Excell / BW legal small claims loss

wi3347 · 22 August 2017 at 8:28PM

hello everyone,
I recently lost a small claims case and would like to appeal as I believe the judge got it very wrong on the day. The PCN was issued to a vehicle I was the keeper of in 2012. I knew nothing about it untill 2016 when i had a letter before claim and then a claim form from BW legal. I sent off a short defence online stating there is not breach of contact case for me to offer as i was never offered a contract in the first place. Fast forward to the day of the trail. It was pre pofa so its for them to offer evidence of who was driving as I stated in my witness statement i was not the driver.

The representative from the claimant was a solicitors aid from elms legal instructed by BW legal. She was not a solicitor.

She came over to me and said "lets have a little chat over here" I asked her if she was a registered solicitor and she replied she was a solicitors aid instructed by BW, I said thanks and I didn't wish to speak to her. I didn't accept anything from her.

We went into the court, the judge introduced himself and asked if i had any questions.
I raised the question of rights of audience. He asked on what grounds. I said it was my understanding that anyone representing the claimant should either work for excel or BW or be a registered solicitor. I also provided the judgement of a stated case (Ellis v Larson C00AL007) where the judge ruled that being instructed by is not the same as under the supervision or a solicitor and guidance from the CILEx website. I explained all this. The judge read the judgement of that case and concluded that he is not bound by the decision of another judge of his rank and does not have to accept this as his own opinion. This is clearly not correct and the advocate they sent did not have rights of audience.

He quoted a CPR section and said its the discretion of the court to allow a lay representative to speak. The mood changed and both of them were completely against me and seemed insulted i had raised this.

He then said my defence was 2 lines and the witness statement i sent in with my bundle he would allow as my defence. He seemed unimpressed with my initial online 2 line defence.

I made a disclosure request under CPR 31.14 for some kind of proof i owe them money or they even have authority to enforce parking at the site. The judge said that under CRP 27.2 there is no obligation for the claimants to reply to a request for disclosure under CPR 31.14 and this part of my defence was thrown out. He read my statement and ruled that a letter BW had provided as proof they have permission to enforce parking at the location was sufficient evidence even though it does not have an address on it or state WHERE they have authority to enforce parking??

I stated it was pre pofa and i put excel to strict proof i was driving.
The judge stated its not reasonable to put excel to proof of that as
"everyone entering a carpark in england and wales would need their photograph taken"

he also had a go at me for mentioning POFA if it was not relevant and didn't like the fact id put a copy of POFA schedule 4 in my bundle.

As for all the stated cases i included in my bundle where POFA does not apply and there is no proof of who was driving he said he was not willing to look at them or take them into consideration as the findings of the judges in those cases were not binding on him.

He said in summing up his judgement was based on the balance of probabilities that i WAS driving the vehicle as I had not denied it in my initial 2 line defence so CRP 16.5.5 applied and as i failed to deal with the allegation i am taken to admit it.

Although my initial defence fulfills CPR parts 16.5.3 and 16.5.4 he dismissed this part of my defence all based on the fact that I had not expressly denied being the driver in my first defence although i did not admit it (because i actually wasnt driving i was away in the army at the time)

It does state in point 2 of my witness statement
"it is put to excel to show strict proof of who was driving as THE DEFENDANT DENIES BEING THE DRIVER" The judge seemed to have COMPLETELY missed this as he kept pointing out i had failed to deny being the driver until the day of the trial.

He was having such a huge go at me that I missed out that being in my statement as i could see where it was going!

After judgement I said i would appeal in writing.
I said thank you good day and he didn't even reply he just looked away. Im not sure why he was so harsh on someone on their first time in court. He didn't seem to like the fact i challenged rights of audience.

I want to appeal based on the fact their advocate had not right to present the case at all and the judge missed a crucual part of my statement where i clearly denied being the driver.

Any help anyone can give around an appeal is much appreciated!

thanks
regards

Redx · 22 August 2017 at 8:44PM

which court was this at ?

and were you given leave to appeal it ?

do you realise this could cost you a lot of money ? (if leave to appeal was granted)

sounds like your defence was atrocious if you only put in a 2 line appeal

[Deleted User] · 22 August 2017 at 9:02PM

Thank you for the update it is important to have a clear picture of all cases, win or lose.

Sorry it didn't work out. I agree the defence was probably a bit thin.

It's easy to panic when it's not going your way. You are correct in that if the DJ accepted the statement as a pleaded defence he also needed to accept the denial of you as driver. It's a little inconsistent.

The cheapest course (time and money) is to pay and avoid the CCJ being recorded on your credit file.

Only you can conclude whether an appeal is the correct course, but since the court has made a finding of fact that you were the driver, it would likely be difficult.

The court has general powers of discretion under CPR part 3. That can remedy the rights of audience point. It is also technical to get right, it should always be ancillary to a main/better case.

Lamilad · 22 August 2017 at 10:32PM

I recently lost a small claims case!

Is this the case that was heard at Bradford about 2 weeks ago?

I heard about a case that was lost against BW Legal - assisted by a Facebook forum - but have been unable to find out more.

He read my statement and ruled that a letter BW had provided as proof they have permission to enforce parking at the location was sufficient evidence even though it does not have an address on it or state WHERE they have authority to enforce parking??

They use this a lot, I've never know a judge accept it as proof - until now.

The judge is actually correct in a lot of the things he said and it looks like you were not well advised in terms of how you prepared for, or presented, this case.

That said, this comment is shocking; from a judge who, it seems, does not know how burden of proof works.....

The judge stated its not reasonable to put excel to proof of that as!
"everyone entering a carpark in england and wales would need their photograph taken"!

It's not only 'reasonable' that they should have to prove you are the person who, they say, 'breached the contract' but it's a fundamental requirement of the claimant in a money claim case.

Perhaps, this could form part of the basis for your appeal - maybe see what Johnersh says.

Coupon-mad · 22 August 2017 at 10:44PM

It was pre pofa so its for them to offer evidence of who was driving as I stated in my witness statement i was not the driver.

Absolutely.

I would appeal this one, if it was me.

Lamilad · 22 August 2017 at 11:04PM

Any help anyone can give around an appeal is much appreciated!

We can help you build a strong appeal case but there's a few things to consider.

* Do you actually want to appeal, bearing in mind Johnersh's (who is a lawyer) comments.

* Did you request, and were you granted leave to appeal by the judge? I suspect not which means you would have to make an application and pay the fee (assuming you're not out of time). Even then your request may not be granted.

* You cannot represent yourself at an appeal or use a lay rep. You would have to pay for a lawyer. Even if you won, it's unlikely you'd be able to claim this cost back

* You would have to pay for the transcript of the hearing you lost, which could be over £100. Though you can claim this cost back.

**EDIT** I have left this comment in for context but please see replies below by Ruurb and Johnersh, which correct and claify the information given here.

[Deleted User] · 22 August 2017 at 11:11PM

Any appeal needs to be on a legal basis. Start by posting particulars, defence and statements.

You don't have a lot of time. It's days not months in which you need to lodge the application to appeal. You will need to do a much better job on the papers.

Read CPR 52. The requirement/test is as set out below:

attached to the appellant's notice and must set out, in simple language, clearly and concisely, why the order of the lower court was wrong or unjust because of a serious procedural or other irregularity (Rule 52.21(3)).

A mistake of law is probably needed. In theory you are stuck with the finding that you are the driver, since the court is entitled to make that finding on the evidence before him. Thus you'd need to show that there is no presumption of driver and that the court failed to put C to proof when required to have a hope of showing it was unsafe to make that finding.

You need the transcript asap. I don't think you should assume this will be easy, though.

Ruurb · 22 August 2017 at 11:31PM

* You cannot represent yourself at an appeal or use a lay rep. You would have to pay for a lawyer. Even if you won, it's unlikely you'd be able to claim this cost back

Sorry to but in here, but that's not true. Claimant's will always have a right of audience even if litigant in person, since they have an exemption if I recall under the Legal Services Act. It may be outlined elsewhere too.

* You would have to pay for the transcript of the hearing you lost, which could be over £100. Though you can claim this cost back.

Strictly speaking that's not true either if the claim fell within the small claims track. It would be ideal to get a transcript but a well written note would also suffice. This is explained in PD52B, section 6.

do you realise this could cost you a lot of money ? (if leave to appeal was granted)

Also this is not correct either, appeals which stem from the small claims track also fall under the limited costs rules. This has been around circa 2006 under CPR 27 (I think), and the Court of Appeal has also confirmed this in a relatively recent case.

I would agree though, a transcript would be most helpful if your relying on something the judge had said or found as a fact, though not fatal. Arguments on error of fact can be successfully appealed, but it depends on how the judge assessed the evidence to come to that finding. Of course if Excel didn't offer up any evidence which gave the belief you were driving, I can't see how the judge can make such a finding of fact since the burden couldn't have been satisfied (especially if there are multiple drivers insured on the policy)

[Deleted User] · 23 August 2017 at 12:07AM

Ruub is correct on all points.

Principles of natural justice and art 6 (right to fair trial) require that a party be heard. A lawyer is therefore not a requirement. The Legal Services Act does indeed address rights of audience otherwise.

The CA case referred to is this one - thus nailing a conflict between CPR provisions. Small claims rules apply.

http://www.law-lords.com/blog-details/akhtar-v-boland

small-claims-track-costs-rules-apply-on-appeal-to-court-of-appeal

So...

I Adverse costs isn't the issue.
II Skills and time to put together a quality appeal of your own may be.
III I reiterate that it is most unlikely that you will be able to establish the outline case proposed here (at all) without a transcript.

Coupon-mad · 23 August 2017 at 12:23AM

Daz Clayton on pepipoo successfully appealed recently in Excel v Smith, might be worth sending him a pm to see how he felt the case went and whether it was worth it.

Ruurb · 23 August 2017 at 12:35AM

The CA case referred to is this one - thus mailing a conflict between CPR provisions. Small claims rules apply.

Conlon v Royal Sun Alliance 2015 is also another example I was thinking of.

Generally though, if no transcript is provided then you have to co-operate with the other side to come up with a written note of the judgment and I presume given their usual difficulties, that could cause you some problems. If you can't afford the transcript then you might be able to request it at the public expense but must admit I've never really made an application for that so I guess with the exception of financial hardship, I'm not sure how a court would assess an application.

But as already stated, the best chance of an appeal is to get the transcript, or simply pay up and chalk it down to experience and learn your lesson for another time.

Excell / BW legal small claims loss

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