Witness Statement VCS

Lawpmany1

Please help, I have to submit my witness statement by Monday.
A bit of back ground info

On 29 November 2018, a parking charge was left on my car ( i wasnt the driver at the time). On 8/1/19 I received notice to keeper, appealed under POFA SCHEDULE 4 and it was dismissed and I did not do anything until I received a court claim.

Here is the draft:

IN THE COUNTY COURT AT XXXXXXXXX CLAIM NUMBER: XXXXXX

BETWEEN

xxxxxxxxxxxx (CLAIMANT)
VS
XXXXXXXXXX (DEFENDANT)


WITNESS STATEMENT

1. I XXXXXXXXX am the Defendant in this matter.
3. The Defendant was the registered keeper of the vehicle xxxx xxx at the time of the alleged incident. The Defendant was not the driver of said vehicle on the alleged date and time and the Claimant has been advised of this responds in the appeal letter dated 30/01/2019 and furthermore in the letter dated 29/11/2019 (Appendix 1). The Defendant any liability to the Claimant either as alleged in the Particulars of Claim or at all.
3. The Particulars of Claim state that the ‘Defendant was the registered keeper and/or the driver’ of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
4. The Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. The date of the alleged Parking Charge Notice was 29/11/2018; to comply the latest date of which the Notice to Keeper should have been sent was 12/12/2018. This was received by Defendant on 08/01/2019. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect. The Claimant has chosen not to rely on POFA as they are aware, they have no legal claim against the Defendant under Law.
5. The Claimant failed to identify the driver and indicated they are not relying on the strict rules of Protection of Freedoms Act 2012 Schedule 4 which makes provisions for liability to be transferred from driver to keeper. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: either the Claimant could prove the defendant was the driver, which they could not; or the Claimant could comply with POFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
‘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.’
6. Schedule 4 paragraphs 8 and 9 of the POFA stipulate the mandatory information that must be included in the Notice to Keeper. If all this information is not present, then the Notice to Keeper is invalid.
7. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
(Where no notice to driver has been served (e.g. ANPR is used)) Not later than 14 days after the vehicle was parked
8. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms. As the Defendant had to provide defence covering all areas. A contract was never formed with the Defendant as she was not the driver of the vehicle at the specified date and time. The Defendant believe there were no signage on the location advising of the alleged contract with the Claimant as highlighted in the photographs Appendix 3. The Defendant has since visited the Location to understand the Claimant’s claim since receiving the Notice to Keeper. The Defendant visited the location on 27/01/2019 and obtained photographs of the location prior to the date of the alleged contravention indicating no signage.
9. The Defendant has reasonable belief that the Claimant ha did not incur the £60 costs to pursue the alleged £100 debt. The Protection of Freedom Act 2012, schedule 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.
10. The Defendant invites the court to strike out the claim for the above grounds.
Statement of Truth
11. I believe that the facts stated in this Witness Statement are true.

Dated xxxxxxxxxx

Coupon-mad

Show us what defence you put in, and what issue date was on the claim form?

On 29 November 2018, a parking charge was left on my car

Was it actually a red card (not a PCN), or a PCN?

Redx

where are the exhibits and CRA references and abuse of process exhibits etc ?

where is your exhibit which is your COSTS SCHEDULE ?

you are at the WS + Exhibits + Costs schedule stage , not just WS

KeithP

You have two paragraphs numbered 3.

The first para 3 has two instances of poor grammar. The word 'responds' isn't right, and there is a word missing after 'Defendant' in the last sentence.

Paragraphs 4 and 5 both tell the court that the Claimant has 'chosen not to rely on POFA'.

So why does para 7 tells the court is that there are two different time periods, depending on whether there is a Notice to Driver or not, when a Notice to keeper must be issued if the Claimant wants to transfer the driver's liability to the keeper? Surely that is all irrelevant if the Claimant is not relying on POFA.

I'll stop there.

Others will tell you about other stuff that needs adding.

1505grandad

Also what is the full name of the Claimant?

Lawpmany1

Thank you all for your help and support.

Please find attached the initial defence (which I think I messed up)

Unfortunately I can not find the original notice to keeper.


IN THE COUNTY COURT

CLAIM No:……………….

BETWEEN:

Vehicle Control Services (Claimant)

-and-

…………………….. (Defendant)

________________________________________
DEFENCE
________________________________________

1. It is admitted the Defendant was the registered keeper of vehicle registration xxxxxxx on the 29th November 2018. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the vehicle was parked on the area of land of a disused children’s play centre on xxxx Street, xxxxx. I totally refute that there were any signs in place advising that this was private land; permit permitted parking only or details of parking fines possibly incurred. There was absolutely no visible signage in the car park which is why the car was parked there. The majority of the street parking is free in this area of xxxxxx. There were no yellow lines and no indication that parking on this area would be deemed as parking on private land and as such, possibly incur a parking fine.
3. Given the lack of signage at the time of the car being parked and the Claimant advertising restricting terms and conditions after the vehicle had already been parked, no contact can be construed from the Claimant’s signage.

4. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage.

5. The Defendant wishes to express that is a Children Social Worker at xxxxx Council, law abiding citizen who has never been involved with Police or Courts previously. The Defendant appealed to the company when Notice to Keeper was received on the 8th January 2019, 6weeks after the alleged contravention. The appeal was dismissed by Vehicle Parking Service. The Defendant appealed due to the believe the company’s practice is oppressive and surely cannot be legal, as the car would not have been parked if there had been clear signs imposing restrictions to parking area.

6. The Particulars of Claim are sparse. There is no information regarding the alleged contract, what the terms on signage actually said on the material date, or what the alleged breach was by the registered keeper of the vehicle or why/how the Claimant purports that the registered keeper is liable, given the facts that this Claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').

7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the registered keeper liable under the strict ‘keeper liability’ provisions.

8. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim. The Defendant made several unsuccessful attempts to contact the owners of xxxxx Children Centre owners of xxxx street land to discuss the oppressive practice by Vehicle Parking Service.

9. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

10. Costs on the claim is disproportionate and disingenuous.


11. The Defendant would like to dispute this claim on the grounds that the contravention did not occur. The Defendant is a woman of good standing and would not violate her integrity by parking unlawfully. Had visible signs been erected the car would not have been parked there and a fine would have been paid.

12. It is denied that the vehicle was by any reasonable interpretation unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.


13. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.



Statement of Truth:



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

Name:…………………….

Signature:…………………

Date: ………………………….





Please see below I couldn't attach.

Lawpmany1

I am struggling to attach the pictures and I cant find a copy of the Notice to Keeper and I notice VCS have not included the Notice to Keeper in their bundle they have served me with their witness statement.

There is no mention of POFA in their witness statement, they are stating they are relying on law of agency and breach of contract.

nosferatu1001

Its VCS. It will NOT be compliant, so if the driver was not revealed then you simply state there is no way they can chase you, as the only law they can use they choose not to.

Oh wait. Line 11. Makes it pretty clear who the driver was.

KeithP

Lawpmany1 wrote: »

They are stating they are relying on law of agency...

Then your Witness Statement must challenge that.

Unless the driver was driving on the instruction or direction of the RK, then the 'law of agency' does not apply.

nosferatu1001

Keith - para 11 seems to strongly indicate the drivers identity to me.

Lawpmany1

Thank you, I will look into this again and re-post tomorrow. Thank you for the information.

When I completed the Defence it was last minute I was abroad and did not put much thought into as I was frustrated with VCS.
Do I need to challenge their witness statement, because its quoting too many things around law of agency, contract law, beavis etc

Or I should just put in my witness statement which is relying on POFA