Excel Court Date Set - Defence Statement Help

cordsandcag · 19 April 2017 at 10:58PM

I've had a few issues with Dropbox and editing the doc but hopefully this should now work.

https://www.dropbox.com/s/kaaypvrbmjlxi5k/BWL%20statement%20edited.docx?dl=0

I'll be using Greenslade, POFA and Lamilad's case to argue about presuming the defendant is the driver and have seen some stuff do with Elliott v Loake and Beavis V PE but would be very grateful for any comments on this.,particularly the other legal arguments they have mentioned.

Thanks in advance for any assistance.

cordsandcag · 23 April 2017 at 11:09PM

I've got my hearing on Wednesday. I've been preparing my skeleton argument which revolves around 3 main points:

1. Claimant does not comply with POFA 2012
2. It should not be assumed registered keeper is the driver (Greenslade)
3. The claimant has provided no evidence of the driver

The full argument is here:

https://www.dropbox.com/s/275dm570iq6ai2v/Skeleton%20argument%20and%20defence.docx?dl=0

Is there anything else I need in? the only bit I haven't got is a rebuttal for CPS v AJH films. I've seen in mentioned on Parking Prankster that it was rebutted / not considered relevant but not sure of the reasons for the rebuttal. If anyone could provide some advice on that and / or any other general comments on my argument it would be much appreciated.

Lamilad · 23 April 2017 at 11:30PM

Another poster rebuts AJH films in point #2 of their defence here:

http://forums.moneysavingexpert.com/showthread.php?p=72435164&highlight=ajh+films#87

cordsandcag · 25 April 2017 at 12:04AM

Just to check something on the right of audience issue (i've had a read through parking prankster's article on it and the Law Gazette articles) - the main point that can be used is that if the are alone then they are no under instruction from an authorized person e.g. a solicitor.

Am I interpreting that correctly?

Coupon-mad · 25 April 2017 at 12:32AM

Yes, that would be the clear response if they try to say ' I am supervised by...(someone a hundred miles away)'.

Lamilad · 25 April 2017 at 1:39AM

I've only ever challenged RoA once so I'm not exactly an 'authority' on it; but here's how I did it (acting under guidance from Bargepole)

I approached their rep and asked to speak privately in a side room. I asked:

* Are you a solicitors agent?... A - "Yes"
* With Elms Legal?... A - "Yes"
* Is anyone here with you today either from Excel Parking or BW Legal?... A - "No"
* So, no one is here either from the claimant or their solicitors to supervise you?... A - "No"
* Have you ever been refused rights of audience?... A - "No"
* Do you have conduct in this matter?... A - "What do you mean?"
* I have a witness statement here from [name] which says he has conduct in this matter so what is the nature of your involvement in this case and on what authority is it granted?... A - [silence]
* I advise you that i will be submitting this document to the judge requesting that he review and assess your rights of audience before proceding with the case
* [hands over the document] This is not an ambush, it is for your information

At that point the rep asked if I had brought the transcripts referred to in the document. I had and gave her copies of both. At that point I would have ended the meeting and asked the clerk to pass the 'preliminary matters' document to the judge but we were called into court by the clerk. So advice is - get there early and have this discussion with their rep, leaving plenty of time to give the document to the clerk.

cordsandcag · 25 April 2017 at 2:00PM

Thanks both of you - great advice as always

Loadsofchildren123 · 25 April 2017 at 2:31PM

Now I am a lawyer, but I find the RoA thing difficult to grasp, so don't feel too bad if you don't get it.

There are different people they could send along.

A barrister - if he/she is from a "Chambers" then they are regulated by the Bar Council and have RoA with or without their client/a solicitor. If he/she is not part of a chambers and working as some sort of agent, then they are not regulated and they have no RoA.

A solicitor or a legal exec - there are lots of these (as well as barristers) who are not "employed" or part of a firm [sols/LEs]/chambers [barristers], but who appear as "agents" hired just for the day. This is what Elms Legal does, it's like an agency hiring guns for serial litigants who have cases all over the country they need advocates for. If this is the case, they are unregulated and have no RoA. Even if they are employed by a firm, they have to have "conduct of the proceedings", which means the day to day conduct, not just conduct on the day of the hearing itself. So you go "hang one, you are from Stupid and Co? But the Claimant's Solicitors are Idiots & Co. They are the ones that have day to day conduct of this matter, aren't they? Is anyone here with you from Idiot & Co? No? Well they are not supervising you, nor can you have "conduct" of the litigation". So again no RoA.

That is my understanding of it.
There is a Law Gazette article which explains this, and it refers to some cases - you should print these off and read them and take them with you (plus copies for the advocate and the judge), has someone pointed you to these? Someone may have a link to them that they can post.

Loadsofchildren123 · 25 April 2017 at 2:34PM

Some judges love a good RoA challenge. Others don't (particularly if, like me, they haven't quite got their heads round what the law says and don't want to look stupid). So if the judge clearly doesn't want to get involved when you raise it, just move on and don't be ruffled by it.

If you challenge RoA and win, their advocate isn't allowed to speak and they are treated as unrepresented and all your points go unchallenged - save that the judge will still be able to read their documents (ie you are almost guaranteed a win, as long as you do have a valid defence).

cordsandcag · 25 April 2017 at 5:54PM

Thanks - that's a great help. I've got the law gazette articles sorted so I'll take your comments on board as well, cheers.

Excel Court Date Set - Defence Statement Help

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