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Everything posted by Wi3347

  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
  16. Everything I will put in as evidence will have case numbers and dates etc. I have one which may prove pivotal. Excell vs Ian lamoureux C3DP56Q. The judge in there clearly states a paragraph of the pofa and says it is for the claimant to show they have complied with the pofa to make the RK liable and it has failed to do so by not giving the correct notice period for the RK to respond. Same in this case. They say 21 days on the NTK when it's 28. So that might be the main point to prove on the day. In terms of defence? Any ideas? I do think the more I put it may deter them Also in paragraph 9(2)(b) of the POfa of states the NTK must inform the keeper that the driver is required to pay charges for a period of parking. Well in this case it wasn't possible to pay for parking. No metre or means to pay for parking. So does that apply? As they cannot recover a penalty under the small claims process how can they try to claim For an unpaid charge if it was not possible for the drive to pay the charge. Shouldn't that be a matter of trespass? Just thoughts here please correct if wrong
  17. MCOL all done. In terms of defence, I did a very basic one for a BW claim and that is going through to a hearing. Im not sure if putting in a defence with more meat on the bones will deter them from continuing the claim through to court? especially with the bad results Gladdys have had lately I think if I show them I know what im talking about they may think better of it. Defence is going to have to be around the failings to adhere to POFA with the NTK. Their signs are very small, the ticket was issue in darkness and there is no lighting at the location, also no markings or parking spaces painted on the floor (which i have photographed) also on their signs and NTK they claim to be a member of the BPA which they arent.
  18. Name of the Claimant ? Millennium door and event security ltd. claimants Solicitors: Gladstones solicitors Ltd Date of issue – 09 Aug 2017 . What is the claim for – 1. "The driver of the vehicle registration XXXXXXX (the vehicle) incurred the parking charge(s) on 15/11/2016 for breaching the terms of parking on land at Metropole Chambers Swansea SA13RT. 2.The defendant was driving the vehicle and/or is the keeper of the vehicle 3.and the claimant claims £160 for parking charges / damages and indemnity costs if applicable, together with interest of £8.35 pursuant to s69 of the country courts act 1984 at 8% pa, continuing to judgement at £0.04 per day." What is the value of the claim? total of £243.35 Has the claim been issued by the Private parking Company or was the PCN assigned and it is the Debt purchaser who has issued the claim ? issue by private parking company Were you aware the account had been assigned – did you receive a Notice of Assignment? I received a letter before claim from Gladstones, details above
  19. Claim form received from gladstones! Dated 9th of August. I think the defence will be their failings to adhere to pofa have meant there is no keeper liability?
  20. will be sending this to them Gladstones solicitors The terrace, High Legh park golf club Warrington road Cheshire WA16 6AA Your reference: xxxxx To whom it may concern, In response to your letter with the above reference dated 11 July 2017. Any debt to you client is vehemently denied for reasons that have been made clear before to them and so any claim will be vigorously defended and a full costs recovery order sought In short your client has failed to adhere to the protocols of the protection of freedoms act 2014 and as a result failed to create any keeper liability in relation to this matter. i.e I have NO LIABILITY in this matter. I refer you to the case of PPM v Keeper. C7GF75EN. Wakefield 20/07/2017 that I’m sure you are fully aware of. It is well documented and common knowledge in the courts that you as consistently loosing these cases at court due to countless failings on your behalf. Do not contact me again other than via official court proceedings or it will be considered harassment. pofa 2012* corrected that
  21. 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
  22. 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".
  23. 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.
  24. 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
  25. letter from Gladstones now, who appear to be the most hopeless of all the legal companies involved in parking matters. Not sure if i should send them a letter saying their client has failed to create keeper liability due to non compliance with POFA. If they wish to communicate further it should be through the courts and any further correspondence from them will be considered harassment. might be worth a go to see if they pack it in early as they have had a right kickin in court lately and might think better of it if i appear to know what im talking about, thoughts?
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