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  • FIRST POST
    • Lamilad
    • By Lamilad 4th May 17, 9:50 PM
    • 888Posts
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    Lamilad
    VCS defeated in Liverpool Court.: No keeper liability
    • #1
    • 4th May 17, 9:50 PM
    VCS defeated in Liverpool Court.: No keeper liability 4th May 17 at 9:50 PM
    It has not been a good week for Excel and their alter-ego VCS. We know of 4 cases lost just from posts on this forum... and this one which I was asked to lay-rep for, in Liverpool today, makes 5.

    If Simon Renshaw-Smith has many more weeks like this he may have to swap his yacht for a dinghy!

    Here's what happened...

    Case report: VCS vs Miss Q, Liverpool.

    Background:
    The defendant was the RK of a Vehicle that was allegedly parked at Princes Dock in Liverpool (owned by Peel Land & Property Ltd), in Dec 2014. This is private land and VCS are engaged in parking enforcement operations at the site. They have signs all around saying “NO PARKING OR WAITING AT ANY TIME”. The site is circular road accessed from the main road which runs through Princes Dock and connects back to the main road. There are a few small areas within allowing ‘Permit Only’ parking.

    The defendant was not the driver at the material time. As such she was not aware that a PCN had been issued.

    The first communication she received was the NTK in Jan 2015. She recognised this was a letter from a private company, not a proper authority such as the police or council. As the letter was demanding money for an event she knew nothing about and was written in a threatening manner with bold text - including headings in block capital red text, she assumed it was spam or scam and chose to ignore, following widespread consumer advice informing consumers not to respond to scam letters demanding money.

    A few months later she started receiving letters from BW Legal, now requesting an increased amount of £154. Concerned, she rang BWL to – a). Check if they were genuine, and b). To explain that she knew nothing of the event they were referring to and could not have been the driver on the date in question (as she was not in the city). They flat out refused to engage with her, they simply demanded payment or threatened legal action. A short time later she received court papers.

    Court Case:
    With the help of her partner she researched the forums and produced a defence followed by a WS and skeleton argument. The case was heard on 29/03/17 by DJ (or possibly DDJ) Travers at Liverpool Court. The shocking and bizarre manner in which Judge Travers conducted the hearing is detailed in a Pepipoo thread started by the defendant’s partner after the case was adjourned:

    http://forums.pepipoo.com/index.php?showtopic=112758&st=0&p=1273250&#entry12 73250

    I was PM’d by the OP who asked if I would Lay Rep at the next hearing scheduled for 04/05/17 – to which I agreed.

    Second Hearing:
    The defence bundle was well researched and presented in an organised and professional manner. It attacked all the usual points such as – poor signage, no locus standi, no reasonable presumption, distinguished from Beavis. It also highlighted a number deficiencies in the claimant’s WS (written by Leigh Schelvis) as well as several CPR/ PD failures. But the main crux of the defence was

    not the driver’ > No PoFA compliance > No proof of driver > No keeper liability'.

    After the previous hearing the defendant was, understandably, a bag of nerves going into this one. The judge this time was DDJ Gourley [thanks to Bargepole for this link]
    http://www.exchangechambers.co.uk/barristers/claire-gourley/cv/personal-injury
    It was scheduled for a 3 hour hearing.

    We arrived at court 30 mins before the hearing and managed to secure a side room to go through some last minute prep. The claimant rep arrived 15 mins later. Her name Was Jocelyn Hughes (JH) a registered Barrister. I asked her if she was associated with Elms Legal, to which she said “no” then, annoyingly, a few mins later let slip that she had been instructed by Elms Legal. I went through the preliminary matters (PM) with her explaining that I would be focusing on witness non-attendance and failure to comply with 27.9 (1) (c). She was rather timid and didn’t say much other than she would certainly have RoA. She accepted the documents and returned to the waiting area. I gave another copy of the PM docs to the clerk to pass to the judge. A few mins later we were called in.

    It was a medium sized room, set out like a proper courtroom with the Judge sat on an elevated ‘bench’ at the back and a floor level row of tables facing the bench with 2 other rows behind and a row of chairs at the back. The judge was on the phone as we went in complaining to someone that she couldn’t get the recording system to work and was scared to reboot it lest she damaged it irrevocably – quite amusing really, made her seem very ‘normal’

    JH was 10 mins late in but got away with it due the judges ‘technical issues’. The judge (now with a working recording system) got straight into the PM. She asked JH about her credentials and quickly said she was satisfied she had RoA, then asked if that was it for PM. I said ‘no’ I want to address the witness non-attendance in that they have not complied with CPR 27.9 (1) (c) and I invite the court to strike out the claim in accordance with CPR 27.9 (2). JH said that all the evidence was here and the claimant was represented so the case should proceed and, in any case, that CPR only applies when both parties do not attend.

    Judge agreed and said that it would be disproportionate to strike out the claim, in any case. I commented that BWL are a well-funded Law firm with a team of qualified solicitors it is unacceptable for them not to comply with basic CPRs. I went on that this as a contentious matter and the defence has highlighted a number of deficiencies in the claimants WS which I would like to challenge through cross-examination. The judge made some comment to the effect of ‘we’ll cross that bridge when we come to it’

    She asked if there were any other PMs so I mentioned other CPR failures including the deficient PoC and the fact they were signed by ‘BW Legal’ not by an individual which was a breach of PD 22 (3) (9) & (10). She agreed and challenged JH who said that it is not unusual for large companies to sign the PoC in this way, and because it’s signed electronically it’s easier to put the company name. The judge wasn’t happy with this saying there’s no reason for an individual not to put their own name and the court should able to identify which officer of the company has filed the claim as in some cases it is very relevant.

    Turning to me she said she agreed the CPR was not complied with but that did not justify striking out the claim. She returned to JH telling her firmly that she must report back to her company that it is not acceptable to sign the PoC this way and they must comply with the relevant CPR.

    The judge then said that having read the defence bundle and the claimant’s WS she didn’t feel she needed to hear any other evidence and was happy to proceed on submissions, if we were also happy. We both agreed.

    She asked JH first to detail the claimant’s submissions. She just went through the terms and conditions for the private land in question and said why the defendant had breached them by parking there for which a PCN had been correctly issued and they were now pursuing it.

    She turned to me and I said the defence submissions are as stated in the skeleton argument but I would stress that the fundamental issue in this case is that the defendant was not the driver, therefore they did not enter into a contract, the claimant has no proof whatsoever that the defendant was driving, they do not rely on pofa therefore liability for the alleged contravention, if any contravention has even occurred, cannot be transferred to the keeper. Without PoFA there is no law that allows them to do this.

    Judge asked JH if the claimant is relying on PoFA to which said ‘well, they can’t Ma’am, because they don’t comply with it’

    She asked how, then are there suggesting the defendant is liable for the charge if they deny being the driver. JH mentioned EvL. The judge was not already aware of it but had read the transcript (and thanked the defence for adducing it). She put JH through the ringer on this saying ‘I cannot see how this assists me, this is a criminal case. This man was proved to be lying in his evidence and it was proven beyond reasonable doubt that he was the driver. This does not assist me. Please explain how this assists me’

    JH was stuck, she said something like ‘I can only present the claimants evidence as it has been given to me, I am in the hands of the court’

    The judge asked if I had anything to say about EvL to which I said I agreed with her interpretation that as a criminal case it had no relevance in today’s civil case. I expanded on some of the other points such as the forensic and eye witness evidence. I went on to say that it is not relevant evidence, it is not persuasive and in fact the claimant can offer no evidence to either prove or persuade the court that the defendant was the driver.

    In fact their attempt to ‘assume’ the defendant was driving is entirely without merit as the defendant is not the owner of the vehicle, nor is she the main driver on the insurance policy. She has also asserted under ‘statement of truth’ that she was not driving and was not in Liverpool on the day in question. Testing these points against the balance of probabilities creates a high likelihood that the defendant was not driving. The burden of proof lies with the claimant to prove otherwise.

    She asked the JH if the claimant had any actual evidence that the defendant was the driver. JH said ‘no’

    She then said she was treating the fact there was no proof of driver and the fact that the claimant was not relying on pofa as a ‘preliminary issue’ and she didn’t feel she didn’t to discuss any of the other points in the defence’ bundle. She then gave her short judgement – I was busy rifling through my paperwork looking for the costs schedule so didn’t hear much of what she said but I remember her saying “The claimant says the defendant was the driver but they have produced no evidence whatsoever to prove this and they have nowhere near persuaded me on the balance of probabilities that she might have been the driver.”

    She then asked about costs which I read from schedule as £65.38 for loss of a days leave and 7 hours litigant in person costs at £19p/h. She asked on what basis I was claiming LiP costs to which I said ‘for unreasonable conduct under 27.14 (2) (g)’. She commented that the threshold for this was very high and asked me to explain. I mentioned all the CPR failures, the deficiencies in their WS and the fact they had brought a claim with no prospect of success. I said they had progressed this matter all the way to a hearing despite knowing the defendant was not the driver and knowing they had no proof otherwise which was a waste of the court’s and the defendant’s time, not to mention the worry and distress it had caused.

    JH asked if she could speak, which the judge allowed. She basically said the claimant was entitled to pursue the case and they had lost and were already significantly out of pocket so that along with ordinary costs should be enough for the defendant.

    I thought I’d made a good fist of it but the judge refused saying something to the effect of ‘they would have to do something much worse than bring a claim with little chance of success, to cross the threshold.

    £65.38 was awarded… Claim dismissed!

    The defendant has said she will apply for the transcript and make it available online for anyone else whom it may assist.
Page 2
    • henrik777
    • By henrik777 6th May 17, 6:57 AM
    • 2,151 Posts
    • 27,351 Thanks
    henrik777
    The judge wasn’t happy with this saying there’s no reason for an individual not to put their own name and the court should able to identify which officer of the company has filed the claim as in some cases it is very relevant.
    https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22#3.1

    3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

    3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
    3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.
    https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e#10.1
    Signature
    10 Any provision of the CPR which requires a document to be signed by any person is satisfied by that person entering their name on an online form.

    Pretty simple and i know they have had it explained to them many a time as i mention every time i tell someone to respond to a LBA.

    I assume the rule is in place so that a court can place blame if there is a contemptuous issue with what is said.
    • Lamilad
    • By Lamilad 6th May 17, 3:33 PM
    • 888 Posts
    • 1,863 Thanks
    Lamilad
    It's very curious.

    I had meant to phone the SRA to ask about what this all meant, and to check with CILEx why they are CILEx regulated when they don't seem to have a CILEx Legal Exec there.

    And yes, Ed is listed as in house at VCS.

    I agree that they are just an agency. But it does require some looking into because there is something odd about it.
    It would be great, LoC if you could make some calls and find out exactly what's going on. All seems very dodgy.

    The more we dig into this RoA stuff the more confusing it seems to get - at least for someone not legally minded like myself.

    I was under the impression, from a comment by Johnersh on another thread, that a solicitor or barrister ALWAYS has RoA; but I'm guessing that's only if they are with a firm (solicitor) or 'in chambers' (barrister). If they are not does this mean they are "non practicing"?

    Basically:
    Can a solicitor with a firm still be classed as 'non practicing'?
    and/or
    Can a solicitor not with a firm still be classed as 'practicing'?

    Also what about self employed solicitors? Are they classed as 'with a firm' and if so would their name have to be registered as if it was the name of the firm.

    I feel a headache coming on....
    • Loadsofchildren123
    • By Loadsofchildren123 6th May 17, 8:33 PM
    • 1,077 Posts
    • 1,879 Thanks
    Loadsofchildren123
    The key is in being regulated.

    This means working for a firm or as a sole practitioner, with a practising certificate (solicitor) or in a chambers (barristers).

    An unemployed solicitor or barrister hawking their services as an "advocate" via the likes of Elms has no RoA, because they are not regulated. You then have to look to see if they come under any of the exemptions, and the authorities and the statute say they don't.

    It's the being employed, either in a firm or as a sole practitioner (solicitors), or in a chambers (barristers), which makes you regulated. I'm not sure about in-house, there are special rules for them, but I am sure they are likewise regulated.
    • Johnersh
    • By Johnersh 6th May 17, 9:00 PM
    • 418 Posts
    • 753 Thanks
    Johnersh
    @lamilad, for clarification: You may choose to remain on the roll and not renew your practising certificate. If you adopt that course you MUST describe yourself as solicitor (non practising) or not use the "s-word" at all....

    Whereas I said all solicitors will have RoA in the small claims court that is, of course, correct as that description would mean they had a practising certificate.
    • Lamilad
    • By Lamilad 6th May 17, 9:40 PM
    • 888 Posts
    • 1,863 Thanks
    Lamilad
    Thanks Johnersh and LoC, really great to have you guys around to explain the legal stuff.

    So to clarify, a solicitor (non practising) is not regulated and has no RoA?
    • Johnersh
    • By Johnersh 6th May 17, 10:52 PM
    • 418 Posts
    • 753 Thanks
    Johnersh
    Sorry this is hard to explain in really simple terms.

    1. RoA as is a practice certificate privilege. The fact you are not permitted to use the protected term solicitor without a certificate, is a rule intended to prevent advising or acting in a capacity as a solicitor without approval from the regulator.

    2. A non practising solicitor remains on the roll (register). In that sense it's a bit like a retired GP still appears on the medical register, but can't actually practice medicine/prescribe drugs once their validation expires.

    3. a non practising solicitor remains regulated insofar as they could be struck off the roll for relevant offences (dishonesty offences are the usual career enders!) If that power did not exist the individual could just pay a fee to renew their certificate.

    This is all a bit technical, where I suspect the vast majority of legal agencies are sending in personnel with a different issue - comparatively newly qualified barristers who have not yet been able to secure a pupillage to complete their training. In both cases it's my understanding that one of the exemptions would need to apply or the court would need to give permission.
    • Lamilad
    • By Lamilad 7th Jul 17, 11:35 AM
    • 888 Posts
    • 1,863 Thanks
    Lamilad
    Transcript of the judgement now available for this case.

    Will assist anyone defending a not the driver > no keeper liability case.

    http://parking-prankster.blogspot.co.uk/2017/07/new-transcript-keeper-not-liable-if.html?m=1
    • Coupon-mad
    • By Coupon-mad 7th Jul 17, 9:14 PM
    • 50,150 Posts
    • 63,524 Thanks
    Coupon-mad
    Brilliant stuff. Well done Lamilad and Miss Quayle!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • MadHatter752
    • By MadHatter752 8th Jul 17, 7:49 AM
    • 183 Posts
    • 114 Thanks
    MadHatter752
    Very interesting read.. similar thing with my case though.... said VCS didn't act unreasonably. I don't understand this... surely taking someone to court just to scare them into paying when you have no chance of success and threatening CCJs and bailiffs in every letter to you is unreasonable? Anyone know what a Judge would class as "unreasonable behaviour"?
    • Johnersh
    • By Johnersh 8th Jul 17, 9:01 AM
    • 418 Posts
    • 753 Thanks
    Johnersh
    I think the point here is that an award of costs here is for the conduct of the litigation, not the decision to bring the claim in the first place. Otherwise every lost claim would be subject to such an order.

    Halsey v Milton Keynes (failure to mediate) and Ferguson v British Gas (8 months of aggressive debt collection and automated correspondence/harrassment) could be helpful if deployed effectively and high level authorities for the court to consider - in the right cases.
    • The Deep
    • By The Deep 8th Jul 17, 9:44 AM
    • 7,008 Posts
    • 6,079 Thanks
    The Deep
    Otherwise every lost claim would be subject to such an order.

    Is this such a bad thing? I have taken three people to SCC. In each case, although I won in each case, I ended up out of pocket.

    Apart from this industry, I do not know of any other which indulges in such frivolous litigation.
    You never know how far you can go until you go too far.
    • beamerguy
    • By beamerguy 8th Jul 17, 9:56 AM
    • 5,979 Posts
    • 7,694 Thanks
    beamerguy
    Very interesting read.. similar thing with my case though....
    said VCS didn't act unreasonably. I don't understand this... surely taking someone to court
    just to scare them into paying when you have no chance of success and threatening CCJs and
    bailiffs in every letter to you is unreasonable? Anyone know what a Judge would class as "unreasonable behaviour"?
    Originally posted by MadHatter752
    You are of course correct, any normal person would say the same.
    There is a huge problem in the county court system in that there is no continuity with
    the judges regarding unreasonable behaviour and what it means.

    This even continues up the chain of the court system in general.
    Even the Supreme court gave no due thought process in their case over Beavis
    and now the county courts are bearing the brunt of their unforgivable actions

    The door was opened for a cowboy operation to have a free hand.

    Whilst there will always be CC judges who fail miserably in their
    understanding, and should be re-trained, we are now seeing the
    open door starting to close on the cowboys as the "wise" judges
    are seeing what this huge scam is all about.

    One illustration of a bad judge shows here
    http://forums.moneysavingexpert.com/showthread.php?t=5591025&page=2

    POST #27

    "The judge ruled that on the chance of probability I was likely be the driver"

    On the chance of probability, this judge should be re-trained or
    retired as he/she simply does not live in the real world and most
    certainly is not up to speed with the great parking scam.

    Until the judiciary sorts itself out, we can expect a mixture of wins and losses but .....
    the wins are now coming in and will continue to do so

    Whereas, not long ago, the PPC and their dodgy solicitors felt pretty certain that they would win,
    nowadays there is no certainty for them.

    It is indeed the actions of Excel/VCS and BWLegal with their ridiculous claims that has
    caused this turnaround
    Last edited by beamerguy; 08-07-2017 at 10:32 AM.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 8th Jul 17, 10:05 AM
    • 14,622 Posts
    • 23,004 Thanks
    Umkomaas
    @BG - just an aside and purely out of interest. The formatting of your posts of late seems to have gone awry - are you drafting in a word processing package first then copying and pasting into the forum's message posting box?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • beamerguy
    • By beamerguy 8th Jul 17, 10:09 AM
    • 5,979 Posts
    • 7,694 Thanks
    beamerguy
    @BG - just an aside and purely out of interest. The formatting of your posts of late seems to have gone awry - are you drafting in a word processing package first then copying and pasting into the forum's message posting box?
    Originally posted by Umkomaas
    No, typing in directly, I noticed that hence I keep editing.
    The one above seems ago to me.
    I am however using the green layout as I don't like the new one
    Could that be the problem ?
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 8th Jul 17, 10:24 AM
    • 14,622 Posts
    • 23,004 Thanks
    Umkomaas
    No, typing in directly, I noticed that hence I keep editing.
    The one above seems ago to me.
    I am however using the green layout as I don't like the new one
    Could that be the problem ?
    Originally posted by beamerguy
    Your post #32 looks 'all over the place' to me. Like you, I use the green layout. Does my formatting look standard to you?

    I wonder if Crabman can throw any light on it?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • The Deep
    • By The Deep 8th Jul 17, 10:32 AM
    • 7,008 Posts
    • 6,079 Thanks
    The Deep
    But, unless it has been legally defined as meaning otherwise, "unreasonable behaviour" means just that, behaviour which is not reasonable. It is patently NOT reasonable for a PPC to take a motorist to court when the Solicitor knows, or should know that it will fail. The amount 0of stress and lack of sleep this causes some people is incalculable.

    Also, there seems to be an overwhelming opinion that judges, even those at the bottom of the ladder, are omnipotent, they are not. They all have bad days, make poor decisions, and, just like POTUSA, sometimes say the wrong things. That does not mean they can get away with it. A well placed letter to the Lord Chancellor, one's MP, or the Times can work wonders. All you need is confidence.
    Last edited by The Deep; 08-07-2017 at 10:35 AM.
    You never know how far you can go until you go too far.
    • beamerguy
    • By beamerguy 8th Jul 17, 10:40 AM
    • 5,979 Posts
    • 7,694 Thanks
    beamerguy
    Your post #32 looks 'all over the place' to me. Like you, I use the green layout. Does my formatting look standard to you?

    I wonder if Crabman can throw any light on it?
    Originally posted by Umkomaas
    I have just changed to the new version and it all seems the same so changed back to green.

    I use google chrome and I increase the font size for easier reading.

    Not sure if this is the problem but this is now typed on the normal size.

    Yours always seem fine to me
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
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