VCS defeated in Liverpool Court.: No keeper liability

It has not been a good week for Excel and their alter-ego VCS. We know of 4 cases lost just from posts on this forum... and this one which I was asked to lay-rep for, in Liverpool today, makes 5.

If Simon Renshaw-Smith has many more weeks like this he may have to swap his yacht for a dinghy!

Here's what happened...

Case report: VCS vs Miss Q, Liverpool.

Background:
The defendant was the RK of a Vehicle that was allegedly parked at Princes Dock in Liverpool (owned by Peel Land & Property Ltd), in Dec 2014. This is private land and VCS are engaged in parking enforcement operations at the site. They have signs all around saying “NO PARKING OR WAITING AT ANY TIME”. The site is circular road accessed from the main road which runs through Princes Dock and connects back to the main road. There are a few small areas within allowing ‘Permit Only’ parking.

The defendant was not the driver at the material time. As such she was not aware that a PCN had been issued.

The first communication she received was the NTK in Jan 2015. She recognised this was a letter from a private company, not a proper authority such as the police or council. As the letter was demanding money for an event she knew nothing about and was written in a threatening manner with bold text - including headings in block capital red text, she assumed it was spam or scam and chose to ignore, following widespread consumer advice informing consumers not to respond to scam letters demanding money.

A few months later she started receiving letters from BW Legal, now requesting an increased amount of £154. Concerned, she rang BWL to – a). Check if they were genuine, and b). To explain that she knew nothing of the event they were referring to and could not have been the driver on the date in question (as she was not in the city). They flat out refused to engage with her, they simply demanded payment or threatened legal action. A short time later she received court papers.

Court Case:
With the help of her partner she researched the forums and produced a defence followed by a WS and skeleton argument. The case was heard on 29/03/17 by DJ (or possibly DDJ) Travers at Liverpool Court. The shocking and bizarre manner in which Judge Travers conducted the hearing is detailed in a Pepipoo thread started by the defendant’s partner after the case was adjourned:

http://forums.pepipoo.com/index.php?showtopic=112758&st=0&p=1273250&#entry1273250

I was PM’d by the OP who asked if I would Lay Rep at the next hearing scheduled for 04/05/17 – to which I agreed.

Second Hearing:
The defence bundle was well researched and presented in an organised and professional manner. It attacked all the usual points such as – poor signage, no locus standi, no reasonable presumption, distinguished from Beavis. It also highlighted a number deficiencies in the claimant’s WS (written by Leigh Schelvis) as well as several CPR/ PD failures. But the main crux of the defence was

‘not the driver’ > No PoFA compliance > No proof of driver > No keeper liability'.

After the previous hearing the defendant was, understandably, a bag of nerves going into this one. The judge this time was DDJ Gourley [thanks to Bargepole for this link]
[FONT=&quot]http://www.exchangechambers.co.uk/barristers/claire-gourley/cv/personal-injury[/FONT]
[FONT=&quot]It was scheduled for a 3 hour hearing.[/FONT]
[FONT=&quot] [/FONT]
We arrived at court 30 mins before the hearing and managed to secure a side room to go through some last minute prep. The claimant rep arrived 15 mins later. Her name Was {Removed by Forum Team} a registered Barrister. I asked her if she was associated with Elms Legal, to which she said “no” then, annoyingly, a few mins later let slip that she had been instructed by Elms Legal. I went through the preliminary matters (PM) with her explaining that I would be focusing on witness non-attendance and failure to comply with 27.9 (1) (c). She was rather timid and didn’t say much other than she would certainly have RoA. She accepted the documents and returned to the waiting area. I gave another copy of the PM docs to the clerk to pass to the judge. A few mins later we were called in.

It was a medium sized room, set out like a proper courtroom with the Judge sat on an elevated ‘bench’ at the back and a floor level row of tables facing the bench with 2 other rows behind and a row of chairs at the back. The judge was on the phone as we went in complaining to someone that she couldn’t get the recording system to work and was scared to reboot it lest she damaged it irrevocably – quite amusing really, made her seem very ‘normal’

JH was 10 mins late in but got away with it due the judges ‘technical issues’. The judge (now with a working recording system) got straight into the PM. She asked JH about her credentials and quickly said she was satisfied she had RoA, then asked if that was it for PM. I said ‘no’ I want to address the witness non-attendance in that they have not complied with CPR 27.9 (1) (c) and I invite the court to strike out the claim in accordance with CPR 27.9 (2). JH said that all the evidence was here and the claimant was represented so the case should proceed and, in any case, that CPR only applies when both parties do not attend.

Judge agreed and said that it would be disproportionate to strike out the claim, in any case. I commented that BWL are a well-funded Law firm with a team of qualified solicitors it is unacceptable for them not to comply with basic CPRs. I went on that this as a contentious matter and the defence has highlighted a number of deficiencies in the claimants WS which I would like to challenge through cross-examination. The judge made some comment to the effect of ‘we’ll cross that bridge when we come to it’

She asked if there were any other PMs so I mentioned other CPR failures including the deficient PoC and the fact they were signed by ‘BW Legal’ not by an individual which was a breach of PD 22 (3) (9) & (10). She agreed and challenged JH who said that it is not unusual for large companies to sign the PoC in this way, and because it’s signed electronically it’s easier to put the company name. The judge wasn’t happy with this saying there’s no reason for an individual not to put their own name and the court should able to identify which officer of the company has filed the claim as in some cases it is very relevant.

Turning to me she said she agreed the CPR was not complied with but that did not justify striking out the claim. She returned to JH telling her firmly that she must report back to her company that it is not acceptable to sign the PoC this way and they must comply with the relevant CPR.

The judge then said that having read the defence bundle and the claimant’s WS she didn’t feel she needed to hear any other evidence and was happy to proceed on submissions, if we were also happy. We both agreed.

She asked JH first to detail the claimant’s submissions. She just went through the terms and conditions for the private land in question and said why the defendant had breached them by parking there for which a PCN had been correctly issued and they were now pursuing it.

She turned to me and I said the defence submissions are as stated in the skeleton argument but I would stress that the fundamental issue in this case is that the defendant was not the driver, therefore they did not enter into a contract, the claimant has no proof whatsoever that the defendant was driving, they do not rely on pofa therefore liability for the alleged contravention, if any contravention has even occurred, cannot be transferred to the keeper. Without PoFA there is no law that allows them to do this.

Judge asked JH if the claimant is relying on PoFA to which said ‘well, they can’t Ma’am, because they don’t comply with it’

She asked how, then are there suggesting the defendant is liable for the charge if they deny being the driver. JH mentioned EvL. The judge was not already aware of it but had read the transcript (and thanked the defence for adducing it). She put JH through the ringer on this saying ‘I cannot see how this assists me, this is a criminal case. This man was proved to be lying in his evidence and it was proven beyond reasonable doubt that he was the driver. This does not assist me. Please explain how this assists me’

JH was stuck, she said something like ‘I can only present the claimants evidence as it has been given to me, I am in the hands of the court’

The judge asked if I had anything to say about EvL to which I said I agreed with her interpretation that as a criminal case it had no relevance in today’s civil case. I expanded on some of the other points such as the forensic and eye witness evidence. I went on to say that it is not relevant evidence, it is not persuasive and in fact the claimant can offer no evidence to either prove or persuade the court that the defendant was the driver.

In fact their attempt to ‘assume’ the defendant was driving is entirely without merit as the defendant is not the owner of the vehicle, nor is she the main driver on the insurance policy. She has also asserted under ‘statement of truth’ that she was not driving and was not in Liverpool on the day in question. Testing these points against the balance of probabilities creates a high likelihood that the defendant was not driving. The burden of proof lies with the claimant to prove otherwise.

She asked the JH if the claimant had any actual evidence that the defendant was the driver. JH said ‘no’

She then said she was treating the fact there was no proof of driver and the fact that the claimant was not relying on pofa as a ‘preliminary issue’ and she didn’t feel she didn’t to discuss any of the other points in the defence’ bundle. She then gave her short judgement – I was busy rifling through my paperwork looking for the costs schedule so didn’t hear much of what she said but I remember her saying “The claimant says the defendant was the driver but they have produced no evidence whatsoever to prove this and they have nowhere near persuaded me on the balance of probabilities that she might have been the driver.”

She then asked about costs which I read from schedule as £65.38 for loss of a days leave and 7 hours litigant in person costs at £19p/h. She asked on what basis I was claiming LiP costs to which I said ‘for unreasonable conduct under 27.14 (2) (g)’. She commented that the threshold for this was very high and asked me to explain. I mentioned all the CPR failures, the deficiencies in their WS and the fact they had brought a claim with no prospect of success. I said they had progressed this matter all the way to a hearing despite knowing the defendant was not the driver and knowing they had no proof otherwise which was a waste of the court’s and the defendant’s time, not to mention the worry and distress it had caused.

JH asked if she could speak, which the judge allowed. She basically said the claimant was entitled to pursue the case and they had lost and were already significantly out of pocket so that along with ordinary costs should be enough for the defendant.

I thought I’d made a good fist of it but the judge refused saying something to the effect of ‘they would have to do something much worse than bring a claim with little chance of success, to cross the threshold.

£65.38 was awarded… Claim dismissed!

The defendant has said she will apply for the transcript and make it available online for anyone else whom it may assist.