A BW Legal "Special Incompetence" production.
Lucy Hall, a teacher from Wales, was pregnant four years ago, and as such was being driven around by her husband. Apparently she drove her car into a car park in Hereford, and stayed 40 minutes overtime.
VCS issued a PCN and, four years later, BW Legal decided to chase the (now £255 payday). Despite the defence making it clear that the Keeper was not the driver, BW Legal still tried to rely on their two standbys, Elliot and Loake, and CPS v AJH Films
The first hearing was on 20 April. Ms Hall turned up to court, together with her partner (the driver), having never received a bundle. BW sent along a Real barrister, Mr Singh, and a preliminarily issue was argued of failure to file and serve.
It turns out that BW tried to file the bundle by email, despite not having consent to do so, and producing no evidence of service. As a result, this was adjourned, reserved by the judge (DJ Mackay of Cardiff) and the order stated that documents to be relied on are to be exchanged "By first class recorded delivery, Registered Post or equivalent" by 4pm on 11 May 2017.
Having been adjourned, Ms Hall prepared a bundle, and sent it to the court and BW Legal by Special Delivery 1PM on 10 May 2017.
The court signed for this on 11 May at 10:32 - well within the timescale specified.
BW Legal refused to accept the Special Delivery letter on 11 May... and again on 12 May. (This is why you never send a recorded delivery item to a PPC or their solicitors, but you always get a proof of Posting instead - they have to then rebut delivery.)
In the meantime BW Legal sent their bundle to the Defendant on 9 May. By Second Class post. Not even recorded. It finally turned up on 15 May.
Back at Blackwood this afternoon were Ms Hall, her partner and John Wilkie who had come down from Glasgow. BW Legal did not attend or send a representative. Their bundle excused their attendance under rule 27.9, saying "an advocate" would attend.
As the Claimant hadn't served its documents in time, for the second time, and as the claimant had also breached rule 6.20, the Court was invited to exclude the evidence. The DJ considered this, and decided that, although the conduct of the Claimant was in breach, it was in the interest of justice to deal with this on the papers.
As a result, Mr Wilkie started to gently rip apart the statement of Leigh Schlevis. The Judge asked for a few specific details such as why the NtK was not compliant with the POFA, and it was pointed out that none of the documentation, apart from an internet-derived map, defined the location.
This included the NtK, the Witness Statement and the Contract, as well as the photographs from the ANPR system.
The judge asked for 20 minutes to consider the matter, but did not call the parties back in for over an hour before giving a recitative verdict on the case.
This boiled down to:
1) The court is satisfied that the Defendant is not the driver, and the Claimant has not adduced any evidence of her being so, despite casting aspersions. It is for the Claimant to prove their case, and they have not done so to claim against the Defendant as the driver.
2) Elliot v Loake and CPS v AJH Films are not relevant. If the Claimant wants to pursue the defendant as keeper, it MUST comply with the requirements of POFA.
3) The NtK exhibited does not comply, with POFA. It does not identify the Relevant Land; there is more than one "Brook Retail Park" in the UK, and again, the claimant has to prove its case.
4) Additionally, the photographs of the vehicle which form the Claimant's claim do not show a vehicle which is parked. It shows a vehicle entering a car park, and leaving. Indeed, the photos are produce from machines called "BrookIN" and "BrookOUT". A moving vehicle is not parked, and the
court notes that it can take time both to locate and park in a parking space, and also to exit the parking space and car park.
5) Finally, the notice is deficient in a number of other ways, which do not need to be detailed; having been taken through them it is sufficient that there is a finding of fact the notice does not comply with POFA.
As a result the claim is dismissed.
Mr Wilkie then returned to the Claimant's conduct, and the Judge agreed that the Claimant's behaviour was unreasonable
a) Failure to ensure service in the first instance
b) Failure to comply with the Courts Order on service in the second instance
c) Failure to comply with CPR 6.20 in regard to the CPR 27.9 notice
d) Failure of their advocate to attend or excuse attendance.
As a result CPR 27.14(2)(g) engages, and the Defendant is entitled to unreasonable conduct costs.
Defendant's costs £196.40
Lay Rep Expenses £100
Pro Bono Costs £250 - Payable to the Access to Justice Foundation.
All payable in 14 days.
BW Legal - you've been Gladstoned
Parking companies know that a lot of the time their claims have no basis. They file large numbers of claims knowing that many people will be scared into paying up, regardless of the validity of the claim.
This time VCS came unstuck
fter sending a barrister for the first hearing - VCS were penny pinching for this hearing and no-one turned up.
Case heard on paper submissions.
Case dismissed - no keeper liability
Total costs awarded £546.40 to be paidincluding a £250.00 order to the Access to Justice Foundation.
Judge found VCS / BW Legal to be unreasonable on four ground