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Another EPIC fail for VCS and BW Legal in the County Court at Nottingham
Rhothgar_Den_Vik...
post Sun, 23 Jul 2017 - 15:56
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Having had time to reflect since Wednesday'c court case, I have written up a precis of the judgment handed down by Judge Potts in the County Court at Nottingham on Wednesday 19th July 2017 further to the fabulous advice received on this forum here:-

http://forums.pepipoo.com/index.php?s=&...t&p=1143313


NOTES FROM THE DAY


The judge started by stating this was a claim for a parking charge brought by Vehicle Control Services against the Defendant.

He said the evidence before the court from the Claimant comprised of a witness statement of Wakash Shafiq, a paralegal of BW Legal.

He thought it was "curious" for the Claimant's paralegal "to seek, to give factual evidence relating to the substance of the claim in a case such as this."

He said it was not unusual for solicitors to give witness statements relating to procedural matters, how litigation is being conducted and to summarise their Claimant's position but he then said that their witness statement was not of that nature and that their witness statement sought to establish facts.

He then quoted Mr. Shafiq's opening gambit word for word, "The matters to which I refer are within the scope of my instructions save where expressly stated to the contrary and are true to best of my knowledge, information and belief. I am duly authorised by the Claimant to make this statement on its behalf."

He then said simply that it was clear Mr. Shafiq has been told what to say and that he believed what he was being told but with a caveat which the judge thought was odd, "save where expressly stated to the contrary". He said that made no sense and that there was nothing in the witness statement which stated anything to the contrary and that it was bizarre if such matters were outside of the terms of his instructions.

He then said Mr. Shafiq, the sole witness for the Claimant, had not attended court and therefore was not available for cross examination.

He said Mr. Shafiq claims the land is owned by Forman Hardy Holdings Limited but does not state how he knows this.

It is claimed that the Claimant is contracted by the landowner to enforce the agreement it has with the landowner. He referred to the copy of the agreement in the Witness Statement dated 3rd February 2015.

The judge said it referred unhelpfully to the car park as being land situated at Mount Street Nottingham but that it provided "no better particulars than that".

He had earlier questioned whether in fact the landowner has possession of the land either by way of lease or a tenancy agreement and said it was a simple matter for "office copies" to be exhibited but they had not been. This called into question the validity of the agreement to enforce parking on the land.

The advocate said there was a warranty at 5.1 in their contract that warrants to the Company that the Client has full title and authority to do so.

The judge said that this did not evidence that Forman Hardy Holdings Limited were the landowner and was "self-serving".

The judge slammed their photographic evidence. Their advocate said that my photographs were better and then said you can see one sign on the boundary in the Defendant's Exhibit MR7. There are, in fact, two but that reinforced by point (which was never heard). The judge said that the wording of the sign wasn't clear in MR7.

He then said in order for this case to succeed, the Claimant had to establish that it had a contract with the Defendant.

He wanted the Claimant to prove that either I was the driver of the vehicle or that the driver was authorised impliedly or expressly by the Defendant.

He said the offer and acceptance had to be based on signage indicating terms and conditions for parking to be permitted and that those terms and conditions are accepted when a vehicle parked and that it had to be parked by either the Defendant or a driver authorised by the Defendant.

He said the exhibits in the Claimant's Witness Statement were clear and legible and that parking was for valid permit holders and that if a permit is not displayed a parking charge of £100 would apply.

He said there was no evidence as to where signs were located or any circumstances that would lead to an inference that the driver must have seen the signs.

He then said the Claimant cannot establish that it was the Defendant who was driving the car and it relied upon an inference being drawn that it was either the Defendant or somebody the Defendant had given authorisation to.

He then turned to the parking charge notice.

He said there was an illegible squiggle underneath a statement of truth which reads, "The details supplied on this Notice are a true and accurate statement of facts, and may be used as evidence in my absence in a Court of Law". He said there was nothing to show who had made this statement.

He then referred to the vehicle location plan on the reverse of the parking charge notice. He mentioned the key to the drawing, "X equals Sign; V equals Vehicle; F=Front".

He pointed out that there were four X's but no V to show the vehicle location and no F to show presumably the front of the vehicle. This made it impossible to cross reference the plan to the photographs.

In Mr. Shafiq's witness statement, there is an express statement that "the Defendant in breach of the terms and conditions was observed by the Claimant's Patrol Officer as parking his car in a restricted area" and then said Mr. Shafiq had no direct knowledge and was relying on what he had been told.

There was simply no evidence that it was the defendant.

So as the Claimant chose not to rely on the Protection of Freedoms Act he had to establish that it was either the defendant or his authorised agent that had parked the car.

The Claimant has tried to rely upon the fact that the defendant has had the opportunity to indicate who the driver is but had failed to do so.

There was no obligation on the Defendant to identify who was driving his car.

The Claimant had to prove, on the balance of probabilities, all relevant facts including that it was either the Defendant or somebody with his authority.

He then referred to the case of Combined Parking Solutions Limited v AJH Films Limited but said something like "that case was decided on the particular facts that were found by the District Judge. Therefore, it is not an authority of general principle in the absence of findings of fact."

He then turned to the fact that there were 6 photographs in the Mr. Shafiq's witness statement. He held that they were not cross referenced to the boundaries of the car park and that they were of poor quality. He noted that they were in fact dated 18th November 2015 and were taken at night. He said, although the registration plate was visible, nothing of any relevance could be discerned.

The second bombshell was then dropped. The parking charge notice shows that the Patrol Officer only took 5 photographs but yet 6 were exhibited. This did not add any weight to any sense of reliability.

He said he then had to decide from these findings whether or not the Claimant had established, on the balance of probabilities, a contract with the Defendant.

He then said the burden of proof was on the Claimant but that he was not satisfied that a contract had been established.

I remember his words exactly. "The Claimant's case is shot through with weaknesses of evidence".

The Claimant was trying to rely on a witness who clearly had no personal knowledge. There was no evidence that the Claimant's Client was the landowner. The relevant land had not been properly identified nor was there any evidence that signage was properly displayed to show the terms and conditions. Also, there was no proper evidence that the Defendant's car had parked on the relevant car park nor that he was the driver or someone was authorised by the Defendant.

CLAIM DISMISSED.

OOPS! icon_hang.gif


VCS' advocate tried to hand me a copy of Excel Parking Services v Jennings in the Court of Appeal prior to the hearing which I politely declined. He then offered it to the judge in the hearing who refused it saying that it was not binding.


Even though the judge said it was not binding he did make reference to it insofar as implied authority. I felt that this was a weak point for me but he kept saying that he was not going to call on me for evidence. This lead me to believe he had not seen my defence or witness statement. He only mentioned my Skeleton Argument which he said he would disregard.

This left me feeling vulnerable at the start of the hearing but that soon cleared when he questioned their contract with the landowner and their possession of the land.








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Defendant 1 VCS 0
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post Sun, 23 Jul 2017 - 15:56
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roythebus
post Tue, 8 Aug 2017 - 07:28
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A good win, better to say nothing when the opportunity arises, that way you can't implicate yourself. The judge would have seen your evidence and read through it before the case.
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