County Court Claim - PCN - Vehicle Control Services v Zimgrant

[ostell]

You could point out to them that yesterday that very claim of agency was rejected by the judge in the Country Court in Newcastle and VCS lost

Details on pepipoo

[R0b]

The law of agency requires a form of representation to the third party (VCS in this case) that the agent is acting on behalf of someone else when entering into a contract and this can be done through an oral conversation, in writing or through conduct. Nonetheless, there has to be some evidence that VCS knew that the driver, having parked the car in the car park, was acting on behalf of the registered keeper when parking that car and not personally.

If the car park was free for an hour and it was an unmanned car park, then how could the driver have represented to VCS that it was entering into a contract on behalf of you as the registered keeper? On the face of it and in the absence of any representation to VCS, there ought to be a general presumption that the driver contracted with VCS personally. To hold the general presumption that a driver contracts on behalf of the registered keeper simply because the driver is entitled to use the car would amount to an absurd decision. Remember, the burden of proof rests with the Claimant to prove its case and as VCS has no evidence, the claim should fail.

In addition, if the matter does end up with you sitting in front of a judge, I would strongly argue that the VCS should not be allowed to make any arguments with respect to an agency relationship. The cause of action for agency was not pleaded in their Particulars of Claim and they should not be allowed to suddenly raise new allegations at such a late stage in proceedings (not least without sanction such as a costs order for your attendance in addition to costs for filing an amended defence it the hearing was adjourned - something you should raise to the judge if this is considered and is likely to outweigh the costs VCS are claiming).

The PoC that they have drafted, implies that you personally entered into that contract but they will unlikely have evidence which proves that you were the driver of the car, and since they have admitted in an email that they are not seeking to rely on POFA (which you should use as part of your evidence), the claim must fail.

I've attached a Court of Appeal case way back in 1912 (old I know) which might assist you in applying the above principle. In essence, the Court held that there was no evidence that the manager of a hotel who ordered different whiskey without authority, was acting as an agent of the hotel owners and that the whiskey itself was for the specific use of the hotel as opposed to contracting personally himself.

Applying that legal principle to your case, VCS have to show evidence that the driver was not in fact contracting personally with VCS but instead on behalf of the registered keeper. If there's no evidence, then the law of agency does not arise.

[zimgrant]

@rob Any thoughts?

[R0b]

See my last post

[zimgrant]

Many thanks rob

[zimgrant]

@rob
Do you suggest I email them with extracts of the above response in relation to the law of agency to attempt to get them to drop the claim or wait to get to Court.

[R0b]

I would suggest you wait in court. They might see it as a desperate attempt to try to get them to withdraw the claim (which they might do but also may not) and if you show them your hand then they have more time to prepare counter arguments.