Excel/BW claimform - PCN Swansea SA1 2012

[Wi3347]

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??

 

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.

Edited August 21, 2017 by honeybee13

[ericsbrother]

a paralegal can present if the claimant/defendant is present. If no-one else showed up from Excel then they cant even act as a lay rep. so who else whas there?

 

You were adviswed to tajke copies of the rights of audinece legislation with you, did you do this? You could have quoted or at least got the judge to read it, everything is voice recorded so your appeal would ahve been simpler as the judge may well realise that what was said was plain wrong.

Edited August 21, 2017 by honeybee13
Paras

[Wi3347]

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"

[ericsbrother]

then that is the point of law that you can hang everything else on for your appeal regarding the matters of fact that were ignored.

The discretion of the court would allow the unqualified person to speak as a lay rep IN THE PRESENCE OF THE CLIENT, not on their own.

 

the judge cant then decide to have the haring "on the papers" and use the written evidence alone from the other side and you get to speak and rubbish it to your hearts content.

 

Now you havent answered the other questions about what you put in your Witness Statement.

 

The POFA does away with balance of probabilities but your matter was from before that date so again the judge seems to have misdirected themself when they state this as you have offered evidence that you were not the driver at the time and it is for the parking to to show WHO they have a contract with as it is not the keeper.

 

Again, the CPR seems to have been an error in law when maing that determination so you have 2 points of law and several matters of fact to go with.

 

Sometimes you get the same judge reversing their own decision of they listen to the tape and then realise they have screwed up.

You can get a copy of the trnascript for a (considerable ) cost but I dont think you are allowed a copy of the tape.

would be worth asking the courts service about this.

[Wi3347]

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

[ericsbrother]

sorry,

the judge CAN decide to have the hearing on the papers is what I meant to write but they clearly didnt.

That is very different from what happened.

 

On your other post I mention the different rankings of judges and who they must defer to

Any idea whether yours was a DDJ, DJ or HHJ?

 

I would say that you have good reason to appeal and good prospects of a successful appeal at that but try contacting John Wilkie at the BMPA, he is the expert on this.

[Wi3347]

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

[Wi3347]

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.