Excel/BW Legal, Company Defendant. Vicarious Liability

Riz268

The Defendant only found out from Dvla after defence was done that they were never a keeper of the vehicle when alleged offence occurred.

Defendant emailed court manager asking for the case to be struck out but still received a court hearing date.


Defendant contacted the court to ask if the court manager had actually read the email and were told yes.


Judge requested information from claimant which was received and hearing still going ahead.

Lamilad

This is a mess.

Indeed it is. But taking everything into account the only pitfall I can see for the defendant (the company) is vicarious liability. Excel don't rely on PoFA so can't foresee any issues with keeper liability

I sincerely hope that the bespoke defence states clearly that the wrong Defendant is pursued

Sadly it doesn't.

This OP initially raised her issue on one of the Facebook pages and was given a template/ generic defence.

I became aware of it around allocation stage and have provided some off forum advice including advising the OP to start a thread here for better guidance.

I've seen the defence (it's not great) but I haven't seen the initial appeal to Excel by the company (also provided by FB, I believe).

OP - could you post the appeal on here (with personal details redacted) via a Dropbox link?

Lamilad

I sincerely hope that the bespoke defence states clearly that the wrong Defendant is pursued, rather than adopts more stock forum templates that are less suitable here.

So here's the defence that was submitted by the OP (provided by FB). As above it does not do the one thing it needed to do more than anything - state that the wrong defendant is being pursued.

In fact, it's barely fit for purpose. It seems to just be every known template argument chucked into a word doc. It has no meaningful relevance to the specific, and rather complex, circumstances of this case.

It goes on about pofa despite the fact the driver had been named months before. It doesn't even mention 'agency' or vicarious liability.

Suffice to say this OP will need a killer WS and, in this case, I'm gonna suggest a separate SA so they can do a hatchet job on what will, no doubt, be a woeful WS from BWL

https://www.dropbox.com/s/5izag4gx2jxot3o/REDACTED%20Defence-statement?dl=0

Riz268

Bumping for additional thoughts please.

Lamilad

Riz268 wrote: »

Bumping for additional thoughts please.

Particularly interesting to hear thoughts on whether agency applies given that the company was the owner and the driver was an employee, albeit, not on company business at the time.

System

Particularly interesting to hear thoughts on whether agency applies given that the company was the owner and the driver was an employee, albeit, not on company business at the time

What does the other site say?

Riz268

Haven't posted on there for a while.

Was hoping for some help on here.

Lamilad

Assuming the Claimant was on notice of the correct defendant and given a service address prior to them commencing court proceedings (issue), I'd apply to strike out

The OP has supplied me with a copy of their reply to the first communication received from Excel. Again I'm not sure this will stand up to scrutiny in terms whether the def has done what they needed to do in order to discharge liability (if they even had any)

https://www.dropbox.com/s/11cw8pxda3wi0tb/1st%20reply%20redacted.jpg?dl=0

The reply doesn't make it clear that they are replying as a private individual rather than 'the company'. They also make reference towards the end to "our details" which, if responding as an individual should be "my details".

I think BWL will really push vicarious liability on this one.

System

I think BWL will really push vicarious liability on this one.

They can but the defence will be based on what the driver was doing at the time e.g. was this during working hours, lunch time, weekends or evenings.

Each time slot will have pros and cons as to the amount of evidence needed. For example was the driver working in the evening, or on private business during working hours.

Lamilad

They can but the defence will be based on what the driver was doing at the time e.g. was this during working hours, lunch time, weekends or evenings

Agreed. I think this is where the def has a strong case, as they were not working at the time - they were on a personal shopping trip to buy a toy for their child.

I think it was on a Sunday [OP - can you confirm?]

The potential sticking points are thus:
* Company was the owner

* Def was insured to drive the vehicle through the company's trade insurance

* The appeal to Excel (above), where an admission is made as to who was driving, could be seen as being from the company rather than a private individual. Esp as it was sent from a company email address and the person writing it was a director of the company.

* The defence does not discuss the most important points in this case such as: The wrong Def is being pursued, the real driver has made themselves known to Excel, neither a PCN or NTK has been issued to the def or the driver.