VCS/BW Legal - writing defence

MadHatter752

Another one... they are saying they not relying on POFA "and therefore the statute is irrelevant to the claim"... what does that mean for me in terms of defending this as i mentioned this in my WS?

System

what does that mean for me in terms of defending

They are saying that there either is evidence of you being the driver or they maintain on the balance of probabilities you are the driver. This is because they can't use POFA as it does not apply on byelaws land / their paperwork doesn't support KL.

They have stated this at para 28 and then try to use Elliott v Loake and CPS - both cases have been rubbished by other courts. (para 31). At para 32 they then descend into total nonsense. Would be embarrassed to argue this but it doesn't appear to stop them.

MadHatter752

Thanks IamEmanresu... i am just rereading the CPSv AJH films stuff on parking prankster,,,, it says

Appeal

On appeal it was found that CPS v AJH Films is only applicable in an employee/employer situation. This was not such a situation.

what does that actually mean?

MadHatter752

IamEmanresu wrote: »

PS Check the pics again. That's where all the holes in the claim are.

I will... is there anything specific you have seen... is that why you are saying this?

System

Downloads for you

Comments about byelaws para 9 and 24
http://docdro.id/dRwgKXe

Your question in #244. The driver was not in an employer/employee arrangement and they have not provided evidence of the same.

Your question in #245. The pics are of too poor a quality to be of any value and there is no definition as to which P&R's are byelaws and which are not. As was said before, putting a sign up (that is not a CENTRO sign) does not make them outside byelaws. The document above shows CENTRO had doubts about the legalities but have gone along with VCS but VCS haven't produced evidence that CENTRO were able to avoid byelaws (para 24 in the download)

MadHatter752

IamEmanresu wrote: »

Downloads for you

Comments about byelaws para 9 and 24
http://docdro.id/dRwgKXe

Your question in #244. The driver was not in an employer/employee arrangement and they have not provided evidence of the same.

Your question in #245. The pics are of too poor a quality to be of any value and there is no definition as to which P&R's are byelaws and which are not. As was said before, putting a sign up (that is not a CENTRO sign) does not make them outside byelaws. The document above shows CENTRO had doubts about the legalities but have gone along with VCS but VCS haven't produced evidence that CENTRO were able to avoid byelaws (para 24 in the download)

Thank you IamEmanresu... i did actually exhibit that document along with my WS and I will refer to it again in my SA.

MadHatter752

Coupon-mad wrote: »

And as the contract was only agreed 3 weeks before the parking event, what evidence is there of signs and lines being properly re-marked and prominently displayed by that time, seeing as we know that CENTRO admitted that enforcement in many of their locations could not begin until the lines had been repainted. No hatched lines there.

And they'd done that in those 59 locations in 3 weeks, had they?! Strict proof needed...

Where did you get the 3 weeks from CM? I can see implementation was supposed to be September 2014 with the PCN issued 22/10/14 so not sure where the 3 weeks comes from but it is a good point it i can prove it.

I mentioned it in a previous point but didnt get an answer... i didnt date my pictures... can I pull apart theirs for not being dated when I havent dated mine?

MadHatter752

Just thought I'd give you what I have so far too for comments....

DEFENDANT’S
SKELETON ARGUMENT

Preamble

1. This skeleton argument is to assist the Court in the above matter for the hearing dated 04/07/2017 at XX.

2. The Witness Statement filed 19 July 2017 on behalf of the Claimant was completed by someone who is not a witness. Ian Callaghan was not a witness to the Parking Charge Notice, does not work for the Claimant and also is confused regarding which ATA the Claimant was in at the time of the Parking Charge Notice, which is discussed further in para #5.5. It is also very unlikely that the individual will attend the hearing, presenting significant disadvantage for the Defendant.

3. The Witness and the accompanying Witness Statement are not credible. The Witness statement contains invalid and false statements which can be shown in this Skeleton Argument.

4. The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that, in fact, the Claimant has also behaved unreasonably.

5. The Witness Statement prepared by Ian Callaghan is contradictory, confusing and particularly troublesome as detailed below:

5.1. Para #20 the Witness states “The Car Park is a non railway ‘park and ride’ car park and therefore not subject to Railway Byelaws 2005”. This is not true. Page 15 of Exhibit IC1 attached to the Witness Statement by Ian Callaghan displays a picture of the signage in operation in the carpark. The sign itself states “This car park is strictly for Park & Ride Customers whilst using the Rail and/or Metro”. Page 8 of IC1, the picture of the entrance signage states “Marston Green Station and Sheldon Country Park car park” and includes the logo of Network West Midlands who operate Marston Green Railway Station. Indeed, para #35 of the Claimant’s own Witness Statement confirms the fact that this car park is for “Park & Ride Customers whilst using the Rail and/or Metro”. It is worth mentioning that there is no Metro at this site, only Railway. The Exhibit RH1 attached to the Witness Statement of the Defendant page 18, shows the comment obtained under the Freedom of Information Act whereby a West Midlands Passenger Transport Executive confirms that Byelaws are in operation at such carparks. The Defendants Witness Statement refers #9-11 (Is it correct to do this? Do I refer them to the whole Byelaw section in my WS or are 9-11 ok?) This is a Railway Park and Ride and the carpark is subject to Railway Byelaws 2005.

5.2. Para #21 – As this is not a ‘non railway park and ride’ so this does not apply. And Centro aren’t enforcing it… VCS/BW Legal are.. is there anything else that can be said here… I am sure it isn’t right but don’t know what I can say,

5.3. Para #23 the Witness states “The Claim has therefore correctly been brought in the Country Court”. This is incorrect. The correct Court would be Magistrates Court as discussed in the Defendant’s Witness Statement para #6.

5.4. Para #33 the Witness states “The signage at the Car Park clearly states that the Defendant must “purchase a valid ticket””. This car park does not operate a Pay & Display, in fact this is a free carpark where no tickets are available. This displays a laissez-faire attitude towards submitting a truthful, factual witness statement.

5.5. Para #37-39 refer to the Approved Operator Scheme and states “As the Claimant was an established member of the BPA at the time of the contravention, it had to adhere to the BPA’s Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks”, which is therefore only relevant to BPA members. The Witness appears confused as at the time of the “contravention” the Claimant was, and in fact still is, a member of the IPC, not the BPA.






Driver Identity

6. The Witness has made the following statements which I must refute:-

6.1. Para #8 the Witness wrongly assumes “the Defendant was the registered keeper and/or the driver of a Volkswagen XXXXXXX (the ‘Vehicle’) and used the Car Park on 22/10/14. (the ‘Contravention Date’). On the Contravention Date, the Defendant failed to park the Vehicle within the markings of a parking bay”. The Claimant has submitted no evidence that the Defendant used the carpark on the day of the contravention at all, never mind there being no evidence that the Defendant failed to park the Vehicle within the markings of a parked bay.

6.2. Para #13, again the Witness wrongly assumes “the Defendant, by physically entering and leave their vehicle at the Car Park therefore accepted the Terms and Conditions in operation”. There is no evidence that the Defendant physically entered the Car Park at all.

6.3. Para #15 the Witness states “The Defendant’s contravention of the Car Park’s Terms and Conditions was captured by the CPW who took photographs of the Vehicle. The images capturing the Defendant’s breach of the Terms and Conditions are now shown in pages 16-20”. This is denied. The images do not show the Defendant at all, so they certainly do not show the Defendant contravening the Terms and Conditions. As evidenced in the Defendant’s Witness Statement, the Defendant was not the only driver of the vehicle, in the absence of evidence, it cannot be assumed that the Defendant was the driver and contravened the Terms and Conditions.

6.4. Para #17 the Witness states “The Defendant’s stay at the Car Park exceeded the 10 minutes grace period”. Again, I would reiterate the above point, there is no evidence the Defendant entered the Car Park at all or indeed exceeded the grace period.

6.5. On the balance of probabilities it cannot be assumed that the Defendant was the Driver. This is brought to the attention of the Court in the Defendant’s Witness Statement #18.1, in particular the comments by Henry Michael Greenslade.


Keeper Liability

7. The Claimant chooses not to rely on POFA 2012 and therefore cannot hold a keeper liable, nor is there any presumption in law that allows them to recover a charge from the Defendant.

8. The Court is referred to para #30 of the Claimant’s Witness Statement which makes it clear they rely on Elliot v Loake 1983 Crim. L.R. 36, which they claim set a precedent. This is not true, the cases are, in fact, completely different as stated in the Defendant’s Witness Statement paras #18.3-18.3.2. do I need to say anymore here?

9. The Claimant also relies on the case of CPS vs AJH Films Ltd [2015] EWCA Civ 1453. It is worth noting that this ruling was appealed and the appeal was upheld in favour of the Defendant, AJH Films Ltd. It was made clear in this appeal that a person is not liable in law for the actions of somebody else, even if that somebody else is using the persons vehicle. If this was the case then the car hire business would not exist. I thought this was a good point Parking Prankster made… is it worth including? In any event, the vehicle in question and the named drivers were not in a employer/employee arrangement so this case is not relevant.

10. The Claimant in para #47 “submits that the present case is not distinguishable from Parking Eye v Beavis [2015]. The present case and the Parking Eye v Beavis case certainly are distinguishable as detailed in the Defendant’s Witness Statement para 33-34.5.

Prominance and illegible signage

11. Para #9 the Witness states “At the time the PCN was issued, the Car Park benefitted from highly prominent information signs”. This is denied. There is no evidence that the signs the Witness has said were in place, were actually in place at the time the PCN was issued. The Defendant has shown in their Witness Statement para #25 & 26 that signs in operation within the Car Park and certainly not highly prominent.

12. Para #34 referring to the artwork of the Entrance board, it is denied that this sign is in place and there is no evidence it was in place at the time the PCN was issued.

13. Para #35, 40 & 41. Whilst the writing is legible in the Witness Statement, it is denied that the words are legible on the signs themselves as seen in the Witness’ own exhibits pages 8-13. This point is discussed in the Defendant’s Witness Statement para #25 & 26. It is denied that the signs are “clearly displayed” or “obvious”.

Claimant’s Claim for Costs

14. The Claimant in para #55 relies on the ruling in the case of Chaplair Limitd v Kumari [2015] in order to support their claim for “additional costs”. The case of Chaplair Limited v Kumari [2015] in no way supports this claim since that was regarding a decision about contractual fees set in lease terms, not “additional costs” bolted onto an already significantly disproportionate and not ‘agreed’ parking charge, the “additional costs” of which continue to rise since the claim has been allocated to this Court.

Claimant’s Exhibits IC1

15. Page 1-3 - Letter of Authority from Centro. Attached to the Claimant’s Witness Statement on page 5 of RH1 Centro confirmed that they “cannot give powers to enforce to an agent or subcontractor that it does not have itself and legal are investing the legal methods by which such an enforcement could be undertaken”. This is admission from Centro that they had doubts about the legalities of enforcement and the Claimant has not produced any evidence that Centro are able to avoid byelaws.

16. Page 7 – there is no evidence to suggest that there were signs where indicated by the green circles on the day of the Parking Charge Notice, or what these signs said, what terms were offered.

17. Page 8 – The picture is not dated and the signs are illegible so inadmissible as evidence.

18. Page 9 -12 – The pictures are dated 22 September 2014, not the date of issue of the Parking Charge Notice. The signage is, again, illegible so inadmissible as evidence.

19. Page 13 – This picture is poor quality and illegible so is inadmissible as evidence.

20. Page 14 – This particular sign the Defendant has never seen at this carpark and this sign is not currently present in the Car Park.


Thanks ppl!

Loadsofchildren123

MadHatter752 wrote: »

I mentioned it in a previous point but didnt get an answer... i didnt date my pictures... can I pull apart theirs for not being dated when I havent dated mine?

It doesn't matter - you said in your WS when you took them. Did you take them on a phone or camera that shows the date/time? In which case take that to court with you in case they challenge it but I wouldn't expect them to. You yourself took them and you've signed the WS with a Statement of Truth with the dates.

Loadsofchildren123

I'll have a look. As a start, to shorten it you just put in the page references in square brackets - eg your paras 6.1 and 8 (just 2 I've plucked out randomly):


6.1. Para #8 [page x] asserts that the Defendant was the registered keeper and/or the driver.... and used the Car Park on 22/10/14..... the Defendant failed to park... within the markings of a parking bay”. The Claimant has submitted no evidence that the Defendant was the driver, that she used the carpark on this date, nor any evidence that the vehicle was parked as claimed.



8. The Claimant relies on the case of Elliotr v Loake 1983 Crim. L.R. 36 - see para #30 [page x]. Elliott does not set any precedent for presuming a registered keeper was driving the vehicle [pages x-x, paras 18.3-18.3.2].


The SA doesn't need to be so "wordy" and narrative in nature, unlike a WS - it's really a bullet point document drawing everything together.


The page refs should be in square brackets, and when you get the trial bundle which the Claimant should have been ordered to provide a week before the final hearing (does your order provide for this?), then you insert the relevant page number.