At Court hearing stage with CEL who have provided a Witness Statement

sdavies8501

re the picture of the sign there os mo way reading the small prints its too blurred.

re the skeleton argument i have read through other via the newbies thread but finding it v difficulr to prepare for my own case.

i will be sending this letter today thanks for your help much appreciated. i

Loadsofchildren123

Where did you get the photo from? WAs it with their WS?


In which case, add to the letter that their photo is blurred and you require, by return, a clear copy.


Also, is that the signage at the entrance, or inside?


The last para of the sign, the one we are all debating, seems to be the same as in gorilla's thread which Robinof... linked to

Loadsofchildren123

The Skeleton. Not required in small claims, but standard in all other types of claims. A helpful document. It condenses your case, and your response to their case, in brief terms, cross referenced to the relevant paras in the Claim/Defence/WSs.

It is not only intended to help the judge, but is a great crib sheet for you. You serve it 2/3 days prior and file it at court. Then on the day make sure it's found its way to the judge (take spares). In court ask the judge if they've read it. Use it as a crib sheet to organise what you say to the judge.

I can't really advise more because I haven't seen your defence or WS.
As a starting point, identify and list the issues.
So eg:

A. Preliminary issue: the Driver did not enter into any contract with C. C is not the entity identified on the signage, Starpark is. Furthermore, the Notice to Keeper sent to the Defendant named "Versatile Parking Ltd" as Creditor, not C. Versatile is a completely separate entity to C - it is registered at Companies House as company number xxxx, C is company number xxxx. Not only is Versatile separate to C, it was dormant at the time and incapable of offering or entering into any contract, nor of seeking payment of an alleged contractual sum. See letter and documents [either attached or at page x of the bundle].

B. D wasn't driving [para x of Defence/para x of WS - if there's a paginated court bundle then refer to the page numbers]:
There can be no presumption that D was driving (supported by Elliott v Loake in which there was concrete evidence that D was driving) *only mention E v L if they do]

C. Since D was not driving, (s)he cannot be liable as RK because POFA 2012 was not complied with [reference to defence/WS and specific para numbers of the relevant part of POFA]

If one of these argument succeeds, the claim fails.


Further defences (only necessary to consider if A-C above are decided against D):

Then if there are matters in the C's WS that you wish to challenge, list these with what they say and your response. It just makes your life easier and means you spend less time on your feet delivering your arguments on the day. Don't think about it until you know the case is going ahead (see if CEL pays the hearing fee first)

Loadsofchildren123

Loadsofchildren123 wrote: »

In which case, add to the letter that their photo is blurred and you require, by return, a clear copy.

Actually, scrap that. Don't ask them for a better copy. If that is the copy attached to their WS then their case may fail because they can't show the judge what the wording says and they probably won't notice. So don't give them the chance to correct it. You just tell the judge "well we can't see what that wording says, the sign clearly identifies starpark... the C can't establish what the terms of the alleged contract were, or that any contract was entered into between CEL and the driver".


Risk of course is that you got an illegible copy but they have a legible copy. But you lose nothing if that transpires, you just show your copy to the judge and say "this is what I've got, I can't read it" and they'll get a bit of a row and the case will move on.


You can then make the argument that:
starpark is prominently named in the sign.
When you googled them you got a starpark website that doesn't mention CEL.
The only mention of CEL in the sign is that they will enforce the contract.
Starpark is not identified as the trading name of CEL in the sign.
Any offer is clearly being made by Starpark.
CEL is the wrong Claimant.
C will jump up and down and say it's their trading as name, and you will ask where was I told that, where was that stated in the sign or on the PCN/NTK? Then you can move on to mention that CEL wasn't even named as the creditor in the NtK, which said it was yet another entity, this time a limited company called Versatile.

sdavies8501

ok thanks i will look into preping a a skeleton argument as i will be a bag of nerves in the court room. can my husband come in with me and also speak on my behalf if ir becomes too much for me?

KeithP

Have you seen this video?
It might help:

www.youtube.com/watch?v=n93eoaxhzpU

Loadsofchildren123

You have the right to a lay representative (lay rep) or to a MacKenzie Friend.

A MacKenzie friend doesn't speak for you but helps you (eg when you are speaking finds the right page for you to refer to, or taps you on the arm and reminds you to say something).
A lay rep speaks for you.

In open court (which all civil cases are) anyone can come in and listen - whether that be your husband or a complete stranger.

Usually, you need the court's consent for either a MF or a lay rep. But in small claims you have an automatic right under Rule 27 to have a lay rep and don't need to ask permission.

At the start of the case, tell the judge that the person with you is your husband, and whilst you intend to present your own case, you are a little worried that you will get flustered and feel a bit overcome, and that you may wish to use him as a lay rep.

The judge should know the law, but in the unlikely event (s)he says it isn't allowed, direct the judge to Practice Direction 27, para 3 (and specifically 3.2), which says this (the only condition is that you must be present, which you will be):

Representation at a hearing

3.1 In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor or any other person authorised under the Legal Services Act 2007 to act as a litigator or advocate; and

(2) a lay representative means any other person.

3.2
(1)A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

Coupon-mad

sdavies8501 wrote: »

ok thanks i will look into preping a a skeleton argument as i will be a bag of nerves in the court room. can my husband come in with me and also speak on my behalf if ir becomes too much for me?

Yes. It is your right, as LOC123 says.

Search the forum for Lay Representatives Rights of Audience and take along the usual printout of the Act (in case the usher thinks you mean MacKenzie friend, which you do not). This has all been discussed umpteen dozens times before, so read threads about what to take/what to say.

Loadsofchildren123

I wouldn't even bother with the Lay Reps Order (it's not an Act), it's in the Practice Direction to Rule 27 which I've quoted above.

sdavies8501

Update following hearing:

CEL didnt turn up, judge summed up case first then gave me a chance to argue points which were differing organisaions on sign ntk from claimaint with one orgs being dormant, defendant not driver up to claimant to prove and did not provide any evidence and finally non compliance to pofa

judge did question my arguments here and there but not too tough, the outcome was that the claim was dismissed!!!

i mentioned costs and they were awarded so really good result overall.

A big THANK YOU to everyone here for all your advice