Ok, I'm with you!

I will put the finishing touches / additions to the WS and post it tomorrow for approval. I will also print the relevant documents. Pofa schedule 4, Elliot vs loak and cps vs ajh films plus the summaries of the cases it written plus possibly some examples of when those cases have been deemed irrelevant in cases like this.

Depending what happens after I send this off I will also look up rights if audience depending who is coming from bw.

1 copy of every thing for me for the day, 1 for court 1 for bw. Posted in the time scales above?

Rights of audience on the court day, is important!

I screwed up there, but one thing is certain, their advocate wasn't expecting me to raise it as an issue.

Check out parking pranksters web site for examples of a previous case where a successful challenge was made and an article referring to the issue in a legal trade magazine. Then instead of just taking these along, research the actual laws used in that successful case and take copies of those along to back you up and give you a lead. I will next time.

When you get their WS pop their picture of the sign they claim was in situ up.

If it's like the one in their WS in my case, it is NOT a photo, it's a computer image.

Ok will do!

Thanks for that.

Off to work now will sort it all later.

You don't seem too positive?

Did you have A bad result?

Not really, the case is currently adjourned. Claimant has 14 days for legal submissions, then I get 14 days to reply.

At least this time they don't seem able to send me their documents after the court's deadline and I get the chance to

make propper defense before actually attending the hearing.

I had doubts last time as I didnt know what to expect.

This time they are allocating 3 hours instead of the original 1 hour.

ahh fair.

hope mine is sorted the first time.

As mine is cut and dry hopefully they will just chuck it out but we shall see.

good luck!

i think my WS should now be complete? i will take the above documents. Do i also need to print the CPR paragraphs i have made reference to? I am also thinking of including a copy of the proof of postage of the CPR 31.14 request in case they try to say they didn't receive it. I will be taking photos Thursday or the signs and putting a copy of them up here.

"Claim number: XXXXX

In the county court at XXXX.

Between: Excel parking services LTD – Claimant

And

XXXXXXX – Defendant

1. The defendant denies that any contract exists between the claimant, Excel parking and the defendant and they have failed to show a cause for action against the defendant by way of showing they have an assignment of the landowner giving them the right to enter into contracts with the public and to make civil claims in their own name. They have shown no Locus Standi in this matter.

2. As there is no keep liability in this manner it is put to Excel to show strict proof as to who was driving at the time as the defendant denies being the driver.

3. The claim itself fails to properly fulfil the requirements of CPR 16.4 at is unclear how the claim is made up, why the defendant is liable and nor whether it is damages for a breach of contract or a contractual sum. The claim also includes an element of costs that are not recoverable in the small claims process.

4. As the event was in August 2012 it is pre Schedule 4 of POFA (Oct 2012). Therefore no liability has been transferred to the keeper, so there is no cause for action against the defendant in that capacity and without proof of who was driving at the time, no evidence of any actionable cause at all against the defendant.

5. Excel parking have made a number of unsubstantiated claims in the courts and are abusing the court process as a method of intimidation or coercion rather than for collecting monies they have proper entitlement to. I cite claim numbers C7DP8T7D and C3DP56Q5. Excel have offered no evidence that their claim is a genuine one despite request from the defendant for disclosure under CPR 31.14 to determine their right to make a claim and show a cause for action against the defendant.

6. The first the defendant knew about this matter was a demand in August 2016 and the claimants have failed to respond to requests for a full breakdown of how the demand came about. The defendant asked for sight of the documents relevant to points 1, 2 and 3 as a CPR 31.14 request before the track of the claim was decided and they have failed to produce them. The defendant believes this behaviour is unreasonable and as a result the defendant could not agree or dispute the claim before court action was taken by the plaintiff and is still unclear as to what exactly the cause for action is. Again this is an abuse of the court process.

7. The claimant has shown no evidence, despite request from the claimant that they have planning permission (under the Town and country planning act 2007)

for their signs, so no contract could ever be formed as it would be a criminal compact and unenforceable.

I believe the facts stated in this witness statement are true."

dont forget,

Elliott v Loake was a criminal case on a public road where there was plenty of other evidence that the keeper was the driver at the time

and in CPS v AJH films it was a company lorry and the company had vicarious liablity as the driver was a "servant" of the co.

 

 

Now Gladdys/BW claim that any person borrowing your car is your servant and you are responsible for their actions.

This was the case until about 50 years ago when insurance became compulsory

but would still apply if you employ a chauffeur and he, for example, ran a red light on your instructions.

 

 

A taxi driver doing the same would get done because although you are hiring them they are not your servant.

I've now got photos of the signs. I will print them as part of my bundle. Thoughts on my WS before I send it? Do I need to print the copies of CRP sections I have quoted?

yes, you print everything that you think will be ever likely to be useful.

No judge is going to wade through rows and rows of books to help you so you have to show them the paper proof.

Your WS should be enough as long as you can show on paper why all of the bits you raise as so.

anything else you come across in the meanwhile can be taken along on the day and as long as it doesnt change the direction or raise new points for your defence will be normally allowed so for example, new cases where Excel have had their bottom spanked in a similar case with the samw particulars of claim would be a prime example

Ok thanks. I've sent off my court bundle yesterday,

1st. Class.

I will send the BW bundle tomorrow 1st class recorded delivery.

I will keep my eye on the parking pranksters blog in the meantime

Bundle from BW received.

It says their client will not be in attendance but will be represented by an advocate.

Then there is a witness statement from a senior paralegal at BW in leeds claiming that matters in the statement are within his own knowledge,

which i find hard to believe if he is witting from the north of England about a matter that happened in South Wales in 2012??

in the statement he assumes that the registered keeper is the driver, which, correct me if i'm wrong, it says somewhere in law that the registered keeper cannot be assumed to be the driver?? where is that if so. im sure ive seen it.

in the defence he says "under CPR 16.5 a defendant who fails to deal with an allegation shall be taken to admit that allegation.

The defence is premised on the claim that the claimant offered no contract and therefore there can be no breach of the terms and conditions."

Again, the contract was offered to the DRIVER of the vehicle, which BW cannot prove who the drive is and cannot assume the RK is the driver. Am i right so far?

is also says allegations not dealt with in defence and so the defendant is taken to admit that "the defendant is the driver, the defendant parked the car on the contravention date"

they have included photos of the signs,

they are still the same signs now, no computer image,

they have also included a letter from DT civils,

stating the excel have the land owners authority to undertake parking management as "the site" but doesn't state where the site is.

so i will raise that point, the letter claiming to show that excel has authority to park there doesnt actually say where they have authority to enforce parking.

They have quoted the case of parking eye v beavis for the claim of the parking charge and chaplair limitied V Kumari to claim other recovery costs.

also it a copy of the original PCN and original notice to keeper dated 10/09/2012

OK, rights of audience

- take the relevant section of the law with you and challenge the person who pitches up for them.

Dont waffle, just ask them are they a registered practising solicitor or employed by Excel or BW.

Being instructed by either isnt good enough unless they can tell you their SRA member number and are acting in that capacity

Do this before anyone else has a chance to say anything about the claim.

Do not talk to their rep in the waiting rooms and dont accept any paers from them either,

they want you to have them then they pass them to the judge to decide whether you should be receiving them.

make sure the judge knows that you will be asking for time to consider the new docs and then write a rebuttal.

and so an adjournment will be asked for if you are forced to accept them.

(judges hate that so they are likey to quicky read them and decide whether they are binned or allowed, usually they say they are irrelevant so that tells you where things are going anyway)

You are right about the paralegals WS, they must have been present as they are not in the employ of Excel so cant speak for them, only themselves and as such would be expected to show up.

As for CPR 16.5 they are misquoting as your defence fulfils parts 16.5.3 and 4. You will have denied all of the allegation as per 16.5.1 so again they are trying to misdirect the court

As for new stuff on the Pranksters' blog,

look at what the judge said in the wakefield claim that was running on here.

Copy that and take it with you to show that Gladdys have bee become so well known they are now unusable by the parking companies but BW use the same modus operandi with a complete disregard to civil procedure rules with regard to the correct filing of a particulars of claim ( breach of contract or contractual abligation, adding unexplained and unlawful costs to the claim etc)

As for the driver and keeper, there are plenty of cases where this has been the crux of the argument so ctake copies of them along where possible or at least a screen shot of the pranksters blog or any other online source so you have the original references on paper. .

The whole idea of the POFA is to create a keeper liability and until Nov 2012 that couldnt exist and now exists as long as cetrtain requiremnts are met so you are right.

having trouble finding a good rights of audience section to print. how about this?

What prompted this updated guidance was a Manchester County Court decision in Ellis v Larson, September 2016. As with McShane v Lincoln, this was a ‘stage 3 hearing’ in a portal personal injury claim. The initial issue was similarly whether this was a hearing in public or in chambers/private, and it was decided that it was, such that the claimant’s ‘solicitor’s agent’ had no rights of audience in any event. However the judgment also went though the other conditions for a right of audience under paragraph 17 Schedule 3 Legal Services Act

“The person is exempt if—

(a) the person is an individual whose work includes assisting in the conduct of litigation,

(b) the person is assisting in the conduct of litigation—

(i) under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies…

(ii) under the supervision of that individual, and

© the proceedings are not reserved family proceedings and are being heard in chambers.”

In this case, the ‘agent’ was not assisting in the conduct of litigation:

In my view, at the hearing, the person exercising the rights of audience, the advocate is not involved in the conduct of the litigation generally, or assisting it. One has to make the point that it does not say “in the conduct of this litigation”; it says “in the conduct of litigation”. However, in my view, what I am saying is that the advocate at the hearing is not involved in the conduct, or assisting in the conduct, of litigation generally, or indeed in the particular litigation in which he is appearing. The fact that he may be involved in negotiations or costs does not, in my view, affect the basic position that he is representing a party at a hearing. These are, in my view, aspects of the representation at the hearing, not assisting in the conduct of litigation generally.

The agent was not under supervision of the qualified person with conduct of the matter:

In my view, supervision must, as I have said, be by the person who gives the instructions and who is authorised in respect of the activity. The defendant says that Mr Sisto was not supervised by that individual at court and submits that supervision must mean more than giving instructions because the section itself refers to instructions, so there must be more to it than that. The defendant says that Mr Sisto was not supervised. The claimant says that Mr Sisto was in contact with the authorised individual with regard to issues and negotiations and costs. There is, I must say, no evidence before the court that in this particular case – and it is this particular case that we are dealing with – that that occurred and that was the case here. Therefore, I am not satisfied that in this case therefore, due to that lack of evidence, that that was the case.

However, in any event, in my view the actions that the claimant’s counsel today refers to, such as having to get instructions on questions of costs and offers and the like, that is what that is. It is getting instructions. It is not supervision of the conduct of the work being done – i.e. the advocacy. Therefore, I am not satisfied that the claimant’s representative satisfies the test in respect of rights of audience.

this is also going in

Same Modus operandi used by BW Legal. Threatening court action, then failing to respond to CRP 31.14 request to prove / disprove that money is actually owed. Then showing disregard to Civil Procedure rules with by adding unexplained and unlawful costs to the claim.

PPM v Keeper. C7GF75EN. Wakefield. 20/07/2017

The claim was for 2 PCNs at Travelodge, Hounslow.

The hearing (keeper report)

The judge dismissed the claim. She said that she was sick of telling Gladstones the same things.

Their witness statement was not good enough.

The proof of signage was no good.

They they had not made it clear whether it was the driver or the keeper they were claiming from.

They had no right to claim for additional monies other than the £100 per ticket that they had originally specified.

She insinuated that their business model seemed to scare people into paying up before the case went to court and claiming additional money that they knew they would not have any right to in a court.

My witness statement was never even mentioned and I never had to open my mouth in court other than to say "Thank you ma'am".

can anyone direct me to anything good that says the registered keeper cannot be assumed to be the driver? i have a case law printed out but id like another, cant find one

Court in the morning and I'm feeling positive.

I'm sure I have everything I need. In summary

The case is pre pofa so that cannot be relied on

It's for them to prove who was driving.

They have zero proof.

that should be enough in and of itself.

They have provided a letter saying excel have permission to park at the site.

But it doesn't have an address on.

it is evidence of nothing because it doesn't state where excel can enforce parking.

I have a stated case that the witness statement submitted by BW is not even evidence as it states the person writing it has personal knowledge of the case which they do not and it's even written by the same person at in the stated case.

All in all the claimant has to prove who was driving and they cannot prove that.

I have a few stated cases saying there is no assumption in law that the RK is the driver.

I will update tomorrow when I come out

easy win

if you can challenge the right of audience for teir advocate as they HAVE to be a solicitor or they cant speak.

Was a total disaster at court today.

The judge found for the claimant and I am going to appeal.

I followed all the advice on here to the letter and almost all of it was deemed incorrect or irrelevant by the judge.

I wore a suit, turned up on time, was polite to everyone.

The representative from the claimant was a solicitors air from another law company instructed by BW legal. She was not a solicitor.

She came over to me and said "lets have a little chat over here, didnt ask if i wanted to talk just tried to be sneaky about it

. I asked her if she was a registered solicitor and she replied she was a solicitors aid instructed by BW, I said thanks and I didn't wish to speak to her.

I didn't accept anything from her.

We went into the room, the judge introduced himself and asked if i had any questions.

I raised the question of rights of audience.

He asked on what grounds.

I said it was my understanding that anyone representing the claimant should either work for excel or BW or be a registered solicitor.

I also provided the judgement of a stated case (Ellis v Larson C00AL007) where the judge ruled that being instructed by is not the same as under the supervision or a solicitor.

I explained all this.

The judge read the judgement of that case and concluded that he is not bound by the decision of another judge of his rank and does not have to accept this as his own opinion.

He quoted a CPR section and its the discretion of the court to allow a lay representative to speak. The mood changed and both of them were completely against me and seemed insulted i had raised this.

He then said my defence was 2 lines and the witness statement i sent in with my bundle he would allow as my defence.

He seemed unimpressed with my 2 line defence.

He read my statement and ruled that a letter BW had provided as proof they have permission to park was sufficient evidence even though it does not have an address on it or state WHERE they have authority to enforce parking??

He said that under CRP 27.2 there is no obligation for the claimants to reply to a request for disclosure under CPR 31.14 and this part of my defence was thrown out.

I stated it was pre pofa and i put excel to strict proof i was driving.

The judge stated its not reasonable to put excel to proof of that as

"everyone entering a carpark in england and wales would need their photograph taken"

he also had a go at me for mentioning POFA if it was not relevant and didn't like the fact id put a copy of POFA schedule 4 in my bundle.

As for all the stated case from the parking pranksters blog he said he was not willing to look at them or take them into consideration as the findings of the judges in those cases were not binding on him.

He said in summing up his judgement was based on the balance of probabilities that i WAS driving the vehicle as I had not denied it in my initial 2 line defence so CRP 16.5.5 applied and as i failed to deal with the allegation i am taken to admit it.

He dismissed my claim that my defence fulfilled CPR 16.5.3 and 16.5.4 all based on the fact that i had not denied being the driver in my first defence.

It does state in point 2 of my witness statement

"it is put to excel to show strict proof of who was driving as THE DEFENDANT DENIES BEING THE DRIVER" The judge seemed to have COMPLETELY missed this as he kept pointing out i had failed to deny being the driver until today.

He was having such a huge go at me that I missed out that being in my statement as i could see where it was going!

After judgement I said i would appeal in writing.

I said thank you good day and he didn't even reply he just looked away.

Clearly didnt like me

Didnt like the fact i challenged rights of audience.

Missed the part of my statement where i denied being the driver and said despite CPR 16.5.3 and CPR 16.5.4 being fulfilled in my defence i am still taken to admit being the driver as i didn't expressly deny it as per CPR 16.5.5.

You'll never win a judge lottery case

You'll never win a judge lottery case

Not sure What do you mean by that?

I'm going to appeal on the grounds that the judge made his decision based on the fact I didn't deny I was the driver in my statement because I did neny it in my witness statement clearly in point 2. How he missed that I don't know. But it appears to be bad advice to only submit a 2line defence as the attitude was "why didn't you say any of this before? Why are you only mentioning it now?"

what happened to you was judge lottery

you were never gonna win with him

what happened to you was judge lottery

you were never gonna win with him

I got that feeling from the outset but I was surprised he was so blatantly against me and wasn't even willing to look at the stated cases let alone take them into consideration. Then the fact he had a go at me for not denying I was the driver when that was something HE missed in my statement.

Any advice for an appeal? And what's your opinion of chances of success? I know it's down to the judge on the day but just gut feeling

can someone give me some advice of how to appeal please? ive looked everywhere on line and it says appeal in writing but doesnt say where to or if there is a certain form i have to fill in or if i just write a letter in?

Thanks

Wait for the experts, but did the judge really say he would allow a solicitors aid to speak as a lay representative without the claimant being present??

if their bod was a lay rep then someone from VCS MUST be present

Your appeal shopuld be on a matter of law ( the CPR incorrectly applied plus the lay rep bit) and matters of fact support that.

So was someone from VCS actually present?

Did you sumbit all of your paperwork to the court and to BW in time?

you will need to ask the court regarding the appeal, it has to be lodged witin a certain time (14 days)