fagan: I was, I was driving that vehicle from the 2 nd July, I ve never denied that. Mr Sobell: Did you not own the vehicle before that time? I know that Ms Fever was the keeper of the vehicle, but she states that you were the owner. Mr Fagan: No, she mistakenly said that because she was being harassed. I don t -- Mr Sobell: No, she wasn t being harassed. She said this in a phone conversation. Mr Fagan: And yet Ms Fever is the owner and the keeper. Deputy District Judge Omoregie: All right, I think you ve answered that question. Are there any other questions? Mr Sobell: I, I just want to know, are you saying under, well you re not under oath are you, you re saying that you were not the driver and the car, you were not the driver of this vehicle at East Kent Hospitals on the 10 th or the 29 th May? Mr Fagan: Correct. Mr Sobell: And you did not own the vehicle and have possession of the vehicle on those days? 24

25 Mr Fagan: No. Mr Sobell: You have stated in your, in various conversations with Roxburghe, you have stated in, in conversations, a) that you were the driver and b) that you were not the driver. You ve given various different accounts of who the driver was at that time. Mr Fagan: Them phone calls can be very misleading, because Roxburghe are debt collectors and the first I knew about this was after I started my job on the 2 nd July. Deputy District Judge Omoregie: Are there, are they particular transcripts of telephone calls that you re referring to? Mr Sobell: Yes. Deputy District Judge Omoregie: If they are particular ones you need to refer him to those specific ones. Mr Sobell: Yes I am, but -- Deputy District Judge Omoregie: I think, I think, I think essentially Mr Fagan has stated very clearly he was not driving the vehicle on the 10 th or the 29 th May, although your witness statement states the 19 th May, and that he was not the registered keeper of the vehicle at that time, and he stated that DVLA records show that he is not the, he was not the registered keeper of the vehicle. I m just trying to establish where, exactly where further questions are going to take us. Mr Sobell: Well we have many, we have various telephone conversations, as I said Deputy District Judge Omoregie: Again Mr Sobell, if, if you are going to refer to telephone conversations in which things have been admitted -- Mr Sobell: They have been submitted with my witness statement. Deputy District Judge Omoregie: And, and, and you can refer me to the exact dates and see if he, see what he says on those. I, there are some, if you look at exhibit EX1A. Exhibit EX1A? The second page after that there is, those are transcripts, so you might want to refer, it may be more helpful to refer him to those particular transcripts -- Mr Sobell: Yes Sir. Deputy District Judge Omoregie: And ask him questions on those. Mr Sobell: I have submitted the actual transcripts themselves. Deputy District Judge Omoregie: Yes, we ve got that. Mr Sobell: But, Mr Fagan, you admitted in these various telephone conversations, 1, 2 and 3, that you were the driver of the vehicle on those days. 25

26 Mr Fagan: No, I admitted I was using that vehicle from the 2 nd July and I do have access to that vehicle. Mr Sobell: That wasn t what you said in the conversations. Mr Fagan: No, because, as I say, Roxburghe phoned my partner and wrote to my partner, not to me, and my partner thought that something had happened one, once I d started my job and that s what I thought the matter related to. It was only at a later stage, after I d already told Roxburghe I do have access to that vehicle, that I said, hang on, this relates to the 10 th and 29 th May. I wasn t even working there. You know, I ve never denied I do drive that vehicle, what I m saying is I was not there and driving that vehicle in May. Deputy District Judge Omoregie: Do you have a permit now? Mr Fagan: No Sir. Deputy District Judge Omoregie: You haven t applied for one? Mr Fagan: I applied for one but then I got a letter to say that they can take up to 52 weeks. That was on the 29 th August. Deputy District Judge Omoregie: Right OK. Mr Doe did say that if you were to apply for one you would qualify given your status. I, I did apply for one and gave, my partner owns two vehicles and I gave them details, and then the letter said, you know, I do qualify but there s a waiting time of 26 to 52 weeks. Deputy District Judge Omoregie: Hello. Excuse me, I thought he was your driver. Mr Sobell: He s my driver. That s right. Deputy District Judge Omoregie: He is your driver is he? Mr Sobell: He is my driver yes, Your Honour. Deputy District Judge Omoregie: He s not your paralegal here to assist you or -- Mr Sobell: No. Deputy District Judge Omoregie: (inaudible) solicitor. No? Mr Sobell: (inaudible) Deputy District Judge Omoregie: Good. Right, if we can avoid the distraction. Right, I interrupted Mr Sobell, I do apologise. Are there any further questions? Mr Sobell: Throughout these various telephone conversations to both you and Ms Fever, mainly, having said that you admitted that you were the driver Ms Fever 26

27 informed Roxburghe that you were the driver on that occasion, said in fact, if I recall, that you were up in bed asleep at the time, that she was aware of the fact that you were the driver on the 10 th May. There was no reference at that time to later times or that she was confused, she stated quite clearly that you owned the vehicle. Mr Fagan: No. Mr Sobell: And you -- Mr Fagan: What she states was that he s just started his job and he s waiting for his contract. The debt, the debt, the, the debt collector Roxburghe were obviously putting words into her mouth because this was quite a shock to her. Deputy District Judge Omoregie: Any other questions? Mr Sobell: No Your Honour. Deputy District Judge Omoregie: Very good. OK. Mr Fagan, we ve listened to all the evidence. This is now your opportunity to tell me, just as a summary, usually if the, both parties were represented we d say it was the time for submissions, this is the opportunity for you to tell me how you wish for me to decide the case, where you sum up your case, OK? Mr Fagan: Based on the evidence that I, I presented to the Court, I would ask the Court to fully dismiss this entire claim against me, based on all the contradictory evidence, incorrect witness statements, no photographic evidence for the 29 th for which I m being charged. Mr Fagan: I forgot what I was going to say then. Deputy District Judge Omoregie: Well your last point was no evidence for the 29 th for which you re being charged. Mr Fagan: The whole, entire claim is just incorrect, and I do see the whole matter as an abuse of the court process. Deputy District Judge Omoregie: Right, OK. Mr Fagan: And I would also ask the Court for my counterclaim. Deputy District Judge Omoregie: OK. Right. In respect of your counterclaim, I ve read your counterclaim and it appears that what your counterclaim is, is for the costs that you ve incurred in terms of having these proceedings. Now that s not really a counterclaim. That s more of a claim for expenses, so for instance if the Claimant wins 27

28 they will ask for their costs, which is the court fee, which is their solicitors costs and they may ask for witness expenses if, if the claim was decided in favour of the Claimant. If the claim was decided in favour of you, as the Defendant, you may have costs which you ve incurred as a way of coming to Court. Deputy District Judge Omoregie: So, and that would be what you were seeking, OK? So there isn t a, a direct challenge in, in respect of what you re seeking, in respect of, you re, you re claiming loss of earnings and -- Deputy District Judge Omoregie: And things, again with, with this being a small claims Court, again, if the Claimants are successful they can seek loss of earnings, which is usually capped, there is usually a limit to those things, if the Claimant was successful, or if you were successful, OK? Deputy District Judge Omoregie: Right good. Right, so anything else you wanted to add? (pause) Mr Fagan: No Sir, I think that s everything. Deputy District Judge Omoregie: Thank you very much. Mr Sobell, yes. Mr Sobell: Your Honour I, first of all I have to accept that fact that there s been a, a mistake in the witness statement in relation to the date of the 19 th May, which as been continued both by Mr Futter and myself, but the fact is that there is photographic evidence to show that this vehicle was in the car park on the 10 th May, so the relevance of the mistake of the 19 th May isn t that great, other than in relation to the evidence of myself and Mr Futter. The fact is the vehicle was there on the 10 th May. As far as the 29 th May we have the evidence of both Mr Futter and Mr Doe that the tickets were issued in relation to that vehicle on the 29 th May. Mr Fagan has, in his conversations with Roxburghe, admitted many times that he was the driver, he s also denied being the driver, just as he has today, on those dates, but the fact is a) the vehicles, the vehicles were, was there on those dates. Mr Fagan works for the Hospital, and as I understand it, I have no evidence of this, had made applications in the, in the Hospital for interviews during, during May, and it s too much of a coincidence to believe that this same vehicle that he drives today was in the Hospital grounds where he works today and was not driven by Mr Fagan on the 10 th and the 29 th May. It s beyond coincidence. I would like to state that the, there is no evidence that the vehicle was not there on the 10 th May and 29 th May, but there is evidence that it was. Deputy District Judge Omoregie: Sorry, say that again? 28

29 Mr Sobell: I said there is no evidence that it was not in the car park on the 10 th and the 29 th May, but there is evidence, from both Mr Doe and Mr Futter, that it was there on those dates. I have produced evidence to show that Ms Fever gave evidence, or made phone calls to Roxburghe that although she was the keeper of the vehicle the owner of the vehicle was Mr Fever and he was the driver at the time and he works for the hospital. It s true, Mr Fagan can nit pick, but the fact is that he works for the hospital, he parked in the, he parked in the car park without a permit and tickets were issued accordingly. I d like also to mention the escalation, because, so far as Mr Fagan is concerned, if anybody escalated this it was he. He has made ludicrous phone calls to Roxburghe, making obscene phone calls to rather innocent telephone operators and having himself videoed and putting it on YouTube and then inviting the whole of the internet to look at the, the YouTube video, videos. This caused far greater escalation than anything else would have done. So far as the appeal procedure is concerned, the East Kent Hospital has a procedure for appeals, but neither Ms Fever nor Mr Fagan made themselves, availed themselves of that appeals procedure and it therefore passed in time. By the time that the tickets had been passed to Roxburghe the appeals procedure was closed. East Kent have complied with the BPA code and so has Roxburghe. I dispute that this is a, a, a, an abuse of the procedure, of legal procedures. Everything has been done in order to allow Ms Fever or, and/or Mr Fagan to make the payment that was due and they have not done so. Mr Fagan, working at the Hospital, was well aware of the notices and signage that is displayed. Was well aware of the terms of parking in the car park and decided not only in respect of these two tickets, but in a respect of a number of others, however that have not been, were not subject to these proceedings, continued to park in contravention of the signage because it suited him. Thank you. Deputy District Judge Omoregie: Many thanks for that. OK, if you could all wait outside I ll call you when I m prepared to give my judgment. (short adjournment) Clerk: Come this way please. The parties in East Kent Hospitals -v- Fagan. Deputy District Judge Omoregie: Good afternoon again, do come in and take a seat please. Mr Fagan: Good afternoon Sir. (parties settle) Deputy District Judge Omoregie: I am now going to deliver my judgment. (judgment given) Deputy District Judge Omoregie: Mr Fagan, this is a small claims matter and loss of earnings are usually limited, but the maximum is usually 90. Mr Fagan: Yes, Sir. 29