Saturday, 3 June 2017

Excel lose - Elliot v Loake/CPS v AJH films rubbished by judge

Excel v M. X C8DP5C7T. Manchester County Court - 25/05/2017

See pepipoo for full details

Excel via BW Legal took M. X to court.for a parking event at the Peel Centre in September 2014. M.X was not the driver on the day - the driver was their ex-partner - and did not receive the PCN. BW Legal only informed M. X what the actual event was 10 days before the hearing.

M. X was therefore not liable as Excel did not use keeper liability at the time of the event. This has been established many times before and Excel were therefore fully aware they had no case. M. X informed BW Legal they was not the driver, but they took no notice and filed a claim anyway.

In fact, they filed two claims, for identical times. This is a good indication of the level of incompetence at BW Legal, who are pushing Gladstones Solicitors hard for the title of the most incompetent parking legal firm.

At least they did discontinue one claim, but they kept on with the other.

The Hearing

There was 3 excel parking cases scheduled for the same time, M. X was up second. The Excel representative came over and said would she like to speak about the case before we went in, M. X had read about them doing that so kindly refused as they never had the decency to reply to their requests for the PCN or that I was not driving on the day

The judge spoke to the claimant's representative who confirmed that she was not the witness who wrote the statement, The judge did not seem happy and was extremely stern from that point but allowed the representative to continue.

The representative then explained the case and  Elliott v Loake came up. The Judge was really annoyed that a criminal case was being noted and that the representative had not brought the correct paperwork or a copy of the Road Traffic Act and said BW Legal should know better than to waste the court's time with this

M. X then questioned the representative's "Right of Audience" as a 3rd party self employed person. However the judge said she was legally able to stay so M. X gave up on that point.

M. X was asked to state their defense at which point M. X explained they were not driving but their ex- partner, The judge seemed frustrated that M.X had not brought insurance documents to prove who could drive the car. However she seemed to accept that M.X did not realise that this would have been useful evidence for her defence.

M. X was able to use the skeleton argument to argue all the points that appeared on the claimant's witness statement. The judge was particularly interested in all the paragraphs where they called into question M. X being at the scene, the quality of the ANPR pictures, and the fact there was no reliance on the Protection Of Freedom's Act 20212.

After a tense 30 minutes of interrogation during which the BW Legal representative  had to write plenty of notes to take back to the firm, the representative asked for an adjournment to get the questions answered. The judge refused to allow this and said the witness had the opportunity the same as M. X to attend and chose not to.

The claim was dismissed.

The judgment included the following :

The claimant was using Elliott v Loake but this is a criminal case that doesn't bear any weight in the smalls claims court.

The ANPR pictures were unsatisfactory quality as they did not place the vehicle anywhere and only showed the registration.

It is the legal burden on claimant to prove balance of probabilities.

As the defendant didn't receive the PCN and asked on Part 18 and email there was no proof as to how they were served i.e post / hand delivered and claimant didn't bring witness to answer

The witness statement was littered with errors for example gender changes, and also references to a different company (Vehicle Control Services)

Despite the defendant expressing they was not the driver paragraphs 8,13, 15, 17, 22, 29, 30, 36, 46 of the Claimants witness statement calling this into question without any evidence to prove otherwise

The claimant not using keeper liability under POFA 2012 despite using language which claims the RK needs to identify  the driver- it iss not a case of having your cake and eating it- it is morally & legally wrong to do this.

The judge dismissed the case law BW Legal tried to introduce as not relevant; Elliott v Loake; some case from 1964 - as the law has changed considerably since that time;  Chaplain V Kamere - as this was a tenant and landlord case; CPSv AJH films - no contractual relationship.

Prankster Notes

The Prankster agrees with the judge, and thinks BW Legal CEO and COO Sean Barton and Rachael Withers are legally incompetent and morally wrong to bring the case. Not only did this cause undue stress and wasted the time of the defendant, they deceived the claimant into believing they had a claim, when any competent legal professional would have advised otherwise.

The Prankster has contacted BW Legal to give them the right of reply if they do not believe Sean Barton and Rachael Withers are legally incompetent and morally wrong to bring the case.

The BW Legal rep probably completely wasted their time taking notes. No doubt they will go straight in the bin.

The Peel Centre is one of the most badly run car parks in the country, and generates huge numbers of complaints to the Prankster with regard to poor signage and broken machines.

Happy Parking

The Parking Prankster

Rachael Withers

1 comment:

  1. So if they use this again should not the SRA take them to task.