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southpaw82
Posted on: Fri, 22 Mar 2019 - 15:19


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QUOTE (comfy @ Fri, 22 Mar 2019 - 14:14) *
Just out of curiosity - whats the deal with the old argument about "officers" having to man the camera van to "execute the law" - is that out the window? (currently clutching at straws)

I don’t recall it ever being an argument, at least not a valid one.
  Forum: The Flame Pit · Post Preview: #1473047 · Replies: 6 · Views: 377

southpaw82
Posted on: Fri, 22 Mar 2019 - 15:14


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And what offence is alleged?
  Forum: Speeding and other Criminal Offences · Post Preview: #1473046 · Replies: 8 · Views: 411

southpaw82
Posted on: Wed, 20 Mar 2019 - 18:50


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QUOTE (oldstoat @ Wed, 20 Mar 2019 - 18:20) *
QUOTE (southpaw82 @ Wed, 20 Mar 2019 - 12:38) *
QUOTE (Starworshipper12 @ Wed, 20 Mar 2019 - 12:05) *
Of course in the good old days a fleeing suspect would tell his accomplice with a gun to let the policeman have it.

https://en.m.wikipedia.org/wiki/Derek_Bentley_case

The most serious case of ambiguity in legal history.


surely you are not suggesting that a judge finding of fact is subect to appeal. Unless you are suggesting it was Wednesbury unreasonable.

A judge’s finding of fact is susceptible to appeal for various reasons, however, it is a very high bar. Nevertheless, that’s completely irrelevant as the ambiguity in question is the meaning of the words “let him have it” - which has nothing to do with appeals or anything else but the jury’s decision.
  Forum: The Flame Pit · Post Preview: #1472589 · Replies: 15 · Views: 519

southpaw82
Posted on: Wed, 20 Mar 2019 - 12:38


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QUOTE (Starworshipper12 @ Wed, 20 Mar 2019 - 12:05) *
Of course in the good old days a fleeing suspect would tell his accomplice with a gun to let the policeman have it.

https://en.m.wikipedia.org/wiki/Derek_Bentley_case

The most serious case of ambiguity in legal history.
  Forum: The Flame Pit · Post Preview: #1472489 · Replies: 15 · Views: 519

southpaw82
Posted on: Wed, 20 Mar 2019 - 12:35


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QUOTE (notmeatloaf @ Wed, 20 Mar 2019 - 00:00) *
QUOTE (cp8759 @ Mon, 18 Mar 2019 - 19:23) *
QUOTE (notmeatloaf @ Sun, 17 Mar 2019 - 21:40) *
The Mohmed vs Barnes case was about negligence and the judge found the defendant had been subjectively reasonable.

I think it would be quite possible that someone could be subjectively reasonable but objectively - driving your car at someone assuming they will move out the way - dangerous.

The defendant in that case had, however, been acquitted at his criminal trial.

But was it a court of record?

If it’s [2019] EWHC 87 then it was heard in the Queen’s Bench division of the High Court, so yes.
  Forum: Speeding and other Criminal Offences · Post Preview: #1472488 · Replies: 14 · Views: 1,059

southpaw82
Posted on: Wed, 20 Mar 2019 - 12:33


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QUOTE (theinnocentman @ Wed, 20 Mar 2019 - 11:29) *
yes the surnames match. no this was a speed camera 4 in the morning. he was never stopped hence failure to name driver. nip was sent a few days later. I guess they went heavy because he failed to show up in court. he never plead guilty to anything. they done him in his absence. 6 points for failure to name driver. 3 for speeding huh.gif

If he didn’t plead guilty one wonders how he was convicted of speeding, since there is unlikely to have been sufficient evidence beyond a reasonable doubt as to who was driving. Your friend may wish to consider an appeal on this point, if in time to do so.

I’m not entirely clear on what the issue is - your friend was convicted but another person’s date of birth was recorded and now bailiffs are chasing both your friend and this relative. Is that about right? Why doesn’t your friend just pay the fine?
  Forum: Speeding and other Criminal Offences · Post Preview: #1472487 · Replies: 13 · Views: 815

southpaw82
Posted on: Tue, 19 Mar 2019 - 15:24


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S 13 Criminal Procedure (Scotland) Act 1995. Power to detain suspects and witnesses. It may well have been amended by now.
  Forum: The Flame Pit · Post Preview: #1472308 · Replies: 11 · Views: 270

southpaw82
Posted on: Tue, 19 Mar 2019 - 10:53


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More to the point, regulations regarding a motorway won’t be made under LATOR, will they?
  Forum: The Flame Pit · Post Preview: #1472197 · Replies: 11 · Views: 334

southpaw82
Posted on: Mon, 18 Mar 2019 - 23:10


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QUOTE (cp8759 @ Mon, 18 Mar 2019 - 20:06) *
QUOTE (southpaw82 @ Fri, 15 Mar 2019 - 23:28) *
If there’s massive scope for confusion then has adequate guidance been given? (Is adequate guidance the correct test?)

Section 85(4) RTRA says "...a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above...", subsection 1 says "For the purpose of securing that adequate guidance is given to drivers of motor vehicles..." so they way I read it, that is the correct test, and if there is massive scope for confusion, only the national speed limit can be enforced.

I agree. My only doubt was that the adequate guidance test that I know and love is founded in the Local Authorities' Traffic Orders (Procedure) (England and Wales) Regulations 1996 and I’ve not looked at whether it applies elsewhere.
  Forum: The Flame Pit · Post Preview: #1472140 · Replies: 11 · Views: 334

southpaw82
Posted on: Mon, 18 Mar 2019 - 23:08


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QUOTE (cp8759 @ Mon, 18 Mar 2019 - 20:25) *
Well I maintain my view that Scots law is pants. Let's not forget that this is the country where:

1) If you're a victim of crime and the Crown won't prosecute, it's though luck as there's no right of private prosecution and no right of judicial review against a decision of the Lord Advocate not to prosecute.
2) If through no fault of your own you get a Charge Certificate for a parking or bus lane PCN, for example for a previous letter got lost in the post, well tough s**t you must pay as there's no right of appeal and no reset mechanism.
3) As recently as 2010, you could be arrested and questioned by police in Scotland while being denied access to a lawyer, this only changed when the UK Supreme Court ruled that this was incompatible with the European Convention on Human Rights.

Don’t forget that the police can arrest witnesses too.
  Forum: The Flame Pit · Post Preview: #1472139 · Replies: 11 · Views: 270

southpaw82
Posted on: Mon, 18 Mar 2019 - 18:51


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Whether he takes professional advice is up to him. If he has no insurance I don't see any alternative other than to plead guilty (to reduce the fine and court costs) unless he simply wants to put the prosecution to proof - which, when he bears the burden of proving he was insured would be pretty stupid!

As to revocation - tough, really... that was the intention of Parliament and it would be wrong for the court to try to undermine it.

He sounds lucky not to have been hit with PCOJ/wasting police time.
  Forum: Speeding and other Criminal Offences · Post Preview: #1472040 · Replies: 14 · Views: 726

southpaw82
Posted on: Mon, 18 Mar 2019 - 18:38


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QUOTE (EL14331 @ Mon, 18 Mar 2019 - 18:04) *
2. The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.


Don't refer to other small claims cases in your pleadings. If you want to raise them then do so later in submissions to the court (orally or in writing).

QUOTE
3. Signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The Consumer Rights Act 2015 (s69) applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.


I don't really understand the last sentence. What has s 69 of the CRA 2015 got to do with whether the driver saw or accepted the purported offer? The section deals with contract terms that have different meanings, not whether a sign was seen or not.

QUOTE
3.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective.


I'm not so sure about that. Do you know where the car was parked? You're using a phrase ("requests strict proof') that is generally used when you have no idea as to the truth or otherwise of an assertion. You can't dictate what evidence the claimant provides - they will put their case forward and you can challenge it and it's up to the court to decide whether it's proven or not.

QUOTE
The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


See above. Also, use the third person - "the Defendant" not "I".

QUOTE
4. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.


I don't really get your point. I doubt Beavis would have been decided the way it was if the court accepted that the signs were not seen and shouldn't reasonably have been seen. I don't see the relevance of Beavis at all to what you're saying.

QUOTE
7. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.


I'd erase that as something like "The Defendant has no knowledge of the Claimant's legal right to control parking on the site and pursue claims relating to its use. The Claimant is put to proof to prove that it has such rights." I've never really known the difference between "proof' and "strict proof"...

QUOTE
8. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

9. Please let it be noted that The Defendant has not received the Subject Access Request (SAR) back at the time of forming this defence. As the full particulars are not known at this time, the defence may need to be amended.

10. In summary, it is The Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


I would never include a request for a strike out in pleadings - as explained before, they ought to be the subject of an application. You could ask the court via letter.

QUOTE
In their posted reply, they provided no response to the above. Does this affect my case at all, or do I dismiss it as a template response from them.

In what way?
  Forum: Private Parking Tickets & Clamping · Post Preview: #1472032 · Replies: 32 · Views: 594

southpaw82
Posted on: Mon, 18 Mar 2019 - 18:25


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QUOTE (notmeatloaf @ Mon, 18 Mar 2019 - 16:08) *
QUOTE (southpaw82 @ Mon, 18 Mar 2019 - 10:25) *
QUOTE (notmeatloaf @ Mon, 18 Mar 2019 - 00:06) *
Your only obligation is to give "such information as to the identity of the driver as he may be required to give" on the S172 form.

Is the recipient mentioned in the OP not the person keeping the vehicle?

I'm not sure I follow - the obligation applies to the RK rather than OP but I think the meaning is clear.


If the recipient is the person keeping the vehicle then their obligation is greater than giving any information etc.

QUOTE (SPARKY26 @ Mon, 18 Mar 2019 - 18:09) *
QUOTE (The Rookie @ Mon, 18 Mar 2019 - 16:12) *
No the obligation is on the recipient and you've given the obligation on 'any other person' the obligation on the keeper (who may not be the RK) is to provide the name and address of the driver.

In this case the OP seems to be the keeper, so your 'obligation' would be wrong.

No i'm not the keeper, owner or RK just a friend.

But what is the status of the friend you're helping? Is he the person keeping the vehicle or not?
  Forum: Speeding and other Criminal Offences · Post Preview: #1472021 · Replies: 32 · Views: 1,252

southpaw82
Posted on: Mon, 18 Mar 2019 - 18:21


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He sounds quite lucky he's not been charged with fraud. If he didn't have insurance I don't see what plea he can make other than guilty. If he's had his licence less than 2 years he'll be revoked on getting 6 or more points, unless the court sees fit to ban him outright.

What name is on the summons?
  Forum: Speeding and other Criminal Offences · Post Preview: #1472019 · Replies: 14 · Views: 726

southpaw82
Posted on: Mon, 18 Mar 2019 - 13:54


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QUOTE (20/20 vision @ Mon, 18 Mar 2019 - 11:09) *
does the case rest on whether the driver identifies her/himself?

I mean, if the driver agrees to identify himself by providing a witness statement (and attend the hearing) then there would seem to be zero point in Excel continuing to pursue the case against the keeper. however, all the other points in the defence would still be just as valid (or invalid) irrespective of who Excel pursue. So the keeper might as well continue defence of the case without identifying the driver?

also, still seeking clarity on the hearing venue

It would be important if the driver is the only one able to give evidence as to the state of the signs at the relevant time, for example.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471908 · Replies: 23 · Views: 295

southpaw82
Posted on: Mon, 18 Mar 2019 - 13:53


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QUOTE (EL14331 @ Mon, 18 Mar 2019 - 10:31) *
I put so much information into it because I read that if there is anything I don't include in my defence now that I wish to talk about later (e.g. the fact that they generated interest), then it has a chance of not being used - have I got this wrong?


You are broadly correct - your pleadings (which in your case is your defence) should set out the ambit of your case, with some reliance being placed on witness statements. That being said, I’m not sure you have a very good case for arguing against the usual award of interest. It will only arise if the court has found that you are liable for the sum claimed (or some other sum) and it follows that the claimant will have been kept out of that money for the period from when it was due to payment. On that basis, why shouldn’t they be awarded interest? If we were talking thousands of pounds of interest it may be worth a go but I’m by no means convinced that a court will be interested in hearing an argument over £25 or whatever of interest.

QUOTE
With regards to showing why I am not liable for what they are claiming for - I might be wrong, but it doesn't look like they have many points in the 'Particulars of Claim' as to why I am liable. In the other letters, they give a contravention description ('failed to display a valid P&D ticket or Permit'), is this what I base my defence off? Apologies if thats a stupid question, I just want to be sure.


Their particulars of claim are remarkably brief. I don’t see any harm in basing your defence off their pre-claim paperwork.

QUOTE
Do you think I should try and amend section 9, or remove it altogether?


You should only advance points that have some prospect of success. I’m open to argument but I don’t see what prospect that argument has:

1. If it’s a debt claim then arguments about a genuine pre-estimate of loss aren’t helpful, as it’s not a claim for breach of contract.

2. In light of the decision in Beavis/Makdessi I think it will be difficult to maintain a penalty argument in the circumstances.

3. Ordinarily, a party can be sanctioned by costs awards if they advance arguments without merit - I don’t think that ought to be an issue in a small claims case of this nature.

QUOTE
Do you think I should remove most of section 2 and leave the bit about interest, or remove it altogether?


I’d remove it since I don’t think it is an argument with any merit but it’s your case, not mine.

QUOTE
Also, should I include how a NTK was never delivered, or is that something for later in the process?


This is relevant if they’re claiming against you as the keeper (which isn’t clear, unsurprisingly) so if you want to base a defence on POFA you could include all elements where they have failed to comply with POFA. I wouldn’t go into too much detail - at a minimum you need to alert that claimant and the court that you are taking issue with their POFA compliance and you might wish to say something like “the claimant has not complied with POFA in the following ways:

1.....

2.....

3.....”

QUOTE
QUOTE (charitynjw @ Mon, 18 Mar 2019 - 09:37) *
It could be considered an abuse of process to issue 2 claims on the same date for substantially the same thing.

Thank you for reminding me! Is this something to include in my defence?

It could be an abuse of process (Johnson v Gore Wood & Co is the case). Whether you want to raise it or whether the court will care is another matter. Properly (if this wasn’t a tiny small claims case) you’d raise it by applying to strike out the latter proceedings as an abuse of process (which will cost you an application fee at least) and go on to argue the point at a hearing. Quite how the court would approach it in this case I don’t know - they might ignore it or they might raise it on the day if you ever get to a hearing.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471906 · Replies: 32 · Views: 594

southpaw82
Posted on: Mon, 18 Mar 2019 - 10:38


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QUOTE (The Rookie @ Mon, 18 Mar 2019 - 10:20) *
I think the telling part was "A High Court judge said that the adviser, who held himself out as a competent legal professional", while there are 'professional' McKenzie friends I don't think the mate 'helping you out' will ever be put in that same position.

That depends entirely on the facts. No money needs change hands - Lejonvarn v Burgess (Ms Lejonvarn was holding out as a professional, though no money changed hands). This is why I keep telling people to be careful with the advice they give.

Whether the McFriend will have insurance or other assets to cover the award is a different matter and part of the risk of using a McLawyer.
  Forum: News / Press Articles · Post Preview: #1471849 · Replies: 3 · Views: 205

southpaw82
Posted on: Mon, 18 Mar 2019 - 10:27


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QUOTE (20/20 vision @ Mon, 18 Mar 2019 - 09:57) *
apart from the keeper, the driver should also be a witness but doesn't want to introduce the possibility of the parkers pursuing him. what then?

Well, that’s rather awkward then. If the driver tips up to give evidence then they’re open to being questioned - in any case, their evidence will, from what you say, necessarily implicate them as the driver at the relevant time. If the claimant chooses to pursue them (assuming they don’t get a positive result in this case) then such is life.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471845 · Replies: 23 · Views: 295

southpaw82
Posted on: Mon, 18 Mar 2019 - 10:25


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QUOTE (notmeatloaf @ Mon, 18 Mar 2019 - 00:06) *
Your only obligation is to give "such information as to the identity of the driver as he may be required to give" on the S172 form.

Is the recipient mentioned in the OP not the person keeping the vehicle?
  Forum: Speeding and other Criminal Offences · Post Preview: #1471843 · Replies: 32 · Views: 1,252

southpaw82
Posted on: Sun, 17 Mar 2019 - 21:18


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QUOTE (EL14331 @ Sun, 17 Mar 2019 - 18:52) *
QUOTE (southpaw82 @ Sun, 17 Mar 2019 - 18:18) *
There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.

I'm really sorry if I have annoyed you, I hadn't realised I'd got it so wrong. The defence isn't from a template as such, its bits from other threads that I felt applied to my case that I have edited to be relevant to me. I've been looking at threads all day to try and understand what to write but I guess I've completely misunderstood my case, and the law.

You haven’t annoyed me at all.

All you have to do in your defence is tell your story and address the claimant’s points to show why you’re not liable. The fact that they may not have complied with the civil procedure rules isn’t a defence. You’re lucky the claimant hasn’t alleged in the claim that no permit was displayed because all you’ve said is no evidence has been presented. If they had made such an allegation you’d have had to admit it if it was true.

Your paragraph 2 is largely irrelevant - the law says they have six years to commence a claim so you have no defence on that point. At best it’s an argument against allowing interest. I don’t even know what the point of paragraph 3 is.

“If the driver happened to see the signs” is a potentially dangerous trap. If you were the driver then you’re coming awfully close to misleading the court (I don’t know if you were or not because the usual suspects constantly bleat about taking down the name of the driver NOW!!!!11!!!1! without appreciating that it makes it somewhat difficult to advise you. But hey, they’re not the ones signing the statement of truth, right?)

I’m not sure the argument in paragraph 9 are any good in light of Beavis and other authorities.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471752 · Replies: 32 · Views: 594

southpaw82
Posted on: Sun, 17 Mar 2019 - 18:18


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There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471695 · Replies: 32 · Views: 594

southpaw82
Posted on: Sun, 17 Mar 2019 - 12:55


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QUOTE (666 @ Sun, 17 Mar 2019 - 07:12) *
The friend has a UK licence. Does she still have a UK address? If so, the RK should give that.

Why?
  Forum: Speeding and other Criminal Offences · Post Preview: #1471628 · Replies: 32 · Views: 1,252

southpaw82
Posted on: Sun, 17 Mar 2019 - 12:53


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QUOTE (notmeatloaf @ Sun, 17 Mar 2019 - 11:16) *
Your post is very confused and difficult to follow.


No kidding.

QUOTE
There is no requirement for a NIP for dangerous driving.


Section 1 Road Traffic Offenders Act 1988 applies to dangerous driving. So, subject to the normal exceptions an NIP is required. If an accident occurred that would be an exception.

QUOTE
If they have a solicitor who has the full facts of the case defer to them. Certainly any case would need to be presented to the court in a much more coherent fashion.


This.

  Forum: Speeding and other Criminal Offences · Post Preview: #1471627 · Replies: 14 · Views: 1,059

southpaw82
Posted on: Sat, 16 Mar 2019 - 13:17


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QUOTE (tld2004 @ Sat, 16 Mar 2019 - 10:01) *
CSB Solicitors represented LPS.

Tempted to report them to SRA for their involvement in this claim as driver was disabled and they should have known better re: Equality Act.

Report them for what? Which of their regulatory obligations have they breached?
  Forum: Private Parking Tickets & Clamping · Post Preview: #1471432 · Replies: 87 · Views: 5,910

southpaw82
Posted on: Sat, 16 Mar 2019 - 13:16


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QUOTE (Harnes @ Sat, 16 Mar 2019 - 09:30) *
As it's been stated that as the court is now involved and as such the FPN no longer matters and it's enough for the enforcement officer to give evidence that he witnessed the litter dropping, can DepricatedZero not then say that he then picked up the litter - hence no offence commited !

Are you trying to get banned? Because that’s how you get banned.
  Forum: Speeding and other Criminal Offences · Post Preview: #1471431 · Replies: 34 · Views: 1,499

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