Excel Court Date Set - Defence Statement Help

cordsandcag

Thanks Safarmuk.

Haha, I'm up at 12. Any moral support would be gratefully received!

Lamilad

cordsandcag wrote: »

Thanks Safarmuk.

Haha, I'm up at 12. Any moral support would be gratefully received!

I'll see what I can do, I've got some errands to run in Wakey in the morning so if I get done in time I'll bob over. PM me your mobile number and I'll ring/ text to let you know.

cordsandcag

Ok cheers Lamilad

Coupon-mad

safarmuk wrote: »

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

I've asked him if he wants to update his old thread from Christmas, or if he wants me to. I helped him off-forum as the case was interesting - his landlord owns the bay under a Deed of Covenant, yet SIP reckoned they could issue charges all over the place on site. The Judge disagreed!

Loadsofchildren123

I'm a bit behind, just caught up, good luck.
If you are reading any of these on a phone, challenge RoA 10-20 mins before you go in as Lamilad did. Don't be put off if Judge isn't interested in this, most of them don't understand the issue.


Remember this is THEIR burden of proof as the Claimant.

safarmuk

C-M, which case was this? I ask because I am interested in collating as much information on residential cases as I can.
Originally posted by safarmuk
”I've asked him if he wants to update his old thread from Christmas, or if he wants me to. I helped him off-forum as the case was interesting - his landlord owns the bay under a Deed of Covenant, yet SIP reckoned they could issue charges all over the place on site. The Judge disagreed!

This is of great interest to me, I am currently helping people in a similar situation (e.g. demised land and demised rights). I would be grateful for any information on this so I can digest it and pass it on. The people I know are not at the court stage yet so we are looking into ways to pro-actively deal with this.

Matthew87

Come on!!!!! The suspense is killing me...

cordsandcag

Right then, I'll attempt to summarise today's events, starting with the most important point:

The case was dismissed!

Lamilad was in the area and very kindly dropped in to give me some advice and moral support. This helped to calm my nerves a fair bit.

I started off by providing the court with preliminary docs which included a statement questioning RoA and evidence of the Law Gazette articles and the cases the refer to.

I had a quick meeting with BWL's rep for the day, who was an independent solicitor. I questioned RoA but he said that he was a registered solicitor and therefore there was no doubt about his RoA. This included providing some evidence of his membership. I returned to the aiting area and waited to be called him. Lamilad had signed himself in as a McKenzie friend so accompanied me to the hearing.

The judge started by going through the preliminary matters and picked upon point 2:

2. However, it is unlikely that any officer, employee or servant, or witness of the Claimant will attend such that the Claimant is considered to be present within the meaning of CPR Rule 27.9.

This is a bit of a blur but I've made a note which states that the DJ stated they'd breached 29.9 (i)(c).I think he also said they'd breached 29.9(i)(b). DJ asked me what i thought of the breach and I invited him to strike out.The breach was to do with the way they had worded their statement around who was authorized to read it I think. This was countered by their rep who argued that they would start the claim again if it was struck out (DJ didn't seem impressed by this). Rep also argued that as we were both there and evidence was present, it made sense to hear the claim. The judge weighed it up and I thought he was going to strike out (or at least was hopeful) but he then presided over it, saying he had discretion and that while parts of it didn't comply, the case would go ahead.

This may be something that a real expert on RoA could've exposed but as I'm sure people are aware, RoA is a complex beast. Definitely worth looking into though (Lamilad may be able to add to this).

So then we moved to the actual case / defence....

Again this is a bit of a blur but will try to get in right order.

Fairly early on the DJ asked me about my position and asked me if I was the driver, to which I stated I wasn't. He then chucked a bit of a curveball in, something I'd not seen in other transcripts / cases. He asked: If you weren't the driver, who was (or something similar)?

I stated that I had no legal obligation to name the driver. He said: 'you do if I ask you'. Again, I was a bit taken aback by this. I stated: it was a family member. He was satisfied with this answer and then moved on.

We then looked at the main claimant arguments:

It was very quickly agreed that the claimant was not relying on POFA 2012. I'd highlighted the relevant points of POFA 2012 in my bundle so the DJ was aware, and their rep concurred that they were not relying on that. I made some more points questioning why they were pursuing the registered keeper and also referred to Greenslade.

Elliot v Loake was quickly glossed over (I think, it might not have even been mentioned) and the main point was AJH Films v CPS. The rep tried to make this work in his favour and I was ready to rebut but the DJ basically rebutted for him, citing public liability etc (essentially what a decent rebuttal to AJH would cite). The judge gave the example that he has a car, his wife also uses it and he considers they have joint ownership. So therefore it couldn't be assumed that just because his wife was driving it he was bound by contract. (I think this is right - Lamilad?)

So then it boiled down to the keeper / question of ownership and the contract with the driver. The DJ asked the rep to provide proof of the driver and he couldn't. He said it was established that the RK (me) wasn't the driver and that he believed my version of events and therefore as there was no proof of the driver, the claim was dismissed.

I then applied for costs and this is something that others who are going through the process should bear in mind. He said that as I had never explicitly stated that I was not the driver I had been somewhat ambiguous to Excel / BWL and therefore that was why they had pursued me. If I had said I was not the driver then they may have taken a different course of action (experience tells me they wouldn't have, but there we go). I was happy that I had won and just wanted to get out of there so just agreed and left.

A joyous high five / handshake with Lamilad outside :beer:

So 3 of the main things to come out of it:

Potential breach of CPR Rule 27.9. - maybe an RoA expert could comment on this?

If you are claiming you are not the driver, the DJ may ask you who was e.g. it was a family member

If you want to claim costs on the basis that you wren;t the driver and the claim is misconceived then make sure you explicitly state you weren't the driver in your defence / WS.

I mentioned it on my other thread but the final and most important point I'd like to make it that I couldn't have done this without the help of all the wonderful people on here and the excellent knowledge that they impart.

Massive thanks to anyone who has provided advice, with special mentions to Coupon-mad for her wisdom and an extra special mention to Lamilad for providing me with advice and assisting with prep before the hearing and dropping in to provide moral support and some very handy guidance at the hearing. Absolute legend!

henrik777

I'd disagree with the judge on costs. Costs usually follow success even on the limited scale of small claims.

It is, however, always best to set out your position asap and ideally long before a case is started to keep yourself on the right side and limit potential cost penalties whilst setting the claimant up for same.

27.9 is not about RoA, it is about non attendance of any party to the case. As the Judge ruled the rep had RoA there was no issue. Had they said no RoA then under 27.9 the case could have been struck out for non attendance.


Nice win.

Coupon-mad

A joyous high five / handshake with Lamilad outside

Yay, that was a decent court report! Most enjoyable to read!

Your answer that it was 'a family member' is a good one because it answered the Judge without naming the driver.