Letter Before Claim - Gladstones [Residential Parking]

Le_Kirk

knightstyle wrote: »

Le_Kirk first thanks for all you do on these threads.
But I have to say that when my DW was summoned to court by the Police for not showing her documents as required she was unable to attend and I went in her place, I asked if I could speak to the court and this was allowed. She them had all charges dropped by the court.

That would be the criminal court then and we are talking here of the small claims court which is civil and they have their own rules; they are the Civil Procedure Rules (CPR) and the one concerning attendance it CPR27.9 Non Attendance at a Hearing.

Loadsofchildren123

Le_Kirk wrote: »

That would be the criminal court then and we are talking here of the small claims court which is civil and they have their own rules; they are the Civil Procedure Rules (CPR) and the one concerning attendance it CPR27.9 Non Attendance at a Hearing.

I thought in a small claim with a Lay Rep you have to be there, but if you use a solicitor then you don't. It's not non-attendance, because your solicitor is there. That's what the PPCs do all the time, send a legal representative.

The downside of not going yourself is they can argue you weren't there for your evidence to be challenged, so your evidence should be given less weight (posters make that argument all the time against PPCs and it often works).

Not sure how this applies to retired, I think you probably have to have a practising certificate.

Le_Kirk

You would know better than I. IANAL and have only based my comment on reading posts on this forum and the CPR. Unfortunately CPR is silent on having a solicitor instead of the defendant. Good point about the claimant sending solicitors in their stead, maybe it should be equal for both sides. Agree with your comment about the downside of not attending, which is why defendants are always advised to appear. I cannot comment on solicitors being retired or what difference that makes. Since you are "in the business" maybe you can point me to the relevant bit in CPR about this so I can offer proper guidance in future.

[Deleted User]

A solicitor is an authorised representative. I regularly go to court without my client. The issues are twofold (a) the witness statement has less credibility because there is no opportunity to cross-examine the witness in oral testimony (as noted above) and (b) that in a small claim you're likely to spend more than the claim is worth and not be reimbursed for that...

As for retired solicitors, they are likely to have not renewed their practising certificate so are, effectively, unlicensed at that point. They may come off the register (roll) entirely. No better a position than the claimant's hired find who are often similarly unqualified.

This is not a CPR point but statutory. The link below is helpful.

https://www.lawgazette.co.uk/law/right-of-audience/57199.article

Le_Kirk

Thanks Johnersh and LOC123, it would appear that the advice is correct, the defendant MUST appear if he/she is to be assisted by a Lay Rep or McKenzie friend but does not need to do so if represented by a (practising) solicitor. Very interesting article from the Law Gazette, which talks about the right of audience for someone acting for the claimant. Does one presume that the same would apply to someone acting for and in place of a defendant, i.e. the defendant is not present, which is the case here?


ETA And apologies to the OP for side-tracking the thread.

[Deleted User]

Does one presume that the same would apply to someone acting for and in place of a defendant,

Of course. The act concerns the issue of representation, that's not limited to a specific party.

Note that the lawyer acts for, but not in place of a party. S/he cannot give evidence for a party hence the significance of the earlier points on this thread.

Le_Kirk

Johnersh wrote: »

Of course. The act concerns the issue of representation, that's not limited to a specific party.

Right, got that, the act refers to claimant and defendant equally.

Johnersh wrote: »

Note that the lawyer acts for, but not in place of a party. S/he cannot give evidence for a party hence the significance of the earlier points on this thread.

Now here then is my problem. Someone, who is a solicitor/lawyer can turn up and represent either party without that party being present and that's OK but the solicitor/lawyer cannot give evidence for the party as per your comment above. What then, is the point of the solicitor/lawyer turning up, what can they do?

Someone, who is not a solicitor/lawyer cannot turn up and represent the party if the party is not present because they don't have right of audience.

I am not trying to have a free lesson in law here, just want to be right so that advice offered to posters is correct.

[Deleted User]

The lawyer presents legal argument (which may include what D says about where/how a car was parked). However those are *instructions* not evidence. The lines are blurred a little here - almost all of a claimant PPC statement is legal argument not fact known to any specific individual about the specific parking event.

A first hand account in a witness statement is evidence of fact - which is given the weight that the court decides.

The point here is that in small claims the hearing is effectively the trial. In most other cases the lawyer handles numerous court fixtures without his or her client - but the client is always available to speak to their statement at a final trial.

The cases of Wizniewski and Manzi deal with absent witnesses. The case of Keefe v IoM Steam Packet addresses missing documentary evidence.

Le_Kirk

Are we OK then to keep advising posters that they must/should be in court (with or without a lay rep/McKenzie friend) AND that a lay rep/McKenzie friend cannot appear in their stead?

[Deleted User]

That is correct. Those individuals have no right (other than to watch) unless the party is present and requests that assistance