Oldie- faq no help

Coupon-mad

whiskeytoothpaste wrote: »

I do not want to make any negative comments about anyone. I don't really have any to make. Except of course towards ppcs. When I imagine all the vulnerable people just paying- I feel a sense of unjust and anger. I want to become a successful statistic in the hope that I have done something for the cause, learned something along the way and will be able to help others.
I feel proud that over the last two years I have helped 3 of my friends win at popla.
The ipc mob are new to me.

Good!

I like your style, and without judging anyone (because I would say this about any 'service' if someone says they were let down and provided with no service) I was sorry to read you say you wasted money on PPA.

I feel somewhat naive in all this but it reeks of unfairness. You cannot penalise anyone without adequate warning. I couldn't.

We agree, that's why we are here helping people every day for free. And we win defended cases 99% of the time which (as far as our specialism is concerned, PPCs) is a 'court win/discontinued' rate that no other forum or service can even sniff at.

Your reply to the LBC looks fine to me; I would just have a line near the start mentioning what the 'protocol' is because you talk about paragraphs 5.1 and 5.2 without saying exactly what you mean.

I would also change:

''Whether they are pursuing me as keeper or driver''

to this, and maybe pull it out of the list and have this as your concluding paragraphs:

I require a full explanation of the cause of action and basis upon which VCS are pursuing me, which appears to be merely because I am the registered keeper of the vehicle. Should this matter proceed to a small claim, I will state as truth (and will swear on oath if the Judge wishes) that I was not driving the car at the time. I am am fully aware that I do not have any obligation to name the driver to a notorious firm like VCS, who in any case have never issued fully-compliant Notice to Keeper letters in accordance with Schedule 4 of the POFA.

Should they try to proceed with a claim, notwithstanding my statement above, saying they can somehow 'assume the keeper was the driver', then take note that is untrue, and any such claim will be without merit, wholly unreasonable and vexatious. As your client knows, there is no such lawful presumption regarding parking on private land, and nor does Elliott v Loake nor CPS v AJH Films have any application to this matter.

Should you proceed to issue proceedings against me without replying substantively to this letter and complying with your obligations, I will apply for an immediate stay pursuant to paragraph 7 of the Protocol and 15(b) of the Practice Direction and I will seek a costs order.

yours faithfully,



Name (this must be the registered keeper's name, the recipient of the LBC)
Address (or put the address top right along with the date, if posting this as a letter).

whiskeytoothpaste

That sounds much more authentic.
))

whiskeytoothpaste

Just recieved another letter from bw (not worth the capitals...)
Despite the letter of claim, which I still have 20 days in which to respond.
They state:
No intent to rely on pofa or keeper liability.
Intend to rely on Elliot,Loake and AHJ films.
That the contract between their client and landowner is a legally priviledged document that I have no right to inspect
Baloney about their signs being ipc compliant- despite a visit to the site, standing in the position of my vehicle, with my glasses on and still cannot read.
And they request that I either pay, or name the driver within 7 days.

Do I continue to respond to the letter of claim and merge this with my response to the latest letter?
Respond seperately?
Negate their case law by citing cases v bw where it has been deemed irrelevant ?

Quentin

You will see CM (definitely worth capitals) has PPR next to her name so cannot currently help

whiskeytoothpaste

Ha. Thanks. What does PPR mean?

Quentin

Posting Privileges Removed

See forum rules (quick link at the top of the page)

HeatonGuy

whiskeytoothpaste wrote: »

Just recieved another letter from bw (not worth the capitals...)
Despite the letter of claim, which I still have 20 days in which to respond.
They state:
No intent to rely on pofa or keeper liability.
Intend to rely on Elliot,Loake and AHJ films.
That the contract between their client and landowner is a legally priviledged document that I have no right to inspect
Baloney about their signs being ipc compliant- despite a visit to the site, standing in the position of my vehicle, with my glasses on and still cannot read.
And they request that I either pay, or name the driver within 7 days.

Do I continue to respond to the letter of claim and merge this with my response to the latest letter?
Respond seperately?
Negate their case law by citing cases v bw where it has been deemed irrelevant ?

There is a letter somewhere (can't find the thread offhand) where LoadsofChildren123 has written a response to BW Legal, as they don't make clear that, at this stage, they are acting as Debt Collectors, not Solicitors.

However, these is a rebuttal to EvL, and AJH Films can only apply in an employment situation.

You refer to Elliott v Loake [1983] Crim LR 36 as purported case law which supports the view that the owner of the vehicle, if there is no contrary evidence, is the driver.

This is a misinterpretation of the case for the following reasons.

Firstly, the Registered Keeper of a vehicle is not necessarily the owner.

Secondly The facts of the case are that the appeal judge ruled that the appellant was the driver because of the ample evidence that he was the driver, and not, as you wrongly stated, because of the lack of evidence as to who the driver actually was.

"In my view there was ample evidence which justified the magistrates in this case arriving at the conclusion that this man was driving his blue sports car on the night when it collided with the stationary BMW"

A crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only set of keys in his possession that night and that no-one else had permission to drive the car.

This case does not therefore introduce any binding legal precedent as the case turned on the facts. If any principle can be adduced, it is the well known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false.

You are also reminded of the general principle that the claimant has to prove their case. You have shown no evidence that the Keeper was the driver, and you cannot do so because he was not.

Furthermore, Excel was previously a member of the BPA. The BPA offers the POPLA appeals service, and the former Lead adjudicator for POPLA, Barrister Henry Greenslade - undeniably a UK expert in parking law, having held positions as PATAS and POPLA Lead Adjudicator - stated about parking on private land:

"There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper...has no legal obligation to name the driver".

This has been tested again and again in the county court, and this interpretation has been shown to be correct. Semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: "The onus of proof is with the accuser."

whiskeytoothpaste

I guess I'll edit my original letter, add the information and state that I will rely on recent case law where bw lost as these cases were not relevant. I may also add that knowingly and repeatedy using these in cases, where it has been previously ruled irrelevant is a waste of court time and abuse of the judicial system?

Is all this for now though- or court?
I guess it is considered ADR / negotiations!

Umkomaas

I will rely on recent case law where bw lost as these cases were not relevant.

They won’t be ‘case law’ cases which set persuasion or precedent for any similar level court. Only cases decided by a higher court will have relevant influence on a lower court. You can refer to previous small claims court cases (and copy any transcript), but the judge will make his/her own decision, which, as we have seen, can go in the opposite direction.

In 99% of small claims court cases there is no transcript. Obtaining a transcript can be expensive, so most defendants don’t bother. However some do. There is no central repository for public access, but are you aware of the private parking-related one the Parking Prankster has set up? Do have a root through there to see if anything helps.

http://www.parking-prankster.com/case-law.html

http://www.parking-prankster.com/more-case-law.html

whiskeytoothpaste

There are cases here where signs forbidding any parking whatsoever are actually trespass dressed up as contractual.
That's what I have. Is it worth going down that route- obviously on the presupposition that I was not driving but even if I was...