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Tuesday, 17 January 2017

MIL burned in Burnley. No right of audience. Witness statement a travesty

MIL V Mrs C, C3QZ9V18 17/1/17 Burnley County Court. DJ Jonathan James

Ms C's car was apparently caught having stayed parked for 42 minutes over its 5 hour P&D payment, at 1.52AM. Parking Awareness asked for £100 penalty as a result, and, as she was keeper and the notices were not compliant with POFA Ms C ignored them.

Parking Awareness were so offended by this that they "sold" the "debt" to MIL Collections.

The Hearing

Ms C was assisted by Private Parking Appeals (PPA). PPA always uses a standard template to MIL claims, as there is nothing in the particulars to lock onto. MIL always respond with the "Internet
template" response, despite the defence being almost entirely different to anything ever used on the Internet.

Ms C was happy to go to court. As a result, a skeleton was provided to MIL, which, as well as the usual arguments, questioned their likely non-attendance and the right of audience of their representative.

On the day the hearing was before District Judge Jonathan James.Ms C was accompanied by John Wilkie as her lay representative. MIL did not turn up, but sent Ms Kauser, a self-employed advocate hired by Elms Legal for the day.

Having noted an issue with the bundle, Mr Wilkie asked if that could be considered first, but DJ James wanted to deal with right of audience. After being directed by the skeleton to the appropriate legislation he considered that a Lay Representative accompanied by the defendant had right of Audience, but a self-employed advocate who was not themselves a regulated person must be
both instructed AND supervised, and it was not sufficient to simply accept instructions and report back.

This has significant ramifications for all LPC law, SCS, BW Legal, Wright Hassall and Elms represented cases, as the majority of such advocates have no personal right of audience.

As a result, Ms Kauser of Elms Law was not permitted to address the court in the absence of her client, and as they had no witness or attendance,the Judge had to consider the claim merely on the papers.

There was a moment of light entertainment when DJ James explained to Ms Kauser that he could not hear her. Ms Kauser then attempted to speak in a louder voice...


Much discussion between the Defence and the Judge ensued, during which time DJ James identified several issues with the claim. By paragraph 20 of the Claimants Witness Statement, he had had enough and gave judgment.

The original creditor is a Parking Company which, it is asserted has a contract with the landowner to provide parking services. A contract has been supplied, but this only shows the rights of the Parking Company, and does not detail what, if any rights, can be assigned to the Claimant. The Claimant's asserted assignment also does not document the rights so assigned.

Additionally the asserted assignment shows no commercial purpose, and I cannot speculate as to what the commercial purpose might be.

The only point of agreement between the parties is that the Defendant was the Registered Keeper of the Relevant vehicle at the specified time. I have no evidence of the driver.

The Statement by Chris Barratt of MIL is inaccurate in several respects, not least of which his Statement of Truth, which does not meet the requirements of the Civil Procedure Rules. The witness is not present, there are significant points of difficulty with the statement, and there are a number of points on which I would expect the Defendant to wish to examine the witness, such as his personal knowledge of the site, the signs, the times and dates of the alleged event. I remind myself that it
is the Claimant's claim to prove, and the Skeleton provided by the Defendant makes it clear that the defence would seek to put the Claimant and its witness to substantive proof of the claims made, an opportunity which has been denied.

Discussing the statement specifically, there are clear difficulties with matters which are apparently within the Witnesses own knowledge, and as the witness is based in Truro I consider it unlikely he has personal knowledge of a car park in Preston; he has also sought to introduce unvarnished evidence involving photographs without explaining who took them, or when or where they were taken, documents without explaining who produced them, and similar.

In this case as well, the Defendant even disputes the signage forms a contract, and the witness cannot "personal knowledge" of this, unless he was an employee of the original creditor. Indeed, there is no evidence before me that the signs submitted were, in fact, present on the date of the parking event. As such, there are very significant issues with the claim at this point, and this issue alone is sufficient to dismiss the claim.

There is another issue - the assignment as produced is undated. It does not state what was assigned, nor when it was assigned, and whether the assignment predates the issue of the claim. This, again is sufficient to dismiss the claim

Additionally, if the assignment was not in place before the claim was made, there is no basis of claim, and as I have no evidence that it was, I cannot simply assume that it was in place before the claim was issued. This again, alone, is sufficient to dismiss the claim.

As a result of the above clear failings in the Claimant's case, the claim is dismissed.

However, and as an aside, even if the preceding were to be successful, this matter clearly distinguishes from Beavis, and the loss in a P&D Car Park can be quantified as merely the unpaid element of the Pay and Display charge. The sum of £100 is intended as a unenforceable penalty.

The judge made further comments in respect of the validity of Beavis in P&D sites.

Finally, on costs, the judge considered the conduct of MIL, who are, after all, professional litigants, to be both Incompetent and Unreasonable. Mr Wilkie attempted to argue that the conduct was outragous and met the test in Rookes v Barnard, but the judge stated that only if the witness statement was provably false would he consider an uplift of Punitive Damages. The judge was kind enough to give a number of pointers in this regard..

Cost of £173 awarded, payable in 14 days.

All in all a satisfactory hearing, the result of which Ms C is delighted with.

MIL Collections - You've been Gladstoned!

Happy Parking

The Parking Prankster

29 comments:

  1. Don't you wish on days like this that County Court judgements were able to set legal precedent?

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    Replies
    1. Not really, they have made some howlers as well

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  2. Curious as to what 'pointers' the judge may have given in the hearing for allowing punitive damages. The only criteria I can which could be relied on would be wrongful conduct with the intent to make a profit. As parking companies are merely charging £100, that amount (whether all or some of it amounted to profit) would not exceed the punitive damages sought and on that basis any claim would surely fail.

    Even still, punitive damages should only be exercised where compensatory damages including aggravated damages are not sufficient enough.

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    1. I thought the Judge was referring to MIL not the original parking company.

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    2. Yes he appears to be from the above but the point still stands. Rookes v Barnard allows punitive damages to be claimed if it meets one of the three tests.

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  3. A nasty spanking delivered by DJ James to Alan Davies' nasty little game.

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  4. Now a claim for a breach of the DPA for unlawful use of personal details.
    2 claims actually, one against MIL and the other against Parking Awareness. Also a formal DVLA complaint and a ICO complaint against P.A. for a breach of the KADOE Agreement for unlawfully selling on the personal details when they have no authority from the DVLA to do so.

    Nuts - kick

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  5. "There was a moment of light entertainment when DJ James explained to Ms Kauser that he could not hear her. Ms Kauser then attempted to speak in a louder voice..."

    LOL

    📢

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    1. I imagine M'learned Mr. Wilkie and Ms. C high fived at that point.

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  6. Its so nice to hear a DJ utter the words 'unenforceable penalty' again. I've missed that.

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  7. This comment has been removed by the author.

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  8. A para-legal is not a lay representative and has automatic right of audience in a small claims court.

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    1. What automatic rights do they have and under what circumstances? The conduct of litigation is a reserved legal activity and paralegals have no right to carry out reserved activities.

      For small claims, PD27 sets out that a 'lawyer' does not include a paralegal and is therefore considered a lay representative, of which they cannot represent in court unless their client also attends.

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    2. The combined effect of sections 13 and 19 and paragraph 1(7) of schedule 3 to the 2007 act is to provide that, in certain circumstances, a person whose work includes assisting in the conduct of litigation is an exempt person for the purpose of exercising a right of audience.

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    3. My apologies, conduction of litigation is entirely separate to rights of audience. If a self employed agent or paralegal represents in court it would need to be supervised. In this respect, a solicitor who instructs a non qualified person without the client or solicitor being present then they would not fall within the exemption rule and would have to rely in the lay representative order. You can't supervise someone when your not present.

      If paralegals had automatic rights of audience then then the CPR is wrong (which it is not). A paralegal could exercise its rights if the case was being heard in chambers, which would equally apply in the high court too.

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    4. A useful decision in a previous case on solicitors agents can be read here. I think it addresses the relevant points. http://www.civillitigationbrief.com/wp-content/uploads/2016/09/click-here-to-see-case.pdf

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  9. So how often are these self employed advocates hired to take on cases where the claimants don't want to attend?

    It would be a great disincentive in terms of costs for the PPC's/legal reps if they were forced to start attending cases to "supervise".

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    1. There are currently 30-50 parking hearing a day in courts in England and Wales, and in pretty much all of them self employed advocates are used. I have never sat in on a Scottish court so it might be different there.

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    2. http://www.legislation.gov.uk/ssi/2016/200/made

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  10. This judge was excellent he applied the rules of law and evidence as if it were a criminal trial or road traffic offence asking for proof of everything presented in evidence including the Provenance of such, not just taking the word of the presenter for it to be so, and the right of the defence to personally cross examine about this evidence to a first party providing it in person without hearsay. Many police prosecution cases would fail if these rules were strictly adhered to. All hearings although taking longer should be conducted in this way in the interests of justice and fair play. Well done your worship!

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  11. So if the ruling is correct, would it not be wise to prime anyone going into court as a litigant in person to challenge the right of audience of anyone who turns up in court on their own to represent the claimant. Might even out the playing field which currently seems horribly biased towards the PPC's when it comes to court.

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  12. I think the nice young lady mentioned here Ms Kauser represented BW at manchester in the case I managed to win. She was the only other person there. Does this mean she actually had no right to be in the court without BW or Excel being there. Or am I missing the point completely

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    1. unless she was a solicitor or barrister she cannot rep the other side unless someone from the other side is there.

      Representation at a hearing
      3.1 In this paragraph:
      (1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor, and
      (2) a lay representative means any other person.
      3.2
      (1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.
      (2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–
      (a) where his client does not attend the hearing;
      (b) at any stage after judgment; or
      (c) on any appeal brought against any decision made by the district judge in the proceedings.
      (3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.
      (4) Any of its officers or employees may represent a corporate party.

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  13. She is a solicitor as far as I know.

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    1. http://prnt.sc/dxluab - Is she is, then she isn't a solicitor at Elms Legal

      Strangely, Mr Shoreman-Lawson is also an in-house solicitor at Vehicle Control Services and MIL Collections. I wonder if this creates a conflict of interest under SRA Codes of Conduct.

      http://prnt.sc/dxlve3

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  14. I think there will be a few interesting cases in the future over this point.

    It was still a good win. One for the good guys

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  15. Wish I had known about it. Would have visited as it's my neck of the woods.

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