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County Court Claim BW Legal - VCS Parking Charge Notice

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  • #31
    Re: County Court Claim BW Legal - VCS Parking Charge Notice

    Originally posted by InnocentMotorist View Post
    In the County Court Business Centre, Northampton
    Claim No.: XXXXX
    Between

    XXXXX (Claimant)

    and

    XXXXX (Defendant)

    __________________________________________________ _________________________

    Defence Argument
    __________________________________________________ _________________________


    1. BW Legal are a known Roboclaim firm who file claims without doing any due diligence and without properly establishing any debt is due. At the time of filing a claim they have not even received a copy of the purported contract from the claimant and so cannot possibly meet the practice direction requirements for filing a claim.
    2. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 (see Appendix 1) as they do not contain a copy of the contract, and do not explain how the contract was concluded. It is allowable to file these within 14 days as additional particulars if they do not fit on the claim form under PD16 3.2(2) and 3.3. However, the claimant did not do this.
    https://www.justice.gov.uk/courts/pr...l/rules/part16
    https://www.justice.gov.uk/courts/pr...rt16/pd_part16
    3. As an example as to why this prevents a defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract (as required by PD 16, para 3.7) will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant
    4. The claimant can file these as further particulars within 14 days as per PD16 3.2(2), but have failed to do so
    5. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.
    https://www.justice.gov.uk/courts/pr...rt22/pd_part22
    6. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.
    7. The Defence therefore asks the court to strike out the claim as having no reasonable prospect of success as currently drafted.
    8. Alternatively, the Defendant asks that the claimant is required to file particulars which comply with practice directions and include at least the following information
    a. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    b. A copy of any contract it is alleged was in place (eg copies of signage)
    c. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    d. Whether keeper liability is being claimed, and if so copies of any notice to driver/notice to keeper
    e. Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter
    f. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    g. If interest charges are being claimed, the basis on which this is being claimed
    9. Once these particulars have been filed, the Defendant asks for reasonable time to file a defence

    10. Alternatively, as the claimant has not filed proper particulars of claim, the following generic defences are applicable, and can be expanded upon once the particulars have been filed
    h. No contravention occurred
    i. No contract was entered by performance as the signage was not frequent or clearly visible or readable while driving
    j. No contract existed as there was no offer as the wording on the signage was forbidding
    k. The contract was non-binding as it did not comply with the information requirements of the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014
    l. The charge was a penalty and/or unfair consumer charge and is not saved by ParkingEye v Beavis as the claimant has not shown how that applies
    m. The location appears to be a public road and the Claimant has not shown they have the authority to issue charges and take court action with a clear chain of authority from the landowner
    n. Keeper liability has not been established and the defendant was not the driver
    o. The Equalities Act 2010 applies and the defendant should have been allowed a reasonable adjustment

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

    ……………………………………………………. ………………………
    (Defendant) (Date)

    Is this not the defence you filed ?

    I'm off tomorrow now so we should work on your witness statement and get it done by email (obtain any email addresses you'll need asap). It needs filed by 1600.

    M1

    Comment


    • #32
      Re: County Court Claim BW Legal - VCS Parking Charge Notice

      Yes that is the defence I filed in January however I don't believe half of that is still applicable given that they have since submitted their witness statement in the proper format and from a named party on behalf of BW Legal.
      I have the email addresses on hand.
      Excellent, as always, thank you for your much needed help!

      Comment


      • #33
        Re: County Court Claim BW Legal - VCS Parking Charge Notice

        [MENTION=5354]mystery1[/MENTION] Do you think i should include all of the above from my previous defence in my witness statement? (Excluding sections 5,6 and 7.)

        I'm conscious of the time and that i need to submit this by 4pm. I look forward to your advice!

        Many Thanks

        Comment


        • #34
          Re: County Court Claim BW Legal - VCS Parking Charge Notice

          A witness statement does not replace the claim they submitted.

          Was the insurance in place at the time for several named drivers (or an any driver policy) ?

          M1

          Comment


          • #35
            Re: County Court Claim BW Legal - VCS Parking Charge Notice

            Originally posted by mystery1 View Post
            A witness statement does not replace the claim they submitted.

            Was the insurance in place at the time for several named drivers (or an any driver policy) ?

            M1
            Interesting!

            The vehicle was insured in 3 persons names at the time of the claimed offence.
            *EDIT* I have the policy documentation that lists the additional drivers on the insurance. Should i list this in my statement?

            Comment


            • #36
              Re: County Court Claim BW Legal - VCS Parking Charge Notice

              The car has been parked on these premises on many occasions and on every occasion the driver has been given permission to do so with a ticket.
              Do we have any evidence of this at all ?

              The ticket was supplied by the land owner and titled 'Vehicle Control Services GUEST' and was displayed on the dashboard of the car.
              Ditto.

              At the time of the incident it's believed there were only 2 signs stating 'Primate property...Valid Permit holders...Parking charge £100'
              Ditto.

              M1

              Comment


              • #37
                Re: County Court Claim BW Legal - VCS Parking Charge Notice

                I have copies of the following tickets - http://imgur.com/h5XGMi2. However not a copy for the date of the claimed offence. The claimant has provided a photograph of the vehicles windscreen which does show a copy of this ticket but dated 9/12..(obscured from view)

                Insufficient signage:
                see the following album of images which prove the signage was changed between September 2014 and April 2015 - http://imgur.com/a/2VAoa
                *EDIT*
                Here is a photograph of the signage of which there were only two (road facing) visible to the driver - http://imgur.com/quQzd9H [MENTION=5354]mystery1[/MENTION]

                Comment


                • #38
                  Re: County Court Claim BW Legal - VCS Parking Charge Notice

                  On behalf of: Defendant
                  Witness: YOUR NAME
                  No. of Witness Statement: First
                  Exhibit: XX1
                  Date: [DATE]


                  IN THE [NAME] COUNTY COURT
                  CLAIM NO:


                  B E T W E E N




                  CLAIMANTS NAME



                  Claimant




                  -and-








                  YOUR NAME



                  Defendant






                  WITNESS STATEMENT OF [YOUR NAME]







                  I, [FULL NAME] of [ADDRESS & POSTCODE] will state as follows:*

                  1. I make this Witness Statement in support of an application to set aside the default judgment entered on [DATE].

                  2. The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

                  3. I was the registered keeper of vehicle xxxxx on xx/xx/xx.

                  4. I was not the driver. If you give a good reason for this (i was on holiday, in hospital etc etc then do so)

                  5. I believe the vehicle was used by one of my family at the time.

                  6. According to the Popla report of 2015 https://popla.co.uk/docs/default-sou...5.pdf?sfvrsn=2 Rather than link to it download it and file as an exhibit and give it a label Henry Michael Greenslade QC Lead Popla Adjudicator said

                  "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."

                  7. DDJ Gourley in VCS limited v Quayle, DJ SKALSKYJ-REYNOLDS in Excel parking services limited v Lameroux are amongst a number of county court decisions at small claims level where it was found that a company that does not utilise the protection of freedoms act can not reasonably presume the keeper was the driver, particularly when there is no evidence. Excel v Smith was decided on appeal in the same vein.

                  8. The driver had a day permit on display as can be seen from the photgraph which appears to have been taken at an angle meant to obscure some information. This does not detract from the fact it was properly on display.






                  Quick draft to start with.

                  M1

                  Comment


                  • #39
                    Re: County Court Claim BW Legal - VCS Parking Charge Notice

                    On #5 add in that your insurance permits xyz to drive and the certificate is exhibit ....

                    M1

                    Comment


                    • #40
                      Re: County Court Claim BW Legal - VCS Parking Charge Notice

                      Originally posted by mystery1 View Post
                      4. I was not the driver. If you give a good reason for this (i was on holiday, in hospital etc etc then do so)

                      5. I believe the vehicle was used by one of my family at the time.

                      M1
                      What would the implications be if the defendant did not believe this to be true?

                      Originally posted by mystery1 View Post
                      8. The driver had a day permit on display as can be seen from the photgraph which appears to have been taken at an angle meant to obscure some information. This does not detract from the fact it was properly on display.
                      M1
                      Here is the photograph of the ticket on the windscreen - http://i.imgur.com/1BqqiUf.png
                      The date is obscured but does say '9/...' which is not the day of the claimed offence. Could the defendant claim that this was just one of many tickets on display at the time?

                      Comment


                      • #41
                        Re: County Court Claim BW Legal - VCS Parking Charge Notice

                        Do not lie. My words are a guide. It must be true. If in doubt leave it out.

                        M1

                        - - - Updated - - -

                        Was it the 9th ?

                        M1

                        Comment


                        • #42
                          Re: County Court Claim BW Legal - VCS Parking Charge Notice

                          Originally posted by mystery1 View Post
                          Do not lie. My words are a guide. It must be true. If in doubt leave it out.

                          M1

                          - - - Updated - - -

                          Was it the 9th ?

                          M1
                          I have removed sections 4 and 5. But i have left in reference to the insurance documents where it shows there were multiple insured drivers and that the claimant should prove the registered keeper was the driver on the day.

                          The ticket states 9th but the offence was on the 4th

                          Comment


                          • #43
                            Re: County Court Claim BW Legal - VCS Parking Charge Notice

                            So how do they have a picture from the future ? (or was it from 9th the previous month ?)

                            M1

                            Comment


                            • #44
                              Re: County Court Claim BW Legal - VCS Parking Charge Notice

                              Originally posted by mystery1 View Post
                              So how do they have a picture from the future ? (or was it from 9th the previous month ?)

                              M1
                              From a previous month, yes.

                              Comment


                              • #45
                                Re: County Court Claim BW Legal - VCS Parking Charge Notice

                                Fair enough.

                                Once you're happy finish it off with



                                I believe that the facts in this witness statement are true.
                                Signed:
                                [YOUR NAME]
                                Dated:

                                Send to the court and them.

                                M1

                                Comment

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