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By Man in the middle · Posted
I think my post is too long so I've split it ino two: It seems the solicitor has got your case listed for this “appeal” but not for the Stat Dec(SD). You need to ensure you can perform your SD on the day. If you are able to make your SD in court, the situation you are in now is more straightforward than if you made your SD via a solicitor. You have been convicted of two offences (and two were dropped) via proceedings of which you were not aware. The way to remedy that is to perform an SD. No appeal is necessary (nor is it available via the magistrates’ court). If you are able to make your SD this is how I see it panning out: You will make your SD to the court. The court must allow you to make it as it will have been made within 21 days of you discovering your convictions. You will then be asked to enter pleas to the four charges again. At this point you should plead not guilty to all four but make the court aware that you will plead guilty to the speeding charges on the condition that the FtP charges are dropped. The prosecutor will be asked whether or not this is agreed. In my opinion the overwhelming likelihood is that it will be. If it is you will be sentenced for the two speeding offences under the normal guidelines. In the unlikely event it is not accepted, the speeding charges will be withdrawn (they have no evidence you were driving). You have no viable defence to the FtP charges and so should plead guilty. This will mean 12 points and a “totting up” ban (as you have already suffered). You can present an “Exceptional Hardship” argument to try to avoid this (explained below). Because of this, I don’t see any need to make an argument to ask to have any ban suspended (pending an appeal to the Crown Court) unless and until you are banned again. The only reason I can think the solicitor suggested this is to secure a (Magistrates') court date. I was surprised when you said you had an appointment so quickly; a date for an SD usually takes longer than that. However, if you can use it to your advantage, all well and good. I think my post is too long so I've split it into two: It seems the solicitor has got your case listed for this “appeal” but not for the Stat Dec(SD). You need to ensure you can perform your SD on the day. If you are able to make your SD in court, the situation you are in now is more straightforward than if you made your SD via a solicitor. You have been convicted of two offences (and two were dropped) via proceedings of which you were not aware. The way to remedy that is to perform an SD. No appeal is necessary (nor is it available via the magistrates’ court). If you are able to make your SD this is how I see it panning out: You will make your SD to the court. The court must allow you to make it as it will have been made within 21 days of you discovering your convictions. You will then be asked to enter pleas to the four charges again. At this point you should plead not guilty to all four but make the court aware that you will plead guilty to the speeding charges on the condition that the FtP charges are dropped. The prosecutor will be asked whether or not this is agreed. In my opinion the overwhelming likelihood is that it will be. If it is you will be sentenced for the two speeding offences under the normal guidelines. In the unlikely event it is not accepted, the speeding charges will be withdrawn (they have no evidence you were driving). You have no viable defence to the FtP charges and so should plead guilty. This will mean 12 points and a “totting up” ban (as you have already suffered). You can present an “Exceptional Hardship” argument to try to avoid this (explained below). Because of this, I don’t see any need to make an argument to ask to have any ban suspended (pending an appeal to the Crown Court) unless and until you are banned again. The only reason I can think the solicitor suggested this is to secure a (Magistrates') court date. I was surprised when you said you had an appointment so quickly; a date for an SD usually takes longer than that. However, if you can use it to your advantage, all well and good. -
By Man in the middle · Posted
It seems the solicitor has got your case listed for this “appeal” but not for the Stat Dec(SD). You need to ensure you can perform your SD on the day. If you are able to make your SD in court, the situation you are in now is more straightforward than if you made your SD via a solicitor. You have been convicted of two offences (and two were dropped) via proceedings of which you were not aware. The way to remedy that is to perform an SD. No appeal is necessary (nor is it available via the magistrates’ court). If you are able to make your SD this is how I see it panning out: You will make your SD to the court. The court must allow you to make it as it will have been made within 21 days of you discovering your convictions. You will then be asked to enter pleas to the four charges again. At this point you should plead not guilty to all four but make the court aware that you will plead guilty to the speeding charges on the condition that the FtP charges are dropped. The prosecutor will be asked whether or not this is agreed. In my opinion the overwhelming likelihood is that it will be. If it is you will be sentenced for the two speeding offences under the normal guidelines. In the unlikely event it is not accepted, the speeding charges will be withdrawn (they have no evidence you were driving). You have no viable defence to the FtP charges and so should plead guilty. This will mean 12 points and a “totting up” ban (as you have already suffered). You can present an “Exceptional Hardship” argument to try to avoid this (explained below). Because of this, I don’t see any need to make an argument to ask to have any ban suspended (pending an appeal to the Crown Court) unless and until you are banned again. The only reason I can think the solicitor suggested this is to secure a (Magistrates') court date. I was surprised when you said you had an appointment so quickly; a date for an SD usually takes longer than that. However, if you can use it to your advantage, all well and good. I can’t comment on the argument that the two speeding offences were committed “on the same occasion” as I don’t have the details. That phrase is not defined anywhere and is a matter for the court to decide. It’s an interesting thought (and only that) that such an argument could equally be made for the two FtP offences. If the requests for driver’s details arrived at your old address at the same time, with the same deadline for reply, it could be argued that you failed to respond to hem both “on the same occasion” (i.e when the 28 days to respond expired) and so should only receive penalty points for one. Hopefully you won’t need to go there. I think you have information about avoiding a “totting up” ban. But here’s the magistrates’ latest guidance on "Exceptional Hardship" (EH) which they refer to: When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following: It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn. Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence; Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive. If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account. Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable; Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others. I must say, I still do not understand what the solicitor means by “As a safeguard we have lodged the appeal and applied to suspend your ban pending appeal due to the time limit for being able to automatically appeal without getting leave of the Judge.” When they speak of “leave of the judge” I assume they mean they have lodged an appeal with the Crown Court. I don’t know what for or why they would do this. It seems to follow on from their explanation of the “totting up” ban. If so, I’m surprised that the Crown Court has accepted an appeal against something that has not yet happened. But as I said, i is no clear to me. Only you can decide whether to employ your solicitor to represent you in court. If it was me I would not because there is nothing he can say that you cannot say yourself. However, I am fairly knowledgeable of the process and confident I can deal with it. That said, I do have a feeling that the solicitor is somewhat “over egging the pudding” by introducing such things as appeals to the Crown Court which, in all honesty, you can deal with if they are required. I can only say that the process you will attempt to employ is by no means unusual and all court users will be familiar with it. I can also say that I have only ever heard of one instance where it was refused. In summary, it is my view that it is very unlikely that your offer to do the deal will be refused. If it is accepted, you may be able to persuade he court that the two speeding offences occurred "on the same occasion" and so should only receive one lot of points. Let me know the details (timings, places, etc) and I'll give you my opinion. Just in case your offer is refused, you should have your EH argument ready. Whether it's worth paying what will amount to many hundreds of pounds to pay someone to see this through is your call. Let me know if I can help further. It seems the solicitor has got your case listed for this “appeal” but not for the Stat Dec(SD). You need to ensure you can perform your SD on the day. If you are able to make your SD in court, the situation you are in now is more straightforward than if you made your SD via a solicitor. You have been convicted of two offences (and two were dropped) via proceedings of which you were not aware. The way to remedy that is to perform an SD. No appeal is necessary (nor is it available via the magistrates’ court). If you are able to make your SD this is how I see it panning out: You will make your SD to the court. The court must allow you to make it as it will have been made within 21 days of you discovering your convictions. You will then be asked to enter pleas to the four charges again. At this point you should plead not guilty to all four but make the court aware that you will plead guilty to the speeding charges on the condition that the FtP charges are dropped. The prosecutor will be asked whether or not this is agreed. In my opinion the overwhelming likelihood is that it will be. If it is you will be sentenced for the two speeding offences under the normal guidelines. In the unlikely event it is not accepted, the speeding charges will be withdrawn (they have no evidence you were driving). You have no viable defence to the FtP charges and so should plead guilty. This will mean 12 points and a “totting up” ban (as you have already suffered). You can present an “Exceptional Hardship” argument to try to avoid this (explained below). Because of this, I don’t see any need to make an argument to ask to have any ban suspended (pending an appeal to the Crown Court) unless and until you are banned again. The only reason I can think the solicitor suggested this is to secure a (Magistrates') court date. I was surprised when you said you had an appointment so quickly; a date for an SD usually takes longer than that. However, if you can use it to your advantage, all well and good. I can’t comment on the argument that the two speeding offences were committed “on the same occasion” as I don’t have the details. That phrase is not defined anywhere and is a matter for the court to decide. It’s an interesting thought (and only that) that such an argument could equally be made for the two FtP offences. If the requests for driver’s details arrived at your old address at the same time, with the same deadline for reply, it could be argued that you failed to respond to hem both “on the same occasion” (i.e when the 28 days to respond expired) and so should only receive penalty points for one. Hopefully you won’t need to go there. I think you have information about avoiding a “totting up” ban. But here’s the magistrates’ latest guidance on "Exceptional Hardship" (EH) which they refer to: When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following: It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn. Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence; Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive. If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account. Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable; Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others. I must say, I still do not understand what the solicitor means by “As a safeguard we have lodged the appeal and applied to suspend your ban pending appeal due to the time limit for being able to automatically appeal without getting leave of the Judge.” When they speak of “leave of the judge” I assume they mean they have lodged an appeal with the Crown Court. I don’t know what for or why they would do this. It seems to follow on from their explanation of the “totting up” ban. If so, I’m surprised that the Crown Court has accepted an appeal against something that has not yet happened. But as I said, i is no clear to me. Only you can decide whether to employ your solicitor to represent you in court. If it was me I would not because there is nothing he can say that you cannot say yourself. However, I am fairly knowledgeable of the process and confident I can deal with it. That said, I do have a feeling that the solicitor is somewhat “over egging the pudding” by introducing such things as appeals to the Crown Court which, in all honesty, you can deal with if they are required. I can only say that the process you will attempt to employ is by no means unusual and all court users will be familiar with it. I can also say that I have only ever heard of one instance where it was refused. In summary, it is my view that it is very unlikely that your offer to do the deal will be refused. If it is accepted, you may be able to persuade he court that the two speeding offences occurred "on the same occasion" and so should only receive one lot of points. Let me know the details (timings, places, etc) and I'll give you my opinion. Just in case your offer is refused, you should have your EH argument ready. Whether it's worth paying what will amount to many hundreds of pounds to pay someone to see this through is your call. Let me know if I can help further. -
By BankFodder · Posted
This must be part of the new tactic from Evri. They know they are going to lose. They take it to the wire and then don't bother to turn up in order to save themselves costs and of course they don't give a damn about the cost to the British taxpayer and the extra court delays they cause. This is a nasty dishonest company – but rather in line with all of the parcel delivery industry which knows that their insurance requirements are unlawful. They know that their prohibited items are for the most part unfair terms. They know for the most part that a "safe place" is exactly what it means – are not left on somebody's doorstep in full view. They know that obtaining a signature means that they have to show the signature not simply claim that they received a signature. They are making huge profits especially from their unlawful and unenforceable insurance requirement. Although this is less valuable than the PPI scandal, in terms of the number of people who are affected nationwide, PPI pales into insignificance. I hope the paralegals working for Evri are proud of themselves and they tell their families what they have done during the day when they go home. -
By lookinforinfo · Posted
Your PCN does not comply with the Protection of freedoms Act 2012 Schedule 4 Section 9[2][a] (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; The only time on the PCN is 17.14. That is only a time for there to be a period there would have to be a start and and end time mentioned. of course they do show the ANPR arrival and departures times but that is not the parking period and their times are on the photographs not on the PCN. They also failed to comply with S.9[2][f] as they omitted to say that they could only pursue the keeper if they complied with the Act. That means that they can only pursue the driver as the keeper cannot be held liable for the charge. As they do not know who was driving and Courts do not accept that the driver and the keeper are the same person they will struggle to win. Especially as so many people are able to legally drive your car and you haven't appealed giving them no indication therefore of who was driving. Small nitpicking point-the date of Infringement was 22/04/2024. They appear to be saying that they can charge an extra amount [up to £70 ] if they have to use a debt collector. You do not have a contract with a debt collector so they cannot add that cost. You paid for four hours so it can only be the 15 minutes they are complaining about. You are entitled to a ten minute minimum grace period at the end of the parking period which would be easier to explain if the car park had been bigger. However if you allow for two minutes to park and two minutes to leave that gives you one minute to account for. Things like being held on the way out by cars in front waiting to get on to Northgate or even your own car being held up trying to get on to Northgate at a busy time. then other considerations like having to stop to allow pedestrians to walk in front of you or being held up by another car doing a u turn in front of your car. you would have to check with the driver and see if they could account for an extra one minute things like a disabled passenger or having to strap in a child . I am not advocating lying since that could lead to serious problems [like jail time] but there can be an awful lot of minor things that can cause a hold up of a minute even the engine not starting straight away or another car being badly parked as examples. Sadly you cannot include the 5 minute Consideration period as both IPC and BPA fail to comply with the convention that you can include that time with the Grace period. -
Defence struck out not case struck out...you have judgment Well done topic title updated Regard's Please consider making a donation if not already to support us to help others. Andy. .
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If you are buying a used car – you need to read this survival guide.
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Hello,
On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.
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Post in Suing a parcel delivery company when you don't have a direct contract with them – third-party rights Copy of judgment available
BankFodder posted a post in a topic,
We have finally managed to obtain the transcript of this case.
The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.
Frankly I don't think that is any accident.
One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.
Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.
We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
This is good ethical practice.
It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.
OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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