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Johnersh

There is so much wrong with those statements. 

Nowhere in the statement is there any personal knowledge of the signage - nor does he comment on the parking of the vehicle at all.

The statement is legal argument and comment on documents that the court already has. The court should be guarded in the reliance upon it, particularly where he is not at court to give evidence.

How can he give evidence of fact to address what his company's firm of solicitors believe? Who said what to whom and when? Does he bear direct witness to it? How is he spokesman? It's nonsense. 

The defective statement of truth is again seen - he appears to try and avoid stating "I believe that the contents are true" replacing it with the claimant believes.  No dice with that. It is in stark contrast to the declaration on the first statement. The reason for the change can only be that he is not able to personally support all that is said... 

Elliott v Loake did involve a presumption of the driver, but only after the court had heard damming forensic evidence and the defendant had given evidence that no-one else was entitled to or could have been driving his car. More pertinently the Road Traffic Acts provide no keeper liability presumptions, which is why that legislation and PoFA contain provisions for the driver to be named. Both pieces of legislation contain limited provisions by which the keeper can be held liable for an offence/parking charge - but that is not the same as a presumption that keeper = driver.

The intention of Parliament is clear - liability rests with a driver and that may not necessarily be the keeper. The court may make a determination as to who was driving, but it is entiry wrong to use Elliott v Loake as an authority that there is a presumption that the keeper is the driver. 

This is all legal argument. It is not for a witness statement which is supposed to be fact. Its compounded when the law is misstated so it is incorrect commentary masquerading as factual evidence. In my view this type of evidence should really be struck out. Would that i was a DJ... 

tank4228

Coupon-mad said:

Same as the one we saw earlier this week, already commented on another UKCPM thread.

I've looked through several threads and can't find it 🙄 could you link me to it please?

Coupon-mad

I've no idea which one it was, except to say Johnersh posted on it too.  So you can look at his replies...

Johnersh

Coupon-mad said:

I've no idea which one it was, except to say Johnersh posted on it too.  So you can look at his replies...

It's the thread by evileye

evileye

Johnersh said:

The defective statement of truth is again seen - he appears to try and avoid stating "I believe that the contents are true" replacing it with the claimant believes.  No dice with that. It is in stark contrast to the declaration on the first statement. The reason for the change can only be that he is not able to personally support all that is said...

Looks like it is a new strategy by Gladstones in response to everyone complaining about Jack Chapman's evidence as I received the same in my case. Is it worth raising with the Judges in hearings?

D_P_Dance

 Is it worth raising with the Judges in hearings?

Most certainly, but also worth pointing out to Gladstones, (copied to the SRA).

https://www.sra.org.uk/

nosferatu1001

Yes, do the above - point out to the court that the witness is trying to claim they are not actually a witness, but signing as such. 

Johnersh

@evileye The statement IMHO isn't worth the paper it's written on.  As I said before, the conscious decision to change the declaration on the new statement to "the claimant" acknowledges that Chapman personally doesn't have either the knowledge or the belief (or both) . It may be that he is unwilling to accept the contempt notice. The CPR should not be circumvented. 

The company could call anyone else who does have factual knowledge, but has elected not to. So, in summary, the statement should be treated as unsigned and impermissible. It adds nothing. 

I don't get it. This is a claimant that is professionally represented by a firm of lawyers. The defects are several in both form and content. The declaration is in my view sufficient for it to be struck out, particularly if there is no witness to be cross examined at the hearing (Jack Chapman has yet to personally give evidence at any hearing as far as I can tell). 

Indeed, arguably the second statement taints the first by introducing doubts as to exactly what is personal knowledge at all. If the court accepts that, then both of his statements should be excluded. 

bargepole

Johnersh said:

@evileye The statement IMHO isn't worth the paper it's written on.  As I said before, the conscious decision to change the declaration on the new statement to "the claimant" acknowledges that Chapman personally doesn't have either the knowledge or the belief (or both) . It may be that he is unwilling to accept the contempt notice. The CPR should not be circumvented. 

The company could call anyone else who does have factual knowledge, but has elected not to. So, in summary, the statement should be treated as unsigned and impermissible. It adds nothing. 

I don't get it. This is a claimant that is professionally represented by a firm of lawyers. The defects are several in both form and content. The declaration is in my view sufficient for it to be struck out, particularly if there is no witness to be cross examined at the hearing (Jack Chapman has yet to personally give evidence at any hearing as far as I can tell). 

Indeed, arguably the second statement taints the first by introducing doubts as to exactly what is personal knowledge at all. If the court accepts that, then both of his statements should be excluded. 

All of the above is correct with regard to Fast Track and Multi-Track cases.

 However, CPR 27.2 states that:

 1. The following Parts of these Rules do not apply to small claims –

(c) Part 32 (evidence) except rule 32.1 (power of court to control evidence);

 In practice, most Judges will not be too fussed about the format of PPC statements, given that many seem to allow them into the case even when filed and served on the day in some cases.

Johnersh

@bargepole

Firstly, I'd flag the point that this in isolation is not going to win the defendant their case, but may be a factor.

Second, l agree entirely that the CPR rules relating to witness evidence do not apply in the small claims track.  However, the thrust of my point is rather more fundamental: The rules relating to statements of truth and who may sign them DO apply - PD22. 

If I just thought the declaration was an error, I'd let it slide. However, taken together with the first statement of Jack Chapman, it is evident that a decision has been made to (a) submit new evidence - effectively given on behalf of another and (b) to fudge the statement of truth which he can't support by avoiding a personal declaration.  I think it may garner a bit of interest, when the witness is also not present. 

Certainly there are DJs who take the view "let's just press on" but I think the flaws in this are so fundamental  that they are worth raising.