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  • FIRST POST
    • cordsandcag
    • By cordsandcag 15th Feb 17, 10:26 PM
    • 34Posts
    • 32Thanks
    cordsandcag
    Excel Court Date Set - Defence Statement Help
    • #1
    • 15th Feb 17, 10:26 PM
    Excel Court Date Set - Defence Statement Help 15th Feb 17 at 10:26 PM
    I've got my court date with Excel at the end of April and was hoping for some advice / help as to what to do next. I realise I've got to get my defence statement and evidence sent off at least 14 days prior to the hearing.

    Do I need to beef up / add more example to my initial defence statement?
    Is it always good to have photos of the signage etc?

    And, have Excel generally being turning up to their cases?

    I've included the initial thread (changed to hxxp to post) I started which some of the members kindly offered me advice. Any help again would be greatly appreciated.

    hxxp://forums.moneysavingexpert.com/showthread.php?t=5518459
Page 2
    • Coupon-mad
    • By Coupon-mad 12th Apr 17, 12:02 AM
    • 50,186 Posts
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    Coupon-mad
    I had an original skeleton which mentions POFA - from that do I then point to the POFA, Henry Greenslade etc?
    Yes, strictly speaking that sort of thing goes into your skeleton argument bullet points.

    The WS should be the facts as you can confirm them (what the driver did, whether signs were visible, any other facts from the day also facts about letters exchanged since, appeals made, etc). Not the legal arguments about keeper liability.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • cordsandcag
    • By cordsandcag 12th Apr 17, 12:39 AM
    • 34 Posts
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    cordsandcag
    Sorry, I've got a bit confused here. The skeleton argument was what I though I had already submitted back when the CCJ came in, but that appears to be similar to my WS. I want to get this right - the main points I'll be arguing are about POFA & no proof of driver. I've got all the evidence lined up - is the skeleton more just referring to specific bits of law e.g POFA para 9.
    • Xanthanan
    • By Xanthanan 12th Apr 17, 1:18 AM
    • 67 Posts
    • 63 Thanks
    Xanthanan
    Im at roughly the same stage (maybe a few days behind you) and originally had a longhand version of war and peace in both the Witness Statement (WS) and Skeleton Argument (SA).. I've thinned them out considerably (Honest!) but there still seems to be quite a lot of repetition and cross pollination between the two documents... Getting there slowly I guess.

    This is how I see it (and our trusty forum vets will soon correct me if my understanding is misplaced):

    The original 'defence' you submitted on MCOL not long after the claim landed now forms the basis for your case in court. It should feed elements of that initial 'defence' into your WS - being 'the facts you want to present', and also into your SA - being 'the words you will say in court to make your case' and in that you will be referring when necessary to your evidence exhibits and / or your Witness Statement where needed to make a particular defence point.

    Did I get that right? Happy to edit if its wrong!
    • henrik777
    • By henrik777 12th Apr 17, 1:18 AM
    • 2,151 Posts
    • 27,351 Thanks
    henrik777
    That was the defence.

    Then you have a witness statement from yourself (and any other witness such as a passenger or the driver) stating there were no signs, i paid, i entered the reg number, i have a lease, whatever and any evidence (photos, lease, land registry search etc)


    Then you piece it all together. (skeleton/oral argument) For example, I have a lease (doc a) the lease means they are bandits as you can see from Punch v Judy in the court outside the pub where judge plod said "the lease is king, anyone else is just a chancer" and for that reason you should tell the claimant to !!!! off and pay me my costs.


    PS i did not base this on your case which may or may not be a lease scenario but i haven't read all the thread.
    • Xanthanan
    • By Xanthanan 12th Apr 17, 1:22 AM
    • 67 Posts
    • 63 Thanks
    Xanthanan
    Lol I prefer Henrik's version
    • cordsandcag
    • By cordsandcag 18th Apr 17, 12:59 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    Witness statement received from Excel
    I've received the witness statement and evidence from BWL, they've stated Excel will be represented by an advocate.

    Do I need to rebut now (sending something to the court and them) or do I rebut their arguments on the day?

    Lamilad - if you see this, I'd be interested to see if they raised the same arguments with you when you won and how you addressed them.

    As always, thanks in advance for any assistance on this.
    • Lamilad
    • By Lamilad 18th Apr 17, 1:05 PM
    • 889 Posts
    • 1,867 Thanks
    Lamilad
    You challenge the advocate's RoA on the day.

    Can you upload their WS/ evidence to Dropbox/ one drive and post the links?
    • cordsandcag
    • By cordsandcag 18th Apr 17, 1:14 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    Lamilad - I've sent you a PM with the dropbox link
    • ElParque
    • By ElParque 18th Apr 17, 2:33 PM
    • 60 Posts
    • 54 Thanks
    ElParque
    I'm at a similar stage in my case, (posted today). Re the Skeleton, are you saying that the choices are;

    1. Send it to court/the claimant either with the WS or at some point between sending in the WS and the date of the hearing

    2. Save it for court and at that point present it to the judge for him/her to read.

    3. Save it for court and use it as the basis for what you say in court or just read it out in court?
    • cordsandcag
    • By cordsandcag 18th Apr 17, 5:04 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    Yeah just whether it's better to address points between now and the hearing, so the judge has time to see the arguments and doesn't have to go through them all on the day.
    • Lamilad
    • By Lamilad 18th Apr 17, 5:08 PM
    • 889 Posts
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    Lamilad
    I'm at a similar stage in my case, (posted today). Re the Skeleton, are you saying that the choices are;

    1. Send it to court/the claimant either with the WS or at some point between sending in the WS and the date of the hearing

    2. Save it for court and at that point present it to the judge for him/her to read.

    3. Save it for court and use it as the basis for what you say in court or just read it out in court?
    Originally posted by ElParque
    If you are writing a skeleton and wish to use this to make your arguments in court (rather than making them orally) then you should file it with the court 3-4 days before the hearing.

    Alternatively you can take your skeleton with you on the day and use it as notes to make your arguments orally.

    Don't do as some have and try to adduce your skeleton on the day, as this will likely annoy the judge and may lead to an adjournment with you liable for the claimants wasted costs.
    • cordsandcag
    • By cordsandcag 19th Apr 17, 10:58 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    BWL Witness statement
    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
    • By cordsandcag 23rd Apr 17, 11:09 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    Skeleton argument - hearing this Wednesday (26th)
    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
    • By Lamilad 23rd Apr 17, 11:30 PM
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    Lamilad
    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
    • By cordsandcag 25th Apr 17, 12:04 AM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    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
    • By Coupon-mad 25th Apr 17, 12:32 AM
    • 50,186 Posts
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    Coupon-mad
    Yes, that would be the clear response if they try to say ' I am supervised by...(someone a hundred miles away)'.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
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    Advice to ignore is WRONG, unless in Scotland/NI.

    • Lamilad
    • By Lamilad 25th Apr 17, 1:39 AM
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    Lamilad
    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
    • By cordsandcag 25th Apr 17, 2:00 PM
    • 34 Posts
    • 32 Thanks
    cordsandcag
    Thanks both of you - great advice as always
    • Loadsofchildren123
    • By Loadsofchildren123 25th Apr 17, 2:31 PM
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    Loadsofchildren123
    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
    • By Loadsofchildren123 25th Apr 17, 2:34 PM
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    Loadsofchildren123
    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).
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