VCS/BW Legal - writing defence

System

Just adding a note here for others that come along with the same issue. By all means have a copy of it with you on the day as part of any legal argument. Source is Lexis

553. Meaning of 'byelaw'.

A byelaw has been said to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers, ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance (Footnote 1).

Further, it involves the consequence that, if validly made, it has the force of law within the sphere of its legitimate operation (Footnote 2.)

Byelaws are instruments in the nature of local enactments and are thus within the definition of local statutory provisions (Footnote 3), whether made under a public general or a local Act (Footnote 4).

Footnote 1

Kruse v Johnson [1898] 2 QB 91 at 96, DC, per Lord Russell of Killowen CJ. However, all such ordinances are not byelaws, eg Orders in Council and other orders, rules, and regulations made by government departments under statutory authority.


Footnote 2

Kruse v Johnson [1898] 2 QB 91 at 96, DC, per Lord Russell of Killowen CJ. Byelaws made by local authorities must be confirmed by some central authority before having the force of law: see the Local Government Act 1972 s 236(3); and para 556. Their function is to supplement the general law: they should not merely repeat statutory enactments: see para 562.

Footnote 3

See Local Government Act 1972 s 270(1); and para 6 note 8.

Footnote 4

See paras 12, 14. See also the Interpretation Act 1978 ss 11, 21(1), Sch 2 para 1.

MadHatter752

Thanks IamEmanresu, I will take a copy with me. In what instance would I use it?

Loadsofchildren123, any thoughts on the pics I took?

thanks!

MadHatter752

Also thought I'd post the latest copy of my 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.
The exhibits which the defendant intends to rely upon are as follows:

1. The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear further repetition here, but by this statement I now adduce evidence in order to prove my case. Exhibited hereto and marked RH1 - copy of the statement of defence.

2. I am not liable to the Claimant for the sum claimed, or any sum at all.

3. 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 Transport for West Midlands/ Centro) 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.

4. 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.

5. I request the court to strike out the claim due to the fact that 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/TOC to lay before Magistrates Court within 6 months of the event. is this duplicating now? Should I take this point out?

6. 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.

7. Exhibited hereto and marked RH ** is a printout from https://www.whatdotheyknow.com regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. I refer to point 2 from the West Midlands Passenger Transport Executive:

2. There are no car parks at this location to which WMCA believe the byelaws do not apply

I have reasonable belief that Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract.

8. The Claimant is by far the smallest operator at rail stations. It is interesting to note that other operators of rail stations do not assert that they can issue similar claims.

9. 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.

10. The Claimant has not provided me with any evidence of who was driving, photos or otherwise 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.

11. At the time of the parking event in 2014, the insurance for the vehicle insured two 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. Exhibited hereto and marked RH** is a copy of the insurance policy detailing the named drivers for the period in question.

12. 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. Exhibited hereto and marked RH** is 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' . 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

13. There was no requirement upon me as keeper to respond to these harassing letters which appeared to be junk mail. 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). Exhibited hereto and marked RH4 - Schedule 4 of POFA 2012

14. 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.

15. Since the Claimant has failed to comply with its pre-action obligations pursuant to paragraphs 6(a) and (c) if the Practice Direction -Pre-Action Conduct, do I exhibit this too? by not providing any evidence of the alleged breach of contract, I am simply unable to comment on it let alone defend it. For instance the Claimant will have photographs taken by its operative of the car and where it was parked and it will have a contract with the landowner and a record of the signage (wording, location, size etc). All that I know is that it is alleged that the vehicle was not parked in a marked bay. This sort of scenario is exactly what the Practice Direction seeks to avoid - Defendants having to "fight blind". The Claimant is a professional parking company which has so far this year pursued 252 cases against motorists. Furthermore the Claimant is professionally represented by solicitors who claim to be experienced in this area of the law (they are certainly prolific litigators, acting for several nationwide parking companies similar to the Claimant). This conduct is reprehensible and it is immoral, unlawful and contemptuous of this honourable court and should not go unpunished.


16. The signage at the car park is incapable of forming 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).

17. Furthermore, 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.

18. The sign at the entrance of the car park 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 further terms and conditions displayed inside the car park. Exhibited hereto and marked RH** is a photograph of the sign at the entrance. This sign is prohibitive, measuring 2.15m from the ground to the bottom of the sign. The reference to terms and conditions is small illegible print from a moving vehicle.

19. Exhibited hereto and marked RH* in fact show the first signs which are passed upon entrance to the carpark, which are in fact the Claimant’s own signs, are facing away from traffic, thereby making them totally prohibitive and illegible.



20. The various signs within the carpark are, in fact, displayed a range of heights from 2.8m to 2.6m, measured from the ground to the bottom of the sign, exhibited hereto and marked RH**. It is not possible to read these from a stationary vehicle, let alone a moving vehicle.

Any reference to a Parking Charge Notice is in very small print, again illegible from a moving vehicle, exhibited hereto and marked RH**.


[STRIKE]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?][/STRIKE] I don't think we need this now that we have established there was an entrance sign but I have used a bit of it, if applicable, to explain what the entrance sign is like

21. Therefore, as regards 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. The video was taken by myself on 20 January 2017 after I had become aware of these proceedings.

22. The "dark" photos reflect what any driver of the vehicle would have seen on entering into/parking in the carpark at the time of year of the PCN was issued and at a time any driver would have entered the car park, i.e. before the morning rush hour. The light photos reflect an alternative time of year when conditions were lighter.

23. Exhibited hereto marked xxxx is a copy of a sign which was the one displayed in the car park concerned in the case of 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]

24. Relevant cases also featuring prohibitive ‘forbidding parking’ signs include PCMUK vs Bull (Ex. ** ) and UKPC vs Masterson (Ex. **) where it was ruled such signs offer no contract a driver can accept.
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. Is it clear whether I can use this now that I have provided the other photos?

25. 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 understand that no planning permission was obtained for these signs and the Councils involved are now looking into this case. The Claimant should not be permitted to bring a claim founded on an illegal act (the signage).

26. 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.

27. 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.

28. The Claimant has not complied with the Judge’s order dated 4 May 2017 (Ex. **) whereby the Claimant was ordered to “within 14 days file serve on the Defendant a reply addressing the issue raised in the defence”. The Defendant has still not received such a reply as brought to the attention of the Court in the Defendant’s email to the Court dated 24 May 2017.

29. In view of the Claimants non-compliance with its pre-action obligations and the Defendant’s belief that the claim has been incorrectly brought and pursued, which must be clear to VCS Ltd and BW Legal, the Defendant will be seeking a costs order.



I believe that the facts stated in this Witness Statement are true.


thanks, as ever, for comments/help.

Coupon-mad

No time to comment, but bumping this up for others to see tomorrow.

Loadsofchildren123

I'm going to have a look at this now Madhatter -


Can you just do something for me now though, or asap?
1. Phone the court and chase for an answer to your email
2. email the court again, marked urgent, quoting from your other email:
Dear Sirs,


I refer to my email of x date (copy attached).


On x date, DJ X ordered, inter alia, that the Claimant file a Reply to my Defence.


The purpose of that Reply was to remedy the Claimant's failure to comply with its pre-action obligations by providing cogent information about its claim and what it concerns - without such information I am left in the unfortunate position of having to defend a claim that I do not really understand.


DJ X's order was that such Reply be served by x date.


As set out in my email of x date, the Claimant has served no Reply. I am therefore left in the same position, trying to defend a claim that I do not understand. I now have to file my Witness Statement by x date and this is putting me in severe difficulties.


The Claimant is in contempt of court by ignoring DJ X's order.


In the circumstances, i ask that this correspondence is placed before DJ X and I ask him to make an order dismissing the claim. Alternatively, an "unless" order that the Reply be filed by a fixed date, failing which the claim will be dismissed and also adjourning the hearing on 4 July and the requirement to file witness evidence.

MadHatter752

I'm at work til 4 and all the paperwork is at home. I will do this as soon as I get home. Thank you

MadHatter752

I'm at work til 4 and all the paperwork is at home. I will do this as soon as I get home. Thank you.

Also I have received a reply from the planning depart Solihull... it isn't that great for me so don't know if I should post it up here. Could I send it to you privately?

Loadsofchildren123

I've just lost all my work on your statement.


Much easier if you pm me your email and I'll send it to you and you can post the finished version on here. This is the second time this has happened to me today!!!!

Loadsofchildren123

posting in parts because the site doesn't like me today
paragraph numbering may get thrown out of sync.




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. Exhibited hereto is a bundle of documents to which I refer during this Statement, marked RH1.
The exhibits which the defendant intends to rely upon are as follows:

1. The facts of the case are as set out in my Statement of Defence, filed in response to the original claim and verified by a statement of truth. They do not bear further repetition here, but by this statement I now adduce evidence in order to prove my case. Exhibited hereto and marked RH1 - copy of the statement of defence.no need to exhibit defence I deny any liability to the Claimant for the sum claimed, or any sum at all. Various defences to the claim brought against me are set out in my Defence dated x, which can be summarised as follows:

• 1. Paragraphs 2(a), 5, 6 and 7 of the Defence: The land in question is covered by the Railway Byelaws 2015 (“the Byelaws” which, inter alia, concern the parking of vehicles. That being the case, any parking penalty was a matter only for the Railways/Train Operating Company (in this case Transport for West Midlands/ Centro) to bring before Magistrates Court within 6 months of the event (Byelaw 14 is this the right byelaw? I’m not very gemmed upon the byelaws argument). There is no provision by which the Claimant can seek to override this with a civil contractual claim. This aspect of my defence is an “absolute” defence - the mere fact that the land is covered by the Byelaws means that this claim has no basis and it should be struck out.
     
     The remainder of my defences apply only if 1.1 is rejected. Whilst I am confident that the Byelaws apply and that this claim is ill conceived, for completeness I deal with my other defences (although the court may wish to disregard them if it dismisses the claim on the basis that the Byelaws apply).
  2. Paragraphs 9-10 of the Defence: I was not driving the vehicle at the relevant time, and there is no evidence that I was. I cannot therefore be held liable as driver.
  3. Paragraph 7 of the Defence: because the Byelaws apply to the carpark, it is not “relevant land” within the definition of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and therefore liability cannot be transferred to me as the registered keeper of the vehicle.
  4. Paragraph 11 of the Defence: the Claimant is neither the lawful occupier of the land, nor its owner, and it has not shown that it has any authority to operate on the land, nor to issue parking charge notices or to issue and pursue proceedings to enforce such notices in its own right.
  5. Paragraphs 12 and 14 of the Defence: No genuine contract was offered to the driver by the Claimant, the signage which is there now (I have no evidence of what signage was there 2 ½ years ago at the time of the parking event) is such that it cannot have offered any contractual terms capable of acceptance by a driver, it was contradictory, poorly situated and it was illegible – a significant breach of its own Accredited Trade Organisation’s Code of Practice (compliance with which is a mandatory term of its membership – it is only that membership which allows the Claimant to access and obtain keepers’ details from the DVLA and without such membership it would not be in a position to bring this claim).
  6. Paragraph 12(g) of the Defence: the Claimant has no advertisement consent for its signage, a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). It must not be permitted, as a matter of public policy and pursuant to the doctrine Ex dolo malo non oritur action, to found an action on its own unlawful act.
  7. Paragraph 13 of the Defence: other than being told that the vehicle was “parked beyond bay markings” I have no idea at all what the alleged infringement of any parking conditions was.
  8. Paragraph 16 of the Defence: the charge is a disproportionate penalty which is an unfair contractual term (if any such contract existed, which is denied).
     
     2. I am not liable to the Claimant for the sum claimed, or any sum at all.
     
     3. 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 Transport for West Midlands/ Centro) 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.
     3. I set out below the relevant facts and evidence in relation to each aspect of my defence. Before I do so, I wish to draw attention to the Claimant’s refusal to particularise its claim in any meaningful way, and its contempt of the Order of DJ X made on x date. In my Defence, I made it clear that because the Claimant had provided no cogent explanation of its claim, and because it had failed to comply with its pre-action obligations to provide such an explanation, together with core documentation evidencing the claim, I was in severe difficulties in filing a proper defence.

Loadsofchildren123

4. The court responded to my appeal for its assistance by ordering the Claimant to file a Reply to the Defence by x date. The Claimant has failed to do so. I am left having to draft and file a Witness Statement in respect of a claim which I still do not fully understand, while the Claimant remains in contempt of court. There are core documents and information which it clearly should have produced by now which would have enabled me to understand the claim I must meet – for instance, a copy of any contract giving it authority to operate on the land and to pursue these proceedings, copies of photographs taken by its operative which will show in what manner it is alleged that the vehicle was incorrectly parked, a copy of its signage displayed in the carpark at the relevant time which it asserts is the contract which forms the basis of this claim (and such contract should also have been produced in accordance with Practice Direction 16, paragraph 7). Presumably, the court’s intention was also that the Claimant should respond to the absolute defence that the Byelaws apply to the car park and that this claim is therefore bound to fail. Para numbering has gone wrong from this point, you need to make sure all para numbers follow on properly

The Byelaws

4. Exhibited at pages x to x of RH1 are the following documents:

• [doc referred to in your defence, para 5]
• [other doc referred to in your defence, para 5]
• The result of a Freedom of Information Act request addressed to [x] dated [y].

• Transport for West Midlands (previously CENTRO) state in the document at page [] of RH1 are on record as stating that they are were aware that charges issued in car parks which fall under the Railway Byelaws could not be enforced by a private parking firm like VCS Ltd, and could only be a matter for CENTRO to enforce within 6 months, via Magistrates court only.
• Set out here the other stuff you said in para 5 about what these documents say.
• At page x of RH1 is the response to a Freedom of Information Act request which confirms [what does it say and how does it help – set it out here – or does the para below deal with it?]
• Exhibited hereto at page x of RH1 and marked RH ** is a printout from www.whatdotheyknow.com which is the published result of a Freedom of Information Act request regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. I refer to point 2 from the West Midlands Passenger Transport Executive:
  
  “2. There are no car parks at this location to which WMCA believe the byelaws do not apply”
• I have reasonable believe that Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract [do you have this, if so exhibit the relevant extract].
  
  8. The Claimant is by far the smallest operator at rail stations. It is interesting to note that other operators of rail stations do not assert that they can issue similar claims. Where does this come from????
  
  
• It is not open to the C;ao,amt VCS Ltd as a third party to attempting to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing a statute-barred claim in respect of a station Railway car park which is under statutory control and is governed by the Byelaws, under statutory control) claim to small claims court, two years afterwards. The claim should be struck out on this basis.
  
  5. I request the court to strike out the claim due to the fact that 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/TOC to lay before Magistrates Court within 6 months of the event. is this duplicating now? Should I take this point out? Yes

I was not driving the vehicle at the relevant time and cannot be liable as its registered keeper

• Whilst I was the Registered Keeper of the vehicle at the relevant time, concerned,I was not driving it and there is no evidence that I was - of the driver and as this event occurred two and a half years ago, it is impossible to expect me, as keeper, to recall who might have been driving. The Claimant has not provided me with any evidence to show that I of who was the driver. However, it has seen fit, knowing that I deny being the driver, to send me a multitude of aggressive chasing letters which amount to , photos or otherwise however I have continued to receive unwarranted harassment and now baseless litigation, which 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.
• It is incorrect to assert that I am obliged to name the driver, and that if I do not then I should be liable as if I was the driver. POPLA’s Lead Adjudicator Henry Gleenslade, experienced Counsel, states in its 2015 Annual Report (under the heading'Understanding Keeper Liability') that there is no presumption in law that a keeper of a vehicle is its driver, and keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company. A copy of the relevant extract of the report is at page x of RH1.
• At the time of the parking event in 2014, the insurance for the vehicle included [an additional?] two named drivers,people, including [or plus???] myself, to drive the vehicle. I confirm that all [or both?] 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. Exhibited hereto and marked at page x of RH1 is a copy of the insurance policy showing the named drivers for the period in question.
• I have reason to believe that the Claimant will rely on the case of Elliott v Loake, which it will assert is authority for the proposition that a registered keeper should be assumed to have been driving his/her vehicle, unless they can rebut that presumption. I am aware that the Claimant habitually relies on this case in similar claims against registered keepers. The Claimant (and its solicitors) must know that this is an entirely inaccurate assessment of the case, because this argument has been rejected countless times in other cases in other courts. Elliott v Loake was a criminal case in which there was overwhelming forensic and witness evidence to show that the registered keeper was driving the vehicle. It made no presumption, and it did not put the onus on the Defendant to rebut any presumption, about who was driving. This claim is no different from any other – the burden of proof rests with the Claimant, not with the Defendant.
• With the driver being unidentified, I cannot be held liable as keeper for this event and There is therefore 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. Exhibited hereto and marked RH** is 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' . 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
• There was no requirement upon me as keeper to respond to the harassing correspondence from the Claimant and its agents, all of which appeared to me at the time letters which appeared to be junk mail. No adverse inference can be drawn from this. 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 is not a matter where I could be held liable as registered keeper. The only provision by which liability can be transferred from a driver to a registered keeper in respect of a private parking charge is under Schedule 4 of POFA. However, the provisions of Schedule 4 apply only to “relevant land” (paragraph 1(1)(a), and the car park in question could be in any way legally liable because this is not 'relevant land' because it is land to which the Byelaws apply (under the only lawful route for keeper liability on private land, namely the POFA 2012, Schedule 4). Exhibited hereto at pages x to x of RH1 is a copy of and marked RH4 - Schedule 4 of POFA 2012