Excel Court Date Set - Defence Statement Help

safarmuk

At that point the rep asked if I had brought the transcripts referred to in the document. I had and gave her copies of both. At that point I would have ended the meeting and asked the clerk to pass the 'preliminary matters' document to the judge but we were called into court by the clerk. So advice is - get there early and have this discussion with their rep, leaving plenty of time to give the document to the clerk.

What happened when you were called in Lamilad? Did you just bring this up immediately as a preliminary matter and how did the DJ deal with it?

Lamilad

safarmuk wrote: »

What happened when you were called in Lamilad? Did you just bring this up immediately as a preliminary matter and how did the DJ deal with it?

I tried to bring it up with the judge at the beginning but he wasn't interested. He'd already read all the paperwork and made up his mind to dismiss the claim.

That's not to say he wouldn't have considered it if the case wasn't so 'clear cut'. He basically said there's no point going in to that as you'll be out of here in 10 minutes - and we were!

safarmuk

He basically said there's no point going in to that as you'll be out of here in 10 minutes - and we were!

"you will be out of here in 10 minutes" ... priceless.

cordsandcag

My hearing is tomorrow, just a couple of thing I want to be totally clear on before I go in. Even though I feel like I've read these 100s of times. Any input would be greatly appreciated.

1) If the claimant asks why an alternative version of events has not be supplied:

Defendant can state that there is no legal requirement to provide this. Is this correct?

2) The defendant can state:

There is no legal requirement for the defendant to name the driver, even if the defendant knows who the driver was. Is this correct?

3) If the claimant asks why the defendant hasn't or won't provide certain information, the defendant can state: 'it's not for the defendant to make the claimant's case for them'. Is this correct?

I've also added another rebuttal of one of their arguments, does this look OK?

Paragraph 27 – in order to allege signs were unclear defendant must have been in the car park at the time the PCN was issued for

Rebuttal
It is reasonable to presume that the claimant does not regularly change the signage in the car park and therefore it is reasonable to presume that the signs would have been the same at the time of the alleged contravention as they at the time the claim was issued.

Thanks in advance for any comments.

Coupon-mad

To encourage you, I have just had this comment from a person from here who came off forum when I had time to write their defence (admittedly this wasn't Excel, it was Gladstones residential car park case that I think the OP will update at some point soon, because his hearing was today!):

''it was great, I didn't even have to go over my evidence or witness statement and they withdrawn their claim after about 5 minutes!''

Anyway, the answer is yes to all your questions. This is perfectly reasonable to say as a rebuttal that the signs are likely to be the same now, as long as the case wasn't from 2014 or earlier when Excel were in the BPA instead of the IPC.

Rebuttal
It is reasonable to presume that the claimant does not regularly change the signage in the car park and therefore it is reasonable to presume that the signs would have been the same at the time of the alleged contravention as they at the time the claim was issued.

You could include in your file a couple of copies of this FOI:

https://www.whatdotheyknow.com/request/139931/response/342099/attach/html/2/FOIR3196%20Thorn.pdf.html

...which establishes that Excel were banned (in 2012, but the scenario is unchanged) by the DVLA for 'allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was.'

The DVLA state in that FOI 'This behaviour is a significant breach of the AOS Code of Practice' which is why Excel were banned and one must assume, were told to stop setting out lies about 'keeper liability without the POFA' and implying a legal 'obligation' to name the driver exists that simply is not supported by any rule of law, in non-POFA cases (at that time in 2012 it was immediately pre-POFA).

Because Excel admit they 'do not rely upon the POFA' (patently obvious, because they don't use the statutory warnings, other mandatory wording and deadlines, as set out in the transcript in Excel v Lamoureux) their position is the same as it was pre-POFA in 2012. They are no more able now than they were then, to allege that a keeper 'should have replied to the PCN' or 'should have appealed' or 'had an opportunity to name the driver and didn't'.

Lamilad

Something else to encourage you.

http://forums.pepipoo.com/index.php?s=&showtopic=109054&view=findpost&p=1280351

This was today. It was VCS (Excel's sister company) along with BW Legal

cordsandcag

That's brilliant, thank you both again.

I read through Lamilad's transcript again earlier which has helped to calm my nerves a bit (alongside those other 2 success stories).

I really wouldn't have had a clue about any of this without help from some fantastic people on here - just hope now all goes OK.

cordsandcag

A final question - is there an optimum time to question RoA e.g 20 mins before?

Lamilad

What time is your case scheduled for? I'm over that neck of the woods tomorrow, might come along and sit in the cheap seats

safarmuk

Best of luck tomorrow cordsandcag, hopefully with the help you have had here from the experts you will win hands down. Get a good nights sleep and remember you are well prepared

To encourage you, I have just had this comment from a person from here who came off forum when I had time to write their defence (admittedly this wasn't Excel, it was Gladstones residential car park case that I think the OP will update at some point soon, because his hearing was today!):

''it was great, I didn't even have to go over my evidence or witness statement and they withdrawn their claim after about 5 minutes!''

C-M, which case was this? I ask because I am interested in collating as much information on residential cases as I can.