BW Legal - Any help very much appreciated...

Redx

its not a court , its a government office , your county court hasnt been allocated yet

you should email a copy to the CCBC and to the claimant, possibly post one to the claimant, but email the CCBC same as the defence

Umkomaas

One other question.... Do any of the experience folks in here have any knowledge of how much difference it makes (in success rates) by having a case heard on papers?

A marked difference. Every one I've read has been lost and without the defendant being there to argue, the claimant's cost in full (often including the ubiquitous £60 add-on) are awarded. No one here will recommend an 'on the papers' hearing.

Does anyone know of cases being won on papers

None whatsoever.

I have about 5 cases now, soon to be more like 10. The travel costs and time will be extremely difficult, so I am considering having them heard on papers.

I've not ploughed back over almost 250 posts (the thread is becoming extremely unwieldy), but if the cases are from the same claimant and are broadly similar in context, have you asked the court to amalgamate them all to be heard at one hearing to save extremely onerous travel and time costs for both the claimant and defendant, as well as tying up the court system with multiple single cases, when one hearing could be sufficient to deal with them all?

KeithP

After filing a Defence, everything*, absolutely everything, that you send to either the Court or the Claimant must be sent to the other party.


*unless of course it is marked 'without prejudice'.

Coupon-mad

Does anyone know of cases being won on papers

Pace v Lengyel but that was the lovely DJ Iyer at Manchester.

DO NOT, repeat DO NOT decide to go to work rather than turning up. Also, if these cases are all from the same claimant, when you win this first one, ask the Judge for

(a) your costs AND

(b) you would like to ask him/her to order that the other cases of similar fact and detail from the same claimant (have a list of the claim numbers) are struck out or in the alternative, that the C is ordered to write to the court within 7 days to explain in what way the duplicate claims differ in fact and detail sufficiently to justify further hearings and costs. And if they do not do this to the satisfaction of the court with full particulars and a detailed explanation as to why the doctrine of res judicata and the precedent in Henderson v Henderson should not apply, that those claims will be struck out.

I say this on the basis that if you don't ask, you don't get.

Obviously the above is not relevant if your claims are from different PPCs.

Here is some wording from bargepole, that explains the above:

Multiple claims

...however the issuing of separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In the event that these matters proceed to claim issue, they must be particularised as a single claim and not as multiple separate cases.


Exemplary damages for unreasonable conduct

and to further consider what sanctions may be applied to the Claimant, and/or their legal representatives, Gladstones Solicitors, who are clearly abusing the civil litigation process in order to attempt to gain a pecuniary advantage to which their clients have no entitlement. The Court may wish to consider the Judgment of the Court of Appeal in AXA Insurance PLC v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330, and express its disapproval of the Claimant’s conduct by making an award of exemplary damages in favour of the Defendant.

didgeridoooo

Coupon-Sane - Your posts are always superb, but you outdid yourself with that one. Thank you very much indeed. Excellent point, I will make sure I am armed at the first hearing to do exactly that.
P.S. I think the PPCs may vary, but will pull in any which are relevant/same.

didgeridoooo

P.S. (Sorry for posting again)... I have decided to get on with my WS now, rather than let my memory (of defence) fade even more and have a bigger panic later nearer the deadlines.

I am going to write my WS now, but a couple of brief questions:

Coupon-Sane - You said previously in this thread to use the defence for legal points, and save "nappies" story for WS. So..... my loose plan of attack is as follows (for WS)....

1. Explain POFA is being relied on here, and thus D is not obliged to divulge the driver. (That's there just to give J something to "hang hat on" IF he/she wishes to throw this out quickly).

2. Tell story, accepting risk of admitting driver, but invoking the mitigations of what actually happened (sick child, back to vehicle in time, sorted child before driving out without knowing ANPR was in use, due to lack of proper signage) etc.

3. Signage and Contractual issues - Signage made various mistakes, failed to mention claimant was contracting party, various other points.

4. Procedural failures, unreasonable conduct, please throw this trash where it belongs and aware me costs me'lud.

Very loose, and only numbered to show order I plan to mention things in. I suspect people may suggest removing POFA but I think it's worth an early inclusion just so a J who is sick of BWL type crap, can instantly chuck it out (legitimately) as they failed to comply with POFA in so many ways.


I am even temped to have two sections to the WS entitled "Legislative Defence" (POFA and PD) and "Driver Defence" (circumstances) - and let J take his/her pick! I know it's probably unconventional, but I do believe in occsaionally trying something new, not much progress otherwise! Thoughts welcome, but save the slaps please

nosferatu1001

There is never an obligatio nto name the driver
Read POFA. It never says anything like wha tyou suggest. I have NO idea where posters keep getting this idea from.

SO you state teh claimant is not relying on POFA, so there is no liability for the keeper. See their NtK at.... (your exhibit ref)

2) How will you end up talkjng about the driver? Its not difficult - never identify the driver. Just dont do it. Occupants of the vehicle are possible, as most cars have more than one seat!

3) Yes, you state the facts that support your defence. Easy!

4) You can mention unreasonable behaviour if you wish. Id do that in the SEPERATE costs schedule.

I dont know why youre 13 pages in, and havent seen this, but
- if the driver is identified as the defendant, then POFA goes out the window
- your current plan sounds like a recipe for throwing POFA out of the window
- your WS isnt a defence. It never is. It is a series of facts that supports the arguments raised in your defnce.

didgeridoooo

Thanks for that. You sound frustrated. I am equally so. I have been around this argument many times (stick with POFA v use circumstances if its a better defence) and got many T shirts for my travels!

1. Nobody on this forum (that I know of) nor myself has ever said, or believes, that there is an "obligation" to name the driver. I know that doesn't have to be said. But whilst I have read comments like yours from several experienced and/or trained people, I have read opposing messages/advice from similarly experienced/trained folks! I was left in a quagmire of confusion, and thus had to conclude to just take my own decision since there is clearly no right or wrong. I approached this entirely from the "POFA defence" angle, for weeks, planning and preparing for that strategy. I was told it's strong. Then other people (of equal merit/knowledge that I could tell) said quite the opposite, that POFA can be seen as a "technical defence", and that the judge 'will likely just ask if you were the driver'. Combining that with the fact that I think the circumstances on the day DO provide strong defence points (as some have said, way stronger than POFA), I was advised by others and eventually concluded that I should offer the judge POFA (to hang hat on if wishing to throw this out early/quickly), but then go into circumstances to A) Avail myself of the benefits of that, and show the judge the defendant isn't trying to 'weasel' out on a 'technicality'.

I suspect your response to that will be (as is mine in my gut, being a very literal and accuracy obsessed person) something like "LAW is not a technicality. If POFA precludes them from holding me liable, that SHOULD win it every day of the week". It's just that others have said I might bank on that and then the judge on the day is a 'lets chat it over' type of guy/gal, and says 'lets cut the 5hit, were you or were you not driving? what happened?'. In which case, saying (as I would actually happily do) "With respect Judge, I don't have to answer that and you shouldn't be arguing my opponent's case for them!" might just pi55 off a judge, understandably, even though I would end up losing but probably being thrown out, knowing me and my OCD for playing by the RULES to the letter!.

2. To clarify:

a) The driver has not been identified, but the ANPR photos will almost certainly lead the judge to conclude that it was indeed the defendant. (No, not to a scientific certainty, but easily beyond any reasonable doubt).

b) POFA is being relied on, as BWL have confirmed to me in writing, hence my early desire to stick with a POFA defence.


It appears there is one huge divide amongst all posters on this subject. Namely, is POFA all you need to win, if they have breached it clearly and in numerous ways? I think the answer SHOULD be a resounding yes to that! But others have led me to seriously doubt that.

Hence I am where I am.... Which is basically trying to hedge my bets. Offer up POFA as a means for the judge to tell BWL where to stick their claim, if so inclined. But if not, if instead it's a case of "forget that rubbish (i know i know, he shouldn't say that, but some say he might), lets talk turkey, were you driving or not?" - I am then fully prepared to win on the merits of the actual events, bad signage, etc etc.

If I have this all wrong, feel free to shout at me, I need it

But at this point it appears to me this is basically a point of opinion, which is strongly split down the middle on this board, and others too by all accounts.

Thank you again, I really do appreciate your input. I wish everyone had the same idea of what the best approach is, just to remove confusion for me in deciding what's best to do, but that's nobody fault and sometimes life is more complex than that, so I have to just vote with my feet and place my bets.

didgeridoooo

P.S. I honestly wish I could walk into the court and ask the J "Do you intend to hold them to the obligations placed upon them by the Act which their claim relies on in bringing me here today?". if the answer is "yes", stick to POFA. If he/she appears to want to know more about the actual events, chuck POFA and move straight to crap signs, honest intentions, not parked for more than time paid for, mitigating circumstances, equality act, and claimant is not the party offering terms on signage. (my best non POFA arguments)


Knowing I can't do that is the problem! I can't dump POFA because so many people say it can so easily have this claim trashed in 60 seconds, I can't dump the circumstances because if POFA doesn't do it, the rest almost certainly will!

nosferatu1001

1) You still seem to think you can give two defences. You cant. Youre not giving ANY defence at all her e- thats done. Its over. Youre now telling the story and facts that support your defence arguments. THats it

Given this is disclosed to the corut welllllll in advance, and to the claimant, exactly how do you think youre going to have two defences in play? I jsut do not understand, at all, how you think this will work?

There is no "Likely" ask you who was driving. From reading the cases here, how many times has that been asked, that we know of? Off the top of my head, about 10

Given your defence raised POFA, failing to use POFA at all seems foolish to me. Give yourself every possible argument.

2a) Really? Theyre going to hold an identity parade?
b) So then attack their compliance with it. Theyre chasing you as keeper, so defend on that basis.


To be clear

Youre too late in the process to be rewriting your defence. You're done there. Its now time to concentrate on taking your defence, working out the facts that support your defence, and providing evidence to support this. Thats your witness statement.

You have no possible way to have a two part WS that is somehow "hidden" until you know which way they're going to land on the day.