My Hellish Day in Court (with the threat of a possible appeal)

Jomot

I've just had a very long and absolutely hellish day in court, which I won plus costs under CPR27.14, although I lost my Counterclaim for breach of GDPR & harassment, chiefly because the judge thought POFA was invoked even though the NtK  says "we may pursue you (the keeper) on the assumption that you were driving".  Claimant was VCS, and although they were refused leave to appeal (as was I), they gave every indication that they would anyway.

Background: Night-time parking, I was one of 3 passengers, signage was minimal and unlit. Despite reading the NEWBIES thread I (like the judge) initially thought liability had transferred so I appealed on signage but also said I was not the driver, without naming who was.  In total I sent 12 letters & numerous photos, repeatedly said I wasn't driving, and sent my insurance docs showing more than 1 driver. They cited Elliott v Loake, which I rebutted, but IAS found for them on both signage and liability (no surprise there). Once I understood POFA, I also pointed out their failure on this too, including 9(2)(f), which they ignored. 

Their claim was as keeper and/or driver. Their WS identified me as keeper but didn't say they were pursuing me under POFA, nor did they say they were pursuing me as driver!  Their exhibit photos didn't show their claimed entitlement to "£100 discounted to £60" - never mind the 'fake' extra £60 - and their contract was with a Ltd Co that doesn't exist and required more signs than are on site anyway.  They also sent PDM logs for the morning/afternoon only.  There were various other things, but these are the main ones. 

Court report: I arrived at 10am & we were on the continuous list for 10:30.  The rep for VCS didn't introduce himself, and we were called around 11:15.   The judge was nothing like the one in the video on here - no introductions, no explanation of process - he just launched straight into the fact he didn't have my WS & exhibits, at which the rep claimed I hadn't followed directions so they were entitled to Judgment.  Yikes!  Fortunately I was able to prove the court had received them, but even without this the judge said he'd read my Defence and viewed their exhibits, and agreed that the signage couldn't form a contract.  The judge was pretty furious when the VCS rep kept interrupting, told him he proposed to dismiss the claim and suggested he took further instruction while they located my bundle as if they proceeded it would be at 2pm.  The case was then stood down.

Back in about 20 minutes later.  VCS still wanted to proceed. Judge reiterated that the signs could not possibly form a contract & that I'd been telling them that from day one, and said he was now considering costs in my favour.  He referred to the IAS decision as 'beyond belief' and 'inexplicable'.  He also said I faced an uphill struggle with the counterclaim as reasonable pursuit of a debt was not harassment, and that the IAS decision may have wrongly caused VCS to feel the claim had merit, as they were an independent 3rd party!  I only had time to briefly say that VCS had no reasonable belief I owed them anything at all, as I'd repeatedly told them I wasn't the driver (I had 3 other WS confirming I wasn't) and they hadn't transferred liability to me as keeper.  The case was then stood down again.

Back in around 2:20. The rep had again taken instruction & VCS still wanted to proceed. I let Shoe Lane Parking slide, but pointed out misleading quote re Vine. Judge looked it up and said it came back to the same signage argument, that it was 'astonishing' that the IAS didn't uphold my appeal.  He dismissed the claim said he was awarding my fully pleaded costs as the Dammerman Test had been met.  The rep strongly objected, asked for leave to appeal on the grounds that I was a passenger and so it was not up to me to seek out signage, but the driver, who clearly hadnt (he had - his WS said so).  Leave to appeal refused, but the rep strongly suggested they would anyway.   

My counterclaim was dead in the water as the judge simply would not accept that POFA had not been invoked.  He even said the NTK wording about the assumed driver was merely unintentionally poor wording and still transferred liability to the keeper.  He started to look at 9(2)(f) but didnt give me the chance to explain about the dates, as he thought it referred to the difference between 'have the right to recover from the keeper' in POFA and 'we may pursue you (the keeper) on the assumption that you were driving' on the NtK. I asked for leave to appeal as I still felt he was incorrect in his interpretation, but this was refused. 

So, in theory VCS have to pay me £510.64 by 11 March but I'm seriously concerned they may appeal, although I dont really know how that works.  I do know its the same circuit as Skipton though, if that offers any hope?

BrownTrout

that is one long !!!!!! day!, but well done on the win, judge totally correct on the IAS, proves how useless they are
If they do appeal (although unlikely it is possible,reps often try and want to appeal), then come back on here there are people in the skipton who can help you at any appeal

beamerguy

Great win, well done. I guess the judge had already made his mind up and being nice was not in his agenda

Counterclaims are not easy in the low court and you should be pleased  at the result.   YOU - WON, VCS = LOST ...... not the first time for VCS and certainly not the last.

Will Renshaw-smith the boss of VCS appeal ...... he does know it's a waste of time as what one judge has said  will be said by the next judge..  Renshaw-smith as a banned clamper will have to swallow this, just as all the other rubbish he puts out

Then this jewel ...... Judge looked it up and said it came back to the same signage argument, that it was 'astonishing' that the IAS didn't uphold my appeal.

Thus proving once again, that the Gladstones IPC scam is a complete load of junk

But you got £510.64 and if they don't pay, send in the bailiffs .... simples

Will Renshaw-smith understand this .... doubt it, he will keep on paying out for his failed cases. When VCS used BWLegal, they were spanked all over the place for rubbish claims.  Now they do it themselves, not much has changed then ????

Coupon-mad

Brilliant win! 
ANOTHER VCS ONE BITES THE DUST!  

They won't appeal this, because they almost never do and because you could then have another go at showing a more Senior Judge that the first one was wrong about the POFA.  I share your pain about that, because I too have sat in front of a Judge (at Brighton) where I won the case, but he also said exactly the same as your Judge did, completely and utterly wring about that very obviously non-POFA NTK, and it was all I could do to bite my lip.

But you did even better in your case, because you persuaded the Judge that the case met the high bar of the Dammerman test (explained here for newbies who want to seek their full costs, as you did):
http://www.portner.co.uk/news/unreasonable-behaviour-in-relation-to-costs-in-the-small-claims-track

Nice result, head held high and if they did appeal then it gives you another crack at the POFA point, as that Judge as wrong, this is exactly the sort of PCN that Henry Greenslade had in mind when he said in the POPLA Annual Report 2015 that a parking firm must NEVER state that they can assume that the keeper was driving because 'there is no such presumption in law'.

If it was as simple as sending a letter on any old date, saying that a PPC assumes you were driving, then there would have been no need for the POFA, at all...!

I love his criticism of the completely bent and broken IAS, though!

Jomot

I haven't quite figured out how to insert quotes on this new-style layout yet, but yes, the judge made several references to the IPC/IAS - none of them flattering - and I think he even made reference to them in his judgment (although it was almost 4pm by then and my head was battered).  Just reading back through my notes, he did at one point say that the claim was "bound to fail" on the signage alone.

I'm very happy with the decision and am on my second celebratory vodka (I may even have a third to commiserate with myself over the counterclaim!), and if I do get my costs I'll be happy, but the rather unpleasant rep seemed to think they were determined to appeal.....although I did have to stifle a laugh when he asked the judge to spell Dammerman, the judge nearly exploded!

From what I understand though, if they did appeal and it was granted, then I would still have to appeal my counterclaim separately as it wouldn't automatically be heard otherwise?  I really don't fancy appealing it, but the thought of going through all this again just to stay where I now am appeals to me even less, so if they do, then I'd want to too (hope that makes sense).

But for now, yes, another one bites the dust 

D_P_Dance

Why hellish, you have come out on top.  You did very well to get unreasonable behaviour costs, thus is as rare as rocking horse !!!!!!,  but imo your counter claim  was a dead duck anyway.  

I am surprised that they are still citing Elliot v Loake, do they not do any research.  

beamerguy

With what VCS will pay you, you can stock up with lots of Vodka,  "Cheers Simon"

About the IPC, the law itself (the judge) thinks they are cr*p,  We need government to take away their ATA status as they are not fit for purpose

You are now in the ABUSE OF PROCESS PART 2 thread ..... FIRST POST
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1

DoaM

Jomot said:

I haven't quite figured out how to insert quotes on this new-style layout yet

Click the Quote button below each post you want to quote, then make edits as necessary in the reply box. If you want to create your own Quote box, click on the ¶ symbol (6th from left) and select Quote.

nosferatu1001

Long day but not hellish - you did VERY well! 
My understranding is if THEY appeal the whole claim and counterclaim are in play again. If you appeal only the counterclaim would be. 

Le_Kirk

Well done on your win and for now knowing how to use the quote function courtesy of DoaM.

Jomot

Update: VCS have appealed the costs order on the grounds that the judge erred in law in determining that their conduct was unreasonable. They claim that he had pre-determined the case and awarded costs on the basis that they continued to pursue it after he had twice requested them to reconsider.  They confirm that they are not appealing the judgment itself, just the costs order.

The Elms Legal report is enclosed with the appeal, and as well as containing some falsehoods - like suggesting I had never responded to the NtK, when I'd actually written 12 times and sent photographs - also makes several references to VCS having complied with POFA and me being liable as keeper, despite VCS having never once suggested such a thing, not even in their Witness Statement, and the NtK stating they were pursing me on the presumption I was the driver.  

Any advice gladly received!