LBC - VCS passed to solicitor (Scotland)

nancyboi

Hi all - I've been looking over past forum posts and the stickies, so hope I'm not asking something that has already been raised. Last year I was issued with a number of private tickets/notices by VCS, as the registered keeper of a vehicle parked outside a friend's flat. I rather naively shrugged these off on the basis of 'not enforceable in Scotland', which I now appreciate was probably an over-simplification.

There was a flurry of letters from VCS and later a collections agency (the name escapes me and I foolishly filed their correspondence in the recycling). After months of silence, I've now been issued a letter from a firm of solicitors, giving me 7 days to settle or they will instigate action in the sheriff court.

Their letter refers to the Carly Mackie case in Dundee, however my understanding is that in that case Ms Mackie was identified as the driver, rather than simply the keeper, early on in proceedings and may have confirmed that as the case. On that basis, and setting aside the stupidity demonstrated up to this point, it seems that the advice remains to not disclose the identity of the driver. That said, in the event that things were to end up in court, does it remain VCS's responsibility to evidence the identity of the driver, or is it likely that a sheriff would simply ask this outright?

Grateful for any advice you might be able to offer.. and I know I'm a tit
:embarasse

Coupon-mad

is it likely that a sheriff would simply ask this outright?

The regulars here say ''no''.

Ryandavis1959 will spout something like this:

https://forums.moneysavingexpert.com/discussion/comment/73397854#Comment_73397854

But you must decide whose advice you prefer.

We disagree with him - the posts he makes appear alarmist - and he has shown nothing that contradicts what I've heard from other contacts, and know from other cases, that well defended cases from keepers still see off claims. See my replies there, #18 and #21.

Meanwhile, ask the friend for a copy of his/her tenancy or lease, and don't worry if it is silent on parking charges - that's still good, because it's silent on parking charges (see what I mean!).

nancyboi

Came across the following Scottish case from a different thread - having read through the judgement it seems that the defender claimed not to recall when initially asked, but was asked again by the Sheriff and confirmed that she had been the driver. (I've put a break in the link, hoping this might allow me to post it)

www.
crydrpdev
.co.uk/wp-content/uploads/2017/06/Judgment-2572.pdf

nancyboi

Thanks coupon-mad - I did see that thread, and those posts specifically, and to be honest they did alarm me! Up til now I have reassured myself that the absence of any obligation to identify the driver in Scotland, particularly with cases in Dundee (I think) being dismissed on that very basis, but I'm having a bit of a panic now. I had wondered if it was just a renewed shakedown attempt, throwing in reference to the Mackie case to put the willies up people, but the case above casts some doubt in my mind

Coupon-mad

The above case is the one mentioned in the alarmist post by Ryandavis1959 - no-one else throws that case around with such alacrity & glee - so please don't be alarmed.

Yes in that single case the Sheriff asked. Even in England we see this on the odd occasion from a dozy Judge who asks a keeper who was driving, despite there being no such obligation.

I am not seeing any other evidence of a Sheriff pressing for such information. IamEmanresu says to his knowledge, Scottish cases are not progressing when well defended by keepers, and I respect and prefer his opinion.

I would point you to the Robb and Halyburton cases, for a keeper defence. I'm quoting Tom Trinder here, these are the court cases to cite, if you get a claim:

Sheriffs in Scotland do not routinely ask who the driver was. Both Mark Robb and Neil Halyburton won their cases at Dundee court against VCS using a 'driver not identified' defence. The Sheriff did not require them to name the driver and dismissed VCS claim as incompetent in the Robb case. Check the Courier around June 2015.

beamerguy

nancyboi wrote: »

Thanks coupon-mad - I did see that thread, and those posts specifically, and to be honest they did alarm me! Up til now I have reassured myself that the absence of any obligation to identify the driver in Scotland, particularly with cases in Dundee (I think) being dismissed on that very basis, but I'm having a bit of a panic now. I had wondered if it was just a renewed shakedown attempt, throwing in reference to the Mackie case to put the willies up people, but the case above casts some doubt in my mind

My advice for you, is take the best advice offered
by IamEmanresu and coupon-mad, do not panic, your case
has no bearing on the Dundee one

Coupon-mad

I've now been issued a letter from a firm of solicitors, giving me 7 days to settle or they will instigate action in the sheriff court.

Respond robustly saying you are aware that a registered keeper is not liable in Scotland and that there is no lawful obligation upon a keeper to name the driver to an aggressive parking firm or their debt collectors or solicitors, and there is no lawful presumption of driving, absent any evidence.

And since this allegation involves more than one date, any claim will fail unless they can evidence on the balance of probabilities that the registered keeper was the driver on each and every occasion. Add that you are aware that both Mark Robb and Neil Halyburton won their cases at Dundee court against VCS using a perfectly valid and honest defence that the driver was not identified.

State that it is a fact that your car is driven by more than one person, either under the vehicle's own insurance or on the basis of family members having fully comprehensive insurance on another vehicle which allows them with your agreement (not obtained every time because that would be ludicrously unworkable and unnecessary within a family), to drive your vehicle.

State that you require copies of the alleged PCN, Notice to Keeper (if any), an explanation of how they purport to be allowed to pursue a sum in excess of the industry ceiling of £100 per parking charge, and a breakdown of the added 'costs' and if these costs relate to alleged debt collection 'fees' you require proof that this was not merely a no-win no-fee automated letter model and you require proof that these costs were incurred in this case.

Further, you require an explanation of the alleged contravention, all photographs taken on the days in question (each annotated to clarify which PCN they relate to) and a fully detailed explanation of how the parking firm considers they can override the primacy of contract of residents at this location, and you require a copy of the Head Lease. This is easily available information because a professional firm of parking ticketers must have checked, as part of their due diligence before enforcement commenced and as part of the IPC Code rules, that there were no rights, covenants or easements in existence that their 'fines' regime would breach.

nancyboi

Thanks coupon-mad. I'll draft up a letter to the solicitors and post here for any feedback folks can offer before I send

nancyboi

Quick question - I have read the judgement in the Edinburgh Gegan case, but can't find any judgements relating to Hallyburton or Robb in Dundee. Is that because they were thrown out before it.got to that stage? Without a judgement it is difficult to refer to the specifics of these cases with confidence

Coupon-mad

You should stop wobbling! There are no transcripts of almost any case, because transcripts cost a lot of money...why do you think there is one of the Gegan case? Because a PPC paid for it to use as a trophy (rare win) case, pour encourager les autres.

Why not send a pm to DD94 here and to the other poster Scottishgal:

https://forums.moneysavingexpert.com/discussion/comment/72718330#Comment_72718330

DD94 reported all he kept getting was a barrage of desperate letters wanting to know who was driving, which he kept declining, and Scottishgal was having a meeting with the Sheriff as she would not park without a ticket and her argument was 'poor signage and not sure who was driving'.

Nothing wrong with that perfectly reasonable defence position.

NB -

Please give the posts in that link by Ryandavis1959 there, the consideration you decide they deserve, seeing as it is clear he is encouraging Scottish posters to name the drivers which makes the rest of us VERY uncomfortable with his postings and who he actually is representing - let's put it that way.