Excel BW Legal 2012 court claim faulty machine.

Loadsofchildren123

I am troubled by including in your defence the whole part about what the attendant said if you are going to deny being the driver.


I agree that there is no obligation on you to name a driver, and you can of course say that this is what the driver told you. However, for the evidence of the agreement with the attendant (to only type in one digit of the number plate) to be given any weight, there needs to be a witness statement from the driver. Otherwise it's just hearsay.


I think the agreement with the attendant is a strong defence. The attendant was acting on behalf of his employer and so any contract formed by the signage has been altered by that agreement.


If you are going to base your defence on a denial of being the driver then I'm not sure I would run this aspect of your defence at all - tbh it makes you look a bit shifty to argue this while at the same time saying it wasn't you and failing to produce any direct evidence from the driver.


A second major issue with this is how can you drop this aspect of your defence when you've already given them this information? When you appealed on the basis that the attendant had told you this, presumably you identified the driver? If you did, what's the point now denying that? Particularly when the whole agreement with the attendant is a good defence.


A judge may make a finding that all of this points towards you being the driver and then you've waved goodbye to a good defence.


Can you tell us exactly what you told them when you first appealed 5 years ago?

Loadsofchildren123

Is there any evidence that others were using your car at this time? Eg other people on your insurance, was it a shared family car etc? In the absence of that, many judges will make a finding that you were driving. Of course you might not have retained documents from 2012.

Lamilad

However, for the evidence of the agreement with the attendant (to only type in one digit of the number plate) to be given any weight, there needs to be a witness statement from the driver. Otherwise it's just hearsay.

Unless you were a passenger in the vehicle and it was you who went to purchase the ticket and spoke to the attendant, in which case you would be the witness to what the attendant said.

As LoC says more info is needed here in order to advise the best way to proceed with your defence. Especially what you have said to them in the past

Loadsofchildren123

didn't think of that Lamilad

Loadsofchildren123

Although would a judge think it was just too convenient, you were fibbing and you were the driver?

Hotchocolate

Thanks for the different perspective it has made me think.

I have never claimed to not know who the driver was, only refused to name them.

A witness statement from the driver can be supplied as well as a section from their lease saying a parking attendant should be on site.

What I've learnt so far is that even if I win on keeper liability excel could then come after the driver once named in court and then have to defend the purchased ticket aspect of this drama.

Coupon-mad

I wonder what LoadsofChildren123 would suggest, if the driver's WS had their postal address redacted (or omitted) in the filed copy pre-hearing, but the original signed copy and the driver themselves (as second witness alongside the Defendant) were at the hearing.

No address shown and they wouldn't be able to get the driver's data. Is a postal address a requirement of a WS?

Lamilad

Coupon-mad wrote: »

I wonder what LoadsofChildren123 would suggest, if the driver's WS had their postal address redacted (or omitted) in the filed copy pre-hearing, but the original signed copy and the driver themselves (as second witness alongside the Defendant) were at the hearing.

No address shown and they wouldn't be able to get the driver's data. Is a postal address a requirement of a WS?

CPR 32.9(3)
"Unless the court orders otherwise, a witness summary must include the name and address of the intended witness."

I wonder if they could ask the judge's permission to redact the address details on the basis of protecting themselves from potential harassment.

Lamilad

To be clear the above refers to"Witness Summaries" not "Witness statements"

Witness summaries
32.9
"(1) A party who –
(a) is required to serve a witness statement for use at trial; but
(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.
(2) A witness summary is a summary of –
(a) the evidence, if known, which would otherwise be included in a witness statement; or
(b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness".

I can't find anything that specifically says a WS must state the address of the witness.

Hopefully​ LoC can clarify.

henrik777

Lamilad wrote: »

CPR 32.9(3)
"Unless the court orders otherwise, a witness summary must include the name and address of the intended witness."

I wonder if they could ask the judge's permission to redact the address details on the basis of protecting themselves from potential harassment.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.2

Extent to which other Parts apply
27.2
(1) The following Parts of these Rules do not apply to small claims –
(a) Part 25 (interim remedies) except as it relates to interim injunctions(GL);
(b) Part 31 (disclosure and inspection);
(c) Part 32 (evidence) except rule 32.1 (power of court to control evidence);
(d) Part 33 (miscellaneous rules about evidence);
(e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);
(f) Subject to paragraph (3), Part 18 (further information);
(g) Part 36 (offers to settle); and
(h) Part 39 (hearings) except rule 39.2 (general rule– hearing to be in public).
(2) The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.
(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.




As i recall, there are usually instructions for witness statements on the court form that gives the date of the hearing. Pretty sure an address is required. Not sure if they'd actually care or not, probably down to the judge.