VCS/BW Legal - writing defence

MadHatter752

Thank you IamEmanresu. I will add that into the WS

Can you add anything to any of my questions in #100 at all please? Or anyone else.

thanks

MadHatter752

Also, should my skeleton statement be going in 14 days before court? havent even started it yet. Court date is 4 July.

Coupon-mad

Answered here:

https://forums.moneysavingexpert.com/discussion/comment/72656004#Comment_72656004

HTH

MadHatter752

Thanks Coupon-Mad... that gives me a bit more time then.

So if I can just get my questions answered I can get my WS completed and sent off before I start work on my SA

MadHatter752

With regard to claiming costs.... do I need to include this in my WS as post by Loadsofchildren123

https://www.dropbox.com/s/4cn1tbjiim1ycsl/COSTS%20APPLICATION%20updated.docx?dl=0

or will the simple schedule of costs and a printout of the relevant CPR do the trick?

also phoned the court again today to see if they'd received any docs from BW Legal, i.e. a reply to the defence they should have submitted by around 18th May and they havent. They also havent yet lodged my email to the Court bringing this to their attention.

also, I did take video evidence of driving into the car park to evidence you cannot see the signs... how would I include this in my witness statement?

the pics i took to evidence the signs in the car park were taken when any driver of my car would have used the carpark, not at the time the PCN was issued... it was dark when the driver would have entered the carpark but the PCN was issued at 11am and would have been light then. Will I be able to use the pics in the dark or should they be taken in the light as it would have been light when the PCN was issued?

thanks

Loadsofchildren123

With regard to claiming costs.... do I need to include this in my WS as post by Loadsofchildren123:-
You can put in a sentence complaining about the C's non-compliance with its pre-action obligations, and saying you believe the claim has been incorrectly brought and pursued and that this must be clear to the PPC and its solicitors, and that you will be seeking a costs order. That's enough for the WS.
Then you say in the Skeleton that you are seeking costs and you rely on all the info in my document, and the case law. I always think it's really important to produce case law to DJs, they are junior judges and are nervous of getting it wrong and they like to have the case law to show them they have the power to do what you are asking.


I did take video evidence of driving into the car park to evidence you cannot see the signs... how would I include this in my witness statement?
"Exhibited to this statement marked xxx is a disc containing a video of........ showing....... The video was taken by myself on ........ after I had become aware of the [NtD/NtK/these proceedings - whichever applies]" and then you physically exhibit the disc."


it was dark when the driver would have entered the carpark but the PCN was issued at 11am and would have been light then. Will I be able to use the pics in the dark or should they be taken in the light as it would have been light when the PCN was issued?
I'd use both sets of photos and make it clear in the text of the WS that the "dark" photos reflect what the driver would have seen on entering into/parking in the carpark. It's important to show how it was when the driver parked.

MadHatter752

thank you so much Loadsofchildren123! Really appreciate your help.

I note your comments and I am going to head out and get some pics in daylight today.

Then i will upload my final draft WS.

thanks again!

Loadsofchildren123

I wouldn't bother (I assumed you had daylight ones) - unless VCS's contemporaneous (daylight) photos are misleading or bad quality, in which case you might as well. But check the signage is the same as it was at the date of the parking event.

MadHatter752

Loadsofchildren123 wrote: »

I wouldn't bother (I assumed you had daylight ones) - unless VCS's contemporaneous (daylight) photos are misleading or bad quality, in which case you might as well. But check the signage is the same as it was at the date of the parking event.

i haven't seen any photos from VCS?!

I need to go anyway because I dont think I took one of the actual entrance sign. I am sure it is the same as at the time.

Loadsofchildren123

MadHatter752 wrote: »

OK so to bring everything up to date, here is my amended draft WS:-

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event occurred two and a half years ago, it is impossible to expect a keeper to recall who might have been driving and I confirm that I do not have any recollection of the day in question.

2. The Claimant has not provided me with any evidence of who was driving, however I have continued to receive unwarranted harassment and baseless litigation has resulted in significant alarm and distress to myself. It is of course for the Claimant to prove its claim, and this includes showing that I was the driver.

3. At the time in 2014, the insurance covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case. i have a copy of my insurance schedule from this time which names the drivers… I do not mind enclosing this as proof… is it worth it or not?Yes provide this, and I'd make a bit more of it:
At the time of the parking event in 2014, the insurance for the vehicle insured x people, including myself, to drive the vehicle. I confirm that all of the named drivers did regularly use the vehicle. They were all family members. Other individuals were of course able to drive the car if the terms of their own insurance allowed it [only include this if others did drive it and say how many other people this was]. A copy of the insurance policy showing the named drivers is exhibited at .....

4. With the driver being unidentified, I cannot be held liable as keeper for this event and there is no statutory provision or case law which provides that the keeper must name the driver, or that they can be assumed to have been the driver. An extract of the POPLA Annual Report for 2015, consisting of commentary by its Lead Adjudicator Henry Greenslade, an experienced barrister in this area of the law, headed 'Understanding Keeper Liability' is exhibited hereto as xxxxx. It states that there is no presumption in law that a vehicle's keeper was its driver and that keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company. The Claimant has indicated that it will rely on the case of Elliott v Loake to invite the court to presume that I was driving: however in that case there was overwhelming forensic and witness evidence that the keeper was driving and its facts in no way apply to this claim and it does not establish any precedent for presuming a keeper was the driver of a vehicle at any given time. do I attach the whole report or just the paragraph I refer to?just the extract

5. There was no requirement upon me as keeper to respond to these harassing letters, which appeared to be junk mail. [I've moved the next bit around] No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis or liability capable of passing to a registered keeper under any applicable rule of law or statute. In any event, this was not a matter where a registered keeper could be in any way legally liable because this is not 'relevant land' (under the only lawful route for keeper liability on private land, namely the POFA 2012, Schedule 4).

6. I attach Schedule 4 of POFA 2012 - Exhibit **


7. The Claimant has not provided any documentation and relevant contracts with the land owners that allow the claimant to issue parking charge notices or claims on its own or upon the landowner’s behalf. I challenge VCS Ltd to provide proof of their authorisation from the landowner and not just self-generated approval. This is the sort of documentation which the Claimant should have produced at the pre-action stage of the claim, rather than late in the day, because it is core information/documentation which proves that they have standing to bring a claim.

8. The signage at the car park is incapable of forming does not form a contract. It must be capable of making, and it must have made, an offer capable of being accepted (from which it follows that the terms offered must be clear and unambiguous, and displayed in such a manner that a driver would have seen and understood them), there must have been acceptance of the terms offered (from which again it follows that the signage must be clear, unambiguous and appropriately displayed), and there must have been consideration (and an intention to create legal relations).


[new para number] Firstly, there was no sign at the entrance to the car park drawing any terms and conditions of parking to the driver's attention (this is in fact a breach of the Claimant's own compulsory ATA Code of Practice, which requires there to be clear entrance signage referring the driver to the further terms and conditions displayed inside the car park). A photograph of the entrance which I took on x date is exhibited hereto marked Xxx. signage is an ‘offer to treat’ as no sign at the entrance of the carpark where the event took place which details the contract you would be entering into by proceeding into the car park as evidenced by Exhibit 2. [this para doesn't make sense. Do you mean there was no signage at the entrance?]

9. As for the signage inside the car park, it makes no offer of parking but is instead prohibitive. The parking charge is hidden within the small print, it is not a clear and prominent charge and was never 'bound to' have been seen, as in the ‘Beavis’ case. These signs contain illegible small print that could not be seen from a moving vehicle as evidenced by Exhibits *, * & *, one of which is a video from the drivers perspective in a moving car entering this car park. anyone using my car would have used it early in the morning… the pcn was issued at 11am so should the evidence show lighting as at 11am? firm this up with references to the photos. How do you know the driver parked late at night when it was dark? Does the pnc specify the period of parking?


10. Exhibited hereto marked xxxx is a copy of a sign which was the one displayed in the car park concerned in the case of I further attached Exhibit * which details a legible sign which was including in the case Parking Eye Limited vs Beavis [2015] UKSC 67, a case which BW Legal themselves brought to my attention distinguishing the contrast between the Parking Eye Limited sign and the VCS Ltd signs in operation in the carpark in question. [I haven't seen your sign - if it is forbidding wording, then consider also producing and exhibiting the sign in the case of PCM v Bull et al [you'll find this on the parking prankster's blog]


new para number: Turthermore, the signs were not displayed in suitable positions, nor were they of a suitable size and so the driver cannot have been made aware of, nor accepted, any terms that may have been offered. Therefore no contract can have been created. [go into more detail about, and exhibit anything you've got showing, where the signs were, what size they were etc]


11. Furthermore the signs are classified in planning law as an advertisement, by virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. I put the Claimant to full proof that planning permission was obtained for these signs. If it was not, then the Claimant should not be permitted to bring a claim founded on an illegal act (the signage).



12. Court Transcripts of relevant cases – *** to find ** Can I use PCM vs Bull – does it apply here from Parking Prankster? It may do, I don' t know what your signage said. Your court order says you don't have to produce legislation etc (this includes case law) until the hearing itself, so no need to exhibit it.

13. I intend to report VCS Ltd to the Information Commissioner for misuse of my data, obtained from the DVLA in 2014. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing and then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £254, including the legal insult of two years' interest, for what was apparently an unproven £60 charge. I reserve my position in relation to making a counterclaim, or a separate claim, against the Claimant for damages for a breach of my data protection rights.

Do I report now or wait?



14. the land in question is covered by Railway Byelaws concerning (among other rules) the parking of vehicles. That being the case, any parking penalty was a matter only for the Railways/Train Operating Company (in this case xxxxxx) to bring before Magistrates Court within 6 months of the event. There is no provision by which the Claimant can seek to override this with a contractual claim. The mere fact that the land is covered by such byelaws means that this claim has no basis and it should be struck out.

16. VCS Ltd as a third party attempting to morph a Byelaws matter into 'breach of contract' have no prospects of success in bringing a statute-barred Railway car park (Byelaws land, under statutory control) claim to small claims court, two years afterwards. [I've moved these two paras up]


17. Transport for West Midlands (previously CENTRO) are on record as stating that they were aware that car parks which fall under Railway Byelaws could not be enforced by a private parking firm like VCS Ltd, and could only be a matter for CENTRO within 6 months, via Mag's court only.

Should I be adding the evidence of this? As a side point I have just filled in a FOI request but I doubt it will be answered in two weeks in time for it to go with this.yes and someone's already posted you a link


15. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretences - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts.








When do I mention Elliot v Loake… they mentioned it in one of their letters… I didn’t mention it in my defence…done

Also… does my defence form part of my argument still… i.e does my defence get passed to this court to have on hand for the day?yes, this complements your defence

As mentioned in a previous post, I must have thrown away any early correspondence, is this going to damage my case?no, you've explained why

now that I am getting help back on here so I not contact BMPA? The Pepipoo example of Martha12 which CM advised me to look at in an earlier used BMPA but I dont want to duplicate anyone's work or advice when you are clearly helping so many people

sorry there are so many questions.... I understand if it takes some time for them all to be answered.

Also if there is any further amendments to WS that I should make please let me know.

Thank you so much.

I've seen the order that the C was supposed to reply to your defence and Lamilad's advice to rattle the court's cages about this. Have you done that?