Excel/BW Legal, Company Defendant. Vicarious Liability

Lamilad

OP - I think, given how close you are to the hearing it's not worth sending the request for further information. In fact, doing so may be detrimental as it could make the claimant realise that they do not have important evidence such as a copy of PCN and/or NTK addressed to the company.

Wait and see what is in their evidence bundle and then take it apart in your skelly. If they don't produce the above then it should be fatal to their case.

Riz268

From other people's experiences do the claimants send their evidence bundle weeks before hearing, giving enough time for the defendant to do WS?

Lamilad

Riz268 wrote: »

From other people's experiences do the claimants send their evidence bundle weeks before hearing, giving enough time for the defendant to do WS?

They'll probably send their bundle exactly 14 days before the hearing giving you no time to read it before submitting your own WS. Which is why i recommend a skeleton (which is submitted 3 days before the hearing) - so you can destroy their WS and evidence (or lack of)

Riz268

That's good to know thank you.

Lamilad

This case was heard today at Skipton County Court, in front of Judge Faye Wright.

I appeared as lay rep for the defendant company.

The basic background details to this claim are as discussed in the comments on this thread. However, there were several factors which made this case highly complex, not least of which was that the D had submitted an internet template defence which was full or irrelevant arguments and contradictory statements.

I wrote a WS which inevitably contained statements that were contradictory to the defence. It included a couple of paras about the D being an LiP with no legal knowledge or understanding of court process which I hoped would mitigate the poor defence. - It was always my intention to get the D to admit in court that they had hastily submitted an internet template defence which they did not really understand, and then, hopefully get the judge to focus more on the WS and SA... A tactic that sort of worked to a minor extent.

The SA I wrote specifically to rebut the C's WS. I was able to use this to 'cheekily' introduce some arguments, not previously pleaded, in the form of rebuttals.

The preliminary issues put forward at the beginning were quickly brushed aside by Judge Wright.

The case rested, as expected, on whether or not the claimant had proved, either through evidence or BoP that the driver was an agent of the company defendant and, had either expressed or implied authority to use the vehicle on the day and enter into a contract on behalf of the company.

The C had provided no evidence of such, and relied mainly on a pre-action email sent by the driver where she admitted being the driver. they suggested that, because she was replying to an FRN sent to the company, her admission to being the driver was made on behalf of the company.

The judge explored this email very thoroughly and it became the main focus of the hearing. She disagreed with the claimant as the email was sent from the driver's personal email address and was clearly written in the first person making no reference to the company or the parking event being in any way related to the company's business.

To be honest I felt there were much stronger points made in the WS and SA which could/should have convinced the judge to dismiss this case but it became all about this email and the defendant's defence statement - probably because that's what the C was relying on more than anything and the judge was making them work very hard to prove their case, which, in the end, they just could not do.

I made a really strong shout for unreasonable costs at the end and thought I had nailed it but she wasn't having it and cited the contradictory defence as part of her reasoning. Costs were awarded for travel and parking.

Mr Pickup was advocate for the claimant.

Some of the regulars may remember Judge Wright from the Juke Joint case last year:

.https://forums.moneysavingexpert.com/discussion/5475090

System

Well done. Another nail in the BW coffin.

Edna_Basher

Excellent result Lamilad. :beer:

By any chance could you please let us know the Reference Number of this case?

One POPLA assessor has recently taken it upon herself to decree that, even in the absence of the PPC making the suggestion that a company was liable for the actions of the driver of its vehicle (let alone the PPC providing any evidence to support such a claim), the default position is that the driver of a company vehicle must be acting in the capacity as the company's employee or agent and must therefore bind their employer into a contract with the PPC.

Bearing in mind that most of the PCNs we see reported on this Forum are issued at supermarkets, leisure parks, retail parks, residential estates, McDonalds etc. how likely is it that a company car driver would be on company business when going to watch a film, doing their shopping or buying a Big Mac?

This judgement would be useful in helping us to put this particular POPLA assessor back in her box.

nosferatu1001

Well done ��

Lamilad

By any chance could you please let us know the Reference Number of this case?

[FONT=&quot]CLAIM NO: D6DP7R03; Excel vs Clever Car Finance

[/FONT][FONT=&quot]how likely is it that a company car driver would be on company business when going to watch a film, doing their shopping or buying a Big Mac?

Indeed. In this case the driver was visiting a toy shop to buy a toy for their 3yr old child who was with them at the time... Hardly something that looks like a work activity.

An extract from the SA was as follows:[/FONT][FONT=&quot]
"It is also the case that vicarious liability cannot be fixed in this instance. The Defendant draws the Court’s attention to Launchbury v Morgans [1972] UKHL 5:[/FONT] [FONT=&quot] [/FONT]

[FONT=&quot]“For I regard it as clear that in order to fix vicarious liability upon the owner of a car in such a case as the present, it must be shown that the driver was using it for the owner's purposes, under delegation of a task or duty”[/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The claimant discloses no evidence that the driver was indeed using it for the owner’s purposes under a delegation of a task or duty. Their witness has also disclosed no evidence of agency"[/FONT]

[FONT=&quot][/FONT]

Edna_Basher

Perfect - thanks Lamilad