Friday, 7 July 2017

New transcript - keeper not liable if POFA not complied with and no evidence as to driver

[Updated on 13/03/2017 at Ms Hughes request to confirm she in a qualified barrister]

VCS v Quayle C1DP0H0J. Liverpool, 04/05/2017. DDJ Gourley

The Prankster is grateful for the transcript of this case which is available here. Hopefully this can be used by many motorists in similar situations.

The case concerns a parking ticket issued when the Protection of Freedoms Act did not apply. The keeper was not the driver, and provided a number of pieces of evidence to confirm this. The claimant produced not evidence whatsoever as to the identity of the driver, relying on Elliott v Loake (which found that the owner of the car was the driver due to forensic evidence) and CPS v AJH Films. The keeper was not the owner of the car. The owner was also not the driver.

First hearing

The story starts on pepipoo with the baffling decision of DDJ Travers to refuse to allow the defendant to use a lay representative on the grounds they were the vehicle owner and therefore involved with the case. This is not a decision which seems to be supported by the Lay Representative (Rights of Audience) Order 1999, where the only restriction in a small claims first hearing is that the defendant is present. The judge also ruled that the representative could not act as a McKenzie friend and ordered him to the back of the courtroom. The defendant was also told they may be in contempt of court for advising in advance that they were considered disabled.The judge considered this to be 'mischievous'

The judge then apparently proceeded to advise the claimant's representative on how to win the claim before adjourning the claim for a future 3 hour hearing.

Second hearing

The defendant was therefore extremely worried about any second hearing, and was unwilling to represent themselves. Ian Lamoureux stepped up to the plate and assisted in the second hearing, reported on MSE.

The claimant was represented by Jocelyn Hughes who is a registered barrister. and therefore has rights of audience.

[Prankster Note. Originally Bargepole wondered if Ms Hughes was a non-practising solicitor, by checking this site.

It is clear Bargepole's research was inadequate. As Uncle Bulgaria commented on the day of posting, Bargepole searched the wrong register as Ms Hughes cross-qualified. Ms Hughes has also contacted the Prankster to confirm she is a barrister, called to the bar in 2015. Her current web site can be found here.]

After some preliminary matters the claimant confirmed they were not compliant with POFA, and therefore keeper liability did not apply. They offered no evidence as to who the driver was, so the claim was dismissed.

This is not a case that proceeds under the Protection of Freedoms Act where there is the ability for a parking company to pursue the registered keeper for the parking charges. The claimant says it does not seek to rely on the Protection of Freedoms Act and in fact it would appear that it does not seek to rely on the Act as it has failed to comply with the requirements set out within schedule 4 of that Act, that schedule being the necessary steps and conditions that have to be met before the registered keeper can have the liability for the breach of contract to be transferred to them from the driver.

Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time.

I disagree. I disagree particularly in light of the evidence that has been produced by Miss Quayle showing that there are two other people who are on the contract of insurance for this car. She is not the owner of the car albeit she is the registered keeper. The owner of the car is her partner, Mr Green, who also appears on the contract of insurance as one of the named drivers. She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on
the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.

As a result of that ruling it seems to me that everything else falls away because the whole claim is based on the breach of contract. So I do not need to deal with any of the other issues that have been raised by the defence. So the judgment will simply be claim

Happy Parking

The Parking Prankster



    Might help if your search the correct register, she must have cross qualified.

  2. Thanks to Sarah Q/W for the kind purchase and provision of the transcript of this case. It will be an invaluable resource to future keepers facing non-pofa proceedings on the presumption that they were the driver.

  3. NO Costs? on a hopless case, another DJ Bingo case. FFS