County Court Claim from BW Legal for Excel Parking

[ostell]

Re: County Court Claim from BW Legal for Excel Parking

Is what you want here or here?

[MIKE770]

Re: County Court Claim from BW Legal for Excel Parking

Judges are all different. The appeals system exists because some are clueless. = & That Folks sums up the truth!

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Thank you mystery1 I will go ahead with the appeal as I'm certain common sense should prevail. I would like to claim for my travel costs for both attendances if I am fortunate enough to win, do you think it would be acceptable to ask for both lots of costs?

Cheers

[mystery1]

Re: County Court Claim from BW Legal for Excel Parking

Thank you mystery1 I will go ahead with the appeal as I'm certain common sense should prevail. I would like to claim for my travel costs for both attendances if I am fortunate enough to win, do you think it would be acceptable to ask for both lots of costs?

Cheers

Yes.

Have a read of the posts on http://www.legalbeagles.info/forums/...rt-Claim/page9 from [MENTION=71570]R0b[/MENTION] regarding appealing and pay particular attention to timescales.

M1

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Well things have become challenging. The hearing was on 26th June and I have still not received an order. After contacting the court it turns out that the order has yet to be ‘drawn’ with the only advice to be offered being that of making an appeal with a covering letter explaining why there is no copy of the order. Also not sure on whether I have 28 days as stated by the judge who heard the case or 21 days as seems to be the limit stated everywhere else?

[mystery1]

Re: County Court Claim from BW Legal for Excel Parking

https://www.justice.gov.uk/courts/pr...l/rules/part52


(b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.


I'm far from an expert in appeals, but the rules dictate the timescale unless the court, as you say it has, sets a different timescale. I'll be honest though, i wouldn't trust a judge that strays from the rules, they might not back you up and back peddle.

M1

[charitynjw]

Re: County Court Claim from BW Legal for Excel Parking

[MENTION=5354]mystery1[/MENTION]

From a recent email

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[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Hello,

If you didn't request permission to appeal the claim at the hearing then as M1 has pointed out, any appeal must be made 21 days from the date of the judgment not the order. So even though no order has been drawn up, you would still need to make an application. Current costs for appealing small claims decision is £120 and you will need to use the Form N164 - http://s3-eu-west-1.amazonaws.com/hm...r/n164-eng.pdf

Now, M1 is the expert on parking but having read the reasons of the judge for the decision, the part about CPS v AJH Films troubles me somewhat. I would have the following comments contrary to that position:

The employer / employee relationship
I find it difficult to reconcile that the specific facts of the CPS case concerning an employer / employee relationship can apply to your current situation. It can easily be distinguished by the fact that if the company owns the vehicle and the employee is using it, then there can be a reasonable presumption that the employee would have been acting in the course of business and so the employee would have been acting on behalf of the company. You cannot make that presumption in a private individual case.

CPS applies because you cannot provide details of the driver of the vehicle due to several people using the car
The judge seems to be implying there is an agency relationship between you and the driver of the vehicle. As far as agency law is concerned, the onus is Excel to prove that it reasonably believed an agency relationship existed. The mere fact that the driver parked in the car park to my mind is insufficient evidence to show that the driver was acting as agent of the registered keeper. If the judge has already accepted that you cannot make the presumption that the registered keeper was the driver on the day (presumably due to insufficient evidence) then how can the judge assume that the driver was acting as agent? Was any evidence raised by Excel or did the judge carry out any fact finding as to how he came to that decision, did the judge give sufficient reasons why he thought that you can be held liable for not disclosing the driver?

There's already established case law stating that even if there was an agency relationship but the agent did not disclose that he was acting on behalf of his principal then the agent is contracting personally himself. It is not uncommon these days for there to be multiple users of a vehicle but it would be quite absurd to assume that every named person on the insurance is acting as agent of the registered keeper when in fact they use it for their own benefit and purposes - and therefore if it is used for one's own benefit as opposed to the principal, the agent cannot be acting in that capacity but rather his own personal capacity.

Seems like a pretty unfair judgment to me and unless there is anything to contrary that you've not mentioned it would seem there are multiple grounds of appeal: error in law, error of fact where the judge has based his decision on the lack of evidential support and therefore the decision was flawed. Possible grounds to argue that the decision was unjust due to the irregularity of the judge's decision, particularly if he failed to examine the evidence or arguments.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Thank you R0b for your explanation, your understanding of what happened on the day is close enough for you to have been there.
BW Legal’s advocate, had little information, most of which was ‘on his tablet’. He started with the argument that the judge shouldn’t allow my WS as a copy had not been provided but as I pointed out I didn’t have one and was just going to refer to my notes regarding previous cases this was not an issue in the eyes of the judge.
They went with Elliot v Loake which the judge dismissed and, as she believed my statement that many others had use of the vehicle, said they could not rely on assumption of Keeper being driver. They also brought in CPS v AJH Films and I argued that this could not be relied upon as was proven in Excel v Lamoureux and Excel v Smith appeal so does not apply. They said Lamoureux was a POFA case and as mine predated this and they weren’t reliant on POFA it didn’t apply to which she agreed.
We then had an adjournment so that the advocate could telephone BW Legal to establish that the Smith case was different so could not be relied upon and so the judge could research the Smith case. Upon our return she had also found the details of Excel v Evans but said that she didn’t have to be bound by the findings in that case. She also dismissed the Smith case as no transcript was available. She had found the transcript for CPS v AJH Films (2nd Appeal) and, as there was no mention of employer/employee within that, was satisfied that a contract had been entered into on my behalf. This was despite it referring to 'any person driving a vehicle has actual authority to bind a company to a contract' and 'authority of the defendant company'.

Further to my appeal; my home court of Bromley state they do not yet have the file and the hearing centre of Clerkenwell and Shoreditch have just told me that it was returned to Bromley yesterday. I am therefore unable to confirm the details of the Judgement save for what I remember and the Judges name. Also they can’t say for sure where I should send my appeal with one saying to send it to Bromley as its my home court that have my file and another saying Central London as that’s where the Circuit Judge sits. They warned me that I would need a copy of the transcript to appeal and to do everything (N164/244 EX60 GoA SA etc) in triplicate to the court. So it seems I have until Monday (Judgement on 26/6/17) to deliver my appeal to one of the courts and hope I choose the correct one! I have applied for help with fees online and now have a reference to place on my N164 so that’s a start I guess….

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

When you make the application you have to file it in the court where the hearing was heard

If you are intending to still appeal then I am happy to take a look tomorrow before you send it off to the court.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Thank you R0b. It now appears that all I need do at this stage is complete form n164 and attach the order or covering letter if not available, then deliver it to my home court. The staff said to do this as they have the file and the court where the hearing took place was used purely as a hearing centre due to the volume of cases they are having to deal with. Apparently another local court has been temporarily closed and mine is currently taking their case load. Although the judge gave 28 days to apply for permission to appeal I though I would submit today so that I meet the usual 21 day deadline in case there are any problems.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

This is what I have so far but I am unsure what to do about applying for costs at this stage? (You may recognise some of the wording in the following ). I am considering delivering the notice to my home court and posting copies to the hearing centre and Central London CC.

Section 4 Other Information Required
I will be asking for a stay of execution
I will not be lodging within 21 (although it will be lodged on day 21)
I am not making any other applications (costs?)

Section 5 Grounds for Appeal
1. The Appellant contends that the learned judges’ decision was wrong. In particular the learned judge erred in finding that there was a contractual agreement between the Appellant and the Respondent. The Appellant contends that the driver created a binding contract in 'agency'. The learned judge ought to have found that the driver did not have actual or implied consent of the keeper to enter into a contract on the keepers behalf. The evidence before the court was clear insofar as case law referred to by the Respondent applied only to Employer/Employee as the keeper was a limited company and the Appellant is a private individual.
In the circumstances, District Judge xxxxxxxx was wrong to conclude that there was a binding contract between the Appellant and the Respondent and the appeal should be allowed.

Section 6 – set aside

Section 7 Other Applications
Part A Stay of execution because
I am currently not working due to mental illness issues but my ESA has been stopped and I am in the process of having my JSA approved, whilst awaiting a mandatory reconsideration. I have had to obtain a 'Short Term Benefit Advance' in order to 'get-by', which I manage with the help of my local food bank. It will be difficult to find the money if I have to pay the order, which will cause me exceptional hardship and may lead to enforcement measures.
Part B I do not need an extension of time…..granted by the DJ (although I am submitting on the 21st day)
Part C (costs?)

Section 8 Evidence in Support

Excel Parking Services v Smith (appeal) - Stockport 08/06/2017 - C0DP9C4E and C1DP0C8E - Appeal M17X062
Original Hearing (2 claims): Mr Smith was the keeper but not the driver on the day.
DDJ Cowell found that CPS v AJH Films allowed the transfer of liability from Driver to Registered Keeper as the driver was the keeper's agent. However, following the judgment Mr Smith explained that he had previously had an identical claim dismissed where CPS v AJH Films was found not to apply. DDJ Cowell acknowledged that had this been known to her before then the Judgment may well have been different. She gave permission to appeal both claims.
Appeal: On appeal it was found that CPS v AJH Films is only applicable in an employee/employer situation. This was not such a situation. The appeal was upheld.

The following introduced by DJ xxxxxx at my hearing

Excel Parking Services Ltd v Mrs L Evans - Cardiff Civil Justice Centre 12/06/2017- C8DP79CC - Judge: DJ McKay
Mr Singh (for Excel) said that there was a "reasonable assumption" that the keeper of the vehicle was also the driver at the time it was parked therefore, Excel were entitled to request information about the driver from the DVLA in order to issue a notice to keeper to recover their loss. He accepted that the incident pre-dated POFA by 9 months but he intended to rely on Elliott v Loake and CPS v AJH Films in order to demonstrate keeper liability.
The judge noted the observations regarding Elliott v Loake and CPS v AJH Films and referred to the copies of the judgements of these cases which were included with the witness statement. He explained the fact that as this claim was pre-POFA (Protections of Freedoms Act 2012), keeper liability was not possible without any additional evidence to support it. Consequently, the claimant's case relied entirely on Elliott v Loake and CPS v AJH Films.
The judge then moved on to summarise as follows. Elliott v Loake was a different type of case entirely. It was a criminal case which meant that there was a legal obligation upon the keeper of the vehicle to give the name of the driver in criminal law. As this claim involved no criminal offence, then Elliott v Loake had no relevance to it. In the CPS v AJH Films case, the judge fully agreed with the Defendant's witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to the claimant's case.
The judge concluded that as the claimant could offer no tangible evidence that Mrs Evans was the driver of the vehicle and because the incident was pre-POFA, she could not be held liable for the charge. This confirmed the importance of POFA in claims where keeper liability is being raised. For all these reasons, the claim was struck out.

On the day of my hearing DJ xxxxxxxxx was satisfied that, due to the circumstances of the vehicle usage, the Appellant could not disclose the driver. However, DJ xxxxxxx stated she was not bound by the above, could find no mention of Employer/Employee relationship in the CPS v AJH Films case transcript available (2nd appeal) and that she felt there was an agency relationship between the Appellant and the driver of the vehicle in my case. The fact that the driver parked in the car park is insufficient evidence to show that the driver was acting as agent of the registered keeper. The driver cannot be acting as an agent of the registered keeper when, in fact, they are both private individuals, with the driver using the vehicle for their own benefit and purposes, therefore in their own personal capacity.

Covering letter

Court House
xxxxxxxxxx
xxxxxxxxx
xxxxxxxxxxx
xxxx xxx

For the attention of Appeals

Dear Sir/Madam,

Claim Number: xxxxxxx

Request for permission to Appeal Judgement of xxth xxxx 2017

In respect of the above noted claim number; on xxth xxxx 2017 a County Court Judgement was made in favour of the Claimant for the sum of £xxx.00 (xxx hundred and xxx pounds).

Please find attached the Small Claims Appellant Notice duly completed.

However, I am unable to provide a copy of the order of Judgement, as it is yet to be drawn and as such I would respectfully request that my request for permission to appeal be continued without the same.

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

I will look at it in the next hour, when are you looking to send it off?

For appeals, you should print 3 copies, one for you, the court and the judge -don't worry about costs as of yet you need permission first.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Great, thank you. I will be delivering to my home court today by hand. Do I submit all 3 copies?

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

P.s. If the judge has accepted that 28 days to allow an appeal then instead of rushing it, why not allow yourself that extra time? The CPR states that it is 21 days unless the judge otherwise orders (he/she can order more or less than 21 days). You have one shot at it and an extra day or two might make or break your appeal.