Claim form from VCS received. Comments and help would be appreciated. ** WON! **

Captain_Starlet

Son has mcol account and it's been done under his name. Given the tenant's not been forthcoming with the tenancy agreement will the Land Registry have land owner's name on a publicly available search, does anyone know?

I'll pen a letter to MP tomorrow.

Coupon_mad - I'll revise the defence again along the lines of your comments.

Captain Starlet.

Captain_Starlet

Revised facts known to the defendant.

5.  (i) The signs at the site both at the entrance and where the Defendants car was stopped forbid parking and no contract exists between the Defendant and Claimant.

(ii) The Claimant is persuing the registered keeper but there is no presumption in law that the registered keeper is the driver. VCS v Edward [2023] Ref( H0KF6C9C).

(iii) The driver on the day was helping a new tenant move into a flat at [LAND ADDRESS] and was unloading some of the tenant’s possessions from the car. In B.JOPSON-V-HOMEGUARD-[2016] Ref(B9GF0A9E) it was found that the parking company cannot override the tenants right to stop near the entrance of their building to load or unload, this directly applies here as the driver was with the tenant and they had left the vehicle to take the tenant’s possessions into the tenant’s new home.

It seems the car was going to and fro all day taking stuff. I'll get more details on movements this Thursday.

As always, comments and criticism is appreciated.

Coupon-mad

Only if the Defendant wasn't driving:

 "(ii) The Claimant is pursuing the registered keeper but there is no presumption in law that the registered keeper is the driver. VCS v Edward [2023] Ref( H0KF6C9C)."

Captain_Starlet

Thanks for commenting CM,

Can I ask why you say that? The whole point of POFA was to let these parasites transfer liability to the keeper precisely because they have no idea who the driver is. It could be any of the two named on the insurance or me because I've been known to drive his car on occasion on the driving other cars provision in my insurance. Reading VCS v Edward, Edward refused to identify the driver and the final paragraph (35) seems to blow a big hole in the keeper is driver argument.

Or am I missing something?

Coupon-mad

You are all correct but the minute the D sets foot in the hearing room and the Judge asks 'were you driving?' a defence like that suddenly looks disingenuous and the D is very much on the back foot.

I've lay repped several cases and have seen the whites of some very grumpy Judges' eyes. They want the facts and some get very angry if they think they aren't hearing the whole story.

I even had one particularly curmudgeonly Judge snap "Mrs R, why isn't a witness statement from the driver in the defence bundle?" in a cut&dried non-POFA case where the Defendant was the driver's wife (keeper) and her defence - which also covered unlit signage in the dark - quite rightly said she could not be liable.  I won him round (and the case was won on lack of POFA keeper liability) but it's rarely easy.

Don't put the D in a position where they can't speak freely in court.  The Judge will want to hear a proper witness account.

VCS v Edward had a barrister in court and the D didn't have to attend.  Therefore no-one could ask if he was driving.  Believe me that's unlikely in a case with the D present.

Captain_Starlet

Thanks, CM

It's good to understand the reasoning.

Paragraph deleted.

I don't doubt what you say about district judges being grumpy having been in court on housing issues, albeit quite some time ago. It strikes me as odd that judges would want to do the claimants work for them by obtaining the evidence of who was driving in front of the claimant's solicitor when the keeper exercises their right to remain silent up to that point.

Kind of defeats the point of not naming the driver in the first place. It also makes writing the witness statement a bit more difficult as I don't want to give the claimants anything I don't have to.

I'll be with son on the day. As much has changed down the years I'll have more reading to do. Just as well I'm retired.

Captain Starlet.

Fruitcake

You have a random letter B here,

"B.JOPSON-V-HOMEGUARD"

nopcns

In the unlikely event that the judge actually asks the Defendant "were you the driver?", the Defendant is under no legal obligation to answer the question. A simple "If I am not legally obliged to answer that question, I choose to exercise that right to not answer it." The judge, who may or may not be a curmodgeonly git, can get as frustrated and angry as they like but they cannot insist or coerce the Defendant to answer the question.

The judge must base their decision on the facts. If the Defendant refused to answer a question, a judge basing a decision on that fact alone is likely to see that decision appealed.

I specifically asked one of the longest serving District Judges in England that specific question and this was the reply I received:

Q. If the judge decides to try and solve the matter by asking the question themselves, is the defendant required to answer the question?

A. The judge can ask any question he wants to ask.  The witness can then give any answer that he wants to give, including: “I refuse to answer that question”. The judge cannot require the witness to give any specific answer.

At the end of the day, the judge will make a finding of fact based on the witness’ answer and any other material.

Captain_Starlet

Thanks!

"B.JOPSON-V-HOMEGUARD"

Corrected. I put the B in the wrong place!

Captain_Starlet

Thanks, nopcns

nopcns said:

In the unlikely event that the judge actually asks the Defendant "were you the driver?", the Defendant is under no legal obligation to answer the question. A simple "If I am not legally obliged to answer that question, I choose to exercise that right to not answer it." The judge, who may or may not be a curmodgeonly git, can get as frustrated and angry as they like but they cannot insist or coerce the Defendant to answer the question.

The judge must base their decision on the facts. If the Defendant refused to answer a question, a judge basing a decision on that fact alone is likely to see that decision appealed.

I specifically asked one of the longest serving District Judges in England that specific question and this was the reply I received:

Q. If the judge decides to try and solve the matter by asking the question themselves, is the defendant required to answer the question?

A. The judge can ask any question he wants to ask.  The witness can then give any answer that he wants to give, including: “I refuse to answer that question”. The judge cannot require the witness to give any specific answer.

At the end of the day, the judge will make a finding of fact based on the witness’ answer and any other material.

That was along the lines of my original thinking but having been on the wrong end of a grumpy judge many years ago, CM has a point. I still think that having a judge ask who was driving would be wrong as the burden of proof rests with the claimant, and the judge would be doing their work for them.

I'll consider a line like 'The Defendant is the registered keeper. There is no presumption in law that the registered keeper is the driver. VCS v Edward etc etc. I still have time to finalise the defence so I can mull it some.

There's a criminal case that states that as well. It's a road tax case in which it says the burden was on the crown to show who was driving. 

Secretary of State for the Environment, Transport and the Regions v Holt RTR 309

No use in civil law but the principle is well established.