3 years between PCN and Court presence demanded

KeithP

WhoDunnitDevil wrote: »

Does the above work?

Yes it works.

Coupon-mad

WhoDunnitDevil wrote: »

Hi all,

I bet you thought this had been completed one way or another? Well, it is still ongoing.....

Per the letter I dropped into the court here

July 26th 2018

Dear Court Manager,

In reference to your letter, entitled “General Form of Judgement or Order” dated 23/07/18.

I received the order referenced above which was made without a hearing, and I am alarmed that it's been summarily adjudged, in view of the complete defence a registered keeper will have under Schedule 4 of the POFA 2012 (which was expounded in some detail in the defence). I therefore ask the court to set aside the order in that basis, and to provide a hearing date.

Or in the alternative, a short preliminary hearing, to deal with the question of the POFA and 'no keeper liability' in fairness to the Defendant who was not the driver and had no opportunity to comment in detail about the parking event but could certainly rely on the only applicable law, which absolutely absolves them of any liability if a parking firm (such as VCS) choose not to use the provisions in the Act.

The defence does set out a defence to the action, because of the fact that Vehicle Control Services Limited openly admit in court to not using POFA-compliant Notice to Keeper letters, and due to that choice not to use the POFA provisions, they can only ever hold an admitted driver liable, and the Defendant was not driving.

As there is a defence for a registered keeper, who can never be presumed to have been the driver, in a non-POFA parking charge case, I believe the court has fallen into error with this order and has failed to inform me of my rights and has itself breached CPR Rule 3.3(5)(b) by omitting the statement telling a party affected by the order that they may apply to have it set aside:

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4);
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.

Yours faithfully



... they replied with a hearing date which is next week on 30/10/18.

There was nothing on the letter mentioning any other dates or times, no mention of witness statements either. I have just realised that this is strange and usually there is a deadline of 14 days prior to the hearing (which would be 16/10/18) to submit a witness statement.
( I am aware that I have picked this up extremely late)

I wonder why there was nothing on the hearing letter, maybe because it is a “Hearing” rather than a “Notice of Allocation”? Does this impact me in any way? I have included some opinion as well as fact in the below because of this, should I remove it? Incidentally, bw legal have dated their witness statement the 17/10/18 which is also NOT 14 days before the hearing.


The notice literally says:
Notice of Hearing
Case details........
TAKE NOTICE that the hearing will take place at ...ADDRESS
When you should attend
30 mins has been allowed for the hearing.
Hearing listed under case management powers as ordered by DDJ Carter.

Please see below my response to bw legal’s witness statement. I know without their statement this is far from ideal. I will scan and post to a drop box or similar tomorrow afternoon (which is the earliest opportunity available to me) but I will outline their statement now.
1. Covering letter signed as BW Legal, enclosed witness statement etc. Interestingly they mention their client will not be attending but will be represented by an advocate.
2.Introduction about them, lots of info on generic parking, car park management, formulation of contract, defendants breach of T&C's and appeal. All very generic so far. Then they justify the charge and fees.
3. Defence. They run through each of my defence points, first a summary then an argument against each one in detail. This to me is far from just the opinion of a statement and heavily leans towards something else.
They say Legal Services Act 2007 S12 (1) (b) allows them to sign as a business on behalf of an individual.
I won't go through the remainder of their points now, it will be in my update tomorrow.

Finally they condemn the "general submissions of the defence" saying it is apparent I have copied and pasted from external sources etc. (Rich coming from a Roboclaim!)
They then show copies of letters sent in the past which I never received. Pictures of the signage, the contract and the car.

Do you think I should send this to BW and drop a copy by hand to the Court (Monday morning) or as it has never been asked of me, hence the above terminology difference, should I not circulate in advance and only turn up with the document?

Dear Sir/Madam,
Claim number: xxxxxxxx
Date: 24/10/18
Hearing date: xxxx at xxxx
County Court: xxx

Referring to the above matter.

I enclose my witness statement which will be relied upon at the forthcoming small claims hearing.

Yours faithfully


xxxxxxxxx zzzzzzzzzzzz











Claim Number: xxxxxx
IN THE COUNTY COURT AT xxxx
Vehicle Control Services Limited
Claimant
-V-
xxxxx zzzzzzz
Defendant

WITNESS STATEMENT OF
xxxxxxxx

I xxxxx xxxx of zzzzzzzzzzzzz
SAY AS FOLLOWS

INTRODUCTION
1. I am not a Solicitor, lawyer or legally trained individual in any way.
2. I make this witness statement in readiness for the hearing listed for the xxxxxxxxxxx and in support my Defence against the Claimant.
THE FACTS
1. The Defendant received a letter on 27th March 2018 which alleges to a parking offence on 6th March 2015.
2. The Defendant was the registered keeper of the car at the time of the allegation.
a. The Defendant was not the driver at the time of the allegation and has never used the car park in question. Please refer to Appendix 1.
b. The Defendant’s wife, who drives the car regularly, was not the driver of the car at the time of the allegation and has never used the car park in question.
c. The Defendant did allow other people to drive the car from time to time, including friends and family. These individuals have their own insurance, hence can drive any car with 3rd party cover.
d. The Defendant has reviewed his diary and calendar to look back three years to the date of the alleged offence, and cannot see any specific reference as to who may have been driving the car at that time.
3. The pictures which the Claimant has now provided show lots of signage presumably from within the car park, and pictures of the car in question. However, there is nothing to suggest that the car was inside the car park whilst these pictures were being taken. By the same logic, one could put some pictures of a car in a slide show, followed by a car park anywhere in the world, and claim that the car had been inside the carpark at the time the pictures were taken.
4. The documents within the Claimant statement were not received at the time by the Defendant. The addresses were flats and apartments, hence post would regularly going missing.
5. The Claimant failed to sign the Claim Form as an individual. as noted in the Defence Statement.
6. The Claimant failed to comply with pre-action protocol, as noted in the Defence Statement.
7. The Claimant failed to comply with POFA 2012, as noted in the Defence Statement. See Appendix 2 for a copy of Schedule 4 of the Protection of Freedoms Act 2012.


APPENDIX ONE
Henry Greenslade is the Lead Adjudicator of POPLA, this is an extract from the POPLA Annual Report 2015, page 13:
“However keeper information is obtained, 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 sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.”

APPENDIX 2
.........Whole of Schedule 4 of the Protection of Freedoms Act 2012

See what the others say, but it seems to me your request for a short prelim hearing to deal with the POFA has been granted in a fairly unclear way by the court - i.e. the Judge was wrong to strike out the defence and is giving you a chance.

So I think the prelim hearing is all about the POFA defence, so you need to be completely on it, armed with:

- Henry Greenslade's 'UNDERSTANDING KEEPER LIABILITY' wording printed out (take x 3 copies with you and file and serve a copy pf all of this in advance, too)

- the POFA Schedule 4, with either para 8 (windscreen PCN) or 9 (postal PCN) highlighted (and YOU must be familiar with talking your way through it and pointing out the omissions as well as the requirements for 'adequate notice' (signage) of the parking charge as well as a relevant contract/relevant obligation, none of which have been evidenced by the Claimant...

- Excel v Smith, a case heard on appeal to overturn a wrong decision where a county court judge fell into error in believing Excel when they said they could rely on CPS v AJH Films Ltd (you need to know how to rebut that, as VCS will likely try it).

- Excel v Lamoureux x 2, where the Skipton Judges are completely clear on the POFA and how to apply it properly. Not a precedent but a decent example of a proper consideration of keeper liability and an understanding that a keeper who does not name the driver has not 'failed' and is not in any way at fault, nor can any adverse inference be drawn by a keeper who cannot remember, because it is the Claimant's case to prove on the balance of probabilities.

- a copy of the insurance from that car on that date, if it names more than one driver, or if not, a simple list without full names, maybe just initials, of everyone in the wider family/friends/colleagues you know who could reasonably and potentially have driven the car that day. even if that's just 3 people, it tips the balance of probabilities in your favour to just a 33% chance that you were driving, and thus, the claim fails.

- proof of where you were, or a witness statement from a colleague or family member, and hopefully they can also accompany you (to stop their WS being hearsay) confirming where you were that day. Ideally NOT the person who was actually driving, or VCS might move on to a new claim against that person! Could be a passenger who knows the driver wasn't you, or a person who can confirm 100% you were elsewhere.

- a copy of your diary or calendar from that date (you can't refer to it and not produce one...) and state you have never ever driven into or parked in that car park in your life and would be happy to state this on oath if required.

- proof (photos if you have them) that there was no 'adequate notice' of the parking charge itself, as required by the POFA.

Think hard about this evidence.

Be REALLY CLEAR why VCS' documents fail. Ask us if unsure!

If there have been no directions to issue a WS I would suggest instead, filing and serving a Skeleton Argument and the above cases/printouts in advance, not a WS (except if you have a family member/colleague who can act as witness and attend with you next week).

See what others say.

Umkomaas

Excel v Smith

Excel v Lamoureux x 2

Here:

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

WhoDunnitDevil

Folder should have the PDF now.
Please shout if it is not accessible or if I have not covered up some information which is confidential.

Coupon-mad

Yes - usual drivel that you need to rebut in a WS or skeleton argument, such as:

#37 that suggests there was an obligation that you were 'required' to and 'failed' to name the driver. That's not true, and is rebutted by Henry Greenslade's POPLA Annual Report article from 2015 (same year as the event).

CPS v AJH Films - already told you the cases & Umkomaas showed where to find them.

You need to make a real effort over the weekend to put all this together and show us, as the Judge seems clueless and VCS have thrown the usual dross at it that the Judge seems (potentially) happy to swallow.

WhoDunnitDevil

After following the transcript from Excel Vs Lamoureux 1 I think I understand the logic.

I think my first question is that I have never actually seen the PCN. If there was one on my car (there is a picture of this) I didn't ever see it. I didn't get the letters for years and looking at the pack now, the closest thing I can see is the first letter they allegedly sent to me which was
42 days after the date of the parking allegation. I am using this to follow the logic below per para 9, but is this correct?

My understanding: We start with para.4. VCS ARE allowed to claim against a registered keeper if they meet the relevant criteria in 5,6,11 & 12.
The vehicle was not stolen.
Then 5 (b) is applicable.
Moving to para 6, we can see that para 9 is applicable (per my above comments, I could easily be wrong here).
I think section (b) is not met (similar to Excel Vs Lamoureux 1) because the wording doesn't state what is required. It assumes and alludes to it, but does not say it.
Both (c) and (d) I am unsure about, but (e) I think they 100% fail the test, absolutely no mention of them not knowing who the driver was and the current address of the driver.
(f) is also explicitly missing from here. It is at this point that I am seriously worried about the fact that I am dissecting a letter from 5 weeks after the issued PCN, not the PCN itself.

So, I kind of pause at this point, in relation to my understanding and interpretation of the POFA. I feel like there is comfortably enough evidence here already to show why the letter fails to meet the specific requirements of the POFA. Any thoughts/advice on this just now?

I will publish a photo of the letter in question. I hope the quality is high enough to be eligible.

I am in the process of putting together a draft skeleton argument which I will publish asap and ask for your advice on, but I wanted to post this separately as I am worried I am barking up the wrong tree slightly.

It is probably worth mentioning that even if this is the wrong documentation I am using, it has been useful to follow the case and compare to something in my case.

Again, thanks very much for the support. Without it I would probably just go online and pay them what they are asking for at this point!

WhoDunnitDevil

A PDF of the "notice" is now uploaded to the same directory, link below:
https://drive.google.com/open?id=1-p0ErjOJd8YzFphkY_eAGhGokd8Jgtfo

KeithP

The 'Final Reminder Notice' in that folder shows the PCN number clearly - on the Payment Slip.


In the 'Claimant's Witness Statement':

1) para 26 shows your vehicle registration number.

2) it looks to me that your best course would be to challenge paras 53 - 57, where the Claimant tries to show that they do not need to use POFA2012 to decide that the keeper is liable.

3) para 63 needs a strong rebuttal.

4) para 67.2 needs challenging.

5) paras 69 -74 also need challenging.

WhoDunnitDevil

Thanks KeithP

Should I challenge these in my current skeleton or just be prepared to challenge them verbally?

Coupon-mad

I'd challenge them in your skeleton or witness statement, as it will help you on the day, to stay focussed, point by point.

That Final Reminder is not the NTK, as it refers to a 'PCN' issued the month before and says 'it is now too late to appeal'. You can't compare that to para 9 of the POFA as that is not the NTK (the first letter).

So have they provided the 'PCN' (postal one), if so, show us that.