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UK CPM, lay representation refused
bobbione
post Wed, 16 Jan 2019 - 20:05
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In court today. Defendant has very poor English. I attended having helped get paperwork together. He had permit to park had straddled bays too small for modern cars to fit in.

We had Jopson and Bull prepared as sign was prohibitive not terms of parking. Further included line 'terms only apply to those parking without permission'

Arrive an hour early. No show by UKCPM go in and judge refuses my request to represent. I am a notified witness in the respons to claim and our counter claim.

Judge asks defendant to speak and he answers questions. I ask to.submit my evidence. Judge instructs defendant to ask me questions!! I offered the cases referred to in my statement. Said no contract without consideration. All waved away as introducing arguments not facts.

As for right to appeal. Refused. Have form from court asking circuit judge to consider an appeal.

The defendant not even a tenant. Used permit to come and take kids (nephew (preschool) and niece (infant)) to medical appointments.

We had their WS 24/12/18 , his xmas day. He couldn't get help from until 4/1/19. Needed to send his WS by 2/1/19 which absent any proof of use of land or sign as 2016 we had responded in time but by the 6/1/ had a fuller defence statement which was posted to court and emailed to Gladstone.

If I have screwed it up by not following practise direction I'd rather know now before going on with appeal.

The defendant does not undestand written english beyond the most simple english.

This mess came about as he was in a hire car via insurance claim so multiple notices to keeper unt.hire company nails him for an administrative charge tgat he understood to be 'having paid the ticket'

Right old mess
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post Wed, 16 Jan 2019 - 20:05
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SchoolRunMum
post Wed, 16 Jan 2019 - 22:19
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I think because you were a witness, the Judge wouldn't let you also be the lay rep. So the DJ made the Defendant ask questions of his own witness (you).

Not sure why you were a witness unless you were there when the car was parked?

Did the Judge listen to arguments about the counter claim, and what did you counter claim for?
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bobbione
post Thu, 17 Jan 2019 - 07:07
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Counter claimed for the costs of the hire company administration fee. Not sure how be being a witness prevented lay representation. A litigant in person is also.a witness in a case. The reason given for rehysal was ticking no on a form requesting to be a McKenzie friend. I mistakenly ticked I had not ready the guidance on court procedure(not a direction).Lay representative and McKenzie I understand to be different as guidance

The judge accepted nothing on the argument as the defendant was unable to ask me a question relevant. He was bewildered.


Thanks for the thoughts
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nosferatu1001
post Thu, 17 Jan 2019 - 09:45
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Did you take the lay reps act with you?

You could have asked for an interpreter.
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bobbione
post Thu, 17 Jan 2019 - 15:19
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No. It's an oder . Not sure whuch act it's powers originate from. I couldn't judge barred me from speaking other than to answer questions the claimant asked me.

He was frozen. Just kept saying sorry sorry


FIRST DRAFT

Ntc to Appeal


Claimant did not attend


Lay representation order xxxx overuled by not having read 16b McKenzie

If a guidance note is sufficient to decide on an order
Mistake. I had read it. Judge easily could have easily allowed 5 mins for me to read it.

Claimant

withheld terms of contract (sign) until two weeks before hearing , CPR 16 PD 16.4 7.3 to 7.5

Claimant

Witness statement had impossible address. Not a Brighton Postcode

Witness is not an employee of the claimant. She is litigation manager of Gladstone s xxxcxxx

Address of witness is registered office shared with numerous other limited companies. Witness not known at that address


Defence


The defendant nor his family can read complex english . He brings all documents to work and we read and explain.

Before the hearing I prepared a single sheet of paper with the contract terms offering no.parking and excerpts from PCM v Bull where it was decided contract was void with a similar sign.

The defendant understood this. Wrote on it
“contract void for no consideration” and signed it.

One copy went into.chambers and another we held for claimant/representative.

With me I had more cases for defences of unloading not parking and proof the marked bays were too small for anything other than the smallest if cars.

Nothing we had on the day was hidden from the claimant

The cases were listed in my statement at the end of my argument. They were there as the defence we had was weaker (on assumptions of signage used in 2018 applied when the contended charge occurred)

The claimant withheld likely damning evidence until emailing it on 24/12/18 . This date is their Xmas day and 40 pages of was not sent to me until 2/1/19.

2/1/19 was the date we needed to send our bundle to claimants solicitor and I sent on.that date evidence they likely did not have (e.g.bay dimensions) that the defendant needed to reky on in court.


By 6/1/19 I did all I could to submit a revised witness statement but January is our busiest month at work.

I sent what I had and worked to develop arguments to take with us. All these based on evidence the claimant had. No ambush.


Retrial

Cases similarly decided by district judges when cases heard.

Sign (terms) have been abandoned by claimant as not sufficient for standards of their parking association

Public interest in better guidance for courts and lay representation if part heard by a higher court



As a lay representative I have assisted in his eviction … I am sure solicitor for lanord would write I was helpful to both parties in amicable settlement
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nosferatu1001
post Thu, 17 Jan 2019 - 16:28
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BEFORE the court claim
as part of directions.
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bobbione
post Thu, 17 Jan 2019 - 19:52
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Thank you. Looking for any guidance on retrial. From memory we he had to name who'd translate and fees. Decided before then I would attend and was named as attending.

Either I am wasting effort as judge at fault in regards procedure so we can have it heard again. Not chasing appeal of the decision itself as this really means paying for transcription of the court tapes .

I think that's what the notes with forms set out.

If nobody here has experience or certain knowledge I'll progress as I am.
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bobbione
post Sat, 19 Jan 2019 - 13:06
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Had to insist at Post Office thwt they attempt to poet to witness address on Gladstone statement. Doesn't exist on their system .

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Ollyfrog
post Sun, 20 Jan 2019 - 01:29
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I don't think you should be sending anything to the witness's address, from the witness statement. It's the address for service from the court claim form that you got if you need to be sending anything.

Check what the others say though.
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SchoolRunMum
post Sun, 20 Jan 2019 - 01:37
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QUOTE
Either I am wasting effort as judge at fault in regards procedure so we can have it heard again. Not chasing appeal of the decision itself as this really means paying for transcription of the court tapes .


I think if you want a re-trial then you will need to put in an appeal. See what others say.
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nosferatu1001
post Sun, 20 Jan 2019 - 11:19
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You indeed need to get an application for appeal in, and you will need to set out grounds in law (easiest) why this should occur.
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bobbione
post Mon, 21 Jan 2019 - 16:27
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I am appealing. See draft notice above.

By letter to witness not being accepted by Royal Mail or the letter to impossible address being returned it gives weight to procedure failures. Want retrial not order decision looked at by a higher court

Have moved the argument to lay representative order being a constitutional right R v Lord Chancellor exp Witham [1998] QB 575

So judge could not deny it on form 16b notice of McKenzie friend
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Ollyfrog
post Tue, 22 Jan 2019 - 00:14
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QUOTE (bobbione @ Mon, 21 Jan 2019 - 16:27) *
I am appealing. See draft notice above.

By letter to witness not being accepted by Royal Mail or the letter to impossible address being returned it gives weight to procedure failures. Want retrial not order decision looked at by a higher court

Have moved the argument to lay representative order being a constitutional right R v Lord Chancellor exp Witham [1998] QB 575

So judge could not deny it on form 16b notice of McKenzie friend


This bit still troubles me. Are you trying to write to their witness?
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bobbione
post Tue, 22 Jan 2019 - 07:11
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No prove that witness statement is either flawed or begins with a deception.

Goes on to state she is an employee of claimant when in fact she is employee of Gladstones

No prove that witness statement is either flawed or begins with a deception.

Goes on to state she is an employee of claimant when in fact she is employee of Gladstones
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nosferatu1001
post Tue, 22 Jan 2019 - 12:40
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Whos witness statement? The claimants?

If the court accepted the WS then theres not a lot you can do. You need to be aware that a findign of fact vs a finding in law are very different reasons for appeal, and findings of fact are hard to appeal. VERY hard.

You wont get a retrial
You must appeal.

This post has been edited by nosferatu1001: Tue, 22 Jan 2019 - 12:40
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bobbione
post Tue, 22 Jan 2019 - 18:55
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Claimants. That is clear if one reads the draft?

I am not asking a hifher court to look at the facts again but that a higher court have it be sent back on grounds that procedures setout innlaw wete not followed.

As they were not followed defence was not heard and claimant had flawed statement accepted because it was bever challenged for absence of representation.

Retrial box is on form I have and my understanding of situation is that's the route to having the defence heard .

To not tick retrial box I need to read more guidance contrary to that I have read already.
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bobbione
post Tue, 22 Jan 2019 - 22:19
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I am not asking higher court to look at facts in claimants witness statement but the legal procedures not followed in allowing it to be considered

Retrial
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bobbione
post Wed, 23 Jan 2019 - 06:06
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Civil Procedure Rules Part 52

It's for the circuit judge to decide on appeal hearing or retrial or deny permission . There are other outcomes but not relevant here.
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nosferatu1001
post Wed, 23 Jan 2019 - 08:38
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WEll, all I can say is good luck
I would suggest you r chances are slim to none
In the meantime, ensure the CCJ is paid on time, otherwsie thats a whole lot of other pain.

I would suggest you also take the time to ensure your application for retrial is written more legibly and coherently than some of your posts here - and that you understand all the rules. FOr example you sent a "fuller defence statement" in after the exchange of documents. so that was never going to fly, and I also dont know wha tyou mean by "defence statemetn" - defence, or witness statement? BEcause a "defence statement" isnt a thing that exists!

BY tghe way the judge was right here:
"All waved away as introducing arguments not facts."
You as a WITNESS cannot introduce any arguemnts. You may only present facts. If those arguments were not in the defence originally filed, they may not be used.
In what way were you a witness? Were you there on the day? With the defendant? You've not explained how you were a witness to anything of use.

Your first draft is pretty awful. ITs not an "impossible address", as I bet mail can get there. Youve yet to xplain why it not being a Brighton postcode has any relevance, and why this matters in law. Again, if the WS was accepted, it was acccepted, and what it contained therein was a finding of fact.
Witness not being a employee of the claimant isnt relevant to an appeal.
You had a chance to arrange for an interpreter, which would have resolved the English issue in court at least, and did not do so.
If the Defendant doesnt know Written English beyond simple terms, how can they write "contract void for no consideration"? I woudl suggest the two statements are incompatible.

Look, I knw you wnat to do something, but I gave up reading that draft. Its all over the place, full of irrelevancies, mixes up defendant, me, I etc so its impossible to work out who got where

If you want to try this, do so. But I cant see how I can possibly help, and dont want to give you false hope. If your friend cannot understand written English then they should not be entering into contracts they dont understand the terms of - the hire car - and need to be aware that they cant manage their own affairs.

You mention you dont want an appeal (which is to a higher court) and you want a retrial, but your draft is for an appeal.
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bobbione
post Wed, 23 Jan 2019 - 16:02
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Its a first draft

Starts Ntc to Appeal


From reading part 52 CPR even if I tick retrial the appeal judges will decide the route.

The defendant and claimant make witness statements setting out the facts they are going to argue.
Here judge woukd not allow any defencev facts to be the basis of arguments by drnying right to lay representation .

I posted here for feedback. Will upload more recent Ntc to Appeal. Not keen to work it too much until.we get ND460 back.from County Court

Facts in witness statement

case law
Pictures of signs
Proof bays too narrow for any modern car.
Statement that he is not a tenant of residence so third party to any if any variation to.tge lease by UKCPM
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