Parking - VCS - Claim Form received

[Marillionair]

Background: in 2016, a car registered to me was parked on private land (a business that was closed that day), resulting in a PCN from Vehicle Control Services (VCS) attached to the car. This was ignored, as was the NTK asking for driver details, and letter stating it was being passed to BW Legal. Initial response to BW Legal raised a number of issues; they then sent out a 'final notice' which claimed no response had been received. Another letter sent raising more points, which they responded to in December 2016; another letter sent rebutting some of their points and requesting further documentation. After that, it all went quiet...
...until May 2019, when a letter was received from DCBL, stating they were pursuing the 'debt'. A call was made to BW Legal, who stated that as far as they were concerned, they were still dealing with it, the complaints were still being investigated and any further action was on hold. Letter sent to DCBL explaining this, and questioning the legality/ethics of having two separate companies pursuing the same debt. After that, it all went quiet...
...Until this week, when I received a CCBC Claim Form from VCS, for the original amount claimed plus court fee. Issue date was 23 Dec 2019, so date of service is 28 Dec. I have completed AOS on MCOL. Claim form states 'at all times the Defendant was the registered keeper and/or driver'.

I think the main defence is that any implied contract was entered into by the driver, and VCS has no evidence of who that was. At the time, three people were insured to drive the car, and all three drove it that day. Other points to be made are that letters from BW Legal have been misleading and/or bullying (e.g. claiming that ParkingEye v Beavis 'eliminates the main defence that you will have should the matter go to court', without knowing what my defence is; stating they will be relying on Elliott v Loake to establish keeper liability, when that case had nothing to do with keeper liability); they have not provided any evidence of a contract with the landowner despite being specifically asked to do so; that using two different debt collection companies on the same matter can also be viewed as intimidatory tactics; that pursuing the claim while complaints are still being investigated is in breach of both FCA and SRA codes of conduct; and that no Letter Before Claim was sent.

Before I craft a formal response in defence, can anyone offer thoughts/comments/suggestions on this? Are there grounds for claiming that failing to respond for more than two years, then going straight to CCBC claim without Letter Before Claim, is abuse of process? Anything else I should be throwing in there?

Thanks in advance...

[luxardo]

POFA is a little ambiguous on this. It makes no demand on the keeper to identify the driver, only "invites" the keeper to give the driver's details. POFA Sch 4 (8) e ii
But then it states that the creditor can claim from the keeper if it doesn't know who the driver is. POFA Sch 4 (5) 1 b

I have heard of some advice to simply go to court and say "I don't know who the driver was but it wasn't me. I am not obliged to give details of the driver anyway but even if I was, I can't because I don't know". But I have yet to hear of this ploy working in court.

I don't think their previous conduct in employing 2 different agents is relevant NOW and I don't think the time period of 2 years is either.
It is illegal to issue a claim without giving notice (letter before claim) though. But I don't think it's worth your while trying to have the claim dismissed on those grounds because they will simply start all over again and issue the notice and then a new claim.

[Marillionair]

Hi Luxardo,

Thanks for the reply. From what I have read on other forums, VCS do NOT rely on POFA to establish keeper liability. When I specifically asked whether they are claiming that keeper liability exists, BW Legal replied that 'our client will be relying on the case of Elliot v Loake'. Anyone who bothers to read the judgment will be able to see that the decision had nothing to do with keeper liability, so if they attempt to use that to claim the keeper is liable, they will fail.

I may as well point out that there hasn't been a letter before claim; it will cost them another £25 if they want to start again, and it shows that I understand how proceedings are meant to work, and won't simply roll over and pay.

*

[luxardo]

Elliot v Loake was in 1982 long before POFA was even thought of. I don't know why they even bother citing it.

If you are going to claim you were not the driver and have ignored all requests (the NTK) to name the driver you will have to convince a judge you were not.
Personally (and this is just my opinion) I would say that if you simply said "it was 3 years ago, I can't remember" and show the insurance policy to prove that at least 3 people regularly drive the car. That would be sufficient as the judge would rule that they should have made the claim earlier.
But this is only my opinion.

[ostell]

Elliot v Loake decided that the keeper was the driver by a combination of the keepers own admission and forensic evidence.* It does not show that a keeper can be assumed to be the driver.