3 years between PCN and Court presence demanded

[Deleted User]

it is "I can't remember" with the unwritten "and I haven't made any effort to help the court by doing some research to narrow the issues". The overriding objective.

The location, time and date were there on the claim and there is nothing after 80 posts to suggest what might have happened and why the OP is not liable.

Well indeed. And, just for clarification, both the Courts and the CPR are clear that a bare denial is not a valid approach to a defence.

Templates are only a framework and ill-fitting ones are spotted a mile off.

Quite. As I tell my paralegals Precedent templates are like fire - a great slave, but a poor master. The contents of the forum templates need to be understood and adapted by defendants not bolted together and deployed haphazardly on the page on the basis that it sounds a bit good, so it must be right.

jkdd77

IamEmanresu wrote: »

It's more than that in that it is "I can't remember" with the unwritten "and I haven't made any effort to help the court by doing some research to narrow the issues". The overriding objective.

The location, time and date were there on the claim and there is nothing after 80 posts to suggest what might have happened and why the OP is not liable.

Given that three years have passed (as a result of the unreasonable decision by VCS to delay bringing a claim for three years in the cynical hope of obtaining a default judgment), and given that the OP can no longer remember the parking incident in question, I'm not sure what more he could have put as to the facts of the event without risking, albeit inadvertently, misleading the court.

I fear that the OP might have run into one of the small minority of judges who think that Beavis automatically makes all parking charges enforceable in all circumstances.

WhoDunnitDevil

I did post my defence on here each time I worked on it and got the "ok" before I submitted it. If it was so "ill fitting" I wish I had been told this a bit sooner.
The part about not remembering is the truth, I thought it was a given that I tell the truth throughout this debacle.

[Deleted User]

No one is asking the o/p to lie, but each allegation ought to be responded to and I'm afraid that I can't see it was.

The defence should ideally set out background. It should be possible to say if the car was ever parked in that location or if D was on holiday etc. Any of that could have been helpful.

Putting C to proof in respect of each element of the particulars would've been adequate.

It's no good arguing a 3 year delay when C is perfectly entitled to wait 6. You don't have to like it, but it's within the rules.

Finally, FWIW I've never liked the robo-claim assertion. It is certainly critical, but adds no content to the defence. Comments like that are better made orally if and/or when the court is already considering other failures by C.

WhoDunnitDevil

Johnersh wrote: »

By way of explanation, you currently are on the receiving end of an order that you are stuffed (technical term) as the case has no prospects. Put crudely, once the claimant applies for judgment, you are both stuffed and have to pay C some money (that appears not to have happened yet). The application is the opportunity to prevent that.

You either believe in your case / think "it's a fair cop" with the ticket, or you don't. Chances are, you don't.

Next question: Can you afford to risk losing up to £255 which you might not get back to keep the claim running? If you can't, don't - unpalatable though that may be. I suspect the Court will not deal with your letter until you write a cheque and apply formally. [I vehemently disagree with the current tariff for court fees, which presently appear to obstruct access to the courts in some cases.]

This is litigation and whilst guidance as to the process and suggested approaches may be forthcoming from a number of quarters, no-one can guarantee results. It's an area of law that is notoriously expensive and unpredictable.



No. No you're not. Let's be very clear about this. Based on the defence that you filed, you failed to set out exactly what your case was and why there was no parking contract or reason to enforce it. There is lots of comment in there, but the actual response is the bare denial at para 7 (summary) prefaced with "I can't remember." It is for this reason that my view, FWIW is that whilst your application may well be successful (and perhaps should be) you are unlikely to get the application fee back. That is a significant risk, but you may prefer to take that risk and, if need be, pay the court system rather than the Claimant (a lesser of two evils).

The only error is the failure to set out your right to apply to the court to set aside the order. Actually the magic sentence is often omitted in error (and it should never be). Since you are aware of your entitlement to apply you are happily able to do so within 7 days - it's just not clear that you have / want to.

Only you can ever weigh up litigation risks and decide how to go ahead - whomever you choose to canvas for input.

I hope that this helps. This is not intended to be negative, just pragmatic where the starting point is already one of difficulty.

Thanks for the advice, I don't take it as negative.
It looks like the litigation risk outweighs the benefit given my defence has now been deemed as poor.

WhoDunnitDevil

Johnersh wrote: »

No one is asking the o/p to lie, but each allegation ought to be responded to and I'm afraid that I can't see it was.

The defence should ideally set out background. It should be possible to say if the car was ever parked in that location or if D was on holiday etc. Any of that could have been helpful.

Putting C to proof in respect of each element of the particulars would've been adequate.

It's no good arguing a 3 year delay when C is perfectly entitled to wait 6. You don't have to like it, but it's within the rules.

Finally, FWIW I've never liked the robo-claim assertion. It is certainly critical, but adds no content to the defence. Comments like that are better made orally if and/or when the court is already considering other failures by C.

Again, thanks and this is good advice. I appreciate your time.
I wish I could've been told these things during the process of putting the defence together and posting drafts on here. I could easily have added paragraphs about the car park, it's geographic relation to me, holidays I may have been on at the time, where my diary says I was back then etc. I just didn't know those things were relevant or useful. Maybe I should have done more research.

[Deleted User]

Thanks for the advice, I don't take it as negative. It looks like the litigation risk outweighs the benefit given my defence has now been deemed as poor.

I suspect you wouldn't get the £255 back, no, And if you won that hearing, you'd still have to deal with the claim at a later date.

So it's then a question of how important the principle of the thing is? That of course risks your objectivity. As the phrase goes "principles cost money."

With some reluctance, the cheapest and quickest solution may simply be to pay.

Palec

keep reading

WhoDunnitDevil

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 in post #73, 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

WhoDunnitDevil

https://drive.google.com/drive/folders/1-p0ErjOJd8YzFphkY_eAGhGokd8Jgtfo?usp=sharing

Does the above work? It is currently an empty folder but if so, I will drop the scan of the BW reply in there asap tomorrow.