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

Xanthanan

Sorry maybe I'm using the wrong terms, give me programming, scripting and router / switch networks any day of the week!

I submitted my initial 'defence' in September which was on MCOL and forms, as far as I understand, the basis of the defence for my hearing, which is in May. That, I thought, would consist of evidence/exhibits, a WS and a 'skeleton' defence argument (or words like that) which I believe is some words that present the legal argument to back up the facts in my WS and the evidence I present... (or that's how I understand it)

Bargepole was quite scathing of what appeared to be an overly long argument/defence/skeleton/whatever its called so I have shortened it considerably but not to the extent he suggested (4 pages or 1000 words).

With this skeleton appearing to still be overly long do I trim more out of each paragraph (approx. 50%) or do I remove 50% of the paragraphs, for example removing my 'secondary' defence of the CoP failures... as if I was the driver (which I wasn't). I have a terrible memory, its my age, and the more I trim the more I will probably forget during the hearing.

bargepole

Xanthanan wrote: »

Sorry maybe I'm using the wrong terms, give me programming, scripting and router / switch networks any day of the week!

Right a quick run through the correct legal terms.

The document you submitted in response to the original N1 Claim Form is your Defence. It doesn't need to be overly detailed, but should contain at least a mention of all the facts and legal arguments you will rely on.

The Witness Statement, filed and served usually 14 days before the hearing date, is simply a factual account of what happened. Facts should only be from your own knowledge, and the statement should not contain any opinion, or attempt at legal argument. Appended to this should be any evidence, eg photos of signs etc.

A Skeleton Argument (not a skeleton defence, there is no such thing) is optional in Small Claims hearings, and is a summary of the legal arguments as to why the claim should not succeed. Its purpose is to provide a step-by-step series of reasons for the Judge to dismiss the claim.

I noticed you had included several paragraphs about lack of advertising consent for the signage, relying on ex turpi causa non oritur actio.

Good luck with that.

Xanthanan

Thank you Bargepole for helping me understand better the various documents and what they should be called, I have been using the wrong terms and shall correct that now.... (I still prefer techy stuff to legal stuff though!)

Here is what I should have said in post 80:

"The Skeleton Argument still exceeds the guidance of 1000 words but I am not sure whats best to cut, or how best to shrink it. I see it is optional, do I have to submit one if that's pretty much all I will read from to carry out the arguments in the hearing? Advice please... At the moment I still use the lack of POFA and driver ID as my primary reason why the claim is invalid.
However, should the court be convinced by their 'presumed driver' stuff, I then fall back onto CoP failure, lack of loading provision and signage consent.
Am I best to carry on with the broad defence or just go all out for POFA / Driver ID?"

bargepole wrote: »

I noticed you had included several paragraphs about lack of advertising consent for the signage, relying on ex turpi causa non oritur actio.

Good luck with that.

Forgive my simple approach but is that because I should simply point out the original failing (lack of consent in my WS para 14) and then completely avoid trying to guide the court through paras 23 - 25 of what is currently called "Full Defencev3" and will be renamed. (I copied those paras almost word for word from another case for the same location)

bargepole

It's probably best to leave all the arguments in there, because in the game known as DJ Bingo, you can never predict which points the Judge will consider to be significant.

As the defendant, you only need the Judge to be with you on one point in order to win, whereas the claimant needs the judge to agree with their arguments on all points.

However, the number of Judges who will dismiss the claim due to lack of advertising consent can probably be counted on the fingers of a sawmill operator's hand.

bargepole

Xanthanan wrote: »

"The Skeleton Argument still exceeds the guidance of 1000 words but I am not sure whats best to cut, or how best to shrink it. I see it is optional, do I have to submit one if that's pretty much all I will read from to carry out the arguments in the hearing? Advice please... At the moment I still use the lack of POFA and driver ID as my primary reason why the claim is invalid.

The Judge will have read your skeleton argument before you go into court, so he won't thank you for just sitting there and reading it out loud.

You just need to identify the main points of your Defence in bullet-point form, and give a brief summary of each of those. If the Judge wants to go into more detail on any of them, he will.

If he starts giving the advocate for the other side a hard time over any of those, he's leaning towards your side, and the best advice at that point is to shut up. As one of their Lordships once said in a Court of Appeal case, "Mr XXX, we agree with your argument, unless you'd like to persuade us otherwise".

Umkomaas

However, the number of Judges who will dismiss the claim due to lack of advertising consent can probably be counted on the fingers of a sawmill operator's hand.

In the cases I've read where 'ex turpi' has been raised, the judge has said (paraphrased) 'If the local authority can't be *rsed to undertake a criminal prosecution, then it's not something [STRIKE]I can be *rsed about either[/STRIKE] the small claims court should be involved in'.

Lamilad

I see it is optional, do I have to submit one

No you can make your arguments orally on the day. The risk is you might forget to mention something or not get the chance to if it doesn't come up.

I didn't use a skeleton in either of my cases although my WS did contain points of argument (technically not right but accepted in small claims)

I preferred to make my arguments orally so that i could really stress the main points i wanted to get across. But then i am confident arguing this way - not everyone is.

Some judge's prefer to ask lots of questions and hear discussion from both sides (as in my cases);

some prefer to have read all the information and arguments before you go in then just explain how they are minded and ask if there's anything else to add... As was the case where i lay rep'd for HC77.

This isn't the definitive answer you wanted... That's because there isn't one... As Bargepole says it's DJ Bingo, and you don't know what yours will be like.

Xanthanan

Guys, thank you! Your comments are all very helpful and aids my confidence.

I understand we are playing DJ bingo to a certain extent and my bottom line aim for the day is that its OVER once the day is done.
Above that I do think (and hope) that I have a strong enough argument to win but am also quite sure it's within my capacity to snatch a defeat from the jaws of victory so I need to keep quiet when necessary and have a Skeleton to present the argument that I may well forget on the day.

Xanthanan

Ohhh I think I may have dropped off...

Just read somewhere that 14 days before the hearing isn't 2 weeks. Its 14 working days meaning my bundle has to arrive by THIS Thursday ... not in a week or so's time like I thought.

Can anyone quickly confirm this? I can print out and hand deliver the bundle plus email the BW legal copy ... but darn from being relatively up to speed its a close run thing all of a sudden

Lamilad

Xanthanan wrote: »

Ohhh I think I may have dropped off...

Just read somewhere that 14 days before the hearing isn't 2 weeks. Its 14 working days meaning my bundle has to arrive by THIS Thursday ... not in a week or so's time like I thought.

Can anyone quickly confirm this? I can print out and hand deliver the bundle plus email the BW legal copy ... but darn from being relatively up to speed its a close run thing all of a sudden

Stop panicking. Yes technically it's 14 "clear days" which doesn't include the day of service or the day of the hearing but this is small claims not the Royal Courts of Justice so it will be fine to submit your bundle 14 "actual" days before the hearing. That's what everyone else does anyway and that's probably what the claimant will do.