County Court Claim from BW Legal for Excel Parking

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Well I have to confess I have lost all faith in the courts and am fully expecting the 28 days to be missing from the order and denied by the DJ

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

You submit all 3 copies, hearings are recorded so it would be difficult for the judge to go back on what was said. If it was clear 28 days was allowed, then you should go by that not the 21 but it is entirely up to you and as I said, you only get one shot at it and if its not good enough then you will lose your appeal or permission will be denied.

There's a few things I would suggest but it might take longer than today which is why I was asking when you are going to send it off.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

I have already had bw chasing the payment that they say is due in 14 days of their letter despite the judge stating 28 days. Should I email to remind them it is a 28 day order and should I inform them that I am requesting permission to appeal and for a stay?

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

I'm just worried that it'll all go rear shaped if I dont get it in within the 21, knowing my luck the bit where she gave me 28 days will end up transribed as 'inaudible'...

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

It's entirely up to you really and its your appeal so its your decision to make.

As part of the appeal you would normally need to order from the court but you don't appear to have an order as of yet. You might want to consider applying for an extension of time to file the notice properly so as to enable you to file proper appeal pleadings and also include everything that is needed - up to you.

If you are asking for a stay of the judgment, then you might want to consider appealing for a copy of the transcript order by the court form the public purse on the same reasons i.e. unaffordability. You might not get it granted but worth a try - see link for document which needs to be sent along with your appeal notice -> https://formfinder.hmctsformfinder.j.../ex105-eng.pdf

In terms of your grounds for appeal, you should number these e.g. 1, 2, 3 etc. each ground of appeal should be separate and concise. So if you are appealing the issue about CPS v AJH Films about agency then you could say something along the lines of:

"1. District Judge [NAME] was wrong to hold that ... the County Court case of CPS AJH Films was not restricted to an employer/employee relationship and that the present case created an agency contract between the driver and the Appellant. This is because:

1.1 CPS v AJH Films concerned an employer/employee relationship where the employee was driving the employer's vehicle and so there was a reasonable presumption that an agency relationship existed, whereas the same cannot be said in a private individual case;

1.2 the claimant offered no evidence to support such finding nor did the judge provide explain the evidence he or she relied on to support his or her decision;

1.3 save that the driver at the time was insured on the vehicle so that the driver could use for their own benefit and purpose, no agency contract ever existed between the driver of the vehicle and the Appellant;

The above is just an example which makes it clear and concise as to what you are appealing about the judge's decision. Of course add any other points you feel relevant, and when you refer to yourself as this is an appeal you are the Appellant. You don't need to include anything about allowing the appeal because that goes elsewhere. When your referring to case law, you need to make full citation reference e.g. CPS v AJH Films [2015] EWCA Civ 1453 whereas I have not above - if you need help let me know.

As for your evidence in support, I would have suggested putting forward a draft skeleton argument together as the small box there seems quite small to put everything you need in there and you can simply say something like "please see attached draft skeleton argument" - that's if you are willing to wait an extra couple of days to get it right. If not, then put it in that box if you can fit it in.

There are two cases which could support your claim, Jerome v Bentley & Co. [1952] 2 All ER (High Court) and Kinahan & Co. [1911] 1 K.B. 459 (Court of Appeal). The former held that there was no agency relationship in the first place and so there could be no breach (common sense) whereas the latter was a brief appeal, which related to a manager of a hotel who was given instructions to order whiskey from a certain place and instead he ordered at a different place. The instant court held that the undisclosed principal was liable for the actions of the manager. On appeal, the Court said there was no evidence to suggest that the manager was acting as an agent for that transaction or that the whiskey was being used for the hotel and not the manager personally. On that basis no agency relationship arose and so the appeal was allowed.

Use the above in whichever way you like but if any questions, I will try to assist where I can. The above is just very brief overview but you know your case so you need to adapt it to suit what was decided by the judge.

If you need the judgment text from the above let me know.

[Jimbo Jetset]

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?

[R0b]

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.

[Jimbo Jetset]

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?

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Any thoughts on emailing bw illeagal regarding their demands?

[R0b]

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.

[Jimbo Jetset]

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!

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

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

[R0b]

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.

[R0b]

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.

[Jimbo Jetset]

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