Excel BW Legal 2012 court claim faulty machine.

Coupon-mad wrote: »

Good, I was thinking the address could be redacted but the original available for inspection by the Judge?

And the witness and defendant could then be there in person and easily explain the reason why the postal address is not being given to the parking firm in their copy (because when the Bill went through the House of Commons, despite frantic lobbying by interested parties like the 'piece of skirt botherer' at the BPA, MPs specifically refused to add a requirement to name the driver to the POFA Bill and at a hearing is no different - quote Henry Greenslade on 'understanding keeper liability').

Like i say, probably depends on the judge. Some may not notice, some may not care but if you get the rsole that hates you before ever meeting you ......

I've not yet seen a case where a different driver is revealed in court then being followed up with a new, subsequent charge to that driver.

That was before PE messed with one of mine - i.e., before my time on here!

I'm mulling over this one.

Rules 32/33 don't apply in small claims (these are the rules that say how evidence is dealt with and what witness statements should contain).

The format of the witness statement should be set out in the directions order you will get after the case had been transferred (at which stage you will receive a 2/3 page order containing the trial date and setting out the timetable to trial - service of witness statements etc. In that order it will say that the statements must "state the full name and address of the person making the statement", that they must contain a statement of truth etc.

The driver in this case has a really good defence. I'm leaning towards you eventually (at the witness statement stage) identifying the driver and the driver putting in a statement explaining exactly what happened. You can say that the PPC already knows this as you've already explained it. Let him leave out his address and let the judge say he has to provide it. The PPC may well not proceed if they can see the defence he has.

In the meantime, your defence would be a simple defence - that you weren't driving, that you are the registered keeper but that no liability attaches to you in that capacity because keeper liability has only existed since 1.10.12 when POFA was enacted. When it comes to statements, you put in a statement from yourself and the driver, without his address. The driver should keep it short and sweet and focus on the agreement with the attendant. He should add that the signage was inadequate, but concentrate on the conversation with the attendant.

At the same time as serving these, you invite them to withdraw. Make sure you say in that letter that these are all facts they already knew from your appeal dated x. Tell them if they don't agree then you will be seeking a costs under Rule 27.14(2)(g).


If they don't agree (or if they ignore you), write to the court and ask it to award summary judgment in your favour (under Rule 24). Summary judgment is given where it is clear there is either no proper claim or no proper defence. The "test" is set out in Rule 24.2:
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) the claimant has no real prospect of succeeding on the claim or
issue; or
(ii) the defendant has no real prospect of successfully defending the
claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

You ask the court to make that order by exercising its inherent case management powers to "summarily dispose of issues which do not need full investigation and trial", which it has under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1. If the court is not minded to make an order under Rule 1.4(2)(c) then you ask that it treats your letter as an application, which it has the power to do under CPR Part 23.3(2)(b).

Make sure you send a copy of this letter to the Claimant's solicitors, and say that you have done this. Also refer to having invited them to withdraw and that they didn't bother replying [or refused] and enclose a copy of that correspondence with your letter to the court.

Whether or not the court takes any notice of your letter is another thing (I tried this in the case I was involved with and the court just ignored it entirely).

The thing you have to bear in mind is you must assume that the judge reading your letter doesn't know the rules or the law (don't even get me started on that one) and so when you ask them to do something you must spell out to them their power to do it. Assume the same thing at your final hearing.


The worst case scenario is that the judge makes you disclose the driver's address and the PPC issues proceedings against the driver, which you then have to defend. But I think you have a strong defence.

OK, having mulled over the problem this morning:


either:
do as in post #29 and identify the driver at WS stage, but ask if their address can be withheld (with the likelihood it won't be)
or:
don't identify the driver, and deal with what the driver told you in your own evidence: ie "I know who the driver is but am not obliged to identify him/her...."and then go on to say that "the driver told me when the original charge was received that...." and set out all the detail of what the attendant told him/her to do. Produce the original ticket etc. Refer to having already told the PPC all of this.


Your defence should say you weren't driving and cannot be liable as keeper. Do you have any evidence that you cannot have been driving (eg texts/emails/diary entry or bank/credit card entries showing you were elsewhere at the time)? Include these at the statement stage. In your statement you can refer to what the driver told you about the agreement with the attendant, and they (rather than you) would rely on that as either a collateral contract to any contract created by the signage, or was a separate/new agreement, and that the Claimant should be estopped from pursuing the driver on that basis. [Google "Promissory Estoppel"].


The only point putting in anything about another contract/promissory estoppel would be to discourage the PPC from trying to identify and pursue the driver. The main focus of your case is simply that you weren't driving. To my mind, the more you throw in about signage, contracts etc, the more you muddy the waters.


Nothing wrong with option 2 (ie not involving the driver). My ONLY doubt is if you get a silly judge he may make a finding that you were the driver (which would essentially be a finding that you were lying - part of his reasoning will be that you can only know that level of detail if it was you, and if there really was another "driver" why haven't you said who it was). And we all know from reading these forums that District Judges can be silly and make silly findings.