Excel/BW claimform - PCN Swansea SA1 2012

[ericsbrother]

you were told to get photos months ago,

I fail to understand why people who are being sued seem to take such a lackadaisical attitude to all of it.

 

Your defence is almost unbeatable unless you screw it up and like many others that fact doesnt seem to have sunk in.

 

 

Put some effort in to this and absolutely screw them down

[ericsbrother]

the obtaining of photographs applies to every thread on the private parking forum, they form the contract the parking co relies on in every case so we need to see the signs in every case. It is self evident.

 

I dont intend to come across as hostile but Excel stand no chance of winning this unless you chuck it away and I wouldnt like to see you lose because something has been missed out even something that may be completely irrelevant on the day, you need to have everything to hand just in case the judge makes a detour on the evidence trail.

 

That also means you take copies of the relevnet blogs on the Parking pranksters blogspot, any case references you come acrossanywhere, any knowledge of ownership of the land etc, knowing somehting is not enough, you have to prove it when there is doubt and the parking co wont tell the truth when it damages their claim ( ie most of the time)

 

If the site is the same as Cuttysarks post then grp those images as they show what you need to show, namely the signage in place are onw thing and Excels's signage pictures are not from the car park at all but a paste up of a generic signa and offer no evidence they were actually there at all. Basically they are needed to rebut Excel's evidence and you can say that this is what is here now but they werent there then

Edited July 10, 2017 by honeybee13
Paras

[ericsbrother]

with regard to point 6

make it clear that you asked for sight of the documents relevent 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.

For this reason you state that their behaviour is unreasonable and that you seek a full costs recovery order under CPR 27.14.2(g)

 

As for refernces to ANY documents

you take copies of them with you so if you have the full case transcript you take it,

other than that as much as you do have so screen grab of the Parking Pranksters blog or a printout of the thread on MSE for example.

 

 

Also take copies of the POFA as well to show the limits of the legislation as it is now regarding keeper liability.

There are plenty of cases on the paranksters blog refering to Eliott v Loake and CPS v AJH films showing they are not relevant,

take copies of those summaries as well.

 

Remind you of what I said about their pictures in Cutty sarks thread,

they are not photos of signage

but a computer mock up of what they claim was there at the time.

 

 

Again demand some evidence that the signage was as stated with positions of these signs, numbers , type of lighting etc.

 

Also as a point 7

I would say that they dont have planning permission

(under 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.

[ericsbrother]

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.

[ericsbrother]

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

[ericsbrother]

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.

[ericsbrother]

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

[ericsbrother]

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)

[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

[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.

[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.