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  1. #51
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    I see. It seems that I would be much better off making my appeal when the Judgement Order is available as this should confirm the time period the judge afforded me in which to lodge my appeal. Can I easily apply for more time due to the order not yet being processed by the court due to their difficulties or is it expected that I would have to 'get on with things' despite the delay at the courts. I dont understand how it takes the 'hearing centre' 12 or 13 working days to return the file to the 'home court' who have told me that they are only just processing Judgements from the middle of June and they will be some time before they get round to processing my Judgement.

    I only referred to the cases used at the hearing for my short SA as I thought I couldn't introduce anything not used at the hearing. Is this incorrect?

  2. #52
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    Default Re: County Court Claim from BW Legal for Excel Parking

    There is a box on the application to say why you need further time to file your appeal notice than what the judge had ordered and you can reasonably ask for this which I would suggest is one reason primarily - the judgment order is yet to have been drawn up and it is a requirement that the order is attached as part of the appeal. Also suggest as an alternative, that the Court give further directions in respect of the outstanding order as to whether it would consider the appeal without it.

    You can't introduce new evidence where it could have been adduced at the original hearing (except in exceptional circumstances). But it doesn't stop you from appealing and using additional case law to support your case that the judge was wrong in respect of the agency issue.
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  3. #53
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Okay, yes that makes sense. I think in the circumstances that it might prove wiser to take a couple of extra days to get this right and submit it a little later rather than rushing to get it done today.
    Would you be able to help me with the details of the case law I ought to refer to as previously suggested and how best to produce my SA?

  4. #54
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Any thoughts on emailing bw illeagal regarding their demands?

  5. #55
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    Default Re: County Court Claim from BW Legal for Excel Parking

    There's no harm in writing a polite letter to them informing them that you intend on appealing the decision along with requesting that the enforcement of the judgment is stayed pending the outcome of any appeal.

    Can you just confirm what exactly swayed the judge to decide against you and in favour of Excel? Was it solely the CPS v AJH Films case, and did the judge explain at anytime why that case applied to yours? As for any other appeal points about the other cases you referred to I think M1 might need to assist you with that or explain why the judge got it wrong so you could possibly appeal that point also.
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  6. #56
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    I'll be emailing bw today to inform them and ask them to put things on hold for a while.

    At the hearing the judge accepted that I was not the driver and wasn't able to name the driver so there was no presumption that the keeper was the driver.
    The judge accepted that there was agency between the driver and keeper.
    I introduced excel/lamoureux and excel/smith as case history dismissing bw's assertion that cps/ajh films supported agency in my case.
    The judge said lamoureux didn't apply as my case was pre pofa and adjourned so she could research cps/ajh and excel/smith and to allow the advocate to contact bw so as to determine what the difference was in that case to mine as he disputed relevance.
    Round 2 began with the judge introducing cps/ajh appeal transcript and parking prankster details for excel/evans. The advocate then stated that the smith case was not relevant as the driver was identified as the keepers grand daughter which was significantly different to my case so could not support my argument. The judge said this was not important as she could not find any transcript or supporting documents for that case so would not consider it as it was just hearsay. She acknowledged the findings of the judge in the Evans case but said she was not bound by that. She stated that there was nothing in the ajh transcript stating it referred to the existance of an employer/employee relationship and this therefore applied to my case and was satisfied an agency situation did exist so deeming me as the keeper liable for the contract entered into by the driver!

  7. #57
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Smith information I entered (judge kept this?) and transcript she printed for the hearing.
    Attached Images Attached Images

  8. #58
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    Default Re: County Court Claim from BW Legal for Excel Parking

    I'll take a look at your thread some time today.

    You can ask them to put things on hold but they're not legally obliged to unless a court orders a stay pending the outcome of the appeal. You should also seek to confirm whether they are instructed to accept service of any appeal notice and explicitly say that unless they get back to you within the next 48 hours you will assume that they are not and any appeal notice shall be served directly on Excel.
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  9. #59
    R0b's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Evening,

    I am not sure where you are at with your application or whether you've filled it in but most of it is pretty straight forward. In terms of form filling it should be something like the following:

    Section 1 and 2 should be relatively straight forward for you to fill in.

    Section 3:
    tick the box to for permission to appeal

    Section 4:
    No, Yes, No, No (assuming no other applications you are wanting to make).

    Section 5:
    I'm not sure whether you would be able to fit your grounds of appeal but it might be wise to set it out on a separate document, if that is the case then you could say something short like please see the attached document for grounds of appeal.

    Section 6:
    Set aside the order

    Section 7:
    You will need to complete Section 7A and 7B if you ticked No for not filing within the 21 days. 7A you can explain why you want a stay of the execution and in 7B explain the judge allowed 28 days to file an appeal however you have contacted the Court and no Order has been drawn up and request further directions should be made in respect of this - any other relevant information to add.

    Section 8
    Add any other relevant information to Section 7A or 7B if you feel necessary.

    -------------------------------------------------------------------

    Grounds of Appeal

    Based on what you said, your grounds of appeal would be something along the following (for example):

    1. The District Judge was wrong in law to hold that the case of Combined Parking Solutions v AJH Films Ltd [2015] EWCA Civ 1453 was not restricted to an employer/employee relationship and that the present case was capable of creating an agency relationship between the Appellant and the driver of the vehicle.

    1.1 Although there is no available transcript of the trial, it is accepted that the case concerned an employee of the AJH Films and whom was driving the vehicle (as illustrated on the CPS website) and there could therefore be a reasonable presumption that a agency relationship existed. The same cannot be said in the case of a private individual as individuals insured to drive a vehicle will be using it for their own personal use and benefit. It would be an absurd result to hold that those who are insured to drive are acting as agents of the registered keeper and not for their own personal use.

    2. The finding of fact by District Judge that an agency relationship existed was wrong because:-

    2.1 The onus is on the Claimant to prove that it reasonably believed that there was an agency relationship between the driver and the Appellant. It was accepted by the District Judge that there can be no reasonable presumption that the registered keeper was the driver of the vehicle on the day without sufficient evidence to support such a claim. There was no evidence to support such a finding of an agency relationship nor did the District Judge give a sufficient reasons as to how she came to such a finding. Furthermore, no agency relationship has ever existed between the driver and the Appellant.

    3. If, which is denied, an agency relationship did exist, the Appellant cannot be held liable because the driver did not disclose or intimate that the contract was entered into on behalf of the Appellant, see Kinahan & Co. [1911] 1 K.B. 459. To hold the Appellant liable for the driver's own acts would run contrary to the principles of privity of contract in that the right of one person to sue another in contract who is not known is, unknown to the English legal system. Thus, it is well settled that only parties to a contract can sue or be sued and a stranger cannot enforce a contract nor can it be enforced against a stranger. Further, the contract was completed between the driver and the Respondent and the principal cannot then be brought into the contract at a later date, see Keighley Maxstead & Co. v Durant [1901] AC 240.

    The Appellant proposes to file a skeleton argument.


    ----------------------------------------------------------------


    The above is just an example of how you can put forward your appeal - it's not the best as it's a quick example, but take what you want from it and use it to make your appeal. as I have said before though you need to make 3 copies of the appeal notice plus if your looking for to obtain the transcript at the public expense you will need to fill out the form I provided a link to in an earlier post.

    If your looking to put your grounds of appeal on a separate sheet then I've attached a document that you can use which sets out the correct format. YOu will need to insert the relevant information e.g. the name of the court, claim number, appellant/respondent etc.

    Hope that helps.
    Attached Files Attached Files
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  10. #60
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Thanks for your help it is really appreciated. I dropped everything off today using the courts 'dropbox' and am now over in Essex for some much needed time-out till Monday. Any idea as to how and when I should submit my SA? Is this to be an expansion of just the GFA or do I need to include further information from my previous reliance of case history from the hearing? sorry but I haven't got any idea of how to go about this or to claim any costs involved in travelling to the hearings etc. I really want to see this through and win so I can get the transcripts and make it all as widely available as possible so others could have access to the necessary documents. I also intend to take this up with my MP when it is all concluded.

    Thanks again for your help R0b.

    Cheers

    Jimbo

  11. #61
    R0b's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    The SA is an expansion of your GFA. An SA is not intended to replace your oral arguments at trial but rather assist the court in understanding your appeal so it should be relatively brief. I'll provide an example later tonight of how you should look to set it out and what to include. See this link for for an outline of how to set out a SA https://www.justice.gov.uk/courts/pr...52/pd_part52#V

    You also need to file an appeal bundle within 35 days of the appeal notice being delivered to court (I'm not sure if the SA requires an earlier time but I'll double check). What needs to be included in the bundle is set out in the Civil Procedure Rules here under Practice Direction 52B, section 6.4. I would suggest you read the whole of the PD so you get a flavour of how an appeal works.

    https://www.justice.gov.uk/courts/pr...-high-court#VI

    The above should get you started anyway, but all you are doing at this stage is applying for permission, it's not guaranteed so you will have to wait and see - alot of work is required for appeals in a short space of time so you need to keep on top of things.

    I'll provide a little more info on bundles too later today.

    P.s. Did you email BW legal about asking if they are instructed to accept service of the appeal notice? If they haven't responded or you didn't then you need to at the very least send a copy of your appeal notice to Excel perhaps both email and post (keep proof of postage receipt) so that they are on notice of your appeal. This should be done within 7 days after filing.
    Last edited by R0b; 20th July 2017 at 07:58:AM.
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


  12. #62
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Thanks again for the assistance. I emailed bw and had their auto-respond email back on Tuesday but nothing since. I'm away over the weekend but will send a copy of the appellants notice to excel on Monday.

  13. #63
    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Oh the joy of the 'system'!

    I returned to the house late yesterday to find the order, dated 17th July and my appellant notice returned, as my application for help with fees failed on the benefits part of the test! Turns out the benefits agency has stopped my ESA but not approved my JSA as there are delays in moving from one benefit to another that has to be dealt with by a specialist team?!? I am currently awaiting a phone call to 'help my situation'....

    So quick question. Do I re-submit my application with a covering letter regarding the arrival of the order, as it has been date stamped for receipt by the court, or do I make out a new appellant notice for submission today, being the 28th day after judgement of 26 June? As I suspected there is no note on the order of the 28 days for appeal granted by the DJ!

    And what do I do if I cant obtain some sort of proof of benefits today? Do I send a cheque for the fees and hope to get it back later when my proof of claim is available or will it just be subject to me winning my appeal, if it's granted and the cost of it being awarded?

    I'm really, really fed-up.

    Apologies for the whinging

    Jimbo

  14. #64
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Right, I have resubmitted my appellants notice along with the order, a new 'help with fees application' and a covering letter as suggested by the courts customer services. I'm sure they will find a reason to return it again but I shall try to remain positive and start getting my SA etc together.

  15. #65
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Hi Jimbo, sorry I haven't replied, must have missed this off my list. I'm afraid I don't know much about help with application fees but it sounds like you have one the right thing in re-submitting your application as this is probably what I would have done.

    In future, it might be better to tag me as I get notifications which might be easier for me to respond - you can do this by using @R0b (with a zero no the letter).
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


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    Jimbo Jetset's Avatar

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Well unsurprisingly my appellants notice was returned yesterday with a note to say that it could not be processed with a 2nd application for help with fees. I had to provide proof of benefits for the original application that failed so a trip to the job centre finally provided this. I then returned the whole thing in the envelope it came in, with a note written on the outside of the envelope stating the proof of benefits was now enclosed, to the dropbox at the court. I await its return....
    Presuming it doesn't come back in the next few days I shall send a copy to Excel as I haven't had a confirmation of their receiving of documents from bw illegal.

  17. #67
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Well @R0b it seems that after much to-ing and fro-ing my appellants notice has finally been accepted, however they have returned a copy to me and state that the respondent has been served. I thought I was the respondent? Does this mean I should now send copies to bw illegal, do I need to send in a skeleton argument now and does it have to be in triplicate. Also, do I have to submit an appeal bundle yet or is this only necessary upon leave to appeal being granted?

    Jimbo
    Attached Images Attached Images

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by Jimbo Jetset View Post
    Well @R0b it seems that after much to-ing and fro-ing my appellants notice has finally been accepted, however they have returned a copy to me and state that the respondent has been served. I thought I was the respondent? Does this mean I should now send copies to bw illegal, do I need to send in a skeleton argument now and does it have to be in triplicate. Also, do I have to submit an appeal bundle yet or is this only necessary upon leave to appeal being granted?

    Jimbo
    Are you still looking for The Excel vs Smith appeal? I have the full transcript.

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by Spudandros View Post
    Are you still looking for The Excel vs Smith appeal? I have the full transcript.
    If you could send me a copy, I'd be grateful.
    I've got the Lamoureux judgement.
    Smith would be the cherry on the icing!
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by charitynjw View Post
    If you could send me a copy, I'd be grateful.
    I've got the Lamoureux judgement.
    Smith would be the cherry on the icing!
    I'll tag you in the "other" place :-)

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by Spudandros View Post
    I'll tag you in the "other" place :-)
    Lol!

    Gawd......sounds painful!
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

  22. #72
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by Spudandros View Post
    I'll tag you in the "other" place :-)

    Oh! I Say lol

  23. #73
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by MIKE770 View Post
    Oh! I Say lol

  24. #74
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    Default Re: County Court Claim from BW Legal for Excel Parking

    Yes please @Spudandros, unfortunately I couldn't find a copy of the Smith case transcript. Reckon I'd have won if I had it so might well help in my appeal, if I ever get there....

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    Default Re: County Court Claim from BW Legal for Excel Parking

    Quote Originally Posted by Jimbo Jetset View Post
    Well @R0b it seems that after much to-ing and fro-ing my appellants notice has finally been accepted, however they have returned a copy to me and state that the respondent has been served. I thought I was the respondent? Does this mean I should now send copies to bw illegal, do I need to send in a skeleton argument now and does it have to be in triplicate. Also, do I have to submit an appeal bundle yet or is this only necessary upon leave to appeal being granted?

    Jimbo
    Hi Jimbo,

    In appeal cases you are the appellant i.e. the one making the appeal and the other side is the responding i.e. responding to the appeal. From the above letter, it looks as though the court has already served the appeal on the Claimant so there would be no need to send it to BW Legal. It is up to Excel to decide if they wish to contest it.

    As for the Skeleton argument, yes you should start preparing it now - the CPR states that as soon as practicable or within 35 days of filing the appeal notice, a Skeleton Argument should be filed which should be paginated and indexed, and containing only the documents relevant to the appeal.

    Have you done a skeleton argument before? More importantly, have you received the Order from the CC? If not you best chase them up and say you have an appeal pending so you need an Order ASAP.
    DISCLAIMER: AS A PUBLIC FORUM, THE CONTENT POSTED BY ME IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED AS LEGAL ADVICE NOR DOES IT CREATE ANY KIND OF SPECIAL OR OTHER RELATIONSHIP BETWEEN YOU AND ME. IF YOU CHOOSE TO FOLLOW ANYTHING THAT I HAVE PUBLISHED THEN YOU DO SO AT YOUR OWN RISK AND COST, AND I CANNOT ACCEPT LIABILITY. YOU SHOULD ALWAYS SEEK INDEPENDENT LEGAL ADVICE BY GOING TO Law Society's Find A Solicitor OR CONTACT YOUR LOCAL Citizen's Advice Bureau.


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