Help BW Legal/ Excel Court Claims

mrniceguy18

a1terrier wrote: »

Hi
Have you got proof you were not driving?

a1terrier wrote: »

Because if a Ppc is pursuing a keeper, presuming the RK was driving, not relying on POFA, and keeper has proof they were not driving there is no case to answer as I understand it.

I have proof that i am the main driver insured on another vehicle & I was under the impression that this was the case as they weren't relying on POFA but the judge seemed to think otherwise.

Johnersh wrote: »

This does indeed appear wrong, if it happened exactly as described. Do bear in mind that it is always open to the judge to make findings of fact (i.e. to dispute what you say and to determine that you were driving). Thus it is theoretically possible to win the grounds for appeal but still lose the case. I say that not to p155 on anyone's chips, just to make clear that there is always a risk in litigation.

Other than to make that caveat, do press on - and bear in mind the 21 day deadline for appeal from the date that the judgment was made against you.

Thankyou for your help ! yes the judge said that excel could act upon the balance of probability even though i stressed that they hadn't followed the relevant act to pursue me the judge mentioned allowing me to appeal if i thought she had made an error in law. I am going to make the relevant steps in fighting this with an appeal & I agree, I understand there is a risk involved but feel my grounds are strong enough for an appeal

a1terrier

Hi


What I meant was have you proof, written or otherwise, you were not the driver of the vehicle on the dates in question?

mrniceguy18

a1terrier wrote: »

Hi

What I meant was have you proof, written or otherwise, you were not the driver of the vehicle on the dates in question?

What constitutes as proof ?

I am self employed would an invoice to one of my customers be proof to prove I was elsewhere ?

mrniceguy18

I've done some reading and came across the N460 I am confused is this something i should have got when i was at the hearing do i need the judges permission to have an appeal ? she did mention about me appealing but wasn't sure whether this was meant to be done during the hearing.

I have found the N164 Form which I am going to fill in and send off does this need to be accompanied by the N460 and is it impossible to appeal without it ?

a1terrier

Wouldn't have thought so. Can't you get a written statement from whoever you were with at the time of the alleged event to state that was where you were?

mrniceguy18

a1terrier wrote: »

Wouldn't have thought so. Can't you get a written statement from whoever you were with at the time of the alleged event to state that was where you were?

Thankyou for your help , as the date is over 2 years ago i am going to have to have a look in my documents to see who my customer was at the time. I will take a look & see if there is anyone who would be willing to write a witness statement explaining my whereabouts would the witness need to attend court if they are giving a statement ?

a1terrier

No I don't think they would, just a signed document, preferably on headed paper with `To Whom It May Concern` at the top.
If you were elsewhere at the time that is a key defence point if they are presuming you (The Keeper) were driving. According to a recent case the District Judge dismissed one of their claims as they had no right to presume anything in a court. Sounds like you got unlucky with your Judge.

Coupon-mad

The judge did say she would give me a chance to appeal at the start

Eh? At the start of the entire hearing she'd already decided you had lost?

they weren't relying on POFA

Then they CANNOT win that case, unless you were actually driving and the Judge found reasons to decide you were. The Judge has erred in law UNLESS she found that you were driving.

Did she say ''I find that you were the driver''?

Or did she accept their utter codswallop assumption or 'agency' argument like in Excel v Smith?

[Deleted User]

It sounds as though claimant alleged D was the driver and unfortunately D had no evidence to suggest otherwise.

If the claim was never brought relying on POFA then, strictly speaking, the court only had to decide who the driver was - the defendant or someone else. That may be why the DJ simply said POFA doesn't apply.

The correct argument to that of course is that POFA is the mechanism by which parliament enable parking companies to overcome disputes as to who was driving and, in the absence of clear evidence, there cannot be any assumption or they wouldn't have bothered to create POFA.

Getting a statement now is no good since that would be to re-try the case on facts not available to the court. The appeal needs to be made on the basis that the DJ fell into error on the day.

mrniceguy18

Coupon-mad wrote: »

Eh? At the start of the entire hearing she'd already decided you had lost?

Then they CANNOT win that case, unless you were actually driving and the Judge found reasons to decide you were. The Judge has erred in law UNLESS she found that you were driving.

Did she say ''I find that you were the driver''?

Or did she accept their utter codswallop assumption or 'agency' argument like in Excel v Smith?

The DJ began the hearing by asking whether I had been in a small claims court before which i answered no.

she then went on to explain the process of the hearing and said I will give you the chance to appeal if you think i have made an error in law.

During the hearing BW Legals rep went on to say about how i had not responded to any of their letters and that i hadn't bothered to tell them who the driver was as i wasn't driving he also said ' If the defendant had responded saying he wasn't the driver we wouldn't be sitting here today (which obviously is a load of rubbish).

I responded by saying 'I am under no legal obligation to name the driver to them' and how the letter they have sent me doesn't comply with POFA so cannot legally hold me liable.

The DJ then went on to say well 'If someone took your car and ran someone over would you not have to tell anyone' I responded well that would be a criminal case and i would have different legal obligations.

She then went onto say 'well you have entrusted someone with your vehicle as you are the owner'.

I then said but the claimant has decided not to use POFA which is the law set in place for the claimant to legally pursue me as the RK.

she summarised by saying that she felt on the balance of probability that I was the driver.

IMO i think she knew i wasn't the driver but had an idea that i knew who the driver was but as I didn't want to disclose the drivers details to Excel she made judgement against me even though she knew its an error in law. I also got the feeling BW Legals Rep & the DJ have previously met before.

Johnersh wrote: »

It sounds as though claimant alleged D was the driver and unfortunately D had no evidence to suggest otherwise.

If the claim was never brought relying on POFA then, strictly speaking, the court only had to decide who the driver was - the defendant or someone else. That may be why the DJ simply said POFA doesn't apply.

The correct argument to that of course is that POFA is the mechanism by which parliament enable parking companies to overcome disputes as to who was driving and, in the absence of clear evidence, there cannot be any assumption or they wouldn't have bothered to create POFA.

Getting a statement now is no good since that would be to re-try the case on facts not available to the court. The appeal needs to be made on the basis that the DJ fell into error on the day.

I had insurance documents showing me as a main driver on another vehicle , the judge seemed to think that excel could pursue on the balance of probability. I am going to make an appeal following your advice on the basis that the DJ fell into error that day.