Jump to content

Wi3347

Registered Users

Change your profile picture
  • Content Count

    107
  • Joined

  • Last visited

Community Reputation

1 Neutral

About Wi3347

  • Rank
    Basic Account Holder
  1. Based on advice I've got from other sources I will be submitting a much more detailed defence as it appears the advice to submit a 2 line defence is proving fatal in some cases. As it was in my other thread. You may get a sympathetic judge who has had enough of these parking companies and is on your side. You may get what I had where the judge said what I submitted as my witnesses statement should of been in place of defence as the claimant had loads of time too pull apart the basic 2 line defence in so many ways that by the time we got to my WS the damage was already done
  2. thinking of putting in there that they are claiming for additional monies they are not entitled to and not explaining how they have arrived at that figure.
  3. the initial online defence im going to submit tomorrow is The whole claim is denied in its entirety for a number of reasons which will be expanded upon in my witness statement should this claim be allocated to the small claims track. 1. The defendant was not the driver of the vehicle on the date of the contravention. 2. The claimant is required under schedule 4 of the Protection of freedoms act 2012, to adhere to a number of strict requirements set out within that act in order to transfer liability to the registered keeper and has failed to do so, therefore the defendant is not liable in this matter as he was not the driver and POFA 2012 has not been complied with. 3. The wording of the signage at the location is confusing and contradictory so cannot be said to be a genuine offer of an offer to form a contract. The claimant states the claim is for "parking charges" yet at the location there is no tariff of charges to refer to nor any way offered to pay the prescribed fee if it was deemed to be a contract and that the offer was accepted.
  4. Im receiving mixed advice around appeal. Will update when i make a decision. I think its shocking the judge allowed the advocate to speak when i made it so blatantly clear that she has no rights of audience and the fact he missed the whole line of my WS where i denied being the driver. absolutely shocking.
  5. I'm not sure tbh. I could ring the court and find out? I have emailed the BMPA help desk. Will update when I get a response
  6. Everything that was in my bundle was submitted to the courts and to BW in time. The judge had it in front of him he just refused to give them any attention as "findings in other cases are not binding upon me" was what he said. my original 2 line defence stated i was not offered a contract so there is no breach of contract for me to answer. which i believe fulfils CPR 16.5.3 and in any case 16.5.4 is applicable as it clearly states when the claim is for money the defendant requires it to be proved. how the judge said that was not a valid defence and im still taken to admit i really do not understand?! the other thing is as he said based on balance of probabilities as i failed to deny being the driver but as we have said in my WS it says the defendant denies being the driver. So i really dont understand how the judge got it so wrong
  7. no one else was present from excel or BW, the person that showed up was from another law firm that is a member of the CILEx. I took with me a direct quote from the CILEx website that states clearly "members do not have any extra rights and have to be under the supervision of a solicitor" the judge had no interest in this. glossed over it. I also took with me a stated case Ellis V Larson where the judge said "being instructed by is not the same as under the supervision of and as the other person did not attend for their WS to be cross examined the judge said rights of audience were not satisfied" The judge read this and said "I have read the case but the findings of other judges of my rank are not binding upon me and i am not obliged to come to the same conclusion and i am satisfied that rights of audience are satisfied" with regards to my WS. I sent in my bundle copies of stated cases we have talked about where excell have no proof of the driver and cannot rely on the pofa. The judge again said the findings of other judges are not binding upon him and reused to even read the cases in my evidence bundle. The bottom line is his judgement judgement was based on balance of probabilities of me being the driver and CRP 16.5.5 He said as I didnt deny being the driver i must of been the driver (even though i stated in my WS I WAS NOT THE DRIVER, point 2 of WS) and 16.5 as i didnt deny it that i am taken to admit it, and said 16..5.3 and 16.5.4 did not apply, He did say when allowing the lay rep to speak "even if i am wrong" so he clearly wasnt sure "even if i am wrong its the discretion of the court under CPR etc etc etc"
  8. for defence at this stage im going for: 1. The defendant was not the driver of the vehicle on the date of the contravention. 2. The claimant is required under schedule 4 of the Protection of freedoms act 2012, to adhere to a number of strict requirements set out within that act in order to transfer liability to the registered keeper and has failed to do so, therefore the defendant is not liable in this matter as he was not the driver of the vehicle. I dont think there is any point mentioning that a contract was never offered because the signs are prohibitive (permit holders only) and the claim form states "parking charges / damages for breaching the terms of parking on private land" it does not state anywhere on their claim form "breaching the terms and conditions of a contract" I will put this in once people have a look, no point waiting until the last day to submit it
  9. I only have 11 days left before an appeal has to be in so i cant wait too long. Yes he did. He seemed a bit insulted someone from outside the legal world had come into his court and questioned the credentials of someone. When he asked her to respond to my challenge she stated she had been a practising paralegal for 10 years and presented many cases in court including Swansea courts. I think the judge thought it he doesnt allow her to speak then serious questions need to be asked as this woman has presented cases in his own court many times when she wasnt allowed to. he quoted some other CPR stuff and said that it was the courts discretion to allow it and he was going to allow it. Yet he missed the part of my statement, point 2, that said the defendant denies being the driver and made his judgement based on that.
  10. 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
  11. 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
  12. 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?"
  13. 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.
  14. I will look into this one more over the coming days but after the spanking i just had at court over submitting a 2 line defence i will be putting more for the defence of this. Such as deny i am the driver and quoting some CPR rules. The judge was not willing to accept anything in court that I had'nt mentioned in my defence at the first opportunity.
  15. 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
×
×
  • Create New...