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  • FIRST POST
    • Riz268
    • By Riz268 11th Oct 17, 4:47 PM
    • 18Posts
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    Riz268
    Excel/BW Legal, Company Defendant. Vicarious Liability
    • #1
    • 11th Oct 17, 4:47 PM
    Excel/BW Legal, Company Defendant. Vicarious Liability 11th Oct 17 at 4:47 PM
    Mine and my husbands company received a final demand letter for payment from Excel back in 2016. The alleged offence was October 2015. This is the first communication received from Excel.

    The company is now the defendant and the court hearing is soon.

    The defendant buys and sells cars.

    The driver, an employee of the defendant at the time appealed and named themselves as an individual but all correspondence received from Excel and BW legal have been addressed to the defendant not the individual who named themselves in the appeal.

    The driver is now a director of the defendant and was out on a personal event, nothing to do with business.

    The vehicle in question was in the defendants stock at the time of alleged offence but DVLA have no record of this. According to DVLA they do not have the defendant as having any links to the vehicle at the time of alleged offence.

    The above only came to light after the defence was done.

    Defendant emailed the court asking for the case to be struck out but still received a court hearing date.

    Basically the wrong defendant is being taken to court. Please can anyone help with the witness statement.
    Last edited by Riz268; 25-10-2017 at 10:04 PM. Reason: So it makes sense
Page 1
    • KeithP
    • By KeithP 11th Oct 17, 4:54 PM
    • 4,731 Posts
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    KeithP
    • #2
    • 11th Oct 17, 4:54 PM
    • #2
    • 11th Oct 17, 4:54 PM
    OK, put your phone down, find a computer and try again to write something that someone else can understand.

    Write real sentences. Tell us what you mean by 'the company'.
    The company is in what trade?
    .
    • Riz268
    • By Riz268 11th Oct 17, 5:14 PM
    • 18 Posts
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    Riz268
    • #3
    • 11th Oct 17, 5:14 PM
    • #3
    • 11th Oct 17, 5:14 PM
    The company is in the car trade as in retails cars, vehicles coming in and out all the time. There are only 2 directors, no employees. The company is the defendant.
    • Lamilad
    • By Lamilad 11th Oct 17, 8:03 PM
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    Lamilad
    • #4
    • 11th Oct 17, 8:03 PM
    • #4
    • 11th Oct 17, 8:03 PM
    I have some familiarity with this case after seeing it on another forum.

    Mui, the defendant is a company that has traded the vehicle in question. The OP is one of 2 directors the company has.

    The PCN was sent to the company... The OP wrote to Excel as a private individual explaining that they were the driver who parked - and then appealed on various grounds such as signage. Since then correspondence has addressed to both the defendant and the company (both named in the same document) at the same address.

    The defendant (the company) has never been the RK... Neither has the OP

    At the time of the parking event the OP was a private individual on a shopping trip...

    They were NOT on any company business, they were not an agent of the company.

    It seems to me that there is no case here against the defendant:-
    * The defendant (the company) was not the driver, nor the keeper.

    * A private individual has written to Excel and identified themselves as the driver (though denying liability).

    * That should have removed any suggestion of liability on the company and all further correspondence should have been sent to the driver only (the OP)

    * Whilst the OP is a director of the company... the company, in fact, has no involvement whatsoever in this matter.

    What confuses me is that the OP has written to the court (before allocation to track) and explained all of this yet the court has not struck the case out our even sought clarification from the claimant re cause of action against the company defendant.

    Seems obvious to me there is no case to answer... Interested to hear what others think.
    Last edited by Lamilad; 11-10-2017 at 8:05 PM.
    • Lamilad
    • By Lamilad 14th Oct 17, 10:49 PM
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    Lamilad
    • #5
    • 14th Oct 17, 10:49 PM
    • #5
    • 14th Oct 17, 10:49 PM
    Bumping for additional thoughts/ comments
    • Riz268
    • By Riz268 19th Oct 17, 8:41 PM
    • 18 Posts
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    Riz268
    • #6
    • 19th Oct 17, 8:41 PM
    • #6
    • 19th Oct 17, 8:41 PM
    Please can someone help.

    I've tried editing my original post so it makes sense but It won't allow me so I'm trying again now.

    Basically a Pcn was issued to mine and my husbands company 4 months after alleged offence.

    Our company is the defendant and we buy and sell cars.

    Initially driver named themselves in the appeal as an individual which was rejected but all the correspondence received from Excel and BwLegal have been addressed to the defendant not the individual who named themselves in the appeal.

    Defendant has never been the registered keeper however the named driver was an employee who was using the car for personal reasons, nothing to do with the business.

    The vehicle in question was in the defendants stock at the time of alleged offence but DVLA have no record of this. According to DVLA they do not have the defendant as having any links to the vehicle at the time of the alleged offence.

    The named driver is still working for the company.

    I need to start the witness statement. Basically how does the defendant prove the wrong defendant is being taken to court?

    Please can someone help
    • Coupon-mad
    • By Coupon-mad 19th Oct 17, 9:35 PM
    • 51,672 Posts
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    Coupon-mad
    • #7
    • 19th Oct 17, 9:35 PM
    • #7
    • 19th Oct 17, 9:35 PM
    Your firm can be deemed to be the 'keeper' of the car (even though not the rk). So like any keeper, you need to show why the keeper can't be held liable.

    Use Schedule 4 of the POFA and point out the section where it says if the parking operator knows who was driving/can enforce against that driver (has their name and address) then the keeper liability ceases to apply.

    Also point out if the Notice wasn't served to your firm within the required period. Again, the POFA sets it out. Use it.

    Attach as proof, the appeal from the driver, showing the date and his/her name/postal address if that was given (if it wasn't, then YOU should have done that, to transfer liability properly).

    Also attach Henry Greenslade's words from the POPLA Annual Report 2015, 'Understanding Keeper Liability' where he makes clear that keeper liability isn't possible outwith full compliance with the POFA.

    Can the driver submit a WS to assist you, saying he was not using the car on behalf of the business. In which case, you can show that CPS v AJH Films doesn't apply either.
    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.

    • Riz268
    • By Riz268 19th Oct 17, 10:12 PM
    • 18 Posts
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    Riz268
    • #8
    • 19th Oct 17, 10:12 PM
    • #8
    • 19th Oct 17, 10:12 PM
    The driver was me, now a director.

    At the time I was shopping but how do I prove that? I should have been pursued as a private individual.


    The first letter received was from Excel. It was a final demand , 4 months after alleged offence.
    • Lamilad
    • By Lamilad 19th Oct 17, 10:44 PM
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    Lamilad
    • #9
    • 19th Oct 17, 10:44 PM
    • #9
    • 19th Oct 17, 10:44 PM
    The first letter received was from Excel. It was a final demand , 4 months after alleged offence.
    It seems to me that the previous owner (before the company) was the RK who received the initial PCN and named the company to Excel.

    Excel have certainly faultered in not reissuing the PCN to the company (as they are required to do) whether this is fatal to their case..... I'm not sure.

    I think a lot of this is going to rest on how Excel were informed of who was driving and what was said, because if that was done correctly then Excel could only, legally, pursue the named driver and not the company.

    Excel will try to rely and vicarious liability (CPS vs AJH films) saying that the company was the keeper (even though not the RK) and the driver (an employee) was an agent of the keeper.

    What the OP must do is remove the options excel have to rely on 'agency' by making it clear that the event in question was a private/personal event and nothing to do with the company
    • Riz268
    • By Riz268 20th Oct 17, 8:02 AM
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    Riz268
    The initial PCN would have gone to the RK.

    The RK would have given the details of the garage that they part exchanged their vehicle to.


    The Defendant purchased the vehicle from the garage.


    The garage would have supplied the Defendants details( I think) as that's the only way Excel could have got Defendants details.
    • Johnersh
    • By Johnersh 20th Oct 17, 9:12 AM
    • 734 Posts
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    Johnersh
    This is a mess. Assuming the Claimant was on notice of the correct defendant and given a service address prior to them commencing court proceedings (issue), I'd apply to strike out. The court don't have to consider your request to do so where you haven't applied for it.

    The company can probably manage the £255 up front fee and if the early correspondence is clear, this should be booted into touch.

    The company responded promptly when contacted by the PPC. The claimant both should have reissued the PCN and started again with pre-action correspondence. Not to do so was to rush headlong into litigation in exactly the fashion that the courts try to discourage.

    You could let it run to trial, but I wouldn't. I sincerely hope that the bespoke defence states clearly that the wrong Defendant is pursued, rather than adopts more stock forum templates that are less suitable here.
    • Riz268
    • By Riz268 20th Oct 17, 10:16 AM
    • 18 Posts
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    Riz268
    The Defendant only found out from Dvla after defence was done that they were never a keeper of the vehicle when alleged offence occurred.

    Defendant emailed court manager asking for the case to be struck out but still received a court hearing date.


    Defendant contacted the court to ask if the court manager had actually read the email and were told yes.


    Judge requested information from claimant which was received and hearing still going ahead.
    • Lamilad
    • By Lamilad 20th Oct 17, 10:42 AM
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    Lamilad
    This is a mess.
    Indeed it is. But taking everything into account the only pitfall I can see for the defendant (the company) is vicarious liability. Excel don't rely on PoFA so can't foresee any issues with keeper liability

    I sincerely hope that the bespoke defence states clearly that the wrong Defendant is pursued
    Sadly it doesn't.

    This OP initially raised her issue on one of the Facebook pages and was given a template/ generic defence.

    I became aware of it around allocation stage and have provided some off forum advice including advising the OP to start a thread here for better guidance.

    I've seen the defence (it's not great) but I haven't seen the initial appeal to Excel by the company (also provided by FB, I believe).

    OP - could you post the appeal on here (with personal details redacted) via a Dropbox link?
    • Lamilad
    • By Lamilad 20th Oct 17, 10:18 PM
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    Lamilad
    I sincerely hope that the bespoke defence states clearly that the wrong Defendant is pursued, rather than adopts more stock forum templates that are less suitable here.
    So here's the defence that was submitted by the OP (provided by FB). As above it does not do the one thing it needed to do more than anything - state that the wrong defendant is being pursued.

    In fact, it's barely fit for purpose. It seems to just be every known template argument chucked into a word doc. It has no meaningful relevance to the specific, and rather complex, circumstances of this case.

    It goes on about pofa despite the fact the driver had been named months before. It doesn't even mention 'agency' or vicarious liability.

    Suffice to say this OP will need a killer WS and, in this case, I'm gonna suggest a separate SA so they can do a hatchet job on what will, no doubt, be a woeful WS from BWL

    https://www.dropbox.com/s/5izag4gx2jxot3o/REDACTED%20Defence-statement?dl=0
    • Riz268
    • By Riz268 24th Oct 17, 8:40 PM
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    Riz268
    Bumping for additional thoughts please.
    • Lamilad
    • By Lamilad 24th Oct 17, 9:50 PM
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    Lamilad
    Bumping for additional thoughts please.
    Originally posted by Riz268
    Particularly interesting to hear thoughts on whether agency applies given that the company was the owner and the driver was an employee, albeit, not on company business at the time.
    • IamEmanresu
    • By IamEmanresu 25th Oct 17, 4:11 AM
    • 1,811 Posts
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    IamEmanresu
    Particularly interesting to hear thoughts on whether agency applies given that the company was the owner and the driver was an employee, albeit, not on company business at the time
    What does the other site say?
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
    • Riz268
    • By Riz268 25th Oct 17, 9:13 PM
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    Riz268
    Haven't posted on there for a while.

    Was hoping for some help on here.
    • Lamilad
    • By Lamilad 25th Oct 17, 10:08 PM
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    Lamilad
    Assuming the Claimant was on notice of the correct defendant and given a service address prior to them commencing court proceedings (issue), I'd apply to strike out
    The OP has supplied me with a copy of their reply to the first communication received from Excel. Again I'm not sure this will stand up to scrutiny in terms whether the def has done what they needed to do in order to discharge liability (if they even had any)

    https://www.dropbox.com/s/11cw8pxda3wi0tb/1st%20reply%20redacted.jpg?dl=0

    The reply doesn't make it clear that they are replying as a private individual rather than 'the company'. They also make reference towards the end to "our details" which, if responding as an individual should be "my details".

    I think BWL will really push vicarious liability on this one.
    Last edited by Lamilad; 25-10-2017 at 10:15 PM.
    • IamEmanresu
    • By IamEmanresu 26th Oct 17, 5:08 AM
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    IamEmanresu
    I think BWL will really push vicarious liability on this one.
    They can but the defence will be based on what the driver was doing at the time e.g. was this during working hours, lunch time, weekends or evenings.

    Each time slot will have pros and cons as to the amount of evidence needed. For example was the driver working in the evening, or on private business during working hours.
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
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