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Vehicle found to be non road legal

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  • #61
    You just produce the bundle for submission, without commenting on the contents
    There's a full guide here, (some of which probably won't apply) https://www.guildhallchambers.co.uk/...URTBUNDLES.pdf

    You put all witness statements into the ebundle which you submit to the defendant for agreement.
    If he realises how stupid it looks with identical statements he may want them removed, in which case they become inadmissable.
    If he doesn't remove them you have fun questioning the witnesses at trial

    There is some advice on preparation of e bundles here: https://www.judiciary.uk/guidance-an...court-bundles/

    Comment


    • #62
      des8 thank you (again)
      Interestingly , the witness statements came directly from the defendants.
      No communication from LD since the offer of 500 and a confidentiality agreement.

      Comment


      • #63
        Lawdata aren't solicitors, so anything likely to land in front of a judge will not have their name on it and they might have withdrawn from the case already.
        So from now on make sure communication is with the defendant

        I believe the claim is being made by your son, so make sure you bear that in mind if you are helping him

        Comment


        • #64
          des8 yes, that's what we thought .
          Is there a specific issue/ problem that you were thinking of in relation to me helping him?
          Just reading a few other threads and now worried that
          son's witness statement referred to several communications marked as " without prejudice" and they were included in the evidence and sent to court .
          Now in the process of creating the court bundle .
          ​​​​​​
          ​​
          ​​​​​

          Comment


          • #65
            Just remember this is your son's claim, and it is all in his name.
            In court you may be able to act for him (as long as he is present) as a lay representative, but this might present practical difficulties if the hearing is via a zoom call.

            Were the communications marked "without prejudice" sent by your son, or were they from the defendant to your son?
            What was the content of these communications?

            Comment


            • #66
              Thank you. Yes everything is in his name and sent to/ by him.

              The WP comm's were all letters / emails from LD ( not directly from the defendant ) offering settlements , including the one with the non disclosure.
              I've read that just because something is marked WP doesn't necessarily mean it is , ie were they really trying to settle the case ? I don't believe so. They have never increased their amount , and after the triage hearing when the Judge suggested we weren't that far apart, we reduced our claim by 10% but, as you know , their amount was unchanged and they added in the non disclosure!
              We're frustrated that the MD of the company is a witness for the defence. He had no part in any of the pre/ post sale whatsoever and , as I said , has produced a "matching" statement .
              Early on I did wonder if I could/ should be a witness , but then thought not as my only knowledge of the events was via my son . He called me while the vehicle was still being inspected after he was told it had failed the emissions test . Obviously I've had sight of all communications since then , as has my husband.

              At the trial , who (from the defendants side) will be allowed to question the claimant ? It was the general manager who was present at the triage hearing .


              If I wanted to act for him he'd need to request this via the court ( (and copy to the defendant ) ?

              We need to speak to the court anyway as the e bundle is too big to attach to an email. What's the usual procedure if that's the case? Could we put copies of communication that we aren't relying on as evidence in the disputed facts in a separate bundle? We've used bundledocs. The trial directions letter does mention the possibility uploading it to the court system.

              Comment


              • #67
                The MDs name is on the Defendant's response to the claim.

                Comment


                • #68
                  If you are not using those WP letters offering a settlement as evidence of admissions against the interests of the defendant you might not have a problem.
                  As the bundle has not been submitted to the court yet (has it been agreed by defendant?) could you not remove those documents?

                  ,As the named defendant is a limited company they should only be represented by a solicitor or barrister at the court hearing.
                  The circumstances have to be exceptional for a director to be allowed to represent their own company, so when the hearing starts immediately ask the judge about the right of audience of their representative, bearing in mind "the rule of Battle".
                  The judge might allow their representative the right of audience, or he might not.
                  If he doesn't he may continue the trial without giving them the right to question you, or he may postpone the trial.

                  If you wish to act on behalf of your son it would be as a lay representative.
                  The rules are contained in The Lay Representatives (Rights of Audience) Order 1999 (https://www.legislation.gov.uk/uksi/1999/1225/made)
                  Although not necessary, it is advisable to warn the court by letter in advance that your son wishes to take advantage of this right with the agreement of the court. (Always be ultra polife and respectful as judge has absolute authority in his court)

                  Re the bundle... ask the court

                  Comment


                  • #69
                    If you are not using those WP letters offering a settlement as evidence of admissions against the interests of the defendant you might not have a problem. As the bundle has not been submitted to the court yet (has it been agreed by defendant?) could you not remove those documents?

                    No we aren't and yes, we can omit them from the bundle as the defendant hasn't been sent the index page yet.
                    I just wasn't sure if we could do that when they'd been included as exhibits with the witness statement which was submitted to court and sent to them last week .
                    That might also reduce the size of the bundle sufficiently.

                    As the named defendant is a limited company they should only be represented by a solicitor or barrister at the court hearing.
                    The circumstances have to be exceptional for a director to be allowed to represent their own company, so when the hearing starts immediately ask the judge about the right of audience of their representative, bearing in mind "the rule of Battle".

                    If I could just clarify please. Do you mean that a Ltd company must be represented by a solicitor or barrister in a court , ie the 3 people who have provided witness statements ( one of whom is the MD) can't appear without one?
                    Or, do you mean that if they turn up with no legal representation then, if it's brought to his attention , the judge can decide if they'll be able to ask questions ?
                    We asked them about legal representation weeks ago and got no reply, that's why we just got on with the bundle .

                    Thank you for the link re lay representation.
                    Grey hairs are increasing by the day


                    Comment


                    • #70
                      I am not sure that the that the rule in Battle would be in play if the case is on the Small Claims track.

                      Comment


                      • #71
                        As the WP letters have already been submitted within the WS you can 't just leave them out without rewriting the WS and resubmitting that (but to do that you need the permission of the court, for which you need to make an application which costs 275?)
                        Leave it as is!


                        Regarding the rule in Battle,was actually an Irish case, but it illustrates the position in Uk law which was upheld in McDonald v McCaughey Developments Ltd (2014). (incorrect...both are Irish cases and CPR 39.6 states UK position)

                        You can represent yourself in court, or hire someone who has rights of audience,.(solicitor/barrister)
                        A limited company cannot represent itself as it cannot speak and a dirctor is NOT the limited company, so cannot represent.
                        So a limited company can only be represented by a person with right of audience
                        Directors can be witnesses

                        But as I said, in small claims the judge might or might not allow the directors to speak or question witnesses on behalf of the company.
                        But often in small claims the judge will do all the questioning as he tries to discover what has occurred
                        Last edited by des8; 25th November 2022, 10:39:AM. Reason: Correcting incorrect statement following Epom's post below!)

                        Comment


                        • #72
                          I took a look at PD 39 - It came up as a PDF, so I am not certain that it is the latest version; ANyway this is what it says:

                          5.2 Where a party is a company or other corporation and is to be represented at a hearing by an
                          employee the written statement should contain the following additional information:
                          (1) The full name of the company or corporation as stated in its certificate of registration.
                          (2) The registered number of the company or corporation.
                          (3) The position or office in the company or corporation held by the representative.
                          (4) The date on which and manner in which the representative was authorised to act for the
                          company or corporation, e.g. ________ 19____: written authority from managing director; or
                          ________ 19____: Board resolution dated ________ 19____ .
                          5.3 Rule 39.6 is intended to enable a company or other corporation to represent itself as a litigant
                          in person. Permission under rule 39.6(b) should therefore be given by the court unless there is
                          some particular and sufficient reason why it should be withheld. In considering whether to
                          grant permission the matters to be taken into account include the complexity of the issues and
                          the experience and position in the company or corporation of the proposed representative.
                          5.4 Permission under rule 39.6(b) should be obtained in advance of the hearing from, preferably,
                          the judge who is to hear the case, but may, if it is for any reason impracticable or inconvenient
                          to do so, be obtained from any judge by whom the case could be heard.
                          5.5 The permission may be obtained informally and without notice to the other parties. The judge
                          who gives the permission should record in writing that he has done so and supply a copy to
                          the company or corporation in question and to any other party who asks for one.

                          Comment


                          • #73
                            Ok

                            Comment


                            • #74
                              Thank you.

                              Comment


                              • #75
                                PD39A was removed via 104th UPDATE PRACTICE DIRECTION AMENDMENTS

                                https://www.justice.gov.uk/courts/pr...pd_part39a.pdf

                                https://assets.publishing.service.go...ate-signed.pdf

                                Therefore you are thrown back on CPR 39.6 Representation at trial of companies or other corporations

                                39.6 A company or other corporation may be represented at trial by an employee if
                                (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and
                                (b) the court gives permission.

                                https://www.justice.gov.uk/courts/pr...es/part39#39.6
                                >>>>>>>

                                It might still be worthwhile to ask the trial judge at commencement if CPR 39.6 has in fact been complied with i.e. to ask the judge to enquire if the representative is:
                                a) An employee of the defendant and
                                b) if so, to produce the writing from the company stating that he/she is authorised by the company to represent it and
                                c) whether a court has given it's permission for the representative to appear.

                                BUT, you risk the trial of the issue(s) being adjourned to give the defendant the opportunity to comply with CPR 39.6
                                Last edited by efpom; 28th November 2022, 16:15:PM. Reason: omitted "company" at b)

                                Comment

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