Vcs/bw legal county court claim form

Fimbaz

Hi again


We have received a letter from the court now stating that both parties must provide witness statements to the court. When doing research into what should be put in this, it sounds similar to what I sent off (the draft above in an earlier post). Also, some of the ones we have read seem to have been in reply to the PPC's WS? Could anyone advise on what should be included?


Many thanks again

Fimbaz

We have been looking through the sticky post, and have put together a start of a WS, using other posts (most taken from CouponMad's example on the sticky post, hope this is ok. If not, I will delete) if anyone could give it a look over and see how it is...

In the (TOWN) County Court Case Number

VCS/BW LEGAL Claimant
Parties
MR *********** Defendant

Witness statement of Mr ***********

1. I am (NAME) the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

2. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. There is no evidence of the driver and as this event has been resurrected from over 5 years ago, it is impossible to expect a keeper to recall who might have been driving. A letter dated **/**/** (Exhibit 1) requests that they be provided with the driver’s full name and address within 7 days, otherwise court proceedings will be commenced. This surely purports to the contract being between the Claimant and the driver, not the registered keeper. The defendant therefore puts VCS to strict proof that any contract can exist between the Claimant and themselves.


3. As keeper there was no requirement for me to respond to the brightly colored alarmist notices that appeared to be junk mail in *** 2012. This was not an offence or fine from an Authority like a council, and there was no reason or obligation as registered keeper to ‘appeal’ to what appeared to be junk mail impersonating a parking ticket yet with no basis in law. A registered keeper could not in any way be legally liable as the law stood at that time. I did however, reply to this correspondence, stating the above facts.



4. Further letters were received, again with the same colorful and threatening appearance, the last letter stating that court action was the next step. As no further correspondence was received, the natural conclusion was drawn that these notices were indeed junk mail or some sort of scam.

5. Having not heard about this matter in a long time, suddenly in 2016 out of the blue, I received further letters and a court claim. I am no more liable now than I was then. However, this unwarranted harassment and baseless litigation has caused me significant alarm and distress. During my research I discovered that VCS are issuing robo-claims for archive 'parking charges' in their thousands. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in their undue haste to issue these claims.





6. My data from the DVLA was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork, or that I will be so scared that I will pay over £301 including the legal insult of five years' interest, for what was apparently an unproven £120 charge, allegedly incurred by another party, if incurred at all.

7. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretenses - 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, as here.




8. It is clear BW Legal have altered the charged in this case on their notice of County court claim issued. The figures are: Principal debt £120, interest £52.44, Court fees £25, Solicitors costs £104, giving £301.44 in total. On the actual court claim form, the figures are now: amount claimed £226.44, with the same court fees of £25 and legal costs of £50, giving the same total. How can the amounts of the principal debt alter? (Exhibit 2)






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





Signed





Dated

Lamilad

!This Claimant should never have issued to a registered keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’

Were you issued with a liability notice? Unlikely if this is pre PoFA.

Fimbaz

Thanks Lamilad, I have edited. Got confused in my research earlier! :-)

Lamilad

I think you need to do more research. You've only referred to one piece of evidence, which is one of their letters.

Nothing about Henry Greenslade's comment on no legal presumption?

There's at least 2 Excel/VCS transcripts in the public domain for cases that were won on the basis of no keeper liability: -
Excel vs Lamoureux and VCS vs Quayle.

In post #6 I advised you to read Dub Cat's thread on Pepipoo. She won against Excel recently (VCS parent company).

Her case was pre PoFA and she had a decent ws and skeleton argument.

Main difference is she didn't expressly deny being the driver whereas you have. Which makes your defence stronger.

Fimbaz

Great, thanks for your help. I'll do all that and rewrite and pop back on when it's done. Thanks again for your help, really appreciate it.

Fimbaz

Hi guys


Have gone back to the drawing board with more research for the WS, hoping that this one is better. Have researched the previous cases, and others' WS on here and Pepipoo. Please let me know your thoughts. Thanks again.

Fimbaz

In the (TOWN) County Court Case Number

VCS/BW LEGAL Claimant
Parties
MR *********** Defendant

Witness statement of Mr ***********

. I am (NAME) the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.


1. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. Furthermore, The Protection of Freedoms Act 2012 (PoFA 2012), which came into force in October 2012, is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. It can be seen the date of the alleged contravention is **/**/2012, which predates the enactment of PoFA 2012 (EXHIBIT 1). This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

2. In a letter to me dated xxxxxx BW Legal stated that their client VCS does not rely on POFA 2012. In that case they must provide evidence I was the driver at the time of the alleged contravention on **/**/2012. I have seen no such evidence.

3. Furthermore VCS do not use the keeper liability provisions of POFA 2012 and so attempt to rely on the assumptions that the keeper was the driver (Excel v Mr B C7DP8F83 Sheffield 14/3/2016) (EXHIBIT 2). Again VCS must provide evidence I was the driver.

4. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, also clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015) (EXHIBIT 3). The judge in the very recent case of Excel v Ian Lamoureux held that without using POFA and with no evidence as to the identity of the driver, the claim against Mr Lamoureux was misconceived and so was dismissed (EXHIBIT 4)

5. The claim form itself gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Because of this, I have had to cover all eventualities in defending this claim that has caused significant time and distress and has denied me a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case (EXHIBIT 5).

6. In the pre court stage the Claimant’s solicitor did send me a Letter of Claim but it did not comply with the Practice Direction on pre-action conduct. It was missing the following;
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which the claimant intends to rely.
c) How the “charge amount” of 120 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered. (EXHIBIT 6)


7. My data from the DVLA was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork, or that I will be so scared that I will pay over £301 including the legal insult of five years' interest, for what was apparently an unproven £120 charge, allegedly incurred by another party, if incurred at all.
In 2012, the year of this alleged parking event, VCS/Excel were sanctioned (banned) by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what VCS/Excel are now doing in preparing a vexatious and wholly unreasonable 'jumping on the Beavis bandwagon' claim. Implying that a keeper could be liable/responsible for the actions of a driver was identified by the DVLA as 'a significant breach' of the Trade Body Code of Practice, which was with the British Parking Association at the time. So serious a matter was this, VCS/Excel was banned from obtaining data by the DVLA for three months (EXHIBIT 7)

8. It is also unreasonable that, knowing that keepers could not be held liable for parking charges in mid-2012 anyway – that the Claimant asks the court for the right to claim statutory interest at 8% from date of incident (£52.44). The long delay is clearly the fault of the Claimant and should not be used as an excuse to effectively try double recovery.

9. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent that amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter (EXHIBIT 8).

10. I would also bring to the courts attention two recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) (EXHIBIT 9) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016).

11. The claimant may also seek to rely on the case of Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) this case can be easily distinguished from Parking Eye v Beavis which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation (EXHIBIT 10).

12. The claimant may also seek to rely on the case of CPS v AJH Films. This turned on the point of the law of agency, and found that the driver was an employee of AJH Films on company business & was deemed to have entered into a contract on behalf of the company. This case has no application in law in 'ordinary' motorist cases where the Registered Keeper is a private individual (EXHIBIT 11).

13. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCTS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. From my research I believe the term for such conduct is ‘robo-claims’. This is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

14. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

15. It is submitted that (apart from properly incurred court fees) the added 'contractual costs' of £54 and the £50 legal representative's costs are simply numbers made up and are an attempt again at double recovery by the Claimant.

16. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, is in the public domain as having attacked the Judge’s integrity in the Excel v Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ‘The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts' (EXHIBIT 12)

17. I am yet to have knowledge of all documents provided to the court. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to VCS Ltd and then to BW Legal, and no proof has been provided. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

18. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons and I request the court strike out this claim for the reasons stated above.


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

Fimbaz

I have realised I have missed out the case of VCS v Quayle that Lamilad advised me to include - I will add that in when I do my next draft. Also, it has centred on here, but it is not centred on my saved version. :-)

Fimbaz

Hi guys, just to let you know we received a letter of discontinuance this afternoon. Haven't even sent the witness statement off yet. Thanks for all your help.