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FightBack Forums _ Private Parking Tickets & Clamping _ Excel/VCS/bwlegal - PCN from March 2012

Posted by: Persephone Tue, 30 Aug 2016 - 14:10
Post #1206961

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

Posted by: nosferatu1001 Tue, 30 Aug 2016 - 15:39
Post #1207000

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

Posted by: Persephone Tue, 30 Aug 2016 - 20:57
Post #1207083

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.

Posted by: SchoolRunMum Tue, 30 Aug 2016 - 21:11
Post #1207088

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.

Posted by: Persephone Tue, 30 Aug 2016 - 21:59
Post #1207099

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.

Posted by: Persephone Thu, 1 Sep 2016 - 11:27
Post #1207597

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.

Posted by: Persephone Sat, 3 Feb 2018 - 21:19
Post #1353806

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.



Almost 4 years later on 28/7/2016 two letters arrived in the same envelope, one from VCS stating that "your account has now been passed to our legal team" and the other from BWlegal asking me resolve the account or "we will seek Our Client's instructions to commence legal proceedings against you". I replied on 1st August 2016 stating that I was not the driver and, as the contravention pre-dated POFA, their client had no right to pursue me as the registered owner. On 23/8/16 they wrote that "our client does not rely on POFA" and referred to Elliot v Loake. It was at his point that I requested advice from this forum. and sent them a detailed reply on 2/9/16.




County Court Claim Form



BWlegal Notice of Claim Issued

Posted by: cabbyman Sat, 3 Feb 2018 - 21:27
Post #1353809

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.

Posted by: Persephone Sat, 3 Feb 2018 - 22:11
Post #1353814

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.

Posted by: Persephone Sun, 4 Feb 2018 - 16:53
Post #1353990

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).

Posted by: peterguk Sun, 4 Feb 2018 - 17:15
Post #1354004

QUOTE (Persephone @ Sat, 3 Feb 2018 - 21:19) *
I posted on this forum in August 2016 (http://forums.pepipoo.com/index.php?showtopic=108160&hl=


A mod will merge with your original thread. One case - one thread.

Posted by: Persephone Sun, 4 Feb 2018 - 17:57
Post #1354018

Thank you for merging the two threads and my apologies for making it necessary. It makes the sequence of events easier to follow.

Posted by: Persephone Mon, 5 Feb 2018 - 20:19
Post #1354460

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."



Posted by: nosferatu1001 Tue, 6 Feb 2018 - 12:23
Post #1354654

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.

Posted by: Redivi Tue, 6 Feb 2018 - 12:34
Post #1354665

QUOTE (nosferatu1001 @ Tue, 6 Feb 2018 - 12:23) *
No, request it within SEVEN days, as this is information they MUST already have, before they could commence a claim

That's the theory

In practice BWL boasts that its roboclaims system regularly issues 8000 claims/month and can handle up to 20000
That's only possible if it doesn't deal with this information first

Posted by: ManxRed Tue, 6 Feb 2018 - 13:52
Post #1354707

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.

Posted by: Persephone Tue, 6 Feb 2018 - 13:59
Post #1354710

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

Posted by: nosferatu1001 Tue, 6 Feb 2018 - 18:30
Post #1354817

Of course you can start the defence.

Keeper liability
Standing
Signage
Amount is. Apenalty and not saved by BEAVIS

That’s four already.

Posted by: Redivi Tue, 6 Feb 2018 - 21:34
Post #1354901

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

Posted by: Persephone Mon, 12 Feb 2018 - 11:45
Post #1356797

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.

Posted by: nosferatu1001 Mon, 12 Feb 2018 - 12:24
Post #1356826

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.

Posted by: Redivi Mon, 12 Feb 2018 - 12:49
Post #1356838

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.

Posted by: nosferatu1001 Mon, 12 Feb 2018 - 14:31
Post #1356902

Your numbers are still wrong, in 7

Posted by: Redivi Mon, 12 Feb 2018 - 15:31
Post #1356918

I didn't check those details

Posted by: Persephone Mon, 12 Feb 2018 - 21:48
Post #1357079

QUOTE (nosferatu1001 @ Mon, 12 Feb 2018 - 12:24) *
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.


Thank you for those comments nosferatu.

So that’s 33 days from 26th January making it Wed 28th February. Can I send it as late as Monday 26th February?
Changed 7) to "reduced" to £126 (£72 + client's legal fees)

For the reference to the driver can I add - The Defendant can prove that she was not the driver on that date. As almost six years have passed it is unreasonable to expect her to recall who might have been the driver.


Posted by: Persephone Mon, 12 Feb 2018 - 22:12
Post #1357093

QUOTE (Redivi @ Mon, 12 Feb 2018 - 12:49) *
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

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


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.


Many thanks for this refined version, Redivi.
That final sentence in paragraph 11 makes a lot of sense. I had thought they were just careless. But is really just another form of harassment. The amount of time I have spent on research and preparing my draft response might not be obvious from the finished piece, but it makes me cross that this may well be a complete waste of everybody's time.

However, the process continues and here is my revision. The passages marked with asterisks in Paragraphs 4 & 7 refer to the questions I asked in my last post.

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 she was the driver of the vehicle in question on the material date. *(The Defendant can prove that she was not the driver on that date. As almost six years have passed it is unreasonable to expect her to recall who might have been the driver.)

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 *(£72 + client's legal fees) 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.

9. 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"

10. 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

11. 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.

12. 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.

Posted by: Redivi Mon, 12 Feb 2018 - 22:18
Post #1357095

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

Posted by: Persephone Mon, 12 Feb 2018 - 22:19
Post #1357096

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.

Posted by: nosferatu1001 Tue, 13 Feb 2018 - 08:11
Post #1357158

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.

Posted by: Redivi Tue, 13 Feb 2018 - 09:39
Post #1357194

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

Posted by: Persephone Tue, 13 Feb 2018 - 16:42
Post #1357368

QUOTE (Redivi @ Tue, 13 Feb 2018 - 09:39) *
Absolutely

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


Probably the inevitable consequence of a very refined Redivi defence. Many thanks for your input Redivi and nosferatu.
Unless someone spots an error or bwlegal contact me again, the Defence below will signed, scanned and sent by email as a pdf to ccbcaq@hmcts.gsi.gov.uk and another recipient on Monday 19th Feb.

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 she was the driver on that date and can prove that she was elsewhere. It is impossible after six years to identify which of two possible drivers would have parked the vehicle.
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 refused the Defendant's request of 5th February 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 landowner, 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 (£72 + client's legal fees) 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. 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.
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.

9. 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 sent a "Final Demand Prior to Court Action".

10. 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

11. 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.

12. The Claimant failed to send a Letter Before Action and has refused the Defendant's request 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.

Posted by: Persephone Wed, 28 Feb 2018 - 20:27
Post #1362855

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?

Posted by: nosferatu1001 Thu, 1 Mar 2018 - 00:10
Post #1362891

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.

Posted by: Persephone Fri, 16 Mar 2018 - 22:24
Post #1367584

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)


Posted by: SchoolRunMum Fri, 16 Mar 2018 - 23:25
Post #1367608

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

QUOTE
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.”


Remove 38 through to 41, all old stuff.

I do like your point #37 and use of the Parliamentary debate to open your Judge's eyes, in case they are not a person who has twigged what these robo-claims are actually hiding.


Posted by: Persephone Sat, 17 Mar 2018 - 18:07
Post #1367765

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]

Posted by: SchoolRunMum Sat, 17 Mar 2018 - 22:12
Post #1367835

I would only remove 33 - 35 because ''no loss'' has no hope as an argument:

QUOTE
30. The amount claimed is a charge and evidently disproportionate to any loss suffered by the
Claimant and is therefore unconscionable.
31. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s
loss.
32. The Claimant has at no time provided an explanation how the sum has been calculated or the
conduct that gave rise to it.


Your WS needs a statement of truth at the end, and your signature and date.

Posted by: Persephone Sun, 18 Mar 2018 - 23:06
Post #1368142

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]

Posted by: SchoolRunMum Mon, 19 Mar 2018 - 01:02
Post #1368155

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.

Posted by: Persephone Fri, 13 Apr 2018 - 15:19
Post #1374212

 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.

Posted by: nosferatu1001 Fri, 13 Apr 2018 - 17:25
Post #1374257

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

Posted by: Persephone Fri, 13 Apr 2018 - 21:02
Post #1374308

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. happy.gif

Posted by: Persephone Tue, 24 Apr 2018 - 20:24
Post #1377042

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


Posted by: cyclocross Wed, 25 Apr 2018 - 06:59
Post #1377112

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.

Posted by: Persephone Wed, 25 Apr 2018 - 08:45
Post #1377132

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.

Posted by: nosferatu1001 Wed, 25 Apr 2018 - 10:05
Post #1377163

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.

Posted by: Persephone Wed, 25 Apr 2018 - 13:35
Post #1377261

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.

Posted by: nosferatu1001 Wed, 25 Apr 2018 - 13:42
Post #1377267



Posted by: Persephone Wed, 25 Apr 2018 - 13:53
Post #1377277

4.
5.
6.
7.
8.
9.
10.
11.
13.
14.


Posted by: cyclocross Wed, 25 Apr 2018 - 18:43
Post #1377372

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!

Posted by: Persephone Wed, 25 Apr 2018 - 20:55
Post #1377411

QUOTE
These cases should help to fend off their attempt to transfer liability to the keeper:


Thanks again, cyclocross.
They do seem to have set their hearts on the PEvBeavis and wasn't ElliotvLoake a criminal case? The AJH Films is new to me so there'll be some research to do.

Going through the images in their WS has brought out some very interesting details. Page 6 Notice to Owner has been in my possession for over 6 years.
Just above "DO NOT IGNORE THIS NOTICE" is written "LIABILITY FOR THE PARKING CHARGE NOTICE (PCN) LIES WITH THE DRIVER OF THE VEHICLE".
It's also on the Final Demand Notice issued a month later. Clearly I'm not the only one not to have noticed this.

I have never been into a court building in my life until last Friday when I delivered my WS. I feel apprehensive about the hearing so I do need to be well prepared.
A Skeleton Argument and my McKenzie Friend will be a great help.

I'm very grateful for the support, ideas and encouragement given by forum members.


Posted by: ostell Wed, 25 Apr 2018 - 21:54
Post #1377429

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.

Posted by: cyclocross Wed, 25 Apr 2018 - 21:58
Post #1377433

QUOTE
"LIABILITY FOR THE PARKING CHARGE NOTICE (PCN) LIES WITH THE DRIVER OF THE VEHICLE"


Exactly. You were not the driver and PoFA had not been enacted yet to enable them to transfer liability to the keeper. VCS/Excel/BW Legal try to twist Elliot v Loake and/or AJH Films in an attempt to
transfer liabilty to the keeper. You have to show that neither does, in fact, transfer liability to you. If your defence or witness statement did not strongly rebut keeper liabilty then it should be foremost in your SA and in Court. Without keeper liabilty, they lose.

VCS -v- Persephone and Hades! Should be interesting...

Posted by: nosferatu1001 Thu, 26 Apr 2018 - 08:12
Post #1377472

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.

Posted by: Persephone Thu, 10 May 2018 - 20:04
Post #1381145

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.

QUOTE
Defendant

SKELETON ARGUMENT on behalf of XXXXXXXt

1. Background
I, XXXXX of XXXXXXXX am the unrepresented Defendant in this claim and the registered keeper of the Ford XXXXXX. The Claimant alleges that I am responsible for an unpaid PCN placed on my car on 16/3/2012.
The Claimant’s photo of the PDT on the car’s windscreen, JI1 Page 15, shows a payment of £2.40 and an expiry time of 14.13. The PCN, Pages 4 & 5, was issued at 14.23 and the “Lady Rtnd” at 14.25. The £120 charge was claimed for a 12 minute overstay - £10 for each minute.

2. I was not the driver
The Claimant did not identify the driver. I was not the driver of the vehicle on 16th March 2012. I do not know who the driver was. The Claimant's solicitor has been informed of this fact on at least two occasions before the issue of the claim (Exhibits 4 & 7) and in paragraph 4 of my defence.
I have proof that I was staying in a hotel in Basingstoke over the weekend 16th-18th March 2012. (Exhibits 14.A & 14.B).

3. No Keeper Liability
VCS sent a Notice to Owner, dated 16/4/2012, (Exhibit 1) and a Final Demand Prior to Court Action, dated 2/5/2012 (Exhibit 2). Both state: LIABILITY FOR THE PARKING CHARGE NOTICE (PCN) LIES WITH THE DRIVER OF THE VEHICLE.
On the Claim Form, throughout the Particulars of Claim is the assumption that the Defendant is liable for the PCN charge. (Exhibit 8)
The claimant has knowingly issued the claim against a party that has no liability.

4. Pre-POFA
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 informed me in their letter of 23/8/2016 that their client did not rely on POFA and referred me to the case of Elliott v Loake. (Exhibits 5&5A).
As the Claimant is unable to rely on POFA or keeper liability, they have stated that they are "entitled to proceed on the reasonable presumption that the registered keeper was the driver on the date of the contravention." (Claimant's WS, paragraph 45)
They have assumed that I am the driver despite my explicit statement otherwise, which is supported by my evidence at paragraph 2 above.

5. Failure to send Letter of Claim
The Claimant failed to send a Letter of Claim.
The first I knew of the claim being issued was when I received a Claim Form from the CCBC on 29/1/18. (Exhibit 8), not having received any correspondence from the Claimant since my letter to them dated 2/9/2016 (Exhibit 7).
On 1/2/18 received from BW Legal - Notice of County Court Claim Issued - dated 29/1/2018. (Exhibit 9)
The Claimant has referred to this omission in their WS paragraphs 49-50. They contend that no Letter of Claim was necessary as I would have been aware of their "intention to proceed to Court proceedings should no resolution be found".

6.Failure to disclose a cause of action
The Particulars of Claim states, “for the sum of £120 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN)”, which did not give clear indication of the basis on which the claim was brought. It failed to establish a cause of action which would enable me prepare a specific defence. There is nothing which could be considered a fair exchange of information. (Exhibit 18A) Practice Direction Pre-Action Conduct and Protocol.

The Claimant’s WS Paragraphs 24-30 begins with, “The cause of action is for breach of contract as set out in paragraphs 9 to 18 of this witness statement.” There is no reference to “breach of contract” on the Claim Form or in the Claimant’s Notice of County Court Claim Issued” dated 29/1/18 (Exhibits 8 & 9).
This is explained by the Claimant in paragraph 37 of their WS, under the heading of Compliance with CPR 16 and 7.3 Practice Direction 16, where the Claimant has selected isolated points that make a nonsense of the Practice Direction.
For example, “Under paragraph 5.2(1) and (2)(b) PD 7E, the Claimant's particulars of claim were included in the online claim form, however, it had to comply with the restrictions of having only 1080 characters to set out its particulars.”
The phrase “_breach_of_contract_” uses 20 characters.
The claimant then failed to include or abide by the remaining directions: “or (2) served and filed by the claimant separately from the claim form in accordance with paragraph 6 but the claimant must – (a) state that detailed particulars of claim will follow; and (b) include a brief summary of the claim, in the online claim form in the section headed ‘particulars of claim’.”

7. Refusal to provide information
The Claimant's solicitor has refused requests sent on 5th February by mail and email (Exhibits 10 & 11) to provide copies of photographic evidence and data that VCS has claimed to possess to support the claim. (Exhibits 1 & 2)
This evidence has only now been made available to me as it is included in the Claimant’s WS.
This unreasonable refusal has been a disadvantage. The Claimant’s exhibits JI1 pages 1-23 would have been invaluable to me in writing both my Defence and my Witness Statement.
I had never seen the PCN dated 16/3/2012 (Claimant’s Exhibit pages 4-5)
Whilst the Claimant acknowledged receipt of the email and letter, they ignored my request for evidence. (Exhibits 12 & 13)
Withholding information, despite being asked for, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.

8. Unreasonable delay in issuing the claim
Paragraph 23.6 of the Claimant’s WS states, “The Defendant alleges the interest Claimed is unreasonable”, misrepresenting what I actually wrote in Paragraph 9 of my defence where I referred to the “unreasonable delay”.
The Claimant has not provided any explanation for the unreasonable delay of almost 6 years in issuing a County Court Claim having sent me, as the registered keeper, a “Final Demand Prior to Court Action” dated 2/5/2012. Six years’ interest, £64.26, amounts to more 50% interest on the original sum of £120.

Until the Notice of County Court Claim Issued arrived on 1/2/2018 I had received no correspondence from the Claimant’s solicitor after my letter of 2/9/2016, although they have included in their Witness Statement (P23) a copy of a letter, dated 6/9/2016, which I never received. (Claimant’s Exhibit JI1 p23)

9. Claimant’s contention that the Defendant should have contested the PCN
The Claimant’s WS, paragraph 20, states that the defendant had three options “upon the PCN being issued”.
a) disclose full details of the driver;
b) appeal the PCN to the Claimant;
c) appeal to POPLA to have the PCN independently adjudicated.
None of these applied to me as registered keeper in 2012.
a) I did not and do not know who the driver was.
b) I have never had sight of the PCN other than the blurred image in the Claimant’s witness statement pages 4/5 which I received on 23/4/2018. By the time I received the NTO, more than 28 days had passed and an appeal and/or payment at the lower rate was no longer an option. The NTO clearly stated that the PCN was the driver’s liability.
c) POPLA, like POFA, had not yet come into effect.

According to the Claimant’s witness statement, paragraphs 21/22, as a result of not my doing any of the above, a failure to “substantively engage”, the Claimant has brought proceedings. This is repeated in their WS paragraph 50.

10. ParkingEye v Beavis - rebuttal
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.

The ParkingEye v Beavis case concerned an overstay in a car park where motorists initially had two free hours of parking. Mr Beavis had challenged an £85 charge.
The Percy car park was a 24 hour, 7 days a week, £1.20 per hour Pay & Display parking area.

In the ParkingEye v Cargius case (Dec 2014), the Claimant brought proceedings to recover a parking charge of £100 issued as a result of an overstay in a pay & display car park in Gwynedd. In her judgment (paragraph 13), Deputy District Judge C. Mahy stated that, “this case can be distinguished from the Somerfield and the Beavis & Wardley cases in that both these cases dealt with free car parks, where the only charges recovered by ParkingEye were from those motorists who overstayed.”.

11.CPS v AJH Films - rebuttal
The Claimant’s WS , paragraphs 46-47, makes reference to the case of CPS v AJH Films Ltd (2015).
This case concerned the driver of a company-owned van and the keeper, AJH Films, was found liable for the actions of an employee when driving as part of their employment. I am not, and never have been, an employer. I am a private individual. I do not know who was driving my privately owned car on the day in question. It was not an employee as I don’t have any.
16th March 2012 was before POFA and there is no keeper liability.

12. Elliot v Loake - rebuttal.
The Claimant’s solicitor informed me in their letter of 23/8/2016 that their client did not rely on POFA and referred to Elliot v Loake (1982) as case law which supports the view that the owner of the vehicle, if there is no contrary evidence, is the driver. (Exhibits 5&5A)
This presumption “that the registered keeper was the driver” is repeated in the Claimant’s WS , paragraph 45.
This is an incorrect representation of the criminal case for the following reasons:

The facts of the case are that the appeal judge ruled that the appellant was the driver because of the evidence that he was the driver, and not, as the Claimant incorrectly states, because of the lack of evidence as to who the driver actually was.

In the case there was ample evidence that justified the magistrates to conclude that this man was driving his blue sports car on the night when it collided with the stationary car.

Additionally, a crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only keys in his possession that night and that no-one else had permission to drive the car.

The Loake case does not therefore introduce any binding legal principal as this case turned on its own facts. If any principle can be adduced, it is the well known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false.

13. Contradictions within the Claimant’s Witness Statement and Exhibits
A.The VCS Parking Agent’s sketch of the position of the vehicle on 16/3/2012, Page 6, contradicts the position marked on the overhead plan, Page 13.
B. The artwork design of the information sign, Page 7, and the photos of the signs situated with the car park, Pages 8/12, shows a different style of signage to the sign apparent on the wall to the right in the photo of the vehicle on 16/3/2012. (JI1 page 18)
C. The Claimant states at the end of their letter dated 23/8/2016, page 22, (and my Exhibits 5&5A), “payment of such fees was detailed in the terms and conditions located with the Car Park”. The artwork design of the information sign, Page 7, contradicts this.
D. The overhead plan, an overlaid Google satellite image of the car park, Page 13, purportedly indicates the position of signs on 16/3/2012. The photo of the car, Page 18, shows no signs in front of the vehicle and no wall or posts which would support any signs.
E. The Claimant’s witness statement, paragraph 13, states, “I am instructed that although the images pre-date the Contravention Date, that they are a true and accurate reflection of the signage with the Car Park on the Contravention Date.” Junayd Imran, the author of this WS, had apparently been erroneously instructed.
F. Paragraph 58 of the WS begins with, “As the Claimant was an established member of the BPA on the Contravention Date, it was required to adhere to the BPA’s Code of Practice”. Paragraph 63’s final sentence is, “The relevant Car Parking Code of Practice also gives guidance that a £100 (sic) is a reasonable sum to charge”.
The £120 charge claimed from me exceeds the BPA’s recommended maximum of £100.
G. The WS page containing paragraphs 54-62 appears to be duplicated except for the amount of the charge in paragraph 60. On the first of these pages the charge is £120 and on the following page it is £100. I referred to this ongoing confusion in my Witness Statement, page 2, paragraph 16.
H. The Claimant’s reliance on the Supreme Court judgment in the ParkingEye v Beavis (2015) case is surprising in the light of the judges’ repeated references to the £85 penalty being within the BPA code of Practice recommendation of a maximum of £100.

14. The Claimant’s unreasonable conduct
A) No Letter Before Claim
The Claimant has not complied with the Pre-Action Protocol for Debt Claims, paragraph 3, (Exhibit 18B) as No Letter of Claim or initial information was sent to me.
Paragraph 7, Compliance with this Protocol, states, “If a matter proceeds to litigation, the court will expect the parties to have complied with this Protocol. The court will take into account non-compliance when giving directions for the management of proceedings.”
B) Refusal to provide any evidence when requested on 5/2/2018.
C) Long delays in contact: May 2012 - July 2016 and September 2016 - February 2018.
D) The claim that the Defendant’s non response to a PCN she did not receive and her failure to use an appeals process that did not exist caused the Claimant to issue proceedings, C’s WS paragraphs 21-22.

15. COSTS
Represents “the result of a genuine attempt by the Defendant to estimate the amount of time and effort expended” in responding to a County Court Claim issued against a party that has no liability. There are receipts for stationery, printing and postage. THIS WILL BE REWORDED
CPR27.14.(2)(g)

Posted by: nosferatu1001 Fri, 11 May 2018 - 13:54
Post #1381376

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.

Posted by: Persephone Fri, 11 May 2018 - 17:37
Post #1381440

QUOTE (nosferatu1001 @ Fri, 11 May 2018 - 14:54) *
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.


I don't supposed for a minute that I'd get costs for the 50+ hours I've spent researching, preparing, writing and rewriting my defence, witness statement and skeleton argument! But I might try for 15 hours.

I'm a 69 year old retired teacher, thank goodness- no loss of pay.

At what point do I present the SA? And does the Claimant get a copy?

The Claim was transferred to the county court at Newcastle on 12th March and WS etc were exchanged on 23rd April. It's a busy combined courts so it could be some time before I get a hearing date.

I know that I wouldn't have got this far without this forum.

Many, many thanks to those who subscribe and, especially, to those who respond so helpfully.

Posted by: SchoolRunMum Fri, 11 May 2018 - 20:17
Post #1381460

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?

Posted by: Persephone Fri, 11 May 2018 - 20:44
Post #1381465

QUOTE (SchoolRunMum @ Fri, 11 May 2018 - 21:17) *
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 thought some of these were photo-shopped. In one the blue poles don't seem to join up.

I ran out of space when uploading images. Here is the car with a very different sign on the wall over to the right.
I don't think any of the signage photos are from 2012.




Posted by: Persephone Fri, 11 May 2018 - 21:06
Post #1381468

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.


]

Posted by: ostell Fri, 11 May 2018 - 21:40
Post #1381477

Have you requested a file copy of that dated photograph? The metadata might show show something different.

Posted by: Persephone Fri, 11 May 2018 - 22:45
Post #1381489

QUOTE (ostell @ Fri, 11 May 2018 - 22:40) *
Have you requested a file copy of that dated photograph? The metadata might show show something different.


I’m not sure what a file copy is and I really don’t know what metadata is.
More research for me. I’ll ask BW and see what response they come up with. Probably nothing. But even that can be added to the list of non-compliance.
Thanks.

Posted by: ostell Sat, 12 May 2018 - 07:02
Post #1381507

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.

Posted by: cyclocross Sat, 12 May 2018 - 18:04
Post #1381660

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?

Posted by: Persephone Sat, 12 May 2018 - 19:30
Post #1381680

QUOTE (cyclocross @ Sat, 12 May 2018 - 19:04) *
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?


I had the same thought a couple of days ago and went through the document again - and again. The only date was 23rd April, 4pm as the latest to provide the court and the opponent with WS and copies of documents. It's only been three weeks and the court is aware that I'm not available this coming week. I'll call the court when I get home, though.
I've also got to contact BWLegal to request the computer files of their WS photos of the signage.

Does the claimant get a copy of my skeleton argument? When do I provide the court with a copy?

Many thanks for your helpful ideas.

Posted by: nosferatu1001 Sun, 13 May 2018 - 19:07
Post #1381859

You send court and claimant a copy, about three days before the hearing

Post the documents you have from your local court. Suitably redacted.

Posted by: Persephone Sun, 13 May 2018 - 20:09
Post #1381878

QUOTE (nosferatu1001 @ Sun, 13 May 2018 - 20:07) *
You send court and claimant a copy, about three days before the hearing

Post the documents you have from your local court. Suitably redacted.

I will do that when I return home at the end of this week. I will phone the court before that just to reassure myself.

Thanks for the information.

Posted by: Persephone Mon, 14 May 2018 - 12:00
Post #1382028

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.

Posted by: Persephone Mon, 21 May 2018 - 20:40
Post #1383906

QUOTE (ostell @ Sat, 12 May 2018 - 08:02) *
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 sent BW an email this morning requesting the computer file photos and received them this afternoon.
I use Mac OS and preview. The dated photos have loads of info and appear to be okay. The other three have virtually no metadata.

I grouped them in screenshots and hope they appear okay in this post. Otherwise, I'll post them separately tomorrow.





Just waiting for a court date now and twiddling with my SA. Costs are almost organised too.

Posted by: SchoolRunMum Mon, 21 May 2018 - 22:23
Post #1383942

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.

Posted by: Persephone Mon, 11 Jun 2018 - 19:35
Post #1389584

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.

Posted by: Persephone Thu, 12 Jul 2018 - 20:20
Post #1398457

QUOTE (SchoolRunMum @ Mon, 21 May 2018 - 23:23) *
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.


So pleased you suggested this SchoolRunMum. Thank you.

A large envelope arrived this week from VCS which a wealth of information about me and the case.
They list an Equifax trance on me in July 2017. In January this year there were several attempts to phone me on a number which they discover is "wrong" but which I recognise as that of my last employer. I retired in August 2010!

There is a note of a booking for ELMS legal and, later, a confirmation from ELMS. This would be the ELMS of Parking Prankster fame.

In April there were a series of emails between a paralegal at BWLegal and VCS @Excel.co.uk. The paralegal was requesting evidence for the Witness Statement. There were repeated requests for Contract clarification which finally arrived on 23rd April - the last day for filing the WS.
I will attach a redacted copy of this email with some annotations of my own.
Could I use this in my Skeleton Argument? It suggests uncertainty over their standing.

And today I received an letter containing an offer "WITHOUT PREJUDICE SAVE AS TO COSTS". It notes the balance due as £338.26. This is the original claim amount plus £25, the court fee I assume.
Their Client is willing to settle for £175. The offer expires on 24 July. The court fee has to be paid on the 20 July. I will of course respond - in due course.


Posted by: Jlc Thu, 12 Jul 2018 - 20:26
Post #1398459

QUOTE (Persephone @ Thu, 12 Jul 2018 - 21:20) *
...is willing to settle for £175. I will of course respond - in due course.

How generous - for a case where you can prove you were not the driver?

Your response could either be a drop hands or even for them to pay you a settlement to avoid their costs at court... wink.gif

Posted by: emanresu Thu, 12 Jul 2018 - 21:10
Post #1398471

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.

Posted by: whjohnson Thu, 12 Jul 2018 - 22:25
Post #1398499

VCS issued the ticket? Yet Excel are writing to you?

Posted by: nosferatu1001 Fri, 13 Jul 2018 - 08:34
Post #1398536

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.

Posted by: jdh Fri, 13 Jul 2018 - 12:56
Post #1398634

QUOTE (emanresu @ Thu, 12 Jul 2018 - 22:10) *
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.
Which means there could be posts & pics on here somewhere that might help show what was where and when.

Posted by: Persephone Mon, 16 Jul 2018 - 22:12
Post #1399566

QUOTE (nosferatu1001 @ Fri, 13 Jul 2018 - 09:34) *
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.


Many thanks for the very helpful comments and suggestions. Is anyone willing to read this through and comment please. I'm not too sure about "I will settle with you" in the penultimate sentence.

Dear Sir/Madam,

I acknowledge receipt of your letter dated 10th July 2018 making an offer, without prejudice as to costs, on my payment of a revised amount of £175.

I am not willing to accept this offer. I informed you in both July and August 2016 that I was not the driver on 16th March 2012. As the date of the alleged contravention pre-dates POFA, it is not possible for me to be held responsible as keeper for the Parking Charge Notice issued by VCS. The claim is unlikely to succeed in court.

Your Client has wasted a considerable amount of my time and I will be claiming costs for unreasonable behaviour causing me substantial distress. My computer print logs show that I have spent a minimum of 78 hours researching, drafting, editing and producing my defence and my witness statement. In addition there was time spent travelling to the site of the car park to photograph the signage on the remaining retaining wall. There are also receipts for postage and for the stationery and printer paper and cartridges used for the Witness Statement and exhibit bundles which, at present, total £91.27.

In order to avoid either party incurring further costs, I propose an offer of settlement to you, strictly without prejudice. I will settle with you on your Client’s payment to me of £376. This is the total of 15 hours of my time at £19 per hour, £285, plus my receipted expenses of £91.

Posted by: SchoolRunMum Mon, 16 Jul 2018 - 23:21
Post #1399583

QUOTE
without prejudice save as to costs
- important difference.

QUOTE
I will settle with you


should be

QUOTE
I will accept a settlement from you

Posted by: Redivi Tue, 17 Jul 2018 - 00:07
Post #1399586

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

Posted by: nosferatu1001 Tue, 17 Jul 2018 - 07:32
Post #1399608

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.

Posted by: Persephone Tue, 17 Jul 2018 - 08:39
Post #1399622

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.


QUOTE (nosferatu1001 @ Tue, 17 Jul 2018 - 08:32) *
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.


Is it too late for a counterclaim? It's no longer about the money. It's the lack of consideration about the affect on people - the bullying and harassment and the chaos caused by these Roboclaims.

Posted by: I am Weasel Tue, 17 Jul 2018 - 08:41
Post #1399623

In the event of a discontinuance, could the OP still not get their osts to dat met as per CPR38.6(1) which states

QUOTE
Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

Posted by: Redivi Tue, 17 Jul 2018 - 09:43
Post #1399642

CPR 38.6(3) states that the rule doesn't apply to the Small Claims track

Posted by: Persephone Tue, 17 Jul 2018 - 10:19
Post #1399646

QUOTE (Redivi @ Tue, 17 Jul 2018 - 10:43) *
CPR 38.6(3) states that the rule doesn't apply to the Small Claims track


Darn!
Too late for a counterclaim?

According to the papers from the court, if they don't pay by 4pm Friday they will be liable for the Defendant's costs. If they don't discontinue they will almost certainly pay the court fee.

Posted by: Redivi Tue, 17 Jul 2018 - 10:36
Post #1399654

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

Posted by: Persephone Tue, 17 Jul 2018 - 10:55
Post #1399659

QUOTE (Redivi @ Tue, 17 Jul 2018 - 11:36) *
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


Thank you Redivi, that makes things clearer. I'll continue with my offer letter and deal with discontinuance when/if it happens.

Posted by: ostell Tue, 17 Jul 2018 - 11:22
Post #1399676

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.

Posted by: Persephone Tue, 17 Jul 2018 - 12:17
Post #1399707

QUOTE (ostell @ Tue, 17 Jul 2018 - 12:22) *
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.


And I have made a point of mentioning "unreasonable behaviour" in both defence and witness statement. Although the WS is unlikely to have been read yet.

Posted by: nosferatu1001 Tue, 17 Jul 2018 - 15:52
Post #1399807

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.

Posted by: cabbyman Tue, 17 Jul 2018 - 17:32
Post #1399846

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.

Posted by: Redivi Tue, 17 Jul 2018 - 17:48
Post #1399853

Nice one

Posted by: Persephone Tue, 17 Jul 2018 - 17:57
Post #1399862

QUOTE (cabbyman @ Tue, 17 Jul 2018 - 18:32) *
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.


I can now add "pissing off judges" to the long list of gained knowledge because of this claim. biggrin.gif

I'll post it Friday to be delivered 23rd/24th. I can phone the court on Monday to see where the case stands.

I keep saying it: I'm so grateful for the help and support that you all give me.

Posted by: Persephone Fri, 20 Jul 2018 - 19:53
Post #1400869

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.

Posted by: cabbyman Fri, 20 Jul 2018 - 20:06
Post #1400873

Popcorn time! tongue.gif

Posted by: Persephone Fri, 20 Jul 2018 - 20:19
Post #1400875

QUOTE (cabbyman @ Fri, 20 Jul 2018 - 21:06) *
Popcorn time! tongue.gif


Choc ice & Poirot. biggrin.gif

Posted by: Persephone Wed, 8 Aug 2018 - 21:50
Post #1406442

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:

QUOTE
Since my receipt of an emailed copy of the Claimant’s Witness Statement on 23rd April 2018, I have received on 10th July all documents held by Vehicle Control Services as a result of my Subject Access Request (SAR).

Many of the documents have already been included in the Witness Statements of the Claimant and/or the Defendant. The new information I have named Document 1 and Document 2.

Document 1 “History print for T0080473 - Vehicle Control Services Defendant” contains 34 pages of 176 items detailing every action between 22/06/2016 and 12/06/2018.

Document 2 Contains emails between various individuals at VCS@excel.co.uk and JImran@bwlegal.co.uk., the author of the Claimant’s Witness Statement.

I ask the Court’s permission to include these additional documents as exhibits with this Skeleton Argument.

Posted by: Redivi Wed, 8 Aug 2018 - 23:15
Post #1406459

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

Posted by: Persephone Thu, 9 Aug 2018 - 09:38
Post #1406507

QUOTE (Redivi @ Thu, 9 Aug 2018 - 00:15) *
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


"Without Prejudice Save as to Costs" both theirs and mine.

I'll wait until after the judgment before mentioning costs and then I can produce the costs schedule, the offer and my alternative offer.

Thanks, Redivi.

Posted by: nosferatu1001 Thu, 9 Aug 2018 - 10:48
Post #1406530

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.

Posted by: Persephone Thu, 9 Aug 2018 - 22:19
Post #1406802

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.

Posted by: nosferatu1001 Fri, 10 Aug 2018 - 08:32
Post #1406861

You then point out how many car parks are there...

Show us your costs scheudle here. Remember the rate is fixed.

Posted by: Persephone Sun, 12 Aug 2018 - 10:02
Post #1407334

QUOTE (nosferatu1001 @ Thu, 9 Aug 2018 - 11:48) *
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


Sorry about the delay in getting back. After six and a half months of coping with the stress of this, I've become very anxious over the last couple of days. Not sleeping very well.

Are the ordinary costs "disbursements"?

This is what I've extracted from my computer's list of print jobs and a folder on my computer of research files.




Posted by: Redivi Sun, 12 Aug 2018 - 14:25
Post #1407386

You haven't converted the 75.5 hours into a cost at £19/hr

Posted by: Persephone Sun, 12 Aug 2018 - 20:18
Post #1407440

QUOTE (Redivi @ Sun, 12 Aug 2018 - 15:25) *
You haven't converted the 75.5 hours into a cost at £19/hr


Thanks Redivi.
I've added that.
TOTAL 75.5 hours at Litigant in Person rate of £19 p/h = £1434.50.

Seems a ridiculous amount!
Is this the unreasonable behaviour costs? And the £91.94 disbursements ordinary costs?

I now have to thread the information from the VCS/BWLegal emails into my Skeleton Argument.
And add information about the two car parks - the Percy Car Park and the still-existing Gallowgate Car Park, which was run by the Newcastle City Council until Feb 2nd 2016 and is now run by VCS.

Posted by: nosferatu1001 Mon, 13 Aug 2018 - 08:00
Post #1407480

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.


Posted by: cyclocross Mon, 13 Aug 2018 - 10:19
Post #1407533

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!




Posted by: Persephone Mon, 13 Aug 2018 - 16:36
Post #1407672

Thnaks nosferatu and cyclocross.

QUOTE (cyclocross @ Mon, 13 Aug 2018 - 11:19) *
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!


The penny has dropped at last!
I haven't any ordinary costs. I'm retired so the only expense on the day will be a taxi down to the court. Can't use my free bus pass before 9.30am.
If I'm paying for transport, it will be door to door. But I'll get a receipt.

"Disbursements" will disappear.

Redraft of the SA is now progressing.

Posted by: Persephone Tue, 14 Aug 2018 - 18:12
Post #1408021

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.

QUOTE
10. Contract between VCS and the landowner
The Claimant's Exhibit, JI1, pages 1 & 2 show a copy of a contract between VCS (The Company) and Fraise Properties Limited c/o the Hanro Group (the Client) and dated 1/10/2007.
The Car Park address is given as Gallowgate, Strawberry Place, Newcastle upon Tyne. Page 2 is a "Boundary Plan and Site Instructions".
This plan indicates the position of nineteen signs within the car park. Special Instructions are noted as:
"Valid Permits and Pay & Display Tickets, Enforce Only at Client Request".
Page 3 of JI1 is a copy of a Contract Witness Statement, dated 18/12/15 and refers to the site as "Percy House".
This item seems irrelevant as it was signed more than three years after the alleged contravention date.
The paralegal writing the Claimant's WS had concerns about the contract he was sent and requested further details in emails to VCS@excel.co.uk. (REF 3 Exhibit 21, page 1)

On 20 April Jxx Ixxx asks, "Is this the correct contract for the Percy St Car Park. If it is, I would need something to confirm
VCS's entitlement to enforce the terms and conditions of the Car Park near the time of the contravention."
The last email sent from VCS on the morning that the Claimant's WS was filed, (REF 3 Exhibit 21, page 6), concludes with,
"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."
"Please proceed on this basis."
Two car parks were in existence in 2012. The Gallowgate Car Park was operated by Newcastle City Council until
4th February 2016 and is now run by VCS. The Percy Car Park site is now an accommodation block.


It's such a relief to have this SA out of my hands.

I'll let you know the outcome on Friday.

Many thanks to all who have kept me going with suggestions and encouragement.


Posted by: nosferatu1001 Wed, 15 Aug 2018 - 08:12
Post #1408093

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.

Posted by: ostell Wed, 15 Aug 2018 - 08:42
Post #1408099

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.

Posted by: cyclocross Wed, 15 Aug 2018 - 09:48
Post #1408118

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.

Posted by: ostell Wed, 15 Aug 2018 - 10:34
Post #1408128

If the contract supplied refers to Percy House then how can they possibly show that they have the right to ticket elsewhere?

Posted by: Persephone Wed, 15 Aug 2018 - 11:20
Post #1408143

QUOTE (nosferatu1001 @ Wed, 15 Aug 2018 - 09:12) *
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.


Oh dear! Seems the penny didn't really drop.

I'll take a copy down now.

Will a cover letter asking for it to be attached to my SA do?
Or should I write something about unreasonable behaviour?

QUOTE (cyclocross @ Wed, 15 Aug 2018 - 10:48) *
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.


Their site plan clearly shows the outline of the old Percy Car Park. But there is the instruction "Enforce only at Client request".

Google maps show the current Gallowgate car park and I have photos taken from inside the building on the site of the Percy car park clearly showing the retaining wall separating the two car parks. The Gallowgate car park and current VCS signs are visible in the photos.
I'll take a selection of these on Friday.

Do BW Legal require a copy of my costs schedule?

Posted by: nosferatu1001 Wed, 15 Aug 2018 - 11:56
Post #1408146

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.

Posted by: Persephone Wed, 15 Aug 2018 - 12:19
Post #1408157

QUOTE (nosferatu1001 @ Wed, 15 Aug 2018 - 12:56) *
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.


Thanks for you time and patience, nosferatu.

I've pointed out examples of unreasonable behaviour in my SA and concluded with a short list.
I'll use this list and fill it out a bit. It will be a separate document presented appropriately and signed.
When I take it to the court today it will probably go into their "job box" to be opened tomorrow morning.

BW will get their copy by email.

Once again, many thanks to you all. I wouldn't have got here without you.

Posted by: emanresu Thu, 16 Aug 2018 - 20:07
Post #1408655

Good luck tomorrow. Amazed they have taken this as far as they have - but you never know what goes on in their minds.

Posted by: cabbyman Thu, 16 Aug 2018 - 20:12
Post #1408656

Fingers crossed. Looking forward to your report.

Posted by: emanresu Thu, 16 Aug 2018 - 20:48
Post #1408668

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/

Posted by: nosferatu1001 Fri, 17 Aug 2018 - 08:54
Post #1408751

Good luck!

Posted by: Persephone Fri, 17 Aug 2018 - 11:29
Post #1408806

Claim dismissed.
£115 ordinary costs. £95 plus £20 for the taxi to/from the court.

I will post a summary later.

Thank you x

Posted by: ManxRed Fri, 17 Aug 2018 - 11:32
Post #1408808

Well done! Looking forward to the summary.

Posted by: nosferatu1001 Fri, 17 Aug 2018 - 12:07
Post #1408820

Nicely done!
If we can have case number, judges name etc - mroe details the better

Well done smile.gif smile.gif smile.gif

Posted by: madpotter Fri, 17 Aug 2018 - 12:19
Post #1408823

Brilliant!! Well done !!!

Posted by: cabbyman Fri, 17 Aug 2018 - 13:25
Post #1408843

Wonderful result! Well done!

Posted by: emanresu Fri, 17 Aug 2018 - 15:39
Post #1408886

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

Posted by: Persephone Mon, 20 Aug 2018 - 16:29
Post #1409618

Thank you all for the good wishes.
Congratulations to everyone who contributed to this successful outcome.

"The defendant from hell" - only with assistance laugh.gif

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.






Posted by: Persephone Mon, 20 Aug 2018 - 16:45
Post #1409623

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.

Posted by: nosferatu1001 Mon, 20 Aug 2018 - 16:51
Post #1409624

Thanks for the report smile.gif

Can you create a thread in completed cases, with a link back here? It will help others smile.gif

Posted by: cabbyman Mon, 20 Aug 2018 - 17:19
Post #1409629

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?

Posted by: emanresu Mon, 20 Aug 2018 - 18:07
Post #1409637

QUOTE
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?


See Catching up with colleagues.

https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/a-day-in-the-life/district-judge/

Posted by: cabbyman Mon, 20 Aug 2018 - 18:39
Post #1409647

Interesting. Thank you, emanresu. smile.gif

Posted by: henrik777 Mon, 20 Aug 2018 - 18:56
Post #1409652

QUOTE
2. Although before POFA, proceedings began January 2018 and should have complied with the Act.


WTF ?

Nice win though.

Posted by: Persephone Mon, 20 Aug 2018 - 19:35
Post #1409668

QUOTE (henrik777 @ Mon, 20 Aug 2018 - 19:56) *
QUOTE
2. Although before POFA, proceedings began January 2018 and should have complied with the Act.


WTF ?

Nice win though.


I took this to mean that VCS/BW Legal should have complied with this Act - not that there was keeper liability in cases prior to 2012 (or October 2013 when POFA was enacted).
Judge Ord made quite an issue of the delay between Royal Assent in May 2012 and Enactment 31st October 2013.

Posted by: Persephone Mon, 20 Aug 2018 - 20:13
Post #1409688

QUOTE (nosferatu1001 @ Mon, 20 Aug 2018 - 17:51) *
Thanks for the report smile.gif

Can you create a thread in completed cases, with a link back here? It will help others smile.gif


Many, many thanks to you and forum members for the help given to me over the last 4 years.

Completed cases thread: http://forums.pepipoo.com/index.php?showtopic=122292

Posted by: henrik777 Mon, 20 Aug 2018 - 20:18
Post #1409690

QUOTE (Persephone @ Mon, 20 Aug 2018 - 20:35) *
QUOTE (henrik777 @ Mon, 20 Aug 2018 - 19:56) *
QUOTE
2. Although before POFA, proceedings began January 2018 and should have complied with the Act.


WTF ?

Nice win though.


I took this to mean that VCS/BW Legal should have complied with this Act - not that there was keeper liability in cases prior to 2012 (or October 2013 when POFA was enacted).
Judge Ord made quite an issue of the delay between Royal Assent in May 2012 and Enactment 31st October 2013.


That's what i took from what you said but it's horlocks. You need to adhere to the act retrospectively even though it can't apply anyway, is essentially what Judge Ord is saying. How do you retrospectively turn a notice from non compliant to compliant without some kind of jiggerypokery ?

Posted by: Persephone Mon, 20 Aug 2018 - 22:36
Post #1409730

QUOTE
That's what i took from what you said but it's horlocks. You need to adhere to the act retrospectively even though it can't apply anyway, is essentially what Judge Ord is saying. How do you retrospectively turn a notice from non compliant to compliant without some kind of jiggerypokery ?

My apologies. I’ve just been going over this with my McKenzie Friend who was present at the hearing.
He reminded me that Judge Ord was trying to clarify that the relevant law has to be applied. Although the Claim was filed in 2018, the alleged contravention took place in March 2012. POFA was not enacted until 31st October 2013.

What we understood was that any contraventions before 31st October 2013 could be considered pre-POFA.
It was the delay between Royal Assent & Enactment that he was emphasising.
This could be important for anyone whose 6 years is up in October 2019.

Hope I’ve not muddied the waters further.

Posted by: cyclocross Tue, 21 Aug 2018 - 07:11
Post #1409756

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.

Posted by: henrik777 Tue, 21 Aug 2018 - 15:31
Post #1409887

QUOTE (Persephone @ Mon, 20 Aug 2018 - 20:35) *
QUOTE (henrik777 @ Mon, 20 Aug 2018 - 19:56) *
QUOTE
2. Although before POFA, proceedings began January 2018 and should have complied with the Act.


WTF ?

Nice win though.


I took this to mean that VCS/BW Legal should have complied with this Act - not that there was keeper liability in cases prior to 2012 (or October 2013 when POFA was enacted).
Judge Ord made quite an issue of the delay between Royal Assent in May 2012 and Enactment 31st October 2013.


1st october 2012 tongue.gif

Posted by: Redivi Tue, 21 Aug 2018 - 17:27
Post #1409910

Thanks

I'd been worried about being mistaken all these years but not worried enough to check the information

Posted by: Persephone Tue, 28 Aug 2018 - 19:46
Post #1411878

I know this is very smug of me - but here's the cheque (redacted of course).


Posted by: Umkomaas Tue, 28 Aug 2018 - 20:42
Post #1411895

Disbursements to be added to BWL's final invoice to Excel/VCS.

Sweet!

Posted by: a1terrier Tue, 28 Aug 2018 - 20:59
Post #1411902

Well done!!!

Mines a pint please. 😎😎

Posted by: ManxRed Wed, 29 Aug 2018 - 08:27
Post #1411964

Where's the 'Like' button on here?

Posted by: nosferatu1001 Wed, 29 Aug 2018 - 08:50
Post #1411971

Nicely done smile.gif

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