I collected information from this forum after the receipt of a “Notice to Owner” dated 16/4/2012 until the threatening letters from Whites stopped arriving later in 2012. I did not respond to any of those.
On 27th July 2016 I received the letter from VCS passing my “account” to bwLegal and, in the same post, another letter from bwLegal claiming a “balance due” of £174.00, comprising a PCN charge of £120.00 plus £54.00 “initial legal costs”. Once again I researched this forum and came up with this response:
1 August 2016
Dear Sir/Madam,
In response to your letter of 25 July 2016, a copy of which I enclose, I deny any debt to Vehicle Control Services Parking Limited. As I’m sure you are aware, the alleged event took place before the enactment of The Protection of Freedoms Act 2012, and I was not the driver. Thus, your client has no right to pursue me as the registered keeper.
You have no reasonable cause to continue to process my personal information, including Vehicle Registration Mark. As such you must confirm within 21 days that you and all your agents have ceased processing my data, to prevent further distress and harassment being caused. You must treat this as a Section 10 notice under the Data Protection Act.
No consent has been given, or will be given, for you to process my data. Should you contend consent was given, which is denied, it is revoked.
Do not reference Elliot Vs Loake. You are fully aware this does not apply in this case. Similarly, I should not have to remind you that your £54 "legal" charges cannot possibly be recovered at small claims, as per CPR27.14.
In summary:
1 I was not the driver of the vehicle on 16 March 2012.
2 BW Legal has attempted to mislead me by demanding £54 legal costs, which cannot be recovered in the Small Claims Court.
3 BW Legal has also misrepresented the consequences of a judgement - a CCJ “may have a detrimental effect on my future creditworthiness and employability”.
4 Vehicle Control Services Parking Limited’s delay of over four years to begin legal action is unreasonable behaviour.
Yours faithfully,
bwLegal’s response to that arrived on 25/8/2016 (dated 23 Aug).
I’ll try to post an image.
What is the best way forward? Do I use Gan’s concise response:
Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016.
I refer you to my previously reply, a copy of which is enclosed
My position is unchanged
Yours Faithfully
OR can I rant a bit?
Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016 and would like to draw your attention to the following:
1. I deny any debt to your client. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. You referenced the case Elliot Vs Loake despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.
Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16 - 18 March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date.
Yours Faithfully
You need to include Gans response that talks about the fact they dont deny the £54 cannot be recovered
Complain to SRA, CSA as well. Plenty on here.
From another thread:
Dear Sirs
I write with regard to your letter dated 23rd August 2016
Please ensure that any further correspondence is sent to my correct address as set out in my letter to you dated 22nd August and noted above.
I continue to deny any debt to Excel Parking Services and/or yourselves (B W Legal).
I note your misleading description of Elliott v Loake [1982].
The court decided that there was evidence of the driver's identity and made no such presumption
It is for the claimant has to prove their case, not the defendant.
I note your justification for the £54 that you claim to have charged your client.
I note that you have not disputed my position that it cannot be recovered in the Small Claims court
I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended
My position is therefore unchanged and final.
Yours Faithfully
Many thanks, nosferatu.
The wealth of knowledge on this forum is amazing. Earlier this year I won a POPLA appeal over ParkingEye by following advice to others on here.
I will use all of those comments - with the exception of the correct address - threaded into my points above. And I think I'll leave out that I was hundreds of miles away.
And I will complain to SRA, CSA as well.
You will find example CSA and SRA complaints in one place on this MSE thread:
http://forums.moneysavingexpert.com/showthread.php?t=5490266
But also, do read lots of other BW Legal threads on both forums, we are drowning in them but it does suggest many will be able to be fought off as the claims are generic and defendable.
Thank you SchoolRunMum,
I've just found one you posted earlier this month: SRA complaint: http://forums.pepipoo.com/index.php?showtopic=107836
Once I've sent off my adapted response, I'll get to work on the complaints.
Any and all advice is very much appreciated.
At last I've included everything I wanted to say in my rant to BWLegal. It's ready to send and if nobody spots any glaring error, it will be on its way tomorrow morning.
Many, many thanks to all members who keep us from panicking and sending money when we really do not have to.
Dear Sir/Madam,
Ref: *****
I acknowledge receipt of your letter dated 23 August 2016 and I continue to deny any debt to Excel Parking Services and/or yourselves (B W Legal).
In response to your letter would like to draw your attention to the following:
1. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver. It is for the claimant to prove their case, not the defendant.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. I note your misleading description of Elliott v Loake [1982]. The court decided that there was evidence of the driver's identity in that case. You made reference again despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. I note your justification for the £54 that you claim to have charged your client and that you have not disputed my position that it cannot be recovered in the Small Claims court.
10. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.
Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16 - 18 March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date. I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended.
My position is therefore unchanged and final.
Yours Faithfully,
Now to start work on the complaints to the CSA & SRA.
I've spent much of this week looking at posts and advice across this forum and MSE. And now I feel thoroughly overwhelmed! With some guidance, though, I think I can see this through to the County Court if necessary.
I posted on this forum in August 2016 and after receiving advice, posted a letter to BW Legal on September 2nd 2016 and hadn't heard from them again until this week. (http://forums.pepipoo.com/index.php?showtopic=108160&hl=
On 29th January a County Court Claim (dated 26/1/2018) arrived followed on 1st February by a Notice of County Court Claim Issued from BW Legal (dated 29/1/18). This is the first correspondence I have received from them since August 2016. I have responded to the County Court by completing the AOS online and by checking “Defend all of this claim” box (30/1/2018).
I now need to prepare my defence. Do I first email DWlegal requesting copies of the "photographic evidence & data held on file" that is referred to on the original PCN? Do I mention the lack of a Letter Before Action at this point?
Background
19/4/2012 I received a Notice to Owner with a contravention date of 16/3/2012. On 5/5/12 a Final Demand Prior to Court Action arrived dated 2/5/12. I ignored both of these.
I have asked to mods to merge this into the thread you quoted above. One case, one thread.
Aside from no keeper liability, it would appear that they have failed to send a valid LBA which won't sit well with the court.
Elliott v Loake was a criminal case where there was irrefutable forensic evidence that the RK was the driver. There is no such evidence in this case.
Thank you, cabbyman. One thread makes sense.
I forgot to add that I have proof that we were staying in a hotel that weekend: an email confirming the booking in September 2011 and a credit card statement showing payment by card on 18th March 2012.
I now realise that I have very little time to prepare a defence - deadline 28th February. BWlegal have not sent me a Letter Before Action so I have no details of the claim.
My next course of action is to email them to get these details. I wonder if someone would give me advice on this draft email.
I acknowledge receipt of your Notice of County Court Claim Issued, dated 29 January 2018 and received on 1st February 2018. Your Notice arrived three days after the County Court Claim Form arrived on 29 Jan 2018 (issue date 26 Jan 2018).
I have not yet received a Letter Before Claim which, in order to comply with the Pre-Action Protocol, would include:
a summary of the facts;
what you want from the party you're claiming from;
how you've calculated the sum you want to claim;
copies of the key documents that you'll use to support your case;
a list of any documents you want from the other party;
a reasonable deadline for a response (usually 28 days).
I now request full and concise details of this claim and all photographic evidence and data held on file be provided to me by post within 14 days - on or before 19th February 2018.
Or I could use much of the request for information example posted by Nosferatu 1001 in another thread (http://forums.pepipoo.com/index.php?showtopic=107768&st=120&start=120).
Thank you for merging the two threads and my apologies for making it necessary. It makes the sequence of events easier to follow.
I sent this by email and post today (with proof of posting).
Is my request for all details within 14 days reasonable, especially as they have not sent me a Letter Before Action and I'm not sure exactly what I'm defending.
[i]"Dear Sir/Madam,
I acknowledge receipt of your Notice of County Court Claim Issued, dated 29 January 2018 and received on 1st February 2018. Your Notice arrived three days after the County Court Claim Form arrived on 29 Jan 2018 (issue date 26 Jan 2018).
I have not yet received a Letter Before Claim which, in order to comply with the Pre-Action Protocol, would include:
• a summary of the facts;
• what you want from the party you're claiming from;
• how you've calculated the sum you want to claim;
• copies of the key documents that you'll use to support your case;
• a list of any documents you want from the other party;
• a reasonable deadline for a response (usually 28 days).
I now request that full and concise details of this claim and all photographic evidence and data held on file be provided to me by post within 14 days - on or before 19th February 2018.
This letter is a hard copy of the email sent to your email address, VCS@bwlegal.co.uk, on 5th February 2018."
No, request it withiN SEVEN days, as this is informtion they MUST already have, before they could commence a claim
State you will raise any refusal to comply with their obligations with the court, and request an immediate stay of proceedings.
Don't forget to challenge the interest payment wheeze. They're the ones that have waited many years before bringing a claim, they could have issued a claim at the time if they were concerned about losing out on the accrued interest.
Thank you for the advice nosferatu and Redivi. Unfortunately, I sent the "within 14 days" email and posted the letter yesterday - before your comments were posted.
I can't realistically begin a defence until I have the information that I requested. However, I can start to reorganise the arguments I used in my last letter to them 2/9/16 and which they never responded to. I don't want to get in a panic if they don't respond and the court doesn't grant a stay of proceedings. I'll sift through these 10 points to find the relevant ones and use the third person.
I wasn't the driver; this predated POFA (which their client doesn't rely on anyway); I can prove I was elsewhere with a hotel confirmation email and credit card statement.
One piece of information I would really like is the length of time that "the vehicle . . . continued to remain parked after the expiry of the time in a Pay & Display Car Park".
"I acknowledge receipt of your letter dated 23 August 2016 and I continue to deny any debt to VCS and/or yourselves (B W Legal).
In response to your letter would like to draw your attention to the following:
1. The £174.00 is the sum of £120.00 PCN Charge plus £54.00 your legal fees.
2. I did not “suggest” I was not the driver of the car. I clearly stated I was not the driver. It is for the claimant to prove their case, not the defendant.
3. I do not know who the driver was on 16 March 2012. Even if I did it would be impossible to provide you with that information “within 7 days” as you letter arrived on Thursday 25th August - just before a Bank Holiday weekend.
4. I note your misleading description of Elliott v Loake [1982]. The court decided that there was evidence of the driver's identity in that case. You made reference again despite my pointing out to you that it does not apply in this case.
5. Your extract From the DVLA Release of Information document does not address my request that you cease processing my data.
6. Your reference to the £100.00 PCN charge does not match with point 1, where the PCN charge is clearly £120.00 (£174.00 minus £54.00 legal fees).
7. Your reference to ParkingEye v Beavis (2015) is not relevant in this case.
8. Your statement that “the relevant car parking Codes of Practice also gives guidance that £100.00 is a reasonable sum to charge” seems to be an error as you are asking me to pay a charge of £120.00. See also points 1 and 6.
9. I note your justification for the £54 that you claim to have charged your client and that you have not disputed my position that it cannot be recovered in the Small Claims court.
10. Referencing the “detailed terms and conditions located within the Car Park” is not very helpful as I have already stated that I was not in that car park.
Finally, I was staying in a hotel in Basingstoke at a family event over the weekend 16th – 18th March 2012. I was not the driver of the vehicle on 16th March 2012. I do not know who was driving the vehicle on that date.
I will not make any payment in the absence of a court judgement and any legal proceedings will be strongly defended.
My position is therefore unchanged and final."
And I'll add a challenge the interest payment wheeze. Thanks ManxRed
Of course you can start the defence.
Keeper liability
Standing
Signage
Amount is. Apenalty and not saved by BEAVIS
That’s four already.
Claim fails to disclose a cause of action
Reasonable belief that the additional charges have been plucked out of thin air to inflate the claim
Not to forget the killer point :
Not the driver and the Claimant has never had any right to recover payment from the registered keeper
Here's my draft of my defence. Will this do?
Is paragraph 3 too repetitive?
Do I need to add more to paragraph 5?
Is there too much detail in paragraph 10?
When should I submit the defence to the County Court Business Centre?
The form is dated 26th January which would make the "date of service" the 29th January. For it to arrive no later than 28 days, I think the latest I can send it would be Thurs/Fri 22/23 January.
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.
2. It is admitted that the Defendant was the Registered Keeper of the vehicle in question on the material date.
3. On the material date, the Defendant was not the driver of the vehicle in question. The Claimant's Legal Representative, BW Legal Services Limited, were informed of this by letters in August 2016 and September 2016. The alleged contravention took place before the enactment of The Protection of Freedoms Act 2012. The registered keeper has not been proven as the driver. There is no keeper liability. The claimant has no right to pursue the Defendant as the registered keeper.
4. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
a) The Notice to Owner (16/04/2012) gives the "Reason" for the contravention as "Parked after the expiry of time in a Pay & display car park" and refers to photographic evidence and data held to support the claim.
No details of the period of overstay or copies of the photos and data has been provided.
b) As the car park in question no longer exists, it is impossible for the Defendant to determine if the signage was compliant with all regulation. It should be the Claimant's responsibility to prove compliance.
5. The Claimant is put to strict proof that they have standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management.
6. The Claimant has previously sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs).
7. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it, how the amount has changed from £120 to £100 and later reduced to £126 in a discount offer or why the £54 "contractual costs" were initially described as "Client's Initial Legal Costs". This appears to be an attempt at adding costs with no legal basis, and an attempt at double recovery, in order to circumvent the Civil Procedure Rules.
8. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons:
a) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
9. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Vehicle Control Services have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
10. The Claimant's unreasonable delay in bringing this claim has resulted in interest charges of £64.26.
A "Final Demand Prior to Court Action" was issued by the Claimant on 2nd May 2012. More than two years later, on 25th July 2016, a letter was sent passing the Defendant's account to BW Legal. A Discount Offer was sent to the Defendant 23rd August 2016. In a letter dated 29th January 2018 the Claimant informed the Defendant that a County Court Claim had been issued (this letter was received three days after the Claim Form).
11. The Claimant did not serve a Letter Before County Court Claim on the Defendant, as mandated by the Practice Direction on Pre-Action Conduct. Further to this, the Particulars of Claim as pleaded in the N1 Claim Form are extremely sparse, and do not disclose a proper Cause of Action, but instead offer a menu of choices. As such, the Particulars do not comply with CPR 16.4, and the Court is invited to strike out the claim of its own initiative, using its case management powers.
12. If the Court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this Defence.
I believe that the facts stated in this Defence are true.
No it isnt 3 days, its 5 days later for date of service. Written on the form.
6) isnt a defence
7) how does it go from £120 to £100, then "reduce" to £126?
8) No idea where you found no GPEOL from. REMOVE it.
10A) Your dates are wrong. 2012 -> 2016 is four years.
FOr 3, just make it clear who the driver was. If you cannot state you were not the driver, state that as more than X years have passed it is unreasonable to expect you to recall, and in any event you have no liability in law to provide the name of the driver.
As a first shot at refining
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £XXX, or at all, for the reasons stated in the following paragraphs.
2 The Particulars of Claim disclose no cause of action. Neither do they explain if the claim is founded on a contractual charge, a breach of a contract or trespass that require different defences.
Neither do they provide any explanation of the £54 contractual charge.
The Defendant invites the court to strike out the claim as in breach of CPR 16.4 or to order the Claimant to provide further and better Particulars of Claim
3. It is admitted that the Defendant was the Registered Keeper of the vehicle in question on the material date.
4. The Defendant denies that he was the driver of the vehicle in question on the material date.
The alleged contravention took place before the enactment of The Protection of Freedoms Act 2012 and the Claimant has never had any right to recover payment from the registered keeper.
The Claimant's solicitor, BW Legal Services Ltd has been informed of this fact on at least two occasions and has knowingly issued the claim against a party that has no liability
5. The Claimant's solicitor has not sent a Letter of Claim and has failed to respond to the Defendant's request to provide copies of photographic evidence that it has claimed to possess to support the claim
The car park in question no longer exists and it is impossible for the Defendant to determine if the signage was compliant with the Claimant's trade association Code of Practice.
The Defendant refers the Court to the Claimant's unreasonable delay to issue the claim
6. The Claimant's trade association Code of Practice states that, if it is not the land-owner, it has no capacity to take legal action unless specifically provided for in its contract.
The Claimant is put to strict proof that it has such a capacity.
7. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it, how the amount has changed from £120 to £100 and later reduced to £126 in a discount offer or why the £54 "contractual costs" were initially described as "Client's Initial Legal Costs". This appears to be an attempt at adding costs with no legal basis, and an attempt at double recovery, in order to circumvent Civil Procedure Rule 27.14
The Claimant's solicitor advertises that it can issue more than 24000 claims per month.
The Defendant has the reasonable belief arising from the incompetent Particulars of Claim and failure to provide requested information that the Claimant's solicitor has issued such a "roboclaim" without inspecting the Claimant's documents
The Defendant further has the reasonable belief that the costs have not been incurred but are an indemnity charge and puts the Claimant to proof that they were invoiced and paid.
8. The Claimant has in previous correspondence referenced ParkingEye v Beavis. The present case can be easily distinguished as the Claimant has not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss. Neither has it complied with its trade association Code of Practice.
10. The Claimant has included six years interest charges of £64.26.
The Defendant refers the Court to the Claimant's unreasonable delay since 2nd May 2012 when it send a "Final Demand Prior to Court Action"
11 The Defendant has the reasonable belief that the Claimant has no intention to continue the claim to a hearing and asserts that it has no purpose other than to cause alarm and result in a payment that is not owed
12. The Defendant invites the Court to use its case management powers to strike out the claim as having no prospect of success and for failure to disclose a cause of action. In the alternative, the Defendant invites the Court to order the Claimant to provide further and better particulars of claim.
13 The Claimant failed to send a Letter Before Action or respond to the Defendant's requests for information. It has also delayed legal action for almost six years against a party that it knows to have no liability.
The Defendant will invite the Court to have regard to the Claimant's unreasonable behaviour, the Pre-action Protocol for Debt Claims and CPR 27.14(g) when it disposes of the costs of the case
I believe that the facts stated in this Defence are true.
Your numbers are still wrong, in 7
I didn't check those details
The Defendant denies that she was the driver on that date and can prove that she was elsewhere
It is impossible after six years to identify which of (number) possible drivers would have parked the vehicle
I wouldn't wait until the last minute to send the defence
You wouldn't be the first defendant to forget or be prevented by an unexpected event or miss the post
I would send it a week before the deadline
Ideal is to email it as a pdf attachment, with a copy to another email address as evidence of sending
If you email, don't forget to sign it
BWlegal have responded to my email requesting more details:
"I now request that full and concise details of this claim and all photographic evidence and data held on file be provided to me by post within 14 days - on or before 19th February 2018."
We write in reference to the above matter and your email dated 5 February 2018.
Whilst we note your comments made, a Claim Form has now been issued through the Northampton County Court (CCBC).
We request that you complete and return either an Admission or Defence within the specified timeframe.
Should you have any further queries please do not hesitate to contact our office on 0113 323 4479.
Yours sincerely
I don't think they are going to provide me with any.
You include their refusal to comply with your reasonable request of X date to see documents relating to this claim, in breach of the CPRs and the Overriding Objective, as well as their duty to the court, within your defence.
Absolutely
5. The Claimant's solicitor has not sent a Letter of Claim and has failed to respond to refused the Defendant's request of 5th February to provide copies of photographic evidence that it has claimed to possess to support the claim.
7....The Defendant has the reasonable belief arising from the incompetent Particulars of Claim and failure to provide requested information that the Claimant's solicitor has issued such a "roboclaim" without inspecting the Claimant's documents
This is evidenced by the unreasonable refusal of the Claimant's solicitor to provide documents and photographs, in breach of the Civil Procedure Rules and the Over-riding Objective
12. The Claimant failed to send a Letter Before Action or respond to and has refused the Defendant's requests for information.
I think what we're seeing here is the inevitable consequence of a well defended roboclaim
BWL doesn't actually have any information about the case and the effort to obtain it will be more expensive than writing off the claim later
The Court received my defence on 20th February and I really hoped that would be the last I heard of it. But today I received a letter, dated 26th February, from bwlegal informing me that "Our client intends to continue with the claim, we confirm that we have notified the Court of the same.”
I suppose I now have to wait for the Court to look at the claim.
I still have no details of the contravention other than “Parked after expiry of time in pay & display car park”
At what point should I start preparing my Witness Statement?
Well you can do that now
You should know the next steps - court sends DQ to both parties, both parties complete theirs, sending to court and other party. Then you get notification it’s at your local court, and after that a hearing date. That letter tells you the deadline to have all parties receive a copy of your documents - ws plus other evidence.
DQs have been exchanged. BW's has named a person in "B. contact details" but it is signed BW Legal. I think I've been communicating with a computer programme.
I have now received a notice of transfer of proceedings to my local County Court.
Because I will soon be offline until the second week of April, I have made an attempt at drafting my witness statement.
I'm delighted that Fellsider didn't copyright his. He, and those who assisted him, will recognise much of this! Having said that, all errors and confusions are my own.
I would be very grateful if someone could look this over.
I will insert the headings and a statement of truth at the end.
1. I am an unrepresented defendant who has never attended the county court before.
2. On the XX/4/2012 I received a Notice To Owner from Vehicle Control Services Ltd dated XX/4/2012 (Exhibit A) asking for payment of £120 for an unpaid
Parking Charge Notice issued on X/3/2012 at XXXpm.
The reason for the alleged contravention was described as: “Parked after the expiry of time in a pay & display car park”.
There is the suggestion that there had been some payment. There is no reference to the length of the overstay.
A Final Demand Prior to Court Action from VCS dated X/5/2012 arrived on X/5/2012. (Exhibit B)
3. I was the registered keeper of the vehicle in question at the time of the alleged contravention.
4. More than four years later, XX/7/2016, I received a letter from VCS informing me that they had passed my account to their legal team BW Legal and,
in the same envelope, a letter from BW Legal requiring payment of £120 plus “Our Client’s initial legal costs of £54” within 16 days of the date of the letter.
(Exhibit C.1 & C.2)
5. The Claimant did not identify the driver. I was not the driver of the vehicle on XX/3/2012 and have no knowledge of the events, or signage terms on that date.
The Claimant's solicitor, BW Legal Services Ltd, has been informed of this fact on at least two occasions (Exhibits D & G) and has knowingly issued the claim against
a party that has no liability. Car insurance documents from 2011/12 have not been kept and, after six years, it is not possible to identify the driver on XXX 2012.
6. I was attending a family celebration in a hotel in Basingstoke over the weekend XX/3/2012. There are a number of people willing to vouch for my presence at the celebration.
I also have an email confirming our hotel booking from the XXX hotel, Basingstoke, dated XX/9/2011 (Exhibit Q) and a credit card statement showing
payment to XXX hotel, Basingstoke on the XX/3/2012. (Exhibit R).
7. The alleged contravention took place before the enactment of The Protection of Freedoms Act, 2012, and
the Claimant has never had any right to recover payment from the registered keeper.
In a letter dated XX August 2016 (Exhibit E), the Claimant’s solicitor informed me that their client did not rely on POFA and referred me to the case of
Elliot v Loake 1982. In the case of Elliot v Loake, the court decided that there was evidence of the driver's identity.
8. The Particulars of Claim disclose no cause of action. The Claimant has not supplied any evidence at all that the alleged contravention ever occurred.
The Claimant's solicitor has refused my requests sent on XX February by mail and email (Exhibits J & K) to provide copies of photographic evidence and data that
VCS has claimed to possess to support the claim. (Exhibits A & B)
They did acknowledge receipt of both the letter and the email. (Exhibits L & M)
9. Withholding any relevant photos of the car, particularly the full view of the windscreen and any signage terms, despite being asked for,
is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.
10. The Claimant's solicitor advertises that it can issue more than 24000 claims per month. With this level of experience in dealing with private parking issues there can be no excuse for these omissions.
11. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
No indication is given as to the Claimant's contractual authority to operate there as required by the Claimant's Trade Association's Code of Practice B1.1 which states:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner
sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish
you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract
but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in
question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
The car park in question no longer exists. It was initially referred to as The Percy Car Park by the Claimant, Vehicle Control Services on the Notice to Owner XXX
and the Final Demand Notice XXX It was later called The Percy Car Park Hanro Group in all correspondence from BW Legal.
The car park was already a building site when BW Legal first contacted me in July 2016, after more than four years of hearing nothing further from the Claimant.
According to a press release dated 16/9/2016, Kier Property had bought from Hanro a portfolio of properties which included the car park in question. (Exhibit P)
12. The Final Demand Prior to Court Action, XX/5/2012, suggested that, should I fail to "pay this notice", court proceedings could
"lead to a warrant being issued to the bailiffs to recover payment/seize goods". (Exhibit B)
13. Four years later I received a demand from BW Legal for £174. This was described as £120 PCN charge plus "Our Client's initial legal costs of £54". (Exhibit C2)
In their letter, dated XX/8/2016, I was further informed that payment of such fees was detailed in the terms and conditions in the car park (Exhibit E).
At this point the car park was no longer in existence and I have yet to see any evidence, including signage, from the Claimant or their solicitors.
The £54 "client's initial legal fees" was also referred to in BW Legal's "Discount Offer", dated XX/8/2016, (Exhibit F) when they reduced the £120 PCN amount to £72 but still requested £126.
14. The Claimant appeared to be uncertain as to whether the PCN charge was £120 or £100 in their letter of XX/8/2016 (Exhibit E).
At the beginning of the letter, the claim is for the sum of £174. There are later references to the £54 legal fees. The penultimate paragraph claims that
PCN charges are not a penalty and that the car parking Codes of Practice "give guidance that £100 is a reasonable sum to charge".
I pointed out these discrepancies in my response (Exhibit G). I heard nothing more from the Claimant or their solicitors until after the Claim Form arrived from the County Court Business Centre.
15. The Claimant's solicitor has also misrepresented the consequences of a judgement - a CCJ
“may have a detrimental effect on your future creditworthiness and employability”. (Exhibit C.2)
They also attempted to mislead me by demanding £54 legal costs, which cannot be recovered in the Small Claims Court, as per CPR 27.14.
I pointed this out to them in my response to their initial demand, (Exhibit D) dated XX/8/2016 and my more detailed response, (Exhibit G) dated XX/9/2016.
16. On the XX/1/2018 I received a Claim Form from CCBC (Exhibit H). I did not receive a Letter Before Claim or even a final demand indicating that litigation was imminent.
17. On the XX/1/2018 BW Legal sent a "Notice of County Court Claim Issued" (Exhibit I), dated 1/2/2018. This Notice broke down the outstanding balance of £313.26:
Principle Debt £120.00
Interest £64.26
Court Fees £25.00
Solicitors' Costs £104.00
The Claimant's legal costs appear to have almost doubled. I dispute that the Claimant has incurred £104 solicitors' costs to pursue an alleged £120 debt,
the costs of which are in any case not recoverable. On the Claim Form (Exhibit H) the legal representative's costs are listed as £50 and
the Particulars of Claim describes the £54 as "contractual costs pursuant to PCN terms and conditions".
The Claimant's solicitor, who signed the Claim Form as BW Legal Services Limited, seems confused about the amount they are charging VCS.
18. The Claimant has included six years interest charges of £64.26. I would like to refer the Court to the unreasonable delay in issuing a claim when
the Claimant sent a "Final Demand Prior to Court Action" almost six years ago on XX May 2012.
19. The Claimant has not complied with the pre-court protocol as No Letter of Claim or initial information was sent to me.
20. I would like to refer the court to Paragraph 4 on non-compliance and sanction, and also point out that there can be no reasonable excuse for the Claimant's failure
to follow the Pre-Action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors. They clearly had legal advice before issuing proceedings.
21. PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL Steps before issuing a claim at court.
6.Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings.
Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3,
bearing in mind that compliance should be proportionate.
The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts,
what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one.
The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why,
together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim
as well as providing details of any counterclaim; and
© the parties disclosing key documents relevant to the issues in dispute.
22. The claimant has not provided enough details in the Particulars of Claim to enable me to file a full defence.
In particular, the full details of the contract, which it is alleged was breached, have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
23. The Particulars of Claim contains no details and fails to establish a cause of action which would enable me prepare a specific defence.
It just states Parking Charge Notice (PCN) which does not give any indication of the basis on which the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything
which could be considered a fair exchange of information.
24.The Particulars of Claim are incompetent in disclosing no cause of action.
25. The Claimant has in previous correspondence (Exhibit E) referenced ParkingEye v Beavis. The present case can be easily distinguished as
the Claimant has not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.
Neither has it complied with its trade association Code of Practice.
If it is not the landowner, it has no capacity to take legal action unless specifically provided for in its contract.
The Claimant has not explained if the claim is founded on a contractual charge, a breach of a contract or trespass that require different defences.
26. On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed
to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.
27. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
28. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims.
I believe the term for such behaviour is roboclaims and as such is against the public interest.
Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state
by whom, when and where the acts constituting the conduct were done.
29. Since 2012 the Claimant has described the charge of £54 as ‘legal fees’. Only in the Particulars of Claim does this become ‘contractual costs’.
CPR 31.14 does not permit these to be recoverable in the Small Claims Court.
30. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
31. I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in
the Department for Transport Guidance on the Recovery of Parking Charges:
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss
they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing
the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”
32. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.
33. The Claimant has at no time provided an explanation how the sum has been calculated or the conduct that gave rise to it.
34. Vehicle Control Services were not the lawful occupier of the land. I have the reasonable belief that they did not have the authority to issue
charges on this land in their own name and that they have no rights to bring this case.
35. The Claimant was not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
36. The Claimant is put to proof that it had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf.
As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land
in their own name and that they have no right to bring action regarding this claim.
37. I watched the recent Parliamentary debate on the planned Private Parking (Code of Practice) Bill, which particularly singled out the current unacceptably high
numbers of unfair 'parking charges' received by ordinary residents, and how this is considered completely unreasonable.
Stephen Doughty MP referred to the Claimant's solicitor in his speech. "there are other firms of solicitors that use the same name—as is BW Legal.
I have been involved in a lengthy case concerning a constituent. This week, I raised concerns about such firms with the Solicitors Regulation Authority,
and I am hopeful that it will take a close look at the matter and consider whether the firms are complying with the regulatory environment for solicitors, and with best practice."
Full transcript of the debate - (Exhibit S)
38. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of,
or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.
39. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.
40. I also refer the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts.
This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.
41. I would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)
That's very long, should only be the facts as you know them. Needs massive pruning adn lots of that stuff is too old.
Remove this completely, it is NOT a valid argument since the Beavis case in 2015
Thank you for your helpful input SchoolRunMum.
I've removed paragraph 31 and 38 - 41.
I'm also tempted to take out 31 through to 35.
I want to concentrate on the fact that I wasn't the driver and can prove it, March 2012 was pre-POFA and there is no keeper liability,
that there has been unreasonable delays in contacting me and that their sudden reappraisal of the "debt" appears to have been caused by the sale of the property in 2016.
Witness Statement - 2nd draft:
[attachment=54345:Redacted...tatement.pdf]
I would only remove 33 - 35 because ''no loss'' has no hope as an argument:
Thanks again, SchoolRunMum. I feel more comfortable dealing with points that I (almost) understand.
I will be offline from Tuesday for almost three weeks and I am happier that this witness statement is drafted.
Of course, it might all change if/when the Claimant files a witness statement.
[attachment=54378:2nd_Reda...tatement.pdf]
I would get rid of 26, 27 and 28.
If you get their WS soon, before submitting this WS and evidence, go through it with a fine tooth comb. Are the signs/contract is VCS name, or Excel?
And consider using one or both of Lamilad's case transcripts (Excel v Lamoureux) as an exhibit as well with your WS, found here:
http://www.parking-prankster.com/more-case-law.html
Read them and you'll see how clearly it is stated that a keeper cannot be held liable when a PPC (sister company of VCS, also using BW Legal) cannot rely on the POFA, which in your case, clearly VCS cannot and they are stuffed.
3rd_draft_Redacted_Witness_Statement.pdf ( 110.22K )
: 151
I came back to a Notice of Allocation to the Small Claims Track. My Witness Statement and evidence need to be with the court and the Claimant by 4pm, 23rd April.
I aim to have them in the post by Thursday 19th.
Thanks, SchoolRunMum for suggesting the use of the Excel v Lamoureux case. I have made reference to it in paragraph 9 as it follows on from my comment about VCS not relying on POFA. (Although there was no POFA in March 2012)
I've also removed those three paragraphs.
if nobody spots an error or contradiction, this should be my final WS draft. Then I'll have to arrange everything into a folder - dividers and labels will be a must here, I think.
I have highlighted three three short extracts in the Hansard - Parking Code of Pratice Bill debate. One makes reference to BWLegal and two others mention "roboclaims".
Many thanks in advance.
Don't post to the court
You will hand deliver a folder, nicely divided and referrenced , to the court. This has all your photos etc referenced there
Series of emails to the claimant
Thank you, nosferatu. I will be stationery shopping tomorrow.
Having read other people's experiences of emailing the claimant's solicitor, I can only hope that I select the appropriate email address for them on this occasion.
My bundles were delivered yesterday before the deadline - by hand to the Court and by email to the Claimant.
Very soon after my email was sent, I received their witness statement and exhibit.
I've read through it several times. It seems that they are relying on PEvBeavis and the presumption that I was the driver.
I'm also aware that there are parts of my defence which they are not addressing - the refusal to provide copies of photographic evidence and documents and that I can prove I was not the driver.
It seems that no LBC was necessary as I would have been aware of their "intention to proceed to Court proceedings should no resolution be found".
The Claimant believes that I did not attempt to "substantively engage" with them.
I think this may be as a result of my ignoring their "discount offer" as I responded to all other letters from BWLegal.
Their references to the appeals process and POPLA are irrelevant. I never saw the pcn and the 28 days had passed by the time I got the NTO. POPLA had not come into being until later in 2012.
I'm still trawling through and making notes.
I’ve saved it in batches because of upload size limitations. The images of the contracts, the car in the car park and signage take up too much space so I’ve left them out. I found the parking agent’s pcn and notes quite interesting. The letter dated 6 September 2016 was quite a surprise as I never received it. It’s a response to my letter dated 2 Sept 2016 - the one I attached in my opening post.
Having trouble deleting attachments to post the second batch!
Any ideas on how to organise my thoughts/notes round this would be very welcome.
1._BWLegal_redacted_WS_compressed.pdf ( 715.24K )
: 146
2._BWLegal_redacted_exhibits.compressed.pdf ( 499.62K )
: 159
A detail, but maybe helpful:
At paragraph 8 of their WS it is claimed that the Percy Car Park, Percy Street, Newcastle Upon-Tyne, NE1 4PW is actually located in Gallowgate, Strawberry Place,
and a contract dated 2007 is adduced for the Gallowgate car park to support the charge at the Percy car park.
I know that the VCS-infested Gallowgate car park is behind the Strawberry pub, off Strawberry Lane. That car park is not on Percy Street. Furthermore, until February 2016 the
Gallowgate car park was a Newcastle City Council operated car park.
See https://www.newcastle.gov.uk/sites/default/files/wwwfileroot/parking-roads-and-transport/parking/parking_charges_off_street_26.02.18.pdf
Something doesn't add up.
Thanks Cyclocross. I know the one you're referring to behind the Strawberry. That's still in existence. The Percy Car Park (Hanro) is the land adjacent to that, behind what was Millers Auction rooms, and has been developed since its sale in 2016.
http://www.kier.co.uk/press-office/press-release/2016/kier-buys-newcastle-portfolio.aspx
The Claimant's WS included copies of their contract with Hanro so I think that's not worth arguing in my case. It was worth asking, though.
The council do seem to have outsourced much of car parking administration to VCS.
Dont use the forum to host - scan and host at tinypics or somewhere similar. Even drop box would be betetr (although I cant see dropbox etc links while at work)
Go through their WS and create your Skeleton Argument.
Summarise their failings to prove their claim - for example that despite making no assumptions, they have assumed youre the driver despite your explicit statement otherwise, which is supported by your evidence at reference...
State their failure to issue a letter before claim is evidence of unreasonable conduct. Add in the other elemtns as this supports your claim for ADDITIONAL costs under CPR27.14.(2)(g) and write your costs schedule.
I cant check those just yet, but if you CAN host on tinypics you can have it load it here and more people will see.
Thanks nosferatu, I'll rearranged my notes and create a Skeleton Argument. We're completing a "Notice of McKenzie Friend" so my husband can act as a second pair of ears and keep me on track.
It's been useful going through the images more thoroughly. There are some interesting anomalies when looking at Pages 5, 9, 13, 14 & 18 the car is in the wrong position on P13 and there are no signs in front of the car in the parking agent's photos. Although I wasn't going to go into arguments about signage because I wasn't in the car park on that day, it's another example of their carelessness.
I have kept all my receipts and my printer's list of completed print jobs shows the astonishing amount of time (and paper and ink) I have put into this.
I'm posting 16 of the 18 images - if the tinypics urls work.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
13.
14.
These cases should help to fend off their attempt to transfer liablity to the keeper:
To rebut their assertion that Elliot v Loake allows a presumption of the identity of the driver, in addition to Excel v Lamoureux, there are other cases where
the Judges ruled Elliott v Loake as not relevant or applicable, including Excel v Mr C C8DP37F1 Stockport 31/10/2016, and Excel v Mr B C7DP8F83 at Sheffield 14/12/2016.
To rebut their claim that CPS v AJH films transfers liability to the owner, here are two cases to be aware of:
(1) Vehicle Control Services v Hall C9DP7T5D 12/06/2017. Claim dismissed. CPS v AJH Films is not relevant. If the Claimant wants to pursue the defendant as keeper, it must comply with the requirements of PoFA.
(2) Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062. On appeal it was found that CPS v AJH Films is only applicable in an employee/employer situation.
You are not a company and the driver is neither your agent nor employee. VCS cannot use this case to transfer liability from the driver to the keeper of the vehicle.
Lots more here: https://forums.moneysavingexpert.com/showthread.php?t=5672664
(Credit to beamerguy and the Parking Prankster.)
Good luck!
Small claims court is not like what you see on TV. The judge is the one that comes in last and has a bigger desk all to himself.
AJH films is that an employer instructing an employee to do something means the employer can be liable. So you state that you are a private individual, the driver that day wasnt you, and whoever it was they certainly were not your employee (you dont have any!) )and were not therefore considered under any form of law of agency, so you are confused as to why the C is asserting this despite having no proof. THis isnt a witness statement, but a guess.
I've spent nearly three weeks going through the claimant's witness statement and exhibits so thoroughly that I've confused myself.
I have been trying to prepare a skeleton argument but I think I've ended up writing the witness statement I would have written if I'd had the information I needed.
I'd be very grateful if anyone could take the time to read through and comment on what I've written.
If nothing else, I've now got a better idea of how I want to respond to their WS.
You should also claim for your time in preparing th claim - £19 per hour
ALso include yoru ordinary costs, £95 max for a half day loss of leave or loss ofpay, mileage and parking.
Anyone else think the signs above the yellow rail barrier appear badly photo-shopped?
And have they produced no photo of the car and a sign in the same image?
I made a collage of signs. Top left is a photo I took last week (May 2018) of a sign remaining from 2016 on the wall - it's covered in concrete but still quite legible.
The car park was no longer in existence in 2016.
The bottom photo of my grey car shows the 2012 sign in exactly the same position. The sign, top right, is dated July 2011 and supposedly was still in the car park in March 2012.
3 completely different signs.
]
Have you requested a file copy of that dated photograph? The metadata might show show something different.
Since it's probably a digital photograph ask for the computer file. Metadata is data hidden within the file that gives information, amongst other things, about when the photo was take. Look at a jpg file on your computer and right click on the icon then left click on "properties". Lots of information about the photo becomes available. Or may not but it's worth a try.
I'm concerned by your statement that you've exchanged witness statements but do not have a hearing date yet.
That's unusual. Are you sure that the documents you've received from the court don't contain a hearing date?
You send court and claimant a copy, about three days before the hearing
Post the documents you have from your local court. Suitably redacted.
Phoned the court this morning. They have received both Witness Statements and the case has not yet been listed. It should be less than a month.
That's a relief.
Yes they really do look photo shopped.
When you zoom in on the words on the red background, specifically looking at the penultimate load of guff in the bottom right image, do the words look like they are 'diagonal' to you? they do to me...
There are no cable ties attaching those very rectangular signs to the posts.
Can you read if VCS offered the parking, or Excel? Often they get in a mess between the two companies on their signs.
How about sending VCS a SAR asking for all data held about your VRN, photos, letters, the lot.
After 25th May, GDPR makes a SAR free. Do it immediately at the end of this week, direct to VCS, not via BW Legal, and as a postal letter (get free proof of posting at the PO Counter - NEVER signed-for) stating your name, address and VRN.
A court date at last!
A friend who is an IT expert has explained that metadata doesn't necessarily change when an image has been altered. So unchanged metadata neither proves nor disproves that a photo has been photoshopped. He agreed that the photos look as though additions have been made.
As far as I see all the images have Vehicle Control Services Ltd as the PPC.
A SAR data request to VCS is next on my list.
That part of Newcastle has been heavily changed over the years since 2012 - which you will most likely know. Suggest you use Google's Street View and it's time line feature to see what might have changed.
They've dropped out of cases for this car park at the last moment before. No guarantees but suspect the uncertainties in the contract and the pics will be in your favour.
Send them your own list of costs that you'll be claiming.
VCS issued the ticket? Yet Excel are writing to you?
I would respond back, listing your costs, including the costs for unreasonable behaviour you will be claiming. You can prove you were not the drvier, and it is impossible for you to be responsible as keeper as this was before POFA. They have never had any reasonable chance of success - theyve had no chance, and have just wasted your time.
Just list out time spent resaerrching, writing defence, getting phtoos, compiling WS, printing etc. All at £19 per hour.
SUggest that you will accept half that amount to be saved the hassle of turning up at court and winning.
Dear Sir/Madam,
Ref ****
Without prejudice save as to costs
I acknowledge receipt of your letter dated 10th July 2018 making an offer to settle this case, without prejudice save as to costs, on my payment of £175.
I am rejecting your offer.
I informed you twice, in July and August 2016, two years ago, that I was not the driver on 16th March 2012.
As the date of the alleged contravention pre-dates POFA, your client has never had any right to recover payment from me as the registered keeper and its claim must fail.
By continuing to pursue this matter in the knowledge that it had no right to any payment, your Client has wasted a great deal of my time.
My computer print logs record that I have spent a minimum of 78 hours researching, drafting, editing and producing my defence and my witness statement.
In addition, I have spent (four?) hours and (£20) travelling to the site of the car park to photograph the signage on the remaining retaining wall.
My receipts for postage, stationery and printer cartridges used for the Witness Statement and exhibit bundles total to date £91.27.
I will ask the court to have regard to your client's unreasonable behaviour in accordance with CPR 27.14
This behaviour includes its absurd delay of six years to take legal action, immediately before the matter would be statute barred by the Limitation Act
There is no plausible explanation for the delay other than the intention to cause me such distress that I would make a payment that is not owed.
In order to avoid either party incurring further costs, I therefore propose an alternative offer
I will accept a payment from your client of £376 representing 15 hours of my time at £19 per hour, the approved rate for a Litigant-in-person, plus my receipted expenses of £91.
Payment must be received within seven days
After this date, I will ask the court to award my full costs of (82 x £19) plus £111 = £1669 in addition to my costs to attend the hearing
I will request these costs even if your Client discontinues its futile claim
I await your response
Yours Faithfully
Insert travel time and costs as appropriate
Shame there was no counterclaim
I predict a discontinunace which, if received early enough, means youre unlikely to get a costs hearing in its stead.
Many thanks for your input SchoolRunMum and Redividi. Special thanks to Redividi for the full reworking of my letter. I'll redraft and prepare to send.
They have to pay the court fee before 4pm on Friday, 20th July, so it's unlikely they'll receive my letter before then.
In the event of a discontinuance, could the OP still not get their osts to dat met as per CPR38.6(1) which states
CPR 38.6(3) states that the rule doesn't apply to the Small Claims track
The court fee is only £25
If they discontinue afterward, however, I would ask the Court for the full costs
The Court's letter is telling VCS that it's liable for your costs if it doesn't pay the Hearing Fee to continue the case
You can argue that the Court intended VCS to be liable if it discontinues at any time without reasonable cause
Otherwise, VCS may as well avoid its liability by enclosing the Hearing Fee and Notice of Discontinuance in the same envelope
But not being able to claim costs for discontinuance is not set in stone and really P****ing off the judge may get the judge to allow a costs claim.
That isnt what will piss off a judge, really
Only telling the court less than 24 hours before the hearing date seemed to annoy one judge in another thread. But they could be entirely sanguine about it
If they dont pay the hearing fee then you may need to stump up the money for a hearing on costs.
They gave you until 24/7 to respond to their 'perfectly reasonable' offer to settle, but they have until 20/7 to pay the court fee. Do I have that correct?
If so, leave your reply until Friday. You have complied with their deadline but, they may still panic and pay the court fee, in which case, you have cost them money anyway! You may also have a better chance of claiming costs.
Nice one
The alternative offer is in the post and they should receive it on Monday, 23rd July.
I phoned the court at 4.30pm as the deadline for payment of the court fee was 4pm today. They had paid the court fee on 12th July.
I suppose the discontinuance notification wait won't be long. At the moment I'm really considering making a claim for costs.
Popcorn time!
It's been a long wait! Six and a half months since the Claim was filed.
The case is due to be heard on Friday 17th August. I hope to hand in my Skeleton Argument to the Court on Tuesday 14th.
QUESTIONS
1) Should I email or post a copy to BW Legal?
2) Should I mention in the SA the offer from the Claimant which I rejected and the alternative offer which has been ignored?
3) Do I add my costs schedule to the SA or produce it separately?
4) Do I need to ask permission of the Court to introduce new exhibits with the SA?
These are not in my WS because they were sent last month by VCS after a Subject Access Request. They contain new information showing that copies of the PCN, photographic evidence, signage and contracts were NOT held by BW Legal when they filed the Claim and that the author of the C's WS was still uncertain about the contract between the landowner and VCS on the morning that he filed their WS with the Court. It also offers proof that at least one of the signage exhibits is not what it is claimed to be.
I was thinking about adding something like:
Were the offers of settlement Without Prejudice or Without Prejudice Save to Costs ?
The first can never be mentioned
The second can only be mentioned after the judgment
But only produce those offers if it benefits you!
Do a seperate costs schedule and send it under the same cover to court and send it to BW via email.
Have two sections - ordinary costs, and unreasonable behaviour costs. You can see how to lay this out elsewhere, and what you need to justify
I would suggest you explain what the purpose of the documents are. Just saying "here is a list of actions" is meaningless. What relevance does it have to the claim?
As for the offering profo signage is not what it purports to be - what is meant by that? Does it belong to another location? If so SAY THAT! Point out that this shows the witness statement is either unrelaible - they didnt know it was wrong - or deliberately in error in order to mislead the court.
Thank you. nosferatu.
On reflection I don't think the list of actions would be very useful. I was only considering using it to show that VCS had noted that I had stated I was not the driver.
However, the emails indicate that BW Legal did not have any data or evidence of the contravention when they filed the Claim. They also indicate that there was confusion about the contract and that one of the signage images was presented in their WS as being present in 2012 when the email attachment labels it as "Old Style VCS Sign 2010 JPG.
The comment "Although the contract does not mention the Percy Car Park, this should not be a problem, as it only gives the location of the car park." suggests to me that the facts in the WS are unreliable. The writer of the WS is then told "Please proceed on this basis."
I have a spreadsheet of time spent on research, writing etc MCOL, Defence, WS and SA. This is based on the list of print jobs from my computer. Most of that time, especially research, was as a result of not knowing what I was defending. I can select specific jobs to list separately.
I'll do that and send it with the SA to the Court and BW.
You then point out how many car parks are there...
Show us your costs scheudle here. Remember the rate is fixed.
You haven't converted the 75.5 hours into a cost at £19/hr
No, you havent read what was posted - makes sense if youre not sleeping!
You have ORDINARY COSTS - these are half days loss of leave OR pay, mileage (45p per mile), parking. the pay is capped at £95. You have to take proof of it.
Yes it is huge. but thats the point - they havent behaved reasonably, so this is a form of punishing hten.
Think of them as naughty children who you, with a firm voice, will send packing!
Maybe go for a walk to clear your head? It's not toooo bad out there. It's low tide, so the beach would be good.
And to recap what others have said, your schedule of costs should contain:
1. Ordinary costs: travel expenses to and from court on the day of the hearing (eg, car mileage and parking fees, or bus fare)
2. Unreasonable behaviour costs: your time at £19/h, printing and postage costs, etc.
I suggest you remove the word "disbursements" from your schedule, for clarity.
Chin up!
Thnaks nosferatu and cyclocross.
Well, that's it! I delivered the SA and an additional exhibit, containing selected emails between VCS and BW, to the court this afternoon and emailed a copy to BW when I got home.
I've printed off a copy of my costs schedule to take with me on Friday in case I get the opportunity to ask for unreasonable behaviour costs.
My McKenzie Friend, aka husband, will have a copy of the SA so he can keep me on track. Hopefully, he'll take some notes so I can report back to the forum.
I hadn't intended to refer to the contract between VCS and the landowner. I have included some points after reading through the VCS/BW emails and using information Cyclocross posted a while ago.
we said to supply the SA AND costs schedule at the same time
Id do that today
You really want to have this in advance.
https://www.google.co.uk/maps/@54.9747412,-1.6174612,3a,90y,201.57h,100.21t/data=!3m6!1e1!3m4!1s_Mx82OAakiHjT8TkZ2eaOg!2e0!7i13312!8i6656 is a seperate location, quite some distance away. It has 2 car parks at the back. Perhaps they have a contract to operate there?
The name rang a bell, I used to work there many, many years ago. Sixth Floor.
The car park in question is immediately behind (to the west) of Percy House. However, I still think that we can cast reasonable doubt that the contract that VCS have supplied, which refers to "Gallowgate" and not to the Percy car park, actually covers the car park where the defendant's car was parked. The reference to "Gallowgate" can reasonably be interpreted as referring to the Gallowgate car park, in my opinion.
Persphone: I suggest you take with you on Friday a map or print out of google maps, that identifies the Gallowgate car park. VCS should lose anyway on (lack of) keeper liability, but lack of a contract to issue PCN's would be useful to have in reserve.
If the contract supplied refers to Percy House then how can they possibly show that they have the right to ticket elsewhere?
I said to summarise their unreasonable behaviour so far into the costs schedule, as just a short para.
No need to append it ot your SA, just make sure claim number, claimant, defence etc is in there.
Yes, you always send the court AND claimant a copy of everything. You serve ALL parties to the claim.
Good luck tomorrow. Amazed they have taken this as far as they have - but you never know what goes on in their minds.
Fingers crossed. Looking forward to your report.
Forgot to mention that if you are in any way nervous, Newcastle has a PSU (Personal Support Unit) with volunteers to explain and guide you in the court process. When you go up to the Court Level they are usually there on the left (river side) as you go towards the doors in the middle. They also have an office at the far end (bridge end) on the right.
https://www.thepsu.org/locations/newcastle/
Good luck!
Claim dismissed.
£115 ordinary costs. £95 plus £20 for the taxi to/from the court.
I will post a summary later.
Thank you x
Well done! Looking forward to the summary.
Nicely done!
If we can have case number, judges name etc - mroe details the better
Well done
Brilliant!! Well done !!!
Wonderful result! Well done!
Well done. Costs too so a big night out in the Bigg Market.
Could we describe you as the defendant from hell?
https://www.greeka.com/greece-myths/persephone.htm
Thank you all for the good wishes.
Congratulations to everyone who contributed to this successful outcome.
"The defendant from hell" - only with assistance
Judge Ord had read all the papers before the hearing. I think he may well have followed the order of points I made in my SA - to some extent.
The Claimant’s advocate didn’t seem prepared and he got rattled at one point when the judge asked him if he had a copy of CPS v AJH and he saw me smiling. “Is something amusing. You’re smiling?” I just pointed to all my papers and said that I didn’t have the relevant paper either.
I did make lots of notes, as did my McKenzie Friend, but I’m not sure that they are all in the correct order.
I wouldn’t be surprised if a transcript showed that I got hold of the wrong end of things on occasion.
We seemed to move from one topic to the next very quickly and then sometimes went back to a previous one - quite confusing.
I exported each of the three pages as a jpg. and went to tinypic. but this doesn't seem to have worked as it usually does.
I'll repost the summary so it's legible.
In the County Court at Newcastle upon Tyne 17th August 2018
Claim Number: E7DP183E - Judge Ord
Claimant VEHICLE CONTROL SERVICES LIMITED
Claimant’s Advocate Mr Glass (booked by VCS/BW Legal through ELMS)
The case was listed for 10am as were several others - Back to Back List where judges deal with a single list of cases for completion on one day.
We only had to wait an hour. At 11am we went into a room where Judge Ord was waiting. I was accompanied by my husband as my McKenzie Friend. The hearing lasted an hour.
The judge began by stating that this appeared to be a straightforward case - an unpaid PCN, the time on the ticket having expired. A breach of contract.
However, the Defendant has stated she was not the driver and there is no evidence to rebut her claim.
Judge Ord - If the Defendant wasn’t the driver, being some miles away, how does the claim proceed.
Advocate - If the D. was not the driver and the car was not stolen then some agent must have been driving.
Judge Ord - Why?
Advocate - made his first mention of CPSvAJH.
Judge Ord - Claimant’s absence of reference to Law of Agency in their WS. We have to rely on the statement of a paralegal who is not here.
The judge then went on to point out all of the C’s WS paragraphs where the D is referred to as the driver.
Advocate - The D did not deny being the driver and did not name the driver.
Judge Ord - There is the D’s letter dated 20th August 2016. Mr Imran is not here to be cross examined.
The judge referred to the C’s WS covering the “Cause of Action” - Breach of Contract. If the D was not there then there was no contract.
Advocate - Say she was there?
Judge Ord - D’s evidence is that she was at the other end of the country. I can’t gainsay that.
Advocate - One, she was there. Two, it was one of the two other possible drivers. The claim doesn’t fail if she wasn’t there because the driver was an agent.
The judge asked me about the other two possible drivers. I said I hadn’t asked either of them
because I didn’t want to know.
Judge Ord - referred to the Protection of Freedoms Act and asked for the date of the Act. Judge looked it up - 31st Oct 2013.
Between 2012 and 31st October 2013 not enacted. Royal Assent May 2012 and there was a delay to enactment.
Methods used after were affected by this. (I’m not sure I fully understand this but the judge laboured the point)
No pleading of agency. It can’t be raised in WS when the witness is not here.
1) I deal with it on the evidence before me.
2) The Claimant might wish for an adjournment to put their house in order.
Advocate - expressed a wish to speak to the Claimant.
Judge Ord - The Claimant ignored D’s statement in Defence and WS that she was not the the driver and was away at the time.
When asked, by the judge, the Advocate said we should deal with the matter today.
Judge Ord - asked if the D wanted to say anything. I mentioned points from my Skeleton Argument - No LBC, no Cause of Action and refusal to provide information when I requested it.
I referred to an email, dated April 2018, from VCS@excel.co.uk to JImran@bwlegal with attached photographic evidence mentioned in the NTK.
They couldn’t be entered on the claim form or sent to me because they didn’t have it.
(I had these emails as a result of a Subject Access Request [SAR] to VCS in July 2018.)
Judge Ord - then went through each of the five photos taken in March 2012 by the Parking Agent. Only one shows the D’s car’s registration on the parked vehicle.
The other photos show a PCN or a P&D on a car ticket but no car registration. (I hadn’t noticed this!)
Judge Ord - Read from C’s WS, “The images capturing the D’s breach of terms and conditions”, and asked if the Parking Agent was here.
Advocate - “No”.
Judge Ord - the claim is based on photos and hearsay evidence. He asked if I would like to add anything.
The claim in C’s WS that my lack of response to a PCN that I did not receive and my failure to use an appeals process that did not exist caused the Claimant to issue proceedings.
Advocate - repeated that the driver was either the D or her agent and referred to CPSvAJH Films (2015) again.
Judge Ord - asked for the date of the case and if Mr Glass had a copy but he hadn’t.
The judge referred to the delay in filing a claim - 4 years and 2 months. He then turned to the amount claimed claimed - £120 principal and £54 contractual charge.
I mentioned that there were two letters from the Claimants’s solicitors (BW Legal) referring, in 2016, to the £54 as “Client’s initial legal costs”.
Judge Ord - asked Mr Glass to show him where the contractual costs were displayed on the warning sign included in C’s WS.
The Advocate was unable to find any reference on their exhibit.
Judge Ord - The WS by a paralegal states that D contravened the Terms & Conditions. “Putting this in a WS does not make it so.”
I referred to the contract included in the C’s WS. This was a site plan and a contract between Fraise Properties (Client) and VCS (Company) and dated 1/10/2007.
There were Special Instructions on the site plan, one of which stated: Enforce Only at Client Request.
The plan indicated 19 signs around the site but the Parking Agents’s sketch showed only 6.
The judge asked me where on that plan had my car been parked. The PA’s sketch and photos indicated that the car had been in an area not covered by any of the 19 signs.
Judge Ord
1. (no evidence of) Authority - cannot enforce
2. Although before POFA, proceedings began January 2018 and should have complied with the Act.
3. Defendant did not park - no contract.
4. Photographic evidence needs to show relevant information.
This Claim is dismissed.
I asked for costs on the day, taxi fare of £9.40, and for unreasonable behaviour as shown on Schedule in my Costs Application. The judge said that although I might find the behaviour unreasonable, it wasn’t legally unreasonable. These claims are filed on an industrial scale.
I hadn’t lost pay but Judge Ord awarded costs of £95 and £20 for taxi fares - £115 to be paid within 21 days. (This covers my receipted costs and my fares so I am not financially out of pocket.)
The judge told the advocate to remind his “people” about point 2 above.
Thanks for the report
Can you create a thread in completed cases, with a link back here? It will help others
Is there a mechanism for these Judges to get together and compare notes on these roboclaims or would that be contrary to the rules of natural justice?
Interesting. Thank you, emanresu.
Congratulations. A good result: no contract with the keeper, Judge not swayed by the argument that the driver was an agent of the keeper, and appears to have awarded £95 for loss of earnings as "compensation" by the back door. Nice! It appears that VCS, Excel and BW will not have an easy time at Newcastle CC.
Just as well, because I see that Excel have recently infested Cramlington's Manor Walks car parks.
Thanks
I'd been worried about being mistaken all these years but not worried enough to check the information
I know this is very smug of me - but here's the cheque (redacted of course).
Disbursements to be added to BWL's final invoice to Excel/VCS.
Sweet!
Well done!!!
Mines a pint please. 😎😎
Where's the 'Like' button on here?
Nicely done
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