Excel Parking / BW Small Court Date

Billy_Whizz1971

... Lamilad not Lamlash!!

Umkomaas

Pleeease give us a report of the day, which court, which judge, which paralegal, what the judge hammered her over (if that's not too graphic a picture!!), on what points the judge allowed your defence.

That would be really good, helps to continue to keep us motivated and certainly will help those who follow you along the same path over the coming weeks and months.

Well done on a great win. :T:

waamo

Umkomaas wrote: »

Pleeease give us a report of the day, which court, which judge, which paralegal, what the judge hammered her over (if that's not too graphic a picture!!), on what points the judge allowed your defence.

That would be really good, helps to continue to keep us motivated and certainly will help those who follow you along the same path over the coming weeks and months.

Well done on a great win. :T:

Yes please, details, details. I love a good story.

Billy_Whizz1971

Of course its the least I can do .... Is it better to start a new thread?

waamo

Billy_Whizz1971 wrote: »

Of course its the least I can do .... Is it better to start a new thread?

NO! All in one place is best. It gives context to the win.

Billy_Whizz1971

Ok here goes....

Arrived at Stockport County Court 25minutes before the requested time and asked whether the Excel representative had signed in - I was told no and I dropped a text to BMPA Court cases as I wanted to make sure that the representative had "Right of Audience".

They advised (via text):
"The witness statement does not come from the claimant but from a third party with no first hand knowledge. They are also not present and have not advised the court which disadvantages the Litigant in Person. The person representing Excel may be someone without the Rights of Audience. Could the court give directions on the issue of the Witness Statement and the Right of Audience".

About 5minutes before the court usher? called my name as Excel's Paralegal wanted to introduce herself .... She did - Miss Peabody, and she asked if I had any questions ... I said no and went back to my seat at the other end of the room!

20minutes later we were called before DJ Lateef who asked us both to take a seat .... We both removed our bundles and placed them on the table but berfofe I could raise the issue of right of audience DJ Lateef had already laid into Miss Peabody ....

"We have a problem here don't we Miss Peabody"! He then basically ripped into the Claimants WS saying that there was nothing in there that proved that I was the driver and that as POFA wasn't being relied upon where was the case ....??? Miss Peabody was clearly taken aback by this and could not provide an answer ... She finally spurted out that her case would rely upon Combined Parking Solutions v AJH Films (2015) .

At this he stopped discussions and reprimanded me for using my phone (I had it ready to read the text from BMPA out to him re: Right to Audience) - I apologised and then asked DJ Lateef if Miss Peabody had a Right to Audience given that she had not written the WS .... He said she did have a Right to Audience, but acknowledged that she had not written the WS so he would consider this in making his judgement.

He then ran through the process with both of us and asked Miss Peabody to present her case ....
She did and she focused on my lack of response to letters as an admission of guilt and that I insisted that it should be presumed that I had actually been the driver .... She cited both Loake and AJH Films to substantiate her case ...

I was then asked to present my case but not to go through my whole WS as the Judge had a copy and had read it.

I focused on the fact that I was not able to recall having EVER parked in the car park of the alleged offence and also stressed that other family members and friends had access to my vehicle at the time and were insured to use it either under my fully comprehensive insurance or their own.

I then rebuffed specific arguments used by Miss Peabody namely:

"In the absence of the full details of the driver being provided, the claimant is entitled to proceed on the reasonable presumption that the registered keepr was the driver on the contravention date. (supported by Elliott v Loake)"

Claimant places reliance on the judgement handed down in a recent Court of Appeal case - Combined Parking Services v AJH Films (2015). In this case it was concluded that CPS could hold the Defendant liable for the charge as AJH films had failed to provide details of the driver on the day in question.

The Judge basically then asked Miss Peabody if her whole case hung on one small paragraph (above) and that there was nothing else in the WS that supported the claim ..... She confirmed that it did!!

The Judge then asked me for my response...

I firstly stated that I honestly did not recall having ever visited the car park in question and reiterated the fact that other family members and firends had access to my car.

I then said that the claimant's case hinged on them making a presumption that the registered keeper (me) was also the driver and I said that given that POFA was not in existence at the time of the alleged offence and that Miss Peabody had stated that they would not rely on it meant that she had no legal right to pursue this argument.

(I omitted to mention Loake - by accident) but hammered home points from Henry Greenslade's POPLA ANnual Report (2015) .....I read the follwoing out word for word emphaising the words shown in bold:

However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.

*SlamDunk

I also challenged CPS v AJH and informed the judge that this argument was an Employer v Employee case and had been quashed in this very court in the recent past (fortunately I had read KeepSwimming's bundle notes beforehand). I did inform the judge that I had details of the case that I could make available but noted that I assumed that these were impermissible - he agreed but seemed to appreciate the fact that I had raised it.

The Judge then asked me if I had anything more to add to which I declined.

The Judges summing up basically noted that the Crux of Ecel's case was a reliance on the fact that I was the driver despite having absolutely no proof of of this and he proceeded to run through key bits of evidence that I had submitted in my WS namely - Elliot v Loake (Criminal) and Henry Greenslade's quotes in the POPLA report. In addition he gave significant credence to transcripts from similar cases (that I had included in my bundle) specifically: Excel v Mr C (C8DP37F1) at Stockport, Excel v Mr B (C7DP8F83) at Sheffield ....and he rounded off the proceedings with a quote from the transcript for Excel v Lamoreux (C3DP56Q5) at Skipton ...

"So unfortunately, I think the claim against Mr Lamoreux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability .....this case is also equally misconceived and is therefore dismissed" ...

BOOM!!

Thanks again for all those who helped me to build a case ...Justice prevailed...

waamo

Did you get costs?

Billy_Whizz1971

It wasn't mentioned and to be honest I'm just glad the whole thing is done and dusted....

Redx

superb , seems that the judges in manchester and stockport are really wise to this, especially stockport which has its fair share of EXCEL cases , mainly for the infamous Peel Centre but also for the Chorlton centre car park at the back of the shops

well done D J Lateef !!!

I suspect he already knew about those major cases etc

Umkomaas

Thank you so much for your Court report.

I've only just got round to reading this. When I saw 'Stockport', I said to myself, 'No wonder you won - Stockport, the PPCs' graveyard'.

I carried on reading and saw your Judge was DJ Lateef. I nearly spat out my [STRIKE]whisky[/STRIKE] coffee (honest Guv). This must have been Excel's worst possible nightmare. I'm sure that DJ Lateef will never forget what Simon Renshaw-Smith (Excel's Managing Director) said after the Martin Cutts case.

'The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.’

Wow, you couldn't have had it better. I think you could have pleaded absolutely 'guilty', banged to rights and would still have been found innocent.

If I'm honest, I'm starting to feel a little sorry for Ms Peabody. This wasn't a hospital pass, this was a 'Go straight to the mortuary, don't bother with Intensive Care' pass. Oh dear!

You've made my evening Billy_Whizz. More coffee Mrs Umkomaas - hic!