County Court Claim BW Legal/VCS

looking2save

Apologies, please see below:

http://s38.photobucket.com/user/Haydonias/story

looking2save

Last few days for advice as I need to submit Friday night.

Please can someone review my defence letter?

looking2save

I have now received a Notice of Allocation to the Small Claims Track.

I would appreciate your input prior to me submitting to the court and VCS.

Regards,

Looking2Save

KeithP

Have you read Bargepole's walkthrough linked from post #2 of the NEWBIES thread?
Point 5. is where you are.

Post #2 on the NEWBIES thread also covers compilation of a Witness Statement and evidence.

looking2save

IN THE COUNTY COURT - Claim No.: XXXXXXX

Between

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

MR XXXXXXXX (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, xxxxxxxxx am the defendant in this case:

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed. In fact I have suffered
financial inconvenience as a consequence.

3. I assert that I am the Registered Keeper of the vehicle in question in this case. I was not the driver. I was not in the UK at the alleged date and time.

4. I have a passport showing clearly my entry into America (LAX Airport) on the 23rd October 2014. Please see Annex A.

5. I have a parachute log book proving that I was parachuting at Lake Elsinore over the date it is alleged I was in breach of parking regulations. Please see Annex B.

6. I am still not even sure what Car Park I was alleged to have been parked in on the 26th October 2014. I have received paperwork from VCS Ltd, under the same “Notice Serial
Number” and the same time and date, stating that I was in County A (Annex C) as well as County B (Annex D).

7. I have the Insurance document covering the period in question, it clearly states there are other drivers named and that fully comprehensive drivers may use the vehicle.

8. This Claimant has issued a Registered Keeper, a document described as a ‘liability notice’ (LN) because they were not availing themselves of any right to ‘keeper liability’.
This right is offered under statute to parking operators and landholders, ONLY if they comply with Schedule 4 of the POFA 2012, which VCS did not. Under the applicable BPA Code
of Practice at the time, a LN was a document only for cases where an operator could hold a keeper liable under the POFA. This LN was contrary to DVLA rules which prohibit
misleading keepers as to whether they are the liable party.

9. It is submitted that the main reason the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4
prescribed wording in their Notice to Keeper letters. As they have not done so, they have no cause to pursue me as Registered Keeper. In the absence of such notices, there is no
cause of action.

10. The claimant may state that if the registered keeper of a vehicle denies they were the driver they will need to produce sufficient evidence in support, failing which it is likely
to be held that they were driving. The claimant would wish to rely on the precedent of Elliot vs Loake [1982]. This would not be applicable as it has no application whatsoever to this
case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted
in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and
instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver.


I believe the facts stated in this Defence Statement are true.


……………………………………………………………………�
�…. (add name and sign)
………………………
(add Date)

looking2save

Is it a major issue if I can't get hold of the insurance paperwork for 2014 (the year of the alleged offence).

looking2save

Can anyone offer advice on my proposed Witness Statement please?

[Deleted User]

The Defence will do. The location issue is fundamental because their claim relies upon "the Relevant Land" and an inability to say what it is, let alone provide a contract in support of it hinders them. A simple google search reveals around 3 Brook Retail parks. I think it's a POFA failure.

The Statement.

Para 3 You would be well placed to say that you can neither complete a statement or their proforma saying who is the driver as you are required to verify with a statement of truth and you cannot be confident as to who was driving.

Para 4, Para 5 Exhibits (not annexes) need to be referred to by your initials eg ABC1 ABC2. Each should have a cover sheet with the case name and have your signature and date with a declaration in terms- this is exhibit ABC1 referred to in the witness statement of looking2save

Para 6 This needs to be expanded a little. It is the fundamental point. Do a google search and find out how many possible sites it could be and point to the discrepancy by the Claimant. Make the point that if they cannot be certain as to the location not only does it call into question whether they managed the site, but you are unable to ask any third parties whether they drove or parked there.

Para 8 This just isn't clear. I would use bullets and reproduce the information the Notice to Keeper is supposed to supply and then set out the defects. Try and keep it erring towards fact not argument.

Para 9 You need to say that your understanding of the law is that the Claimant can pursue the driver or, in limited circumstances as set out in POFA they can pursue the keeper. However, in order for that liability to be transferred the strict criteria of schedule 4 need to be met. You cannot see that those criteria have been met.

Para 10 I'd deal with case law in a skeleton argument not here. It can probably go entirely unless you simply wish to say that you were not driving, you don't know who was and you do not believe that there is any liability in law because the Claimant has neither provided adequate POFA notice nor do they appear to be certain as to which site the alleged infringement occurred.

Keep it pithy.

looking2save

Many thanks John.

Coupon-mad

Have you got a court date yet and are you at WS stage, or just getting ahead?