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  • FIRST POST
    • Matthew87
    • By Matthew87 15th Dec 16, 2:43 PM
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    Matthew87
    Excel/BW Legal - Defendant is not RK
    • #1
    • 15th Dec 16, 2:43 PM
    Excel/BW Legal - Defendant is not RK 15th Dec 16 at 2:43 PM
    So here goes, my first post... please be gentle!

    I will post all my documents here: https://1drv.ms/f/s!AsLbpETb6Et3j3yADaebkkR-iXRW

    I have tried to obscure any personal details - if I have left any, please let me know.

    Any page references made below, are in reference to my paginated exhibits document.

    28/12/15: Visited Panama Hatty's Grill in Prestwich, Manchester and parked on an Excel car park off Bury New Road (unbeknown at the time!) It was just before 19:00, it was cold, very dark and rainy. We left just after 21:30 and found a PCN (page 16) attached. Shocked, we struggled to see any signs and spent 5 minutes trying to locate the ticket machine (and a sign with text big enough to read in complete darkness!) Eventually found the ticket machine in a dark corner, and took a photo using flash (pages 21 - 22).

    11/01/16: Got through the New Year and looked at the PCN in more detail - noticed a timing error (patrol officer had put "Time Seen: 21:04 and Time Issued: 19:25"), so I emailed Excel (page 27) basically saying that rather than go through a lengthy appeal process, could they confirm the PCN would not be taken any further, due to the errors contained within. The email was sent from my email account, with my name at the bottom. I also, rather cheekily, emailed the landowner, but received no response. At no stage did I disclose who the driver was.

    04/02/16: My wife, as registered keeper of the vehicle, received a NTK (page 28) from Excel, with a contravention time of 21:25 (even though the PCN said 19:25).

    02/03/16: I received a letter from Excel (page 29), referring to 'my appeal' received on 11/01/16. They were "now responding to me on the reasonable basis that you reside at the same address as the registered keeper". All further correspondence was addressed to me.

    FROM THIS POINT ON, HAVING READ VARIOUS GUIDES/OPINIONS, I IGNORED EVERYTHING.

    18/03/16 - 14/12/16: Various letters, addressed to me, from ZZPS, Wright Hassall, Excel & BW Legal (pages 30 - 38).

    14/12/16: Claim Form received from Northampton CCBC.

    UPDATED - 15/12/16: Claim acknowledged online.

    UPDATED - 21/12/16: Part 18 posted (1st class with proof of postage) and emailed (page 39).

    UPDATED - 09/01/17: Defence sent via email

    UPDATED - 06/02/17: Received a letter from BW Legal to say that their client intends to continue with the claim.

    UPDATED - 07/02/17: Received DQ

    UPDATED - 23/02/17: Received BW's DQ which was completed by 'Rohan Krishnarao'. "TBC" in D3 (How many witnesses) and signed by "BW Legal"

    UPDATED - 27/02/17: Allocated to Bury County County letter

    UPDATED - 02/03/17: Transferred to Manchester County Court letter (Bury closes on 12th May)

    UPDATED - 21/03/17: District Judge Obodai has set Court Date = 10:00AM on 02/05/17

    NOW:
    1. I know I must 'Acknowledge' online, and not enter anything into the 'Defence' section, but what about the rest? Do I fill in all the personal details section (DOB/Contacts)?
    2. Should I send a Part 18 Request to BW Legal? Should I target anything specific (incorrect timings/driver unknown/photos/proof of landowner authority?)
    3. I've read about 'sealed bundles' etc - is that good practice? Does this go into the Part 18 letter?
    4. Does anyone think that the driver of the vehicle has been established? Can it be proven? I'm the Defendant, but not the RK.
    5. I'm not after a spoon-feeding (I have read an enormous amount before posting this and will continue to do so!), but any pointers on the specifics of my defence? I haven't come across another case where they pursue someone other than the registered keeper (who hasn't admitted/been identified as the driver!)

    Huge thanks in advance - these forums seem to offer a great deal of help to people not afraid of going up against the likes of Excel/BW Legal etc. We've had PCNs before, that my wife has 'made' me pay, as they were in her name - but this is a little different, as they're after me
    Last edited by Matthew87; 14-04-2017 at 10:44 AM. Reason: Updated
Page 3
    • Lamilad
    • By Lamilad 14th Apr 17, 7:21 PM
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    Lamilad
    That'll be in my skeleton, along with Excel v Booth (24/01/17 Bury C6DP9P15) and Excel v Stokes (22/03/17 Bury C8DP3H9Y) where signage was found to be poor... IN THE SAME CAR PARK! Haha (which I'll post after I've seen BW's WS & Exhibits) - because I didn't have a transcript, I didn't think it'd go in as evidence - and I didn't think that'd go in my WS?
    That's fine if you're not adducing the transcripts.

    You also need spaces between your paragraphs to separate your points and make everything more readable
    • Matthew87
    • By Matthew87 18th Apr 17, 7:20 PM
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    Matthew87
    BW Legal's WS & Exhibits
    Back over to the experts!!

    I dropped my bits off at Manchester this morning and on the way home received theirs via email.

    I've put everything in my OneDrive: https://1drv.ms/f/s!AsLbpETb6Et3j3yADaebkkR-iXRW

    I've gone through it a few times and have made some notes, but I'm not entirely sure how/what to target. I've smirked at spelling mistakes, been annoyed at their "denials" etc and flabbergasted at some of their lies (they claim to have responded to my request for further info!)

    Their photos of the vehicle aren't time-stamped, some photos are time-stamped for June 2015 and there are no photos of the entrance sign. I can't make out the PCN, but can clearly see they've changed the 'Time Issued'.

    They haven't supplied a 'contract', but a witness statement to say that there is a contract (will this witness be in Court to be questioned? I think not).

    I know it's a big ask (to cross reference their WS with my Defence), but any help/suggestions/pointers would be very much appreciated.

    P.S. Manchester was quite scary today - a massive building/airport-style security on entrance/confusion as to where I dropped things off. But glad I went in person - should make my day in Court a little easier.
    • Lamilad
    • By Lamilad 18th Apr 17, 7:52 PM
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    Lamilad
    Dear oh dear! I've seen this template WS from Leigh Shelvis many times and it just keeps getting worse.

    This is so woeful it makes me feel sad.

    Para #1 "i have conduct in this matter"

    Really? So you better turn up on the day coz you've just told the court that any one else will not have rights of audience

    .... Muppet!
    • Lamilad
    • By Lamilad 18th Apr 17, 7:55 PM
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    Lamilad
    I'd like to see them argue #18 and #22 when you show the judge your pictures of the signs!
    • Matthew87
    • By Matthew87 25th Apr 17, 3:18 PM
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    Matthew87
    Rights of Audience
    Ok... Rights of Audience:

    In BW Legal's email to me last week, Leigh Schelvis confirmed "that the Claimant will not be in attendance at the hearing, but will be represented by an instructed advocate."

    In his WS, Leigh (as a solicitor in the employ of BW Legal for the claimant) says he has "conduct of this action".

    On Tuesday next week, how/when do I learn who is representing the Claimant?

    I'm under the impression (please correct me if I'm wrong!), that they will either be an 'Authorised Person', a solicitor/barrister or a CILEx Practitioner, or an 'Exempt Person'.

    How would I check that they're 'Authorised'?

    Do I just check:

    Solicitors: http://solicitors.lawsociety.org.uk
    Barristers: https://www.barstandardsboard.org.uk/regulatory-requirements/the-barristers'-register/
    CILEx: http://www.cilex.org.uk/about_cilex/about-cilex-lawyers/cilex-practitioners-directory

    If they're not, and are claiming to be 'Exempt', would I just have to bring up their RoA? And draw the judges attention to: Sch. 3 of the Legal Services Act 2007/McShane v Lincoln/Ellis v Larson?

    Thanks again, getting nervous now...
    Last edited by Matthew87; 25-04-2017 at 4:45 PM.
    • Lamilad
    • By Lamilad 25th Apr 17, 3:36 PM
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    Lamilad
    Just been discussing RoA on Cordsandcag's thread. Should answer your questions
    • Loadsofchildren123
    • By Loadsofchildren123 26th Apr 17, 2:51 PM
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    Loadsofchildren123
    Dear oh dear! I've seen this template WS from Leigh Shelvis many times and it just keeps getting worse.

    This is so woeful it makes me feel sad.

    Para #1 "i have conduct in this matter"

    Really? So you better turn up on the day coz you've just told the court that any one else will not have rights of audience

    .... Muppet!
    Originally posted by Lamilad


    As any decent solicitor would know, you have conduct OF a matter, not IN it. How do you have conduct in something? Buffoon.


    Off to sit in the corner to calm down and then read the rest of the recent developments!
    • Loadsofchildren123
    • By Loadsofchildren123 26th Apr 17, 2:54 PM
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    Loadsofchildren123
    RoA:
    Even if the solicitor is from a firm, and are therefore regulated, they do NOT have "conduct of the litigation" if they are from a firm which is different to BWL. They also cannot say they are being supervised by someone with conduct, because nobody from BW will be there.


    Not sure if this also applies to legal execs, it may well do.


    it's slightly different for barristers - if they are from a chambers, they are regulated and can appear on their own without client/solicitor. If they are not from a chambers, then they are not regulated and have no RoA.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Apr 17, 3:08 PM
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    Loadsofchildren123
    5.How does he personally know you are responsible?


    6. Cannot POSSIBLY be within his knowledge. CoP is lengthy and includes all sorts of day to day obligations. It is not compliance with the CoP which leads to AOS status. It is the AOS status which obligates compliance. So AOS status does not prove compliance. Put your dunce's hat on and sit in the corner, Leigh.


    8. Driver - not in his personal knowledge and no supporting evidence.


    9. Opinion not fact


    Nothing in here about contractual wording.


    15 - misleading, esp given para 16


    21. Exactly - how often please?


    31. Contract void for uncertainty.


    34. It's their burden of proof


    Landowner contract: the BPA CoP contains suggestions as to what contracts should contain. Does the IPC code? They clearly consider the specific content of the contract to be important. So they must produce it. The fact that they won't indicates they have something to hide. You want to see not only evidence of the authority but its specific terms, and whether the contract authorises them to issue and pursue proceedings and the terms on which they are allowed to issue pcns.


    Ask if the witness is coming to court. Say you want to cross examine him about the contract.
    • Loadsofchildren123
    • By Loadsofchildren123 26th Apr 17, 3:09 PM
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    Loadsofchildren123
    And say that you wish to cross examine Leigh as well because he is stating as fact a large number of things which are in dispute and you want to challenge those statements.
    • Matthew87
    • By Matthew87 26th Apr 17, 3:44 PM
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    Matthew87
    In response to Leigh's WS
    Admittedly pedantic, but here goes:

    WS 1. "I have conduct of this action" RoA issue will be addressed on Tuesday!
    WS 5. "for which the Defendant was responsible" - shouldn't that say "for which I/we believe..."?
    WS 6. "The Claimant follows these [IPC CoP] recommendations" is denied
    WS 7. That's a witness statement that there's a contract, not a contract. Will the witness be present in Court? And is that still the case?
    WS 8. I cannot make anything of their PCN (LS1 pages 2 - 3), apart from the fact they've clearly altered the 'Time Issued'. What's a Liability Notice? If they're suggesting it's the NtK (LS1 page 4), that wasn't issued against me?
    WS 9. "Highly prominent"? Denied, see pages 17 - 26 of my Exhibits Bundle.
    WS 10. Stated, not state - the signage is no longer there, as Excel lost the contract to operate to ParkingEye.
    WS 11. Detailed, not detail. Stated, not state.
    WS 12. "Sufficient and adequate"? "Was and is" - "was" needs debating, "is" is not true.
    WS 13. Is that enough? Should the signs have been brought to my attention?
    WS 14. I can't make any of that out!
    WS 15. I "Failed to contest the PCN", yet in the letter dated 02/03/16, my "appeal" was rejected. Incurred costs? "despite and [sic] independent adjudicated [sic] finding in the Claimant's favour" - this hasn't been independently adjudicated (see "failed to make a further course of appeal to the Independent Appeals Services"?
    WS 16. Weren't able to respond to my communication, as they didn't have a serviceable address, but then they issued a communication in any event?
    WS 17. Stated, not states. Where does it 'clearly' state this?
    WS 18. "sufficient lighting"? "illuminate" - they're not reflective! Denied - see pages 21 - 22 of my Exhibits Bundle. Featured, not feature
    WS 21. "(how often)" - was Leigh meant to put something in there? Complied, not comply - but that's denied (see pages 2 - 4 of my Exhibits Bundle).
    WS 22. Were clearly displayed, not are. Denied, see pages 17 - 26 of my Exhibits Bundle.
    WS 23. I can't make any of that out!
    WS 24. Denied - the signs aren't "so obvious that they must have been read". Nor did I choose not to read them - I didn't see them.
    WS 30. "Motorists could hardly avoid reading the notices" - in the Beavis case? Or in this case? The CoP doesn't give "guidance that a [sic] £100 is a reasonable sum to charge" is says that " It is suggested the maximum parking charge should be: £100."
    WS 31. "Instruct solicitors (incurring expense)" Can this be proved? "which were agreed by the Defendant" no they weren't - they weren't seen!
    WS 32. Chaplair Limited v Kumari:
    Far from supporting this attempt at double recovery by adding imaginary 'solicitors costs', Chaplair can be fully distinguished from this matter, since that was a decision about contractual fees set in lease terms, not fabricated 'costs' bolted on afterwards to an already significantly inflated 'parking charge' which bears no relation to any tariff displayed at the location.
    Chaplair concerned a housing agreement in which the issue of legal costs was specifically written into the contract. Those costs were allowed for the simple reason they had been listed separately and described as contractual recovery costs on the original particulars of claim. The sum the Claimant is demanding seems to have been plucked from thin air and I assert the £54 figure did not appear on the signs. CPR 27.14 certainly disallows your thinly-veiled attempt at double recovery.
    WS 41. PD 7E 5.2 limits PoC to 1080 (including spaces) - Excels PoC contained 793
    WS 42. But it's been signed by "BW Legal Services Limited", contrary to PD 22 para 3.10!
    WS 43. It's denied, but the PoC failed to disclose the head or heads of action in which the proceedings are based. Only now (para 39) does the Defendant state that "The Defendant [sic] has a cause of action against the Defendant for breach of contract". I assume Leigh means that the Claimant has a cause of action against the Defendant for breach of contract.
    WS 44. No they didn't!!
    WS 51. ParkingEye Limited (Respondent) v Beavis (Appellant) [2015] UKSC 67 Paras 97 and 107
    WS 54. I said they were formerly BPA members
    WS 56. "easily read able and illuminated when head lights shine on them." - no they're not! I have SINCE visited (to take photos), have spoken with other defendants and have viewed countless Google street views of different dates.
    WS 58. "(pages)" Was Leigh supposed to put a page reference here? They've supplied no evidence of an entrance sign!
    WS 60. Eh? I was aware of the existence of the PDT machine and signs AFTER getting the PCN.
    WS 61. I'm not bringing an action against the claimant for breaching planning law - I'm pointing out that they didn't have permission/consent.
    WS 62. Leigh thinks Excel v Cutts is wanting in relevance
    WS 63. But this case can be distinguished from the Beavis case
    WS 64. Noted but not denied?

    I've let a few spelling mistakes slide (poor Leigh is a busy man!), but have I missed anything important?
    • ElParque
    • By ElParque 28th Apr 17, 10:47 AM
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    ElParque
    Sounds like a pretty good forensic examination to me...(though who am I you may well enquire)!
    • Matthew87
    • By Matthew87 28th Apr 17, 12:19 PM
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    Matthew87
    Received a paper copy of BW Legal's WS and Exhibits in the post today.

    It has a cover letter which says "Notice is hereby given pursuant to CPR 27.9 that our client will not be in attendance at the hearing, however, they will be represented by an advocate".

    My understanding of CPR 27.9, is that if they've given 7 days notice (27.9(1)(a)) and has, in his written notice, requested the court to decide the claim in his absence (27.9(1)(c)), the court will take into account that party’s statement of case.

    So... the notice was sent 7 days before our court date on Tuesday (even though I only received it today), but the notice doesn't say anything about the court deciding the claim in his absence.

    So........ if the advocate has no RoA on Tuesday, the judge couldn't "take into account that party’s statement of case"??
    • Lamilad
    • By Lamilad 28th Apr 17, 2:50 PM
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    Lamilad
    Received a paper copy of BW Legal's WS and Exhibits in the post today.

    It has a cover letter which says "Notice is hereby given pursuant to CPR 27.9 that our client will not be in attendance at the hearing, however, they will be represented by an advocate".

    My understanding of CPR 27.9, is that if they've given 7 days notice (27.9(1)(a)) and has, in his written notice, requested the court to decide the claim in his absence (27.9(1)(c)), the court will take into account that party’s statement of case.

    So... the notice was sent 7 days before our court date on Tuesday (even though I only received it today), but the notice doesn't say anything about the court deciding the claim in his absence.

    So........ if the advocate has no RoA on Tuesday, the judge couldn't "take into account that party’s statement of case"??
    Originally posted by Matthew87
    You've understood 27.9.1.c quite well and you are right. They have not complied with it. This was a significant point in Cordsandcag's case on Wed. the judge accepted they'd complied with the part about writing with 7 days notice but not with sub-para 1.c. Which then meant he could strike out the claim under 27.9 (2) (a) and (b).

    He can use his discretion to proceed with hearing as he did in this case but if the dfd had argued it more robustly I think he would have struck it out. It's definitely something you should bring to the judge's attention as a 'preliminary matter' Especially as they have not complied with 27.9 (1) (a) because the notice has to be 'served' on you (received by you) AT LEAST 7 days before the hearing.

    Bear in mind that what we are discussing hear is non-attendance not RoA (separate issue).

    So........ if the advocate has no RoA on Tuesday, the judge couldn't "take into account that party’s statement of case"??
    If it is held that the rep has no RoA then he is not allowed to speak during the hearing (as if he wasn't even there) The judge can either hear the claimant's case on papers or strike out the claim - either way you will win.

    If it is held that the claimant has not attended under cpr 27.9 (1) (c) then the judge can either strike it out or proceed (using his case management powers). If this comes up you should definitely push the judge to strike citing that this is a professionally represented serial litigant with their own in house lawyers and unlimited access to legal advice from qualified legal professionals - it is inexcusable for them not to comply with the CPRs. Their failure to do so is an abuse of process and contempt of court.
    • Loadsofchildren123
    • By Loadsofchildren123 29th Apr 17, 12:25 PM
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    Loadsofchildren123
    I think that part of R27 is for when nobody from the C is attending, not even an advocate, and the intention is to invite the court to deal with the matter on their papers alone. It doesn't apply if you send an advocate (provided of course the have RoA)
    • Loadsofchildren123
    • By Loadsofchildren123 29th Apr 17, 12:26 PM
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    Loadsofchildren123
    Poor Leigh doesn't understand the rules. Is he a solicitor or just an employee of BW? (I've not qualified).
    • Loadsofchildren123
    • By Loadsofchildren123 29th Apr 17, 12:27 PM
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    Loadsofchildren123
    Nothing wrong with that of course. It just might explain his buffoonery (but not the buffoonery of the person meant to be supervising him).
    • Loadsofchildren123
    • By Loadsofchildren123 29th Apr 17, 12:28 PM
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    Loadsofchildren123
    Point it out to them and make him doubt himself. Ask in a quizzical way what he means because R27x actually says ....and he appears to misunderstand it entirely.
    • Matthew87
    • By Matthew87 29th Apr 17, 4:57 PM
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    Matthew87
    Leigh's a solicitor:

    http://solicitors.lawsociety.org.uk/person/272679/leigh-schelvis

    Taken from BW's Website:
    "Leigh Schelvis - Commercial Litigation Solicitor

    Leigh is a solicitor of the Courts of England and Wales. He handles complex litigation and insolvency matters, acting for commercial clients, individuals and insolvency practitioners.

    Originating from Australia, Leigh joined BW legal in November 2015 after training with a boutique litigation firm and qualifying at a national firm (both in Leeds) into contentious insolvency. Despite only recently qualifying, Leigh has a grounded technical legal knowledge and always approaches each case with a commercial and entrepreneurial mind with a real focus on delivering excellent client service.

    Recent experience includes acting on numerous asset/vehicle finance matters and representing a high net worth individual in successfully recovering over £300,000 in respect of his client’s defective Lamborghini Aventador.

    When Leigh is not working, he spends his spare time raising money for the Samaritans charity."
    • Johnersh
    • By Johnersh 29th Apr 17, 6:07 PM
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    Johnersh
    Said it once, I'll say it again. A fully qualified solicitor like a fully qualified barrister provides permitted legal services and will always have county court rights of audience.

    The often referred to provisions of the LSA are exemptions for agents that do not have full rights of audience. They require supervision etc. Solicitors geographically close to courts commonly work as 'local agents' for other firms further afield. The two should not be confused...

    If our chum chooses to send an unsupervised and unqualified 'advocate' that is his look out. Feel free to challenge them: I'm sure you will
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