Excel Parking, BW Legal and now what looks like court papers

[Deleted User] · 2 May 2017 at 10:59PM

I'd advise a second witness statement. It's unfortunate, but that's preferable to being seen as shady by changing your evidence in the course of the hearing. See below for an example grovel, based upon a brief scan of your circumstances. Amend as appropriate.

I XXX of XXX will say as follows:

1. I am the Defendant in this matter, I make this second witness statement in addition to my statement dated zzzz and filed at Court on zzzzzz.

2. As the Court will be aware from the Statements of Case, the Claimant's claim relates to events that took place some 2 years ago. At the time that I prepared my first witness statement, I set out clearly the circumstances of both the hire of a vehicle for company use and the alleged parking infringement.

3. I have read the witness statement of Miss Chloe Smith dated ZZZZ, which contends that Messrs A,B & C were never named on the vehicle hire agreement. Whilst that was my recollection, if Miss Smith is correct, having made her statement with reference to the original hire agreement, I would have to accept that my first statement was inaccurate in that regard.

4. In accordance with my ongoing duties to the Court, I draw the above mentioned error in my first statement to the Court and to the Claimant's attention. Having further reviewed my first witness statement, I confirm that all other matters addressed are accurate to the best of my knowledge and belief.

I believe the facts set out in this witness statement are true.

Xanthanan · 2 May 2017 at 11:15PM

OK makes sense, will draft something up and post here... This is the entire change I will need to make to the original WS paragraph (removal stuck out and addition in italics).

4. After hasty phone calls arranging help I left three people [strike]in[/strike] approaching the hire company premises [strike]waiting[/strike] to arrange for additional driver(s) for the vehicle as I returned home in my own car. I believe that was completed successfully but did not enquire later when I re-joined the group, I did not inspect any of the contract documents I saw in the vehicle and cannot identify who spoke to the hire company or how it was finally arranged. I have no copy of that or any other contract notes as they were discarded at some point after the hire was completed. There were a number of people who may have been driving but I am unable to identify who it was, I believe I am under no obligation to name the people who may have been the driver.

[Deleted User] · 2 May 2017 at 11:47PM

Reading that, you may want to edit my suggestion more fully so as to say something more like:

it's possible I left them outside rather than in the shop. I assumed that arrangements would then be made for them to be additional drivers.

Xanthanan · 3 May 2017 at 12:10AM

Johnersh wrote: »

Reading that, you may want to edit my suggestion more fully so as to say something more like:

it's possible I left them outside rather than in the shop. I assumed that arrangements would then be made for them to be additional drivers.

Yep re-wording it to suit

Xanthanan · 3 May 2017 at 12:23AM

I, xxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxx will say as follows
I am the Defendant in this matter, I make this second witness statement in addition to my statement dated zzz April 2017 and filed at Court on zzz April 2017
As the Court will be aware from the Statements of Case, the Claimant's claim relates to events that took place some 2 ½ years ago. At the time that I prepared my first witness statement, I set out, to the best of my recollection the circumstances of both the hire of a vehicle and the circumstances that lead to it being driven by people other than I, the original hirer.
I have read the witness statement of Miss Chloe Smith dated zzth April 2017, which contends that additional drivers were not added to the original vehicle hire agreement. That is a statement that I cannot and have never disputed, I believe that the additional drivers were arranging cover under a separate agreement. This made me re-examine my witness statement while attempting to re-live those specific events of that morning and I find that a certain sentence in my original Witness statement could be misleading and not how I remember the day. It is what I ‘thought would happen’ rather than what I ‘remember happening’. I believe this was an editing mistake as earlier versions of my document have that particular sentence worded correctly.
Therefore in Paragraph 4 of my original Witness Statement I would respectfully ask that the sentence “After hasty phone calls arranging help I left three people in the hire company premises waiting to arrange for additional driver(s) for the vehicle as I returned home in my own car.” be corrected to “After hasty phone calls arranging help I left three people approaching the hire company premises to arrange for additional driver(s) for the vehicle as I returned home in my own car.” which more accurately reflects my recollection of the day.
In accordance with my ongoing duties to the Court, I draw the above mentioned error in my first statement to the Court and to the Claimant's attention. Having further reviewed my first witness statement, I confirm that all other matters addressed are accurate to the best of my knowledge and belief.
I believe the facts set out in this witness statement are true.

[Deleted User] · 3 May 2017 at 6:41AM

You may wish to tweak Para 4 which could be misinterpreted to read that you wholly agree with miss smiths statement, which may not be the case

Xanthanan · 10 May 2017 at 10:25PM

So I had my day in court today.

It started late (After 2:30) and the Rights of Audience challenge in my preliminary matters took too long and ended in what I can only call stalemate where I possibly could have struck if I had realised. Maybe I did wrong, or didn't have the right argument, or missed my opportunity but hey, my case has been Adjourned until the next available slot after 28 days.

Similar to other cases in here I prepared and delivered a 'preliminary matters' document challenging the RoA to the usher when I arrived at court. Along with that I also clutched the two suggested Law Gazette articles as well as the two cases mentioned in those articles, namely McShane v Lincoln, and Ellis v Larson. I expected that bit to go pretty quickly, either it works or it doesn't, but that wasn't the case here.

In due course we were shown into the hearing and before I had chance to get my pen out the judge had started on the rights of audience issue. He asked for the two cases which I duly handed over and went through them carefully. He then addressed the lady advocate (didn't catch her name) and she was in fact from Elms Legal, acting as hired gun for the day. There was some talk about the exemption offered in Schedule 3 Para 1 of the LSA 2007 and following a dissection of that she then asked for a short break to investigate further as she had 'been ambushed'

20 or so mins later (the judge came hunting for us) we were back in and at that point she was insisting she was authorised by 'section 18' or similar, however she was not able to provide any proof or even a document showing this 'section 18' or whatever it was. Unfortunately I was in no place to argue against any of that but did point out they were professional organisations and should have all of these simple requirements squared away way before court. I also pointed out that the BW legal rep who compiled the witness statement 'had conduct of the action' and also (maybe foolishly) that I was keen to get the whole experience concluded on the day.

The judge was clearly unimpressed with the lack of proof of the authorisation via 'section 18' and suggested she contact her client again and discuss the claim being dropped with no costs to either party. I agreed with that and we went for yet another short break, this time hoping she would be back quickly with good news.

However time dragged on and she then called from the door of a side room, asked me to step in and gave me an offer (presumably from the claimant) of a 'reduced payment in settlement' without specifying a sum. I refused that offer so she left and went back to call her client. After a few more minutes (with the Judge again looking to get it moving) we went back in and she stated that the claimant was not willing to withdraw their claim.

The judge then suggested that they adjourn and while I protested again that the claimant should have such things sorted out by default, maybe that's where I should have struck, the judge asked me what else he could do but I had neither the confidence or the foresight to say "strike the claim and award me costs" In hindsight maybe I should have said that there and then.

There was a bit of chatter about me getting costs for the day travelling and leave but other than that we were done, come back and try again in a month

[Deleted User] · 10 May 2017 at 11:06PM

If you are successful in 'round 2' it would be perfectly appropriate to seek your costs of today.

We'll never know, of course, some judges would not strike, but a shame that you didn't think at the time to ask the court to do so, as he may have done: obviously real consideration was given to the point.

Reading between the lines the argument may have been that as a barrister she felt she had RoA but obviously as an unregistered person, there was doubt that her status was as an authorised (regulated) person.

yotmon · 11 May 2017 at 2:05AM

I remember reading a thread on here relating to the rights of audience and I'm sure it was sent out to law firms warning them of the dangers of practicing without roa and how they were on a very sticky wicket. So I don't see how it keeps slipping through the net.