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    • wi3347
    • By wi3347 22nd Aug 17, 8:28 PM
    • 42Posts
    • 28Thanks
    wi3347
    Excell / BW legal small claims loss
    • #1
    • 22nd Aug 17, 8:28 PM
    Excell / BW legal small claims loss 22nd Aug 17 at 8:28 PM
    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
Page 2
    • wi3347
    • By wi3347 28th Aug 17, 12:15 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    Hello everyone,

    sorry I haven't replied to the comments on this tread. Havent been ignoring you, im new to the site and wasnt subscribed to the thread so didnt know there was replies as I didnt get an email notification.

    The county court was Swansea and the judge was Collins. Not sure if he was a DJ or a DJJ but his name was definitely Collins. Someone id like to avoid in future if im ever in court over a parking issue again! He seemed unsure of the decisions he was making and it seemed his decision was made up from before I walked into the room. Im still scratching my head as to how he accepted a letter which had no address on it as "evidence" that excell have a contract with the land owners. The letter just said "at the site" I challenged this and said without an address on this letter it could be in relation to any car park that excell operate throughout the entire country. His response was "well i think its commons sense its in relation to this car park and I will accept this as evidence of the agreement." So apparently its not what you produce as evidence its whatever he decides is common sense.
    • beamerguy
    • By beamerguy 28th Aug 17, 1:07 PM
    • 6,333 Posts
    • 8,144 Thanks
    beamerguy
    Hello everyone,

    sorry I haven't replied to the comments on this tread. Havent been ignoring you, im new to the site and wasnt subscribed to the thread so didnt know there was replies as I didnt get an email notification.

    The county court was Swansea and the judge was Collins. Not sure if he was a DJ or a DJJ but his name was definitely Collins. Someone id like to avoid in future if im ever in court over a parking issue again! He seemed unsure of the decisions he was making and it seemed his decision was made up from before I walked into the room. Im still scratching my head as to how he accepted a letter which had no address on it as "evidence" that excell have a contract with the land owners. The letter just said "at the site" I challenged this and said without an address on this letter it could be in relation to any car park that excell operate throughout the entire country. His response was "well i think its commons sense its in relation to this car park and I will accept this as evidence of the agreement." So apparently its not what you produce as evidence its whatever he decides is common sense.
    Originally posted by wi3347
    I am convinced that some of these low court judges are
    wannabee High Court judges but have not made the grade
    Bit like a traffic warden wanting to be a policeman
    Prone to serious errors of judgements

    A disgrace that a document that could apply to any car park
    without an address is evidence. SHAMEFUL and no common sense
    Last edited by beamerguy; 28-08-2017 at 1:20 PM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • wi3347
    • By wi3347 28th Aug 17, 2:24 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    I am convinced that some of these low court judges are
    wannabee High Court judges but have not made the grade
    Bit like a traffic warden wanting to be a policeman
    Prone to serious errors of judgements

    A disgrace that a document that could apply to any car park
    without an address is evidence. SHAMEFUL and no common sense
    Originally posted by beamerguy
    I am in firm agreement with you!

    I was blown away by some of the stuff he said. Especially his overall attitude and snapping at me "you haven't answered my question" when he moved onto the next part of my defence when I hadnt had a chance to even explain the point he had just read out. If came across as if he didnt really want to listen to what I had to say, his mind was made up and me arguing my case was only delaying him from reaching his summing up. There was no real interest in my arguments. He would just sum them up and move on without doing anything about them.

    He had a go at me over a few things, really blunt and confrontational as if I had claimed to be an expert. I turned up early, I wore a suit and tie for the occasion. I was polite and respectful to everyone. I only spoke when spoken to, I didnt argue or talk over people, I made it clear it was my first time in court and I had tried my best and apologised if anything wasnt submitted perfectly. He was just a nasty bloke plain and simple, that alone would be something if he was a good judge based on the evidence before him but that wasnt the case either!!
    • Coupon-mad
    • By Coupon-mad 28th Aug 17, 2:40 PM
    • 51,473 Posts
    • 65,061 Thanks
    Coupon-mad
    This might be the Swansea Judge who (qualified solicitor poster) LoadsofChildren123 thinks is...ermmm...not the best!

    There was one male Judge there who, LOC123 said, actually mentioned the fact his own daughter rented a flat in Swansea once and that 'these parking firms are needed' because of his personal family experience. Talk about biased.
    Last edited by Coupon-mad; 28-08-2017 at 2:42 PM.
    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.

    • beamerguy
    • By beamerguy 28th Aug 17, 2:40 PM
    • 6,333 Posts
    • 8,144 Thanks
    beamerguy
    I am in firm agreement with you!

    I was blown away by some of the stuff he said. Especially his overall attitude and snapping at me "you haven't answered my question" when he moved onto the next part of my defence when I hadnt had a chance to even explain the point he had just read out. If came across as if he didnt really want to listen to what I had to say, his mind was made up and me arguing my case was only delaying him from reaching his summing up. There was no real interest in my arguments. He would just sum them up and move on without doing anything about them.

    He had a go at me over a few things, really blunt and confrontational as if I had claimed to be an expert. I turned up early, I wore a suit and tie for the occasion. I was polite and respectful to everyone. I only spoke when spoken to, I didnt argue or talk over people, I made it clear it was my first time in court and I had tried my best and apologised if anything wasnt submitted perfectly. He was just a nasty bloke plain and simple, that alone would be something if he was a good judge based on the evidence before him but that wasnt the case either!!
    Originally posted by wi3347
    There are some oddball judges around, more likely his
    wife did not give him any that morning.

    Nasty judges have no place in our society as this judge ridiculed
    the system he is employed by to give a fair hearing.

    You do have a right to complain about this judge and you should,
    there is nothing further this judge can do to you but hopefully
    maybe be spoken to as I doubt his bad attitude is not
    confined to you
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • wi3347
    • By wi3347 28th Aug 17, 6:32 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    This might be the Swansea Judge who (qualified solicitor poster) LoadsofChildren123 thinks is...ermmm...not the best!

    There was one male Judge there who, LOC123 said, actually mentioned the fact his own daughter rented a flat in Swansea once and that 'these parking firms are needed' because of his personal family experience. Talk about biased.
    Originally posted by Coupon-mad
    That is absolutely shocking! Hes there to decide if, based 100% on the evidence in front of him alone, a person is liable to pay the ticker or not. Should not even enter his mind that someone keeps parking in his daughters parking space! Wouldnt surprise me if this is the same man to be honest he seemed against me and especially didnt like it when I challenged the rights of audience of their advocate.
    • wi3347
    • By wi3347 28th Aug 17, 6:36 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    There are some oddball judges around, more likely his
    wife did not give him any that morning.

    Nasty judges have no place in our society as this judge ridiculed
    the system he is employed by to give a fair hearing.

    You do have a right to complain about this judge and you should,
    there is nothing further this judge can do to you but hopefully
    maybe be spoken to as I doubt his bad attitude is not
    confined to you
    Originally posted by beamerguy
    I think I will actually. If i was just having a strop because I lost its one thing, but the way he was acting was not professional at all and his apparent lack of understanding the situation and laws surrounding it was another matter entirely.

    Wouldn't like to complain and then end up in his court again in relation to my other thread! Am i able to post in my defence for that other thread by the way? would be easier for me to post it than PDF and scan it
    • Loadsofchildren123
    • By Loadsofchildren123 30th Aug 17, 10:34 AM
    • 1,588 Posts
    • 2,696 Thanks
    Loadsofchildren123
    This might be the Swansea Judge who (qualified solicitor poster) LoadsofChildren123 thinks is...ermmm...not the best!

    There was one male Judge there who, LOC123 said, actually mentioned the fact his own daughter rented a flat in Swansea once and that 'these parking firms are needed' because of his personal family experience. Talk about biased.
    Originally posted by Coupon-mad


    No, that was DJ Evans, whose daughter lived at Copper Quarter and there was a report on Pepipoo of a hearing where he said that Millennium were entitled to act as they did on the site because of the parking problems, and then went on to say how his daughter had been a victim of them...... this was in response to the point raised by the Defendant that the PPC couldn't interfere with the pre-existing leasehold rights to the parking spaces.


    To the OP, if you want to complain then I really think you need to get a transcript to show how unfair he was to you. Whilst you could produce a note, I doubt you made a full one (it's difficult when you're being asked things by the judge and trying to follow everything everyone is saying to do that), and even if you did a transcript would be so much more powerful. The same point goes in relation to any appeal you decide to bring. Your note will carry little weight: the transcript is a proper word for word record.


    You need to order it if you want to appeal. Posib are the only transcribers in Wales so if you want to support local, use them. They will tell you what to do (fill in EX50 I think is the right form, send it to the court and let Posib know, they'll then receive the tape and get it typed up - they should be able to advise you of the cost when you tell them approximately how long the hearing lasted).


    If you appeal, you must do it properly: list all the factual errors he made and where he wrongly exercised his discretion. It's not simple: eg he finds you were the driver, but relies on you never having denied it when you did - separate the two, he is entitled to find you were driving, but what evidence did he base this on? If the sole basis was that you failed to deny, well you did, so he has made a factual error which led him to make an incorrect finding of fact. Also any errors of law - did he wrongly interpret any case law that was relied on?


    There is no point in a half baked appeal, that will be throwing good money after bad.
    • bargepole
    • By bargepole 30th Aug 17, 10:44 AM
    • 2,140 Posts
    • 6,185 Thanks
    bargepole
    You need to order it if you want to appeal. Posib are the only transcribers in Wales so if you want to support local, use them. They will tell you what to do (fill in EX50 I think is the right form, send it to the court and let Posib know, they'll then receive the tape and get it typed up - they should be able to advise you of the cost when you tell them approximately how long the hearing lasted).
    Originally posted by Loadsofchildren123
    Ahem. Form EX50 is the one that details Court Fees. EX 107 is the form for applying for transcripts.

    Also, the Courts stopped using 'tapes' around the time of the Crimean War. Everything is recorded onto CD these days.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 29. Lost 9.
    • Loadsofchildren123
    • By Loadsofchildren123 30th Aug 17, 11:51 AM
    • 1,588 Posts
    • 2,696 Thanks
    Loadsofchildren123
    tapes, cds..... they're all the same to me bargepole!!!!! Thank you for correcting me about the form, teach me not to check!
    • wi3347
    • By wi3347 30th Aug 17, 7:42 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    No, that was DJ Evans, whose daughter lived at Copper Quarter and there was a report on Pepipoo of a hearing where he said that Millennium were entitled to act as they did on the site because of the parking problems, and then went on to say how his daughter had been a victim of them...... this was in response to the point raised by the Defendant that the PPC couldn't interfere with the pre-existing leasehold rights to the parking spaces.


    To the OP, if you want to complain then I really think you need to get a transcript to show how unfair he was to you. Whilst you could produce a note, I doubt you made a full one (it's difficult when you're being asked things by the judge and trying to follow everything everyone is saying to do that), and even if you did a transcript would be so much more powerful. The same point goes in relation to any appeal you decide to bring. Your note will carry little weight: the transcript is a proper word for word record.


    You need to order it if you want to appeal. Posib are the only transcribers in Wales so if you want to support local, use them. They will tell you what to do (fill in EX50 I think is the right form, send it to the court and let Posib know, they'll then receive the tape and get it typed up - they should be able to advise you of the cost when you tell them approximately how long the hearing lasted).


    If you appeal, you must do it properly: list all the factual errors he made and where he wrongly exercised his discretion. It's not simple: eg he finds you were the driver, but relies on you never having denied it when you did - separate the two, he is entitled to find you were driving, but what evidence did he base this on? If the sole basis was that you failed to deny, well you did, so he has made a factual error which led him to make an incorrect finding of fact. Also any errors of law - did he wrongly interpret any case law that was relied on?


    There is no point in a half baked appeal, that will be throwing good money after bad.
    Originally posted by Loadsofchildren123
    DJ Evans you bad egg! seems Swansea has got more than one judge that is sympathetic with the parking firms then. Am i able to have my hearing for my other thread in Carmarthen or Llanelli? dont fancy Mr Evans or god forbid the same judge as the first time!

    I think for the appeal, this time i am going to take it on the chin. I havent exagerated anything or bent the truth, ive said it as it went on the day and i honestly believe the judge got it vert wrong. I mean bottom line, he completely missed the whole line of my defence where i said the defendant denies being the driver, and then made his finding of fact that i was the driver based on the fact i hadnt denied being the driver.....even though i had???? so i think good grounds for an appeal. I just dont want to risk putting more money into it when ive got £290 to pay to these scum bags already. If it was a lower cost then yes, but its looking like for the price of the transcript and to launch an appeal we are looking sort of minimum of £150 which i dont want to chance.

    The advice here is really informative and seems to be a lot more on the money than the advice i was getting from CAG so my plan is to take this one as a lesson in life and go into my other thread better equipped from your fine selves.

    Much obliged everyone!
    • Lamilad
    • By Lamilad 1st Sep 17, 9:17 PM
    • 1,165 Posts
    • 2,319 Thanks
    Lamilad
    The advice here is really informative and seems to be a lot more on the money than the advice i was getting from CAG!
    I'm 99% sure you would have won if this forum have assisted you. Even at Swansea
    • yotmon
    • By yotmon 2nd Sep 17, 12:18 AM
    • 462 Posts
    • 651 Thanks
    yotmon
    Just wondering, is it possible (for a fee) to obtain the court recording and transcribe it yourself to save on costs ?
    • Coupon-mad
    • By Coupon-mad 2nd Sep 17, 12:28 AM
    • 51,473 Posts
    • 65,061 Thanks
    Coupon-mad
    No, it has to be a court-approved transcription service.
    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.

    • wi3347
    • By wi3347 2nd Sep 17, 12:23 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    Yes I believe I would of won if it I came here instead as well tbh! I think once I submitted that 2 line defence I was doomed from then on
    • yotmon
    • By yotmon 2nd Sep 17, 12:38 PM
    • 462 Posts
    • 651 Thanks
    yotmon
    Yes I believe I would of won if it I came here instead as well tbh! I think once I submitted that 2 line defence I was doomed from then on
    Originally posted by wi3347
    Too true. I was surprised reading your post that you didn't mention that you were serving abroad at the time of the infringement. This, including your service records to back it up would have taken you out of the equation of being the driver. Being pre-pofa, the claimant would have had no case to bring forward.

    Better luck with your next case.
    • wi3347
    • By wi3347 5th Sep 17, 1:53 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    Too true. I was surprised reading your post that you didn't mention that you were serving abroad at the time of the infringement. This, including your service records to back it up would have taken you out of the equation of being the driver. Being pre-pofa, the claimant would have had no case to bring forward.

    Better luck with your next case.
    Originally posted by yotmon
    exactly! but i was going with the advice of the 2 line defence and was told it would be for them to prove as pre pofa. Was never advised to suggest that i was elsewhere, and as i didnt know any better i went with that advice. The judge said his silly comment about "taking a photo pf everyone entering a carpark in england and wales in relation to this. He said "the defendant has not offered any evidence he is not the drive and has attempted to shift the ownus onto the claimant to prove he was driving but in order for this to happen it would mean that everyone entering a car park in england and wales would need to have their photograph taken which is ridiculous"

    he completely missed the point and didnt seem to think that they should have to prove their claim! that it was all on me to disprove it, was no real pressure on them to prove anything
    • Coupon-mad
    • By Coupon-mad 5th Sep 17, 6:29 PM
    • 51,473 Posts
    • 65,061 Thanks
    Coupon-mad
    He erred in law. He is wrong. The burden IS theirs.

    I would get the transcript and appeal that one, but it would cost.
    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.

    • wi3347
    • By wi3347 6th Sep 17, 4:45 PM
    • 42 Posts
    • 28 Thanks
    wi3347
    He erred in law. He is wrong. The burden IS theirs.

    I would get the transcript and appeal that one, but it would cost.
    Originally posted by Coupon-mad
    Its past the 14 day period to appeal now. I did have a serious think about it as he did make an error there as at least 2 more. Failing to see i denied being the driver in my witnesses statement and allowing their advocate to speak with no right of audience. But as it was so much to get the appeal and transcript running I just didnt want to risk it although i think it had a good chance of success.
    • The Deep
    • By The Deep 6th Sep 17, 8:00 PM
    • 7,377 Posts
    • 6,421 Thanks
    The Deep
    Whether you appeal or not, send a very robust complaint to the MOJ, copied to your MP.

    The judge may have had a bad day, or may be not up to the job. If others have raised this issue in the past, (or in the future), he may be given guidance and/or sanctioned. Judges at this level are often retired solicitors, I suspect that few would be able to pass the Foreign Office exams.
    You never know how far you can go until you go too far.
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