County Court Claim from BW Legal for Excel Parking

[Spudandros]

Re: County Court Claim from BW Legal for Excel Parking

That makes complete sense, thank you. There's no legal obligation for the keeper to identify the driver, but the Sch 4 bit seems the sticking point - what's the difference between Sch4 being used to transfer liability to the keeper and the parking Co not being able to use Sch4 as in this case ? I didn't think they had to prove the keeper was the driver. I guess the law of agency because the contract is between the parking co and the person who parked, not between parking co and the car, hence the discussion about entering into a contract as a third party ( ie the granddaughter wasn't entering into a contract on behalf of the grandfather ) ... seems a major flaw with Sch4 and makes it a tad obsolete ? ( sorry if this is really basic stuff here btw, I'm just interested )

Because the idea of transferring liability for a debt to another person who was not party to the contract was controversial, the government set out Sch 4 in such a way that it was a right the PPC could only acquire if it met strict conditions, otherwise, the PPC can only recover from the driver. Excel routinely failed to meet these conditions comprehensively and knew it, so tried the agency angle toshow the keeper was liable together with Elliott v Loake - a criminal case, to assume the keeper was the driver. However it was always the governments intention that Sch4 would be the only lawful way these charges could be recovered from the keeper. Point is, that if there was an agency angle in private parking, there would have been no need for Sch4 in the first place as the PPC would have a means to transfer liability through agency.

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Hi Jimbo,

Your starting point will be to look at the Practice Direction for appeals in the CC see Rule 6.4 -> https://www.justice.gov.uk/courts/pr...-high-court#VI

I would also suggest you read the following link too to get an idea -> http://www.johnantell.co.uk/how-to-c...-review-bundle

In terms of creating the index you I've attached an example of how it could be set out. In terms of what you need to include you should follow the Practice Direction.

That should get you going for now, I'll try put up some more info tomorrow on drafting a skeleton argument.

It would also be helpful if you could upload the N460 so we can see the judges reasons for refusing appeal.

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Forgot to add the index

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Well, there's a transcript now. What's the Evans case? Was this the Haworth case involving leaked keeper details or the clamping of the speaker?

Thanks for that [MENTION=105408]Spudandros[/MENTION], let's hope it helps.
The Evans case was yet another bw/excel attempt to rely on the CPS vs AJH Films - agency implied or actual that they used to win at my hearing. Seems that it just depends on the judge as they lost against Evans for the same reasons they lost against Smith, being that this was a employer/employee situation etc etc. Seems incredible that the DJ could research the parking prankster website as she did but still come to the conclusion that agency applied in my case. I believe she knew exactly what she was doing and wasn't about to let a peasant like me beat the system, why else would she not allow an appeal??! Pity I can't make a complaint about her...

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Hi [MENTION=71570]R0b[/MENTION], here is the n460

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Thanks, will have to base your arguments around the N460.

Still at a loss as to how the judge could have concluded that there was implied or actual authority without evidence and presumably Excel had no reason to believe that the driver was acting as agent for you. Clearly parking a car that is registered to you does not mean they are agents for you.. thats a stupid result!

[Spudandros]

Re: County Court Claim from BW Legal for Excel Parking

Thanks for that @Spudandros, let's hope it helps.
The Evans case was yet another bw/excel attempt to rely on the CPS vs AJH Films - agency implied or actual that they used to win at my hearing. Seems that it just depends on the judge as they lost against Evans for the same reasons they lost against Smith, being that this was a employer/employee situation etc etc. Seems incredible that the DJ could research the parking prankster website as she did but still come to the conclusion that agency applied in my case. I believe she knew exactly what she was doing and wasn't about to let a peasant like me beat the system, why else would she not allow an appeal??! Pity I can't make a complaint about her...

BWL template CPS and Elliot vs Loake in every case they know they failed PoFA. I've helped a couple of Evans'. One was won and one was discontinued. Both had CPS and the usual rebuttal. I also helped in the Smith case, so I'm fairly familiar with BWL strategy. I'm not sure if the one you are referencing was one of those. I suspect not. A lot of it is how you put the defence over and how the judge views you on the day. Smith ruling pretty much ends the agency angle but i'm helping another case where they have trotted it out again. I guess they are running down the old stock of templates.

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Hi Jimbo, see below an example of what you might say, its a bit rough but should serve as a starting point. Perhaps some input from @mystery1 since he is more knowledgeable in this than me - a word version is uploaded at the end. You will of course need to adapt it to suit your needs.

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1. This skeleton argument is on behalf of the Appellant (Mr “[NAME]”) in support of an application for permission to appeal against the order of District Judge [NAME] on [DATE] upholding the Respondent’s claim (“[NAME]”). District Judge [NAME] held that:

a. [the case of Combined Parking Services v AJH Films Ltd [YEAR] was not restricted to an employee/employer relationship and there is a presumption that an agency relationship existed between the Appellant and the driver of the vehicle; and

b. there was an express, if not implied authority that the driver of the vehicle incurred parking charges on behalf of the Appellant.]

2. District Judge [NAME] refused permission to appeal.

Factual Background
3. Insert factual background e.g. it is the Respondent’s case that the driver of the vehicle incurred a parking charge.

4. District Judge found the following as facts:

a. Mr [NAME] was the registered keeper of the vehicle;

b. there was more than one person insured to drive the vehicle; and

c. the driver (who was not identified) of the vehicle parked at a premises managed by [RESPONDENT] and was in breach of the car parking conditions.

The Grounds of Appeal
5. Having correctly identified the facts set out above, Mr [NAME] appeals the decision of District Judge [NAME] based on [NUMBER] grounds:

a. there was an error of law by the District Judge holding that a presumption of an agency relationship exists in the context of a registered keeper of the vehicle and others who are insured to drive the same;

b. the District Judge was factually wrong in finding that there was an express, or alternatively an implied authority that the driver of the vehicle incurred parking charges on behalf of the Appellant.

Error of Law
6. The District Judge was wrong in law to presume that an agency relationship existed between the Appellant and the driver of the vehicle. Whereas it has long been established that there is a presumption that an employee acts as an agent of the employer i.e. master/servant, the same cannot be said of two private individuals.

7. [It is common ground that the registered keeper is not always the legal owner of the vehicle. It is also commonly accepted that multiple persons are covered under the same insurance policy such as a family for their own benefit and purposes. The Court should therefore be slow in assuming that multiple drivers insured on a policy act as agents for the registered keeper.]

Error of Fact
8. The District Judge erred in finding that the driver had express or implied authority to incur parking charges on behalf of the registered keeper. The onus of proving authority (whether express or implied) lies on the party asserting it against the principal that it reasonably believed an agency existed.

9. It is Mr [NAME’s] case that there was never an agency relationship between Mr [NAME] and the driver and, in any event, [RESPONDENT] offered no evidence to support the finding that such authority existed. In the circumstances, the learned District Judge ought to have found that [RESPONDENT] did not satisfy the evidential proof and accordingly, no authority could be established.

10. Even if it could be found as a fact that the driver did have express or implied authority, the District Judge ought to have found that neither the agency nor the identity of the principal was disclosed to [RESPONDENT] at the time the contract was made. It therefore follows that the driver is presumed to be acting on his or her own behalf and will be liable as a party to the contract.

11. Mr [NAME] will submit that there is authority to this effect, namely the case of Kinahan & Co. v Parry [1911] 1 K.B. 459 in which Court of Appeal held, that in the absence of evidence proving that the agent was acting for the principal in a particular transaction, there was no agency relationship. (see also Keighley Maxsted & Co. v. Durant [1901] AC 240)

12. [Mr [NAME] will submit that the site in question was at all times unmanned with only pay and display ticket machines. [RESPONDENT] therefore could not have known or reasonably known that the driver was acting on behalf of the Appellant. Thus, the driver entered into the contract personally and not as agent of the Appellant.]

Conclusion
13. In all the circumstances, the District Judge was wrong to conclude that the Appellant was liable to [RESPONDENT] for the parking charges and the appeal should be allowed.

[NAME]
[DATE]

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

I've also uploaded the two cases referred to it. Have a read of them to get yourself familiar.

The Kinahan case is short and brief but in the Keighley case there are plenty of quotes you can use for example:

Lord Macnaghten says

As a general rule, only persons who are parties to a contract, acting either by themselves or by an authorized agent, can sue or be sued on the contract. A stranger cannot enforce the contract, nor can it be enforced against a stranger.

Lord Halsbury says

I confess I do not see the relevancy of the argument that a contract might be made in the name of an unknown principal,and that such a principal may sue and be sued, though the name was not given at the time the contract was made. The fact is that in such a case the contract is made by him, and the disclosure afterwards does not alter or affect the contract actually made.

There's a few more quotes from the other judges but you'll have to pick em out.

[mystery1]

Re: County Court Claim from BW Legal for Excel Parking

Seems pretty much on point to me.

M1

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Well I've done all I can [MENTION=71570]R0b[/MENTION] with what I've got, big thanks for what you posted. However, looking at the appeal bundle index it would appear that I need the following:
Respondent’s Notice
Transcript of the judgment of the County Court
Order of allocation to small claims track, which I'm guessing is for my appeal.
Do I wait for these to arrive or do I send the bundle with them marked as items to follow upon receipt?

I obviously dont want to run out of time but really cant face having everything returned from the court again.

Any suggestions?

Cheers


Jimbo

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

You should already have an order for the allocation as that is sent to both sides when it is allocated.

Did you send the application for transcript at public expense? You can provide a note of what the judge said however you should ideally get it agreed by the other side or at least attempt to. If you've made the application then I can't see how that can be provided until the application has been granted, though for namesake you could include a detailed note of the judgment just in case but make reference to this in your cover letter and also the fact that an application for the transcript at public expense has been submitted.

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

I submitted an ex105 to obtain the transcript at public expense at the same time as the appellants notice. I have only received the one letter from the court so far and they refer to an ex107, I guess this is the form for request of transcript if paying.
Am I likely to receive any further correspondence from the court before I submit the appeal bundle etc? Should I wait much longer before submitting my skeleton argument and appeal bundle? Am I even in a position to send them yet? Not sure what to do right now.

[R0b]

Re: County Court Claim from BW Legal for Excel Parking

Hi Jimbo,

Sorry I must have missed this, did you manage to file your bundle in time? is there any further updates?

[Jimbo Jetset]

Re: County Court Claim from BW Legal for Excel Parking

Hi [MENTION=71570]R0b[/MENTION], currently all I have submitted is my skeleton argument. I have yet to receive the transcript of the original hearing along with the other documents I need to provide with the appeal bundle. As I previously mentioned, I am in a quandary as to what to do as I have yet to receive notice of my leave to appeal being granted.