Advice on Witness Statement submission - Highview Parking Ltd/Group Nexus

Sebi_895

Thank you again...I was not aware of a circuit judge holding an appeal but then something with purple robes comes to mind. I will re-compile with your recommendations and I'm definitely taking the Lamoureux case file and swotting up on it!
I'm not surprised you have a 100% win rate as you cover every aspect down to the minute detail that could help a case.

Re an insurance doc; I couldn't find one in my email (possibly deleted) as I changed it mostly every year. However, it wouldn't hold much water though as only me and my wife on it. At that time there was various folk (my family and my wife's family) who did have use of the vehicle (their insurance would cover the use of another vehicle) I wasn't driving on that day, I know that but I'm not going to stick anyone else in - so to speak. I understand you are (once again) helping me to cover all aspects to build a strong case but if it does come down to it then I am going to argue the case on the basis that the burden is theirs. 

Umkomaas

 thought I'd draw your attention to this fairly recent thread which you might have missed. You must keep going through all the necessary court procedure phases, but the hope is that your case ends like all those detailed in the thread. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Coupon-mad

Having you and your wife on the policy holds all the water you need! And you don't have to prove it.  Just say it!

The Judge will decide whether they believe that you were the driver 'on the balance of probabilities' which is tipped if there is at least 51% chance.

See the problem for the Claimant?!

Sebi_895

Umkomaas said:

 thought I'd draw your attention to this fairly recent thread which you might have missed. You must keep going through all the necessary court procedure phases, but the hope is that your case ends like all those detailed in the thread. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Thanks @Umkomaas - I have seen that thread and thats where I'm hoping mine does end up but as you say need to keep going with as much detail as possible.

Sebi_895

Coupon-mad said:

Having you and your wife on the policy holds all the water you need! And you don't have to prove it.  Just say it!

The Judge will decide whether they believe that you were the driver 'on the balance of probabilities' which is tipped if there is at least 51% chance.

See the problem for the Claimant?!

But then I'm assuming I need to be careful wih the wording so the C don't try and claim from my wife...just hearing the words county court and she'll be having panic attacks!

Coupon-mad

You don't actually name her! Just say it was more likely to have been your wife because (blah blah).

You just use Henry Greenslade's words from the POPLA Annual Report 2015 like everyone else does on all the Highview defence threads.  Hundreds here.

There's nothing scary about county court. I'm a middle aged mum with no legal training and I've never lost a case in front of a Judge. It's exhilarating! 

Sebi_895

I would love to watch you in action in court in front of a judge, I reckon it woud be quite entertaining and then just to see the look on the Claimants face. In all honesty, I have no qulams about going to court, slight trepidation of course but once I settle I reckon I'd be fine. I do loads of presentations in my job and I'm often sent into bat against supplier and customer by my employer so deal with it quite well.

I have noted your advice and words, if I do get in front of the judge then I would be making sure I'm prepped to the fullest.

On the basis of this, I've re jigged the WS so am nearly there on that front. Changes made as below...I have amended the opening of the WS though, adding the line (back in) re the vehicle being insured with more than one named driver.

>3.     As stated in my defence, the date in question is unremarkable and I am unable to recall who was driving on that day over 4 years ago given that the vehicle was insured with more than one named driver.

>4.     I am the registered keeper of the vehicle in question in this case, however, I was not the driver and am willing to give oral evidence stating this fact. I do not know the identity of the driver and charge liability cannot be transferred from the driver to the registered keeper on a non-compliant PoFA PCN.

Para 9 re adding fuller details of the case exhibits that dealt with 'non-POFA' NTKs that I am relying on...

>9.     It is important to note similar cases where ‘non-PoFA’ PCNs were discussed and the case struck out due to the parking company failing to comply with PoFA 2012 and attempting to hold the registered keeper liable as opposed to the driver.

In the recent appeal case to the Circuit Judge; Excel Parking Services v Smith (Appeal) 08/06/2017 C0DP9C4E (Exhibit XX) HHJ Smith sitting at Manchester County Court overturned a mistake made by the Deputy District Judge from the original case, where the identity of the person who was actually driving the vehicle was not known, being persuaded to rule as such that the registered keeper could not be held liable. The case was dismissed.

“There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency.”

Whilst it is known that another case that was struck out on the same basis; Excel Parking Services v Lamoureux C3DP56Q5 judgment (No keeper liability) (Exhibit XX); District Judge Skalskyj-Reynolds at Skipton County Court ruled against the parking company for issuing a non-PoFA’ PCN, that could not hold the registered keeper of the vehicle liable;

“So unfortunately, I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability.”

I do have a final query but I'll wait until I've got the WS seal of approval first. Thank you, thank you once again.

Coupon-mad

Every paragraph needs a number but that looks fine.

Sebi_895

@Coupon-mad Amazing, thank you for your guidance.
I will now go away and pull it all together and post a final WS here soon.

I do have a final query though, something I didn’t find a definitive answer to, although it has propped up in some discussion threads.

My hearing of the claim will be in mid-December and according to the ‘notice of allocation’ the claimant needs to pay the trial fee by mid-November which is some time away still. My WS needs to be submitted 14 days before the hearing but I am almost ready to send now. My question is should I delay sending the WS for a while? I've yet to receive a WS from the claimant (possibly waiting to see if I bother) I don’t want to be in a position that the claimant sends a WS just before the hearing leaving me with hardly any time to counter. I get the position that the alternative could be that I send it now and I get a discontinuance sooner. What's the recommendation here??

Thanks in advance.

Coupon-mad

Wait.  You want to see theirs first, ideally!