HELP 2 court claims. BW Legal/Excel Parking

nosferatu1001

That looks like an erorr in finding, with positive evidence you were NOT the driver (your WS, under a statement of truth) there is no longer a balance - it starts at 0, not 50:50

bargepole

nosferatu1001 wrote: »

That looks like an erorr in finding, with positive evidence you were NOT the driver (your WS, under a statement of truth) there is no longer a balance - it starts at 0, not 50:50

I disagree. All that the OP has said, in his Defence, WS, and Skeleton, is that he was not the driver. On that basis, anyone could say that, and avoid liability for non-POFA PCNs, most Judges will not wear that.

If instead he had stated "at the material time I was not present at that location, and was at XXXX, as evidenced by XXXX" or similar, that would kill the presumption on BOP.

I'm afraid that the advice given by most posters on this board that POFA is some kind of golden ticket is misleading, as is the so-called 99% win rate, which now takes another hit.

nosferatu1001

So how come this isnt evidence? What evidence did the PPC give, on balance, to outweigh a statement made under penalty of perjury? Did the court find them an unreliable witness?

[Deleted User]

Lots of things need to be considered:

1. whether the witness statement is any good;
2. whether the witness should be believed;
3. whether the PPC has made out its case.

1. a number of example witness statements stray into some form of legal argument, forgetting the basics. The job of the statement is to tell the story - no more, no less. There's nothing to prevent legal argument later, but if you don't say, for example, "I was working in Birmingham so it couldn't possibly be me" when you do say that in Court, even if true, it'll look like you've made it up. Para 2 (1 sentence) and para 10 are the only elements that contain personal evidence - at all. The rest is just template. That's really unfortunate.

It's easier to tell a story about inadequate invisible signage if you admit to being the driver and sell that account in your statement to the judge (or even if you say you visited the site - whichever is correct). Pictures speak 1000 words too.

An over-reliance on POFA can make you appear that you are looking for loopholes where you are, in fact, just blameworthy driver who wants to avoid paying. If you have a "barn door" defence it is sometimes easier to defend as the driver. Cases can have similar facts, but *every case has different features.* There's nothing to stop you getting supporting statements from others too.


2. Credibility is an issue, because some people do lie - para 19 of this judgment refers, for example: http://www.bailii.org/ew/cases/EWHC/QB/2018/1258.html
Not saying that the o/p was misleading, just that what evidence is presented does not necessarily need to be fully accepted either. If there is no evidence that the ticket wasn't correctly issued then it's a 50/50 case before you go in - based on the witness statements. That may change when you're having to answer questions on the fly.

I really don't see that the adverse finding necessarily means that there was an error. It's pure litigation risk on a case that was 50/50. Indeed there are some cases where the posters appear not to understand the basis of how the claim is brought - that's a big problem if you've then got to defend it.

3. Most PPCs plead in the alternative - either POFA or against keeper as driver. For goodness sake address and dismiss both if that is the case. If you're defending a POFA case and it really wasn't you driving, you probably need to commit no more than to say in evidence that a family member or friend was driving, not that you absolve yourself of responsibility for the car, but that you are not obliged to expose them to the proceedings and there is no prejudice because there is a mechanism if C had followed it. Where that was "off the menu" as here, then you may need to go into greater detail where you can. For example, is the keeper a named driver on another car altogether? You also needed to be ready to answer the DJ's questions. The Road Traffic Acts address criminal offences and vehicles (and a specific obligation to name a driver).

I'm sympathetic as litigants in person are sometimes treated as advocate and sometimes as witness, but that is part of the peril to be aware of. I agree the evidence was flaky, but I suspect the continued reliance on POFA may have made you appear evasive.

stranger93

bargepole wrote: »

If instead he had stated "at the material time I was not present at that location, and was at XXXX, as evidenced by XXXX" or similar, that would kill the presumption on BOP.

I'm afraid that the advice given by most posters on this board that POFA is some kind of golden ticket is misleading, as is the so-called 99% win rate, which now takes another hit.

Yes I 100% agree I've learnt my lesson from this case to always back up anything you say some DJ will not just take your word in saying ' I wasn't the driver' I did have insurance documentation showing me to be a main driver on another vehicle but from my misunderstanding that a PPC could not pursue a RK if not complying with POFA i had based all my arguments around POFA which kind of went against me.

I would advise anyone fighting these types of cases to not get mislead into thinking POFA means you cannot be held liable. A PPC can full well present a case to a judge on the balance of probability that you was the driver so always have something to back yourself up to prove that you wasn't driving on that date !

nosferatu1001 wrote: »

So how come this isnt evidence? What evidence did the PPC give, on balance, to outweigh a statement made under penalty of perjury? Did the court find them an unreliable witness?

The PPC mainly went down the route of because i didn't name the driver they are chasing me on the balance of probability. they had nothing solid to prove i was the driver.

Johnersh wrote: »

I'm sympathetic as litigants in person are sometimes treated as advocate and sometimes as witness, but that is part of the peril to be aware of. I agree the evidence was flaky, but I suspect the continued reliance on POFA may have made you appear evasive.

yes the DJ did make a comment about me being evasive in giving details to the PPC which i feel went against me aswell.

should i appeal or move onto concentrating on my WS for the next court case ? ,
I understand that if i appeal the DJ could come to the same conclusion as I didn't provide enough proof to show i wasn't driving on the day.

[Deleted User]

should i appeal or move onto concentrating on my WS for the next court case ? ,
I understand that if i appeal the DJ could come to the same conclusion as I didn't provide enough proof to show i wasn't driving on the day.

Only you can decide this, because:
1. Only you were there and know best what was said;
2. Only you can assess your appetite for litigation risk;
3. Only you know which of all the options you can afford

Even if you go down on the next one, you shouldn't go down on all the bolt on costs so do be prepared to ask the DJ "may I address you on the matter of ancillary charges claimed by C"

bargepole

Johnersh wrote: »

Even if you go down on the next one, you shouldn't go down on all the bolt on costs so do be prepared to ask the DJ "may I address you on the matter of ancillary charges claimed by C"

Except that it won't be a DJ, it will be a CJ. And the ancillary charges would need to be pleaded as a ground of appeal in the Appellant's Notice, and permission granted to appeal on that point.

[Deleted User]

@bargepole - sorry, at the end of post #47 i was talking about the second ticket, not any appeal decision - hence my reference to the next one [ticket].

Any appeals are obviously to be focussed on the issues actually before the previous court...

jkdd77

The arguments (and, if an appeal is made), appeal outcome in this thread, with virtually identical situations: https://forums.moneysavingexpert.com/discussion/5844450/help-bw-legal-excel-court-claims
may be of some use to the OP.

My advice on appealling is the same as in that case.

If a PPC fails to comply with the simple and straightforward conditions to invoke RK liability, then it is their responsibility to be sure that they are suing the right defendant and not merely to use the courts as a 'fishing expedition' against defendants who might or might not have entered into a contract with them.

It is not a question of "avoiding liability" if there was never any liability to avoid in their first place because the RK was not driving (and hence cannot have entered into a contract with the PPC) and the PPC has failed to invoke RK liability. Insofar as this might result in the PPC being "stymied", it is not for the judge to make a warped finding of fact to make up for the PPC's own business failings in failing to correctly invoke RK liability and then suing the wrong defendant.

There is also a big difference between a defendant who "neither admits nor denies to being the driver" in court and one who consistently denies being the driver and gives evidence to this effect.

Whilst a judge may be entitled to draw an adverse inference that a defendant in the first position must be driving, no such adverse inference may properly be drawn from the second situation, nor from a reasonable decision not to expose a friend or family member to the likelihood of being hassle and sued by naming them as the driver.

The judge in this case apparently (wrongly) held that the OP was "evasive" in declining to tell the PPC who was driving and drew an adverse inference that he must have been driving, and also placed undue weight on the irrelevant comparision with s. 172 criminal liability; I submit that, in both instances, the judge clearly erred in so doing, and that this forms part of the grounds for appeal.

The general forum advice remains correct; and is no less so because a couple of ignorant judges have made incorrect decisions that need to be appealed. If the defendant was not driving, then, by definition, a finding of fact that he was driving was erroneous, and, in a case such as this where the weight of evidence clearly was against the defendant being the driver, it was not a decision the judge was reasonably entitled to come to based on the evidence before her.

The vast, vast majority of MSE defences against Excel/ BW Legal continue to succeed.

bargepole

jkdd77 wrote: »

... If the defendant was not driving, then, by definition, a finding of fact that he was driving was erroneous, and, in a case such as this where the weight of evidence clearly was against the defendant being the driver, it was not a decision the judge was reasonably entitled to come to based on the evidence before her.

The only evidence that the defendant was not the driver, was the defendant's own WS. If the Judge finds the defendant not to be a credible witness, which appears to have been the case here, that evidence can be disregarded as carrying no weight.

jkdd77 wrote: »

The vast, vast majority of MSE defences against Excel/ BW Legal continue to succeed.

The vast majority of those who come back and report the outcome of their cases, yes. But what about all those who start off with an MSE defence, and are never heard from again?