Help BW Legal/ Excel Court Claims

jkdd77

It seems to me that the OP's (presumed) defence and witness statements (each supported by a statement of truth made under penalty of perjury) that he was not driving, combined with statements in open court to that effect (also under penalty of perjury), are evidence in their own right.

The claimant must prove, on the balance of probabilities, that the defendant was driving. In a case where the only "evidence" from the claimant is a bare assertion, and the evidence to the contrary is a repeated and consistent denial by the OP that he was driving made under penalty of perjury, then it is difficult to see how a properly directed DJ could be satisfied on the balance of probabilities that the PPC has proved their case.

As johnersh says, if the PPC could simply presume that an RK was driving in the absence of a firm nomination to the contrary, there would have been no need for Parliament to enact RK liability, and the PPC's failure to comply with the simple conditions to rely on such liability is entirely their own fault.

I too would (seek leave to) appeal, and at the same time ask for a stay of execution (edit- irrelevant if the OP has already paid the judgment), partly because of the risk that, in the absence of an appeal, BW Legal will obtain the transcript of the original hearing and use it as persuasive evidence in the second claim.

The OP would need to pay the appeal fee and to obtain a transcript of the original hearing.

However, the OP should be aware that some circuit judges are extraordinarily reluctant to grant leave to appeal, and, if leave to appeal is refused, that would unfortunately appear to be the end of the line for that case, although it would not necessarily prevent the OP from defending the second case.

As an aside, were any additional defence points raised, and how did the DJ dismiss them?

mrniceguy18

jkdd77 wrote: »

I too would (seek leave to) appeal, and at the same time ask for a stay of execution, partly because of the risk that, in the absence of an appeal, BW Legal will obtain the transcript of the original hearing and use it as persuasive evidence in the second claim.

As an aside, were any additional defence points raised, and how did the DJ dismiss them?

Thankyou for your advice I will do exactly as the next case is in a few weeks. Would i need the DJ to have filled in an N460 for the appeal to be allowed ?

My main defence point was POFA , I also used signage and Landowner contracts but the DJ seemed to think that excel had followed IPC code of practice and had relevant contracts. I also raised the point to the DJ about how the first letter excel sent says ' if you are the registered keeper at the time of the contravention but were not the driver then a payment of £60 will be accepted' which is blatantly misleading the RK to think that the debt is their liability.

she didn't really take in what i said and asked BW Legals rep what he had to say to that. which he responded with a load of rubbish saying that if i had responded to the letters saying i wasn't the driver then the claim against me wouldn't have went ahead.

I went on to say that I wasn't legally obliged to respond as the claimant hasn't used POFA.

she then went on to say well the claimant doesn't rely on POFA and therefore this claim is on the balance of probability.

Coupon-mad

I have no idea how she felt the balance was tipped in their favour, with no evidence, when you were saying as fact that you were not the driver.

mrniceguy18

Coupon-mad wrote: »

I have no idea how she felt the balance was tipped in their favour, with no evidence, when you were saying as fact that you were not the driver.

Neither do I , In my WS i included my insurance policy for that car showing a named driver on the policy and i also included an insurance document showing i'm a main driver on another vehicle.

the named driver on my insurance for the car in question is also a named driver on the other vehicle that i drive as a main vehicle.

so its me and the same named driver on both policies which in her head she possibly was thinking it must be one of these two drivers but even still without the claimant using POFA there is no hard evidence to suggest i was driving, i did also stress that other friends and family have access to the car .

she didn't seem to like the fact that I did not respond to excel with the name of the driver,
which was what i was questioned about the most.

Coupon-mad

It was 50/50, not tipped against you, and in fact your oral testimony was that you were NOT driving. She fell into error, then, to decide otherwise and her reasoning about a driver committing a criminal traffic offence was waaaay off! You are NOT liable, if a driver of your car kills someone, either!

She had no clue, seems to me.

I would do the appeal, did you pm Daz Clayton (the Excel v Smith case poster) like I advised you to, on pepipoo?

jkdd77

It sounds to me like the judge erred in law when, in coming to her conclusion on the point of fact as to driver identity, she placed undue weight both on irrelevant comparisons with criminal law and on the OP choosing not to name the driver (presumably due to a legitimate wish to prevent the driver from being harassed and sued).

bargepole

There are many people posting advice on this forum about court procedures, who have never actually set foot inside a courtroom in a small claims case.

What they fail to appreciate, is that many District Judges do not like 'technical' defences, and will require some form of evidence to support a Defendant's contention that they were not the driver at the time of the parking incident. Supplying insurance documents showing that there is more than one named driver, doesn't cut it.

If the OP had stated in their WS, something along the lines of "On the material date, I was not the driver of the vehicle, or present at the material location. On the date in question, I was in a meeting with a client at XXXX, and exhibited with this statement is a letter from my client, confirming this fact", the outcome may have been different.


Then go on to state the reasons why the Claimant's NTK is not compliant with s8 or s9 of POFA, and therefore keeper liability does not apply.


There is also a valid point to be made in that, had the OP informed the PPC right from the start that they weren't the driver, instead of waiting until the claim form arrived, the whole case may have been different, or not come to court at all.


As far as any appeal is concerned, the OP won't have form N460, that is a form filled in by the DJ at the first hearing, stating that the Defendant may appeal, and on what grounds. The request for leave to appeal must now be made to the Circuit Judge within 21 days, on form N161, for which a non-refundable fee of £120 is payable.


But it's far from a slam-dunk certainty that such an appeal will be successful, contrary to what some posters seem to believe, even those saying so in caps. The appeal court can only consider the evidence which was before the original DJ, and may still come to the same conclusion.

[Deleted User]

The appeal court can only consider the evidence which was before the original DJ, and may still come to the same conclusion.

This. Exactly.

An appeal is NOT the opportunity to advance arguments that should've been made before.

As far as I can tell, the defendant brought nothing to show that there was another driver (and possibly got bogged down in POFA). It is within the remit of a judge to simply not accept the defendants account as put to them.

The problem is for those commenting that without a transcript it's very difficult to see clearly/definitively what has happened here.

mrniceguy18

Coupon-mad wrote: »

her reasoning about a driver committing a criminal traffic offence was waaaay off! You are NOT liable, if a driver of your car kills someone, either!

She had no clue, seems to me.

I would do the appeal, did you pm Daz Clayton (the Excel v Smith case poster) like I advised you to, on pepipoo?

This did throw me off a little when in the courtroom but my response was 'this would be different' she then responded 'how would it' which i responded 'well it would be a criminal case where i would have different legal obligations to name the driver'

I have done some reading of the links you previously sent me which have been a real help! i will also be PM daz clayton today to see if i can get any further help.

Johnersh wrote: »

This. Exactly.

As far as I can tell, the defendant brought nothing to show that there was another driver (and possibly got bogged down in POFA). It is within the remit of a judge to simply not accept the defendants account as put to them.

Thanks for all of your input & for the heads up , the only proof i had at the time was my oral testimony that i wasn't the driver & 2 insurance documents showing myself and the same named driver on each. Which I now understand after last weeks defeat that anyone fighting these claims should aim to have more solid evidence to back up as you cannot count on the DJ to know POFA or to even have bothered read the schedule included in defence.

bargepole wrote: »

many District Judges do not like 'technical' defences, and will require some form of evidence to support a Defendant's contention that they were not the driver at the time of the parking incident. Supplying insurance documents showing that there is more than one named driver, doesn't cut it.

If the OP had stated in their WS, something along the lines of "On the material date, I was not the driver of the vehicle, or present at the material location. On the date in question, I was in a meeting with a client at XXXX, and exhibited with this statement is a letter from my client, confirming this fact", the outcome may have been different.

Then go on to state the reasons why the Claimant's NTK is not compliant with s8 or s9 of POFA, and therefore keeper liability does not apply.

There is also a valid point to be made in that, had the OP informed the PPC right from the start that they weren't the driver, instead of waiting until the claim form arrived, the whole case may have been different, or not come to court at all.

As far as any appeal is concerned, the OP won't have form N460, that is a form filled in by the DJ at the first hearing, stating that the Defendant may appeal, and on what grounds. The request for leave to appeal must now be made to the Circuit Judge within 21 days, on form N161, for which a non-refundable fee of £120 is payable.

But it's far from a slam-dunk certainty that such an appeal will be successful, contrary to what some posters seem to believe, even those saying so in caps. The appeal court can only consider the evidence which was before the original DJ, and may still come to the same conclusion.

Thankyou for you input ! ' yes it seems some DJ will not simply take ' I wasn't the driver' i will bear in mind what you have said for future witness statements as now when i look back i feel mine lacked to specify my whereabouts which potentially added to the judgement going against me.

I will make sure to get a letter confirming my whereabouts for any future cases.

yes this is a very valid point I would advise anyone to respond to any communication from Excel as and when they get it as i feel this also went against me.

I haven't got the N460 form would this come in the post or is this something i should have requested at the hearing ?

Upon weighing up the pros and cons i feel i should appeal as BW Legal are still pursuing me so i want to aim towards killing all of this dead in the water as i have already had to pay these scammers for the Judgement the other day and really don't want to give them another penny.

Coupon-mad

Reading all of it, I still feel your case should be appealed. I think your evidence with car insurances was enough.

Bargepole orJohnersh might be able to answer about the N460.