VCS/BW PCN Nov 2014 - St Andrews Retail Park -- found CCJ served to old address

[Pagemaster]

Thanks for your input eb.

 

We will of course be going to the hearing and we already have a draft defence, we're just waiting for the hearing date.

 

Any advice you can give with regards to the wording of our defence will be appreciated.

 

Also, assuming we win this, we will want to make a counterclaim for our other expenses.

[ericsbrother]

you dont counterclaim for your expenses,

you produce a list of your costs and ask th court to consider them.

 

Things like loss of earnings for the day and travel are normal but if you want more than that you have to show the other side has been wholly unreasonable inits conduct.

 

We cant comment on that until you get a new hearing and see what they wish to put forward.

 

They may drop it to save costs anyway.

 

At the moment you are waiting

[Pagemaster]

Thanks, this was one point that I wasn't sure about.

 

My partner was refused car finance because of this ccj and also has had trouble getting a mortgage.

 

Would this be considered as a possible cost to recover?

[dx100uk]

no its not a cost of you going to court

[ericsbrother]

No,

you would have to start a claim against them using Durkin v DSG as the case law.

I would advise against counterclaiming as this can give then an excuse for demading all sorts of costs if you lose that half of the rehearing.

 

Thanks, this was one point that I wasn't sure about.

 

My partner was refused car finance because of this ccj and also has had trouble getting a mortgage.

 

Would this be considered as a possible cost to recover?

[Pagemaster]

We now have a hearing date on Monday 4th December.

[ericsbrother]

make sure you have something to show why a new hearing will be to your advantage.

 

I would suggest that almost anything you would use at a hearing is taken along as case management orders may be give to both parties

( probably tell VCS to put up or shut up on evidence and protocols)

 

you need to also say that you do not belive that VCS has the authority assigned to them to enter into contracts and make claims in their own name by the landowner.

 

Often this is true so they will be in trouble then for being unreasonable and that will get you your costs for research etc that you would otherwise never get

 

Also means they cant really argue against a claim for breach of the DPA if you are so minded

[Pagemaster]

Our draft defence includes the fact that they haven't named the driver and that we don't believe that they have authority to enter into contracts and make claims in their name on behalf of the landowner.

 

We enclosed the draft defence with the application.

 

I hadn't thought about a claim for breach of the Data Protection Act, thank you for that piece of information.

 

I have read about claims for cost of research, so I need to establish a figure here.

I think I read that 9 hours was accurate.

It's certainly taken many hours to get this far.

 

Once again I thank you all here for your invaluable help,

which has taken up a lot of your time as well as quite a lot of ours.

[Pagemaster]

UPDATE

 

We have today received a letter from BW Legal outlining their case against us and pointing out that we didn't reply to their emails offering a deal, and that this will be mentioned when costs are considered at court. They also said that they will not be attending but instead are sending an advocate in their place. They have said that our conduct in this matter has been 'disingenous to true events'.

 

They have sent us a copy of their contract with the landlord, which I attach. I haven't found the section that says they can take us to court yet but perhaps I will.

 

They also attached photos of the car but no photo of the driver (!). They say "At all material times the defendant was the keeper and driver of the vehicle". Surely they will have to prove who the driver was?

 

They have also listed their costs to be recovered of £785. If they are so sure they are going to win why do they keep trying to stop us going to court?

 

Please let me know your comments.

 

I'm having trouble uploading the scans of the contract but I will persist. I am getting the error 'Please do not' which means nothing to me. I have made the files smaller but they don't upload either. All are jpgs.

[AndyOrch]

Convert them to PDFs then try.

 

Andy

[ericsbrother]

this was signed by a third party,

namely a person working for a managing agent.

 

this raises the question about whether the managing agent had the right to enter into this contract as it places an obligation on the landowner that may or may not allow performance of the contract according to the contract the managing agent have with the landowner.

 

In commercial matters judges tend to make assumptions in this regard unless you can show that it is likely that the chain of authority is broken.

 

Try phoning one of the retail units there and asking them who manages the place and do they have an office on site.

 

Best asking one of the smaller companies, the chains like poundstretcher will most likely pass you on and never get a sensible answer.

 

A look at the Land Registry info about the place may help you.

 

Also, as VCS say the agreement is under the landlord and tenant act

then see if this occupation has been notified to the Valuations Agency so they can assess the rateable value of the car park and tell you if VCS are paying rates on the site.

 

I note in the CH listings for McCaul investments most of their properties have charges on them that prevents the company from entering into agreeements like this and this should flag up on the deeds for the place if this is the case.

 

Also, exactly where is it you were supposd to be parked as the area that has been assigned to VCS doesnt cover every bit of the land.

 

They will no doubt agrue that is down to the thickness of a pen but i would say that the leases of the shops have a right over their curtillage and that is nowt to do with VCS.

 

I also note that the contract states that VCS will obey and participate in the BPA code of conduct.

Well they arent and dont.

 

Again I doubt if this breach of contract will be considered enough to affect the contracts offered to the public but something you can put in your WS, that the BPA run an ADR and you wish to utilise that in accordance to the terms agreed by them in their contract to manage the place.

 

all of these little things may help the judge form an opinion of the whole and then agree that when you say that there is no keeper liability due to VCS not sending out the prescribed paperwork it is likely that they didnt and you arent liable.

 

Now big print so everyone can read this and pictures of signs please.

VCS may well have the wrong ones regardless of content.

 

That again is enough to knock back a keeper liabiliy claim by VCS/BWL

 

read up on right of audience and take a copy with you. I

bet that the bod they send along will not be a solicitor but a paralegal from a local firm and as such they are not a party to the origianl case and will have no right to say anything without someone from VCS being there.

 

Challenge their rights of audience before they can say anything

so interrupt them if they do start to speak.

 

If they ask to speak to you before the hearing

then just ask them for their SRA roll number and look it up.

 

Some people give their bosses number because they are no more than a secretary/pa but are given these jobs to do to save money and most of the time no-one challenges them.

 

Not in your case.

[Pagemaster]

Thank you,

 

Their letter says that he is a paralegal.

 

I will keep this in mind.

 

We have already been told that VCS won't be there.

 

Here are the scans of the contract

 

Thank you for your very detailed reply eb.

 

I will do some investigative work tomorrow on this and see what I can come up with.

 

Land registry and local phone calls first.

 

I can say that we can't tell from their photo where the car was parked,

 

who was driving it or even what the registration is

 

I can post it here if you wish.

 

I need to read up on the BPA code of Conduct

 

Here are the parking signs photos from 2013 that they sent us.

 

One further question is do we now need to prepare a full defence and send a copy to VCS or BW Legal, and the court? We have enclosed a draft defence with our application, which BW Legal have.

docs1.pdf

pixs.pdf

[dx100uk]

if this is a hearing as a result of a set aside

then you need to do a witness statement

pulling theirs apart.

[Pagemaster]

I have the Land registry info which I am reading through, but I don't know what I am looking for. The car park is mentioned. I attach the pdf. Can you help eb?

 

dx100uk;

Thanks for your reply.

 

We applied for a set aside and according to their witnesses evidence received in the letter today

 

"the Claimant respectfully requests that the Court set the Judgement aside and summarily assess the Claimants costs occasioned from the same on the standard basis".

 

We have created a draft witness statement which was sent to the court.

 

Do we now amend that and send it to the court and to BWLegal?

 

I'm a bit confused as to what we have to do next here.

VCSCarParkRegisterHS370414.pdf

[dx100uk]

i'd have to read thru the thread again later I obv missed a bit

[lookinforinfo]

You can see from the VCS contract that their agreement lasted for 3 years from January 2012. That could possibly explain why the registered owner is different from the one shown on the VCS contract.

However it happened, the contract you have posted above is no longer in force and has not been since 2015.

[ericsbrother]

no reason to send it to BWL unless you are told to.

 

where did you get the flowery language from?

Is that how you speak at home?

If not use plain english in its commonest form

 

By asking for an assessment of costs you may well have landed yourself with a bill that you otherwise wouldnt have to pay.

 

Thanks for your reply.

 

We applied for a set aside and according to their witnesses evidence received in the letter today

"the Claimant respectfully requests that the Court set the Judgement aside and summarily assess the Claimants costs occasioned from the same on the standard basis".

 

We have created a draft witness statement which was sent to the court.

 

Do we now amend that and send it to the court and to BWLegal?

 

I'm a bit confused as to what we have to do next here.

 

Owned by sackville Property select Ltd so does the person who signed VCS up to rook people on their land have permission to sign anything?

 

Again, you need to push that point in your WS so they can show an unbroken chain of authority but dont overwork it,

 

the judge may decide that as agents they do have the authority without VCS having to produce it and if you have spent all of your effort on that point and not paid enough attention to the other bits the old saying " I prefer the evidence of" may be trotted out.

 

I have the Land registry info which I am reading through, but I don't know what I am looking for. The car park is mentioned. I attach the pdf. Can you help eb?

[Pagemaster]

That is not my flowery language eb,

I was quoting from the letter that they sent me.

They have asked the court to grant the set aside.

So the assessment of costs is their request.

 

We have already submitted our witness statement with the draft defence.

BW Legal have already referred to it in their witness statement which came with the letter.

 

You can see from the VCS contract that their agreement lasted for 3 years from January 2012. That could possibly explain why the registered owner is different from the one shown on the VCS contract.

However it happened, the contract you have posted above is no longer in force and has not been since 2015.

Yes i noticed this but the 'offence' date is 17 Nov 2014.

[lookinforinfo]

Sorry about that Pagemaster.

[Pagemaster]

Sorry about that Pagemaster.

 

No problem - thanks for checking anyway.

[Pagemaster]

So, I have a few questions which need to be answered and I'm hoping that members of the forum can help here (again).

 

1. My partner is not British and therefore her understanding of written English isn't too good. She does speak English reasonably well. Will the court allow me to speak for her whilst she is present?

 

2. Our defence is based on the fact that VCS created a ccj against the keeper and not the driver, and that we have heard nothing about this until long after the event. We also have asked for proof that they can take people to court on behalf of the landlord, and it seems that their proof is signed by an agent of the landlord. Can we still use this defence? We will also be claiming that the £54 that was added on to the ccj cost was not allowable.

 

3. We are compiling a time line of events which led to a total time of 7 months being required to get our application for a set aside into the court.

 

All sorts of delays were caused by the DVLA,

Northampton Business Centre,

Hull Courts,

that fact that she doesn't read English very well,

 

the fact that we spent a huge amount of time dealing with 3 different mortgage brokers in this 7 month period trying to get a mortgage,

more time was spent trying to sort out the car finance which was turned down due to the ccj,

the offer from BW Legal to settle for £150 had also to be considered,

plus the time spent talking to the CAB.

 

Add to that the fact that the NBC also lost the forms, and it's easy to see how this all took so long.

 

I have spent a lot of time on here too,

trying to find the best course of action on hundreds of threads (for which I am eternally grateful to you guys for your help).

 

4. VCS have said they will recommend to the court that the judgement will be set aside at the hearing.

How does that affect our strategy?

 

We're in court 2 weeks today, so any help you can give will be appreciated.

Thanks in advance.

[ericsbrother]

1. who was the judgement against? If her then yes, you can be her lay rep.

 

2. You are asking for a set aside, whoever has the CCJ is the person who progresses this. Driver/ keeper/pet albatross- doesnt matter.

 

3 irrelevant, it all starts again if you get the set aside and then you can apply for costs on a reasonableness test if you win the rematch

 

4 they are trying to limit their exposure to costs.

that will not change anything if they then wish to continue with the original claim.

 

If they say they are dropping it you are most likely to end up with all the coats UNLESS you can prove that by claiming against the keeper they had no cause for action.

 

As they dont use the POFA then yes,

that may well be unreasonable,

depends on what the judge thinks.

 

They may well accept a liklihood keeper was driving but you have a very good argument regarding this,

as you never got any paperwork you couldnt name the driver at the time ans since there was no keeper liability their action IS unreasonable.

 

Try and find out if the occupier of your old house sent the letters back.

If they did VCS are sunk on this point.

 

You then can sue them for damages as a result of their breach of the DPA but this is separate from this matter

 

I thought this had all been made clear before

[Pagemaster]

Thank you again eb - we really appreciate your help!

 

Does that mean that there will be a hearing for a set aside and then another hearing if they start again?

 

It's highly unlikely that my partner was driving the car at the time because she was in her shop,

which is opposite the car park,

on that Monday afternoon.

 

Had she gone out the shop would have had to have been closed.

Also, she has a car parking place behind her shop,

and would not need a car to cross the street to go shopping in the VCS car park.

 

Also, there are 3 people who could have been driving her car on that day, including herself.

 

I will try to contact the old address and see if they remember anything but it is 3 years ago now.

 

Thanks again eb.

[dx100uk]

why don't you answer the questions you are asked

instead of always forgetting and asking more questions every time....

 

dx

[Pagemaster]

The only question I was asked was who was the ccj made against, which was my partner.