County Court Claim BW Legal/VCS

looking2save

Good morning all,

Thank you to Bargepole among others for taking the time to populate the stickie. I have now received a NOTICE OF COUNTY COURT CLAIM ISSUED by BW Legal on behalf of VCS.

I have completed the direction on MCOL and am now looking to state my defence/case.

PARTICULARS

1. PCN received by me as the RK (dated 5/11/2014).

2. Alleged parking incident 26/10/2014. Location Brook Retail Park - Hereford.

3. I was in America at this time (passport stamp 23/10/2014) and have a parachuting log book showing me jumping in California over the 26 Oct 2014.

4. Ignorantly I appealed to VCS (as the RK, no mention of driver). Obviously they denied appeal, however, in their written reply (24/11/2014) they detail the car being in a totally different car park - Berkerley Centre Car Park Sheffield! They continue to say - we are preceding against you as the driver unless you prove contrary. I never replied as I could not know who was driving, I was in America.

5. I appealed to IAS using a template from here but now against the Sheffield parking signs etc. Appeal denied, letters ignored since and here we are at the NOTICE OF COUNTY COURT CLAIM 3 years later.

REQUEST

1. Is the car park mix up by them any help to my defence, I still have letters from them mentioning the locations but the exact same time and date?

2. I am the RK but not the driver, do I have to tell them - I have not done so and cannot do so with any degree of certainty?

3. With regards to signage etc, they have changed since Oct 2014. I never took pictures of them, but did for the Sheffield car park for my IAS appeal. Should I do so now or again does their mix up of locations benefit my case?

As always, I appreciate those of you who give up your time to advise us newbs.

Cheers,

Looking2Save

looking2save

Can anyone offer advice please?

Lamilad

Loads of VCS/Excel 'not the driver' defences posted on this forum.

Use the search function to do some research. Read several defences and cobble your own together. Post it on here for review and further advice.

Sounds like you have a strong case. We will help. The vast majority of defendants assisted by this forum win in court.

You may well end up with a nice little payment coming your way after claiming your costs from the claimant.

[Deleted User]

One of the fundamentals of POFA is to state the location. If they cannot even get that right, this could be tricky for the PPC...

nosferatu1001

Theyve also stated - as this is VCS - that theyre chasing the RK as if they were teh driver, unless they can show otherwise. troublwe is, theyve shown they were elsewhere, so VCS should REALLY struggle on that.

Never mind that back in 2014 they were unable to meet POFA requirements.

looking2save

Please can you kind gents, peruse and comment on my draft defence....

I deny the claim for the following reasons:

(1) I state once again I was the registered keeper of the vehicle but I was not the driver at the time.
VCS Parking has provided no proof that I was the driver. I have informed them I was not even in the
country on the 26 Oct 2014.

(2) VCS have not been clear in which car park the vehicle was in. I have written correspondence from
them alleging 2 separate car parks, each under the same PCN number and on the same day. This,
along with the time passed has left me unable to ascertain who the driver was.

(3) I have no idea at this stage whether I am being pursued under the protection of freedoms act for
this debt or whether this is for civil trespass.

(4) The Protection of Freedoms Act (PoFA) does not permit the Claimant to recover a sum greater
than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot
recover additional charges. The Defendant also has the reasonable belief that the Claimant has not
incurred the stated additional costs and it is put to strict proof that they have actually been
incurred. Even if they have been incurred, the Claimant has described them as "legal expenses".
These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

(5) From the initial letter from BW Legal, they may be bringing this to court under the assumption
that I was the driver using Elliott v Loake [1982]. In this instance, the court decided that there was
irrefutable forensic evidence of the driver's identity and made no such presumption. It is for the
claimant to prove their case, not the defendant. I have already shown I was not the driver. If this is
the case and the protection of freedoms does not apply in this case then they can only pursue the
driver not the registered keeper. From the internet I found this extract in relation to lead Popla
appeals Officer. Henry Greenslade (barrister, parking law expert and POPLA Lead Adjudicator in
2015“There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the
driver, advises Mr Henry Greenslade QC. “Operators should never suggest anything of the sort,” he
says. 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 sent aSchedule 4 notice has no legal obligation to name the driver.”

(6) I have not at any stage been supplied with any means of appealing this ticket as only the driver
can appeal, as I was not the driver I cannot appeal.

(7) I have never been supplied with any confirmation from VCS or their agents that they actually
own or occupy the land in question which would allow them issue penalty tickets. So I have no idea
if this is just a speculative invoice:
a) They should supply 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 locus stand to bring this case.

(8) Interest has been added to this alleged debt this could have been avoided by taking me to court 3
years ago again I dispute this amount which I feel is punitive considering VCS have deliberately
waited all this time before taking this matter to court.

(9) I have received no copies of any disclosure or any documents from BW Legal or VCS with the
exception of the court summons, this is likely to mean I may have to alter my defence in light of any
new evidence.

(10) BW Legal have supplied no contract showing they have the right to pursue cases on behalf of
VCS. It is requested that this right is confirmed with a signed unredacted contract.

DEFENDANT DECLARATION
I believe that the facts stated in this witness statement are true.
Signed by the Defendant

looking2save

Can I also confirm that I have 28 days from being served to submit my defence or is it 28 days from my acknowledgement?

Help with the above appreciated as I am having to leave the country in 6 days with the military and won't be able to respond for 21 days!

[Deleted User]

If you've filed an acknowledgement that'll be 28 days from service of the Particulars of Claim. Rule 15.4(1)(b) CPR
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#15.4

looking2save

Thank you John.

Can anyone review my draft defence please?

looking2save

Here is my link to the NTK - Is it PoFA compliant, are there any glaring mistakes?

http://s000.tinyupload.com/index.php?file_id=73905592908175179112

I have compared to advice on this link but am still unsure..

http://www.parkingcowboys.co.uk/keeper-liability/

Lamilad

Here is my link to the NTK - Is it PoFA compliant, are there any glaring mistakes?

I'm not using a link that has pop up ads and asks me to install software. Consider using a trusted site like dropbox, photobucket, tinypic etc