CEL Defence Pre POFA

salmosalaris

The_Deep wrote: »

But he/she not saying they were not driving , if they categorically stated that they were not driving that is a different matter .

Now I am even more confused, have you left out a word?

My apologies

But he/she IS not saying they were not driving , if they categorically stated that they were not driving that is a different matter .

dazster

salmosalaris wrote: »

What is wrong is that a DJ could easily decide that the defendant was the driver on the balance of probailities if the defendant fails to deny it .
And by failing to address the PoC all other points are admitted

If the claimant produces no evidence as to who was driving then a judge would be quite wrong to come to that conclusion, and if he did so then he would leave it wide open to appeal. It's only the IAS kangaroo court that accepts everything the "claimant" says, in real courts the claimant is expected to prove his case - and if he can't even prove he's got the right defendant then his case must fail without the defendant having to deny anything or prove anything.

So much the better if the defendant can produce evidence that multiple people had access to the vehicle (e.g. a contemporaneous insurance policy showing multiple named drivers) but, really, he shouldn't have to. "You say I was driving, prove it" really ought to suffice.

Your suggestion that the defendant has to deny that he was the driver is a nonsense if you think about it. It was more than three years ago, what if he genuinely can't remember?

dazster

Herzlos wrote: »

"This alleged incident occurred 4 yeas ago, CEL has provided no evidence and I have no recollection who the driver was, though multiple people used the car on a regular basis. The onus here is for CEL to prove that such an incident took place and the identity of the driver, but unfortunately I am not able to assist any further. Any initial correspondence was thrown out because it resembled a scam letter, indeed I have yet to be satisfied that it isn't".

Perzackly.

salmosalaris

dazster wrote: »

If the claimant produces no evidence as to who was driving then a judge would be quite wrong to come to that conclusion, and if he did so then he would leave it wide open to appeal. It's only the IAS kangaroo court that accepts everything the "claimant" says, in real courts the claimant is expected to prove his case - and if he can't even prove he's got the right defendant then his case must fail without the defendant having to deny anything or prove anything.

So much the better if the defendant can produce evidence that multiple people had access to the vehicle (e.g. a contemporaneous insurance policy showing multiple named drivers) but, really, he shouldn't have to. "You say I was driving, prove it" really ought to suffice.
Your suggestion that the defendant has to deny that he was the driver is a nonsense if you think about it. It was more than three years ago, what if he genuinely can't remember?

I am suggesting that relying simply on " I don't think I was driving" is foolhardy as is relying on a DJ to come to the same conclusion as you . Of course he/she may well ,but quite possibly may not so why risk it ? It is quite possible a DJ may interpret ignoring a demand without informing the PPC that they weren't driving tips the balance in favour of the Claimant . Remember it only has to be 51:49

The_Deep

I have long been of the opinion that it is always better not to over-complicate matters.

Occam's Razor innit?

dazster

salmosalaris wrote: »

I am suggesting that relying simply on " I don't think I was driving" is foolhardy as is relying on a DJ to come to the same conclusion as you . Of course he/she may well ,but quite possibly may not so why risk it ? It is quite possible a DJ may interpret ignoring a demand without informing the PPC that they weren't driving tips the balance in favour of the Claimant . Remember it only has to be 51:49

I'm not suggesting "I don't think I was driving", I'm suggesting "prove I was driving". The judge has no right to infer anything from what the defendant may or may not have done. He has to decide the case based on evidence, not the absence thereof. As Herzlos suggested above it was perfectly reasonable for the defendant to treat the letters from the PPC as a scam.

salmosalaris

dazster wrote: »

I'm not suggesting "I don't think I was driving", I'm suggesting "prove I was driving". The judge has no right to infer anything from what the defendant may or may not have done. He has to decide the case based on evidence, not the absence thereof. As Herzlos suggested above it was perfectly reasonable for the defendant to treat the letters from the PPC as a scam.

The OP was more or less relying on "I don't think I was drving" in his defence .
Re " prove I was driving" - the burden of proof is not that onerous so I would not want to solely rely on a DJ or DDJ not coming to the conclusion the defendant was probably driving .
The rest of the PoC must be attacked but , and here, I agree , it must be done carefully so as not to lend support to the Claimant's assertion that the defendant was driving .

Herzlos

"I don't think I was driving" infers you are conceding you might on balance of probabilities be. "I have no idea who was driving" says essentially the same but without any inference. This was at least 3.5 years ago. Who can remember anything about an irrelevant and badly described parking event that long ago?

henrik777

Herzlos wrote: »

"I don't think I was driving" infers you are conceding you might on balance of probabilities be. "I have no idea who was driving" says essentially the same but without any inference. This was at least 3.5 years ago. Who can remember anything about an irrelevant and badly described parking event that long ago?

That's what happens when defences are incorrectly worded.

It is neither admitted nor denied the defendant was driving and the claimant is put to strict proof thereof.

Herzlos

Agreed. Presumably in small claims it's better to talk in plain language than legalese though?