VCS PCN - Help Needed

Coupon-mad

Yes, and in your WS with the N244, ask the court to stay the CCJ under the circumstances so it is not recorded on your record. Act quickly.

AB_Express

Quick question, the letter I have from BW Legal informing me of the impending CCJ states that if they don't hear from me within 14 days of the date of the letter then the will go ahead and enforce the judgment. This 2 week deadline is in the next few days. The judgment was dated just over a week ago so I have until next month. Is this just a scare tactic from BW? Should I email them to let them know I will be applying for a set aside? Should I also tell them that I won an almost identical case against them not that long ago?

Thanks in advance

AB_Express

Another question.

Am I asking to get the claim dismissed or asking for a re-hearing?

Also, do i mention that in the some of the correspondence from BW they got the reg wrong?

Thanks again

nosferatu1001

It's a set aside. You're asking fir the judgement to be set aside meaning the claimant then has to start again.

Coupon-mad

AB_Express wrote: »

Quick question, the letter I have from BW Legal informing me of the impending CCJ states that if they don't hear from me within 14 days of the date of the letter then the will go ahead and enforce the judgment. This 2 week deadline is in the next few days. The judgment was dated just over a week ago so I have until next month. Is this just a scare tactic from BW? Should I email them to let them know I will be applying for a set aside? Should I also tell them that I won an almost identical case against them not that long ago?

So, your WS with the N244 needs to go quickly, and as well as explaining why the default judgment, ask the court to stay the CCJ and not add it to the record. You can but ask.

AB_Express

Here is my first draft of my WS.


Do I put in anything about the correspondences from BW containing the incorrect reg?




I am XXXX XXXX and I am the Defendant in this matter.

This Witness Statement is in support of my application dated XX to:

1. Set aside the Default Judgement dated XX as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

2. Order for the original claim to be dismissed.

or

2. Order for the original claim to be heard at a re-hearing.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX. I am aware that the Claimant is Vehicle Control Services Limited, represented by BW Legal and that the claim is in respect of an unpaid Parking Charge Notice from the XX at the International Business Park, Liverpool. I further contest this charge for the reasons outlined in Part 2 of this defence.

1.2. The claim form was not served at my current address and I thus was not aware of the Default Judgement until XX. I understand that this Claim was served at, XXX. However, I moved to a new address at, XX on the XX. In support of this I can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a solicitor’s completion statement showing the date of completion and confirmation from XXXX XXXX Borough Council showing my updated details for the purposes of paying Council tax. Both are attached at Exhibit X.

1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time nine months out of date.

1.4. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

1.5. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.6. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

2. Order for the original claim to be heard at a re-hearing

I am aware that the claim is for an unpaid Parking Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in further detail, and in summary are:
• Please refer to Claim no. XXXXX, a case in which I won against VCS for a PCN issued in exactly the same location
• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
• No contractual agreement with the driver
• No grace period



Summary of Events


Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage

2.2. The signage located at the site formed no contract with the driver and does not meet the IPC Code of Practice (CoP) guideline requirements. Firstly terms are only imported into a contract if they are clear and prominent that the party ‘must’ have known about it and agreed. The signage present at the location of the alleged contravention does not identify The Claimant as a creditor for any charges that arise out of the contract or damages following a breach of the contract. Therefore, this cannot form a contract between the driver and landowner or The Claimant.

2.3. Due to the positioning, along with the overall minute size of text used, the signage is barely legible making it difficult to read and understand. On page 26 of IPC CoP it clearly states that “The signs must be readable from far enough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’’, or under 12’’, from the ground level. Such text must be of a size which is easily legible having regard to the location and in any event should not be less than 5mm in height” (see attached Signage copies).

2.4. However, the signage at the location was very difficult to read. I contend that the signs and any core parking terms The Claimant are relying upon, are too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible.


No contractual agreement with the driver

2.5. It is submitted that if the signage is attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.
The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

While this is a County Court decision and therefore not binding, it is similar in nature to the present case and may be considered as persuasive.

2.6. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

2.7. The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up. In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8.


No grace period

2.8. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.

2.9. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

2.10. The Court is invited to dismiss this Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

2.11. In summary, and to stress the point that there is growing anger at the dubious practices of private car parking companies of which I believe I the Defendant has fallen foul of, I would also like to draw the attention of the court to a debate in Parliament on 21st March 2017 that focussed on the relationship between the DVLA and private car parking companies, and the latter’s access and (mis)use of data. In the debate the Rt Hon Steve Double MP commented that “We need to look at the relationship the firms have with the DVLA. In my view, they are abusing their privileged relationship and their access to drivers’ information.”

The Rt Hon Kevin Foster MP surmised that “We got rid of the cowboy clampers in the last Parliament. The suspicion is that the cowboy clampers have now become the cowboy finers and cowboy invoicers. Although they may wish to leave their spur marks on car parks across the country, I hope the Minister will be clear what action will be taken to ensure that they have to ride off into the sunset for good.”



3. Counterclaim

It is not possible that a valid parking charge exists for the following reasons:

3.1. The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance.

3.2. The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

3.3. Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-bindng on the consumer.

3.4. Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

3.5. There was therefore no valid reason to apply for my keeper data from the DVLA.

3.6. Additionally the operator contract with the DVLA only allows them to obtain data for parking contraventions and not for briefly stopping.

3.7. My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). The Claimant has misused this data by attempting to claim a charge when there is no possibility that a lawful reason exists. Additionally, this data may only obtained and used from the DVLA for parking, and not for stopping.

3.8. This is therefore a breach of data principle 1 (data must be used lawfully) and 2 (data must only be used for the purpose provided).

3.9. The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

3.10. The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.




Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: xxxxxxxxxxxxxx

Dated: XXXXXXXXXX

Signed: ________________________________

Coupon-mad

Looks good.

I couldn't see a request to stay the judgement and avoid it being recorded at all?

Johnersh would say that you don't need all the defence as well, but it's your choice.

AB_Express

Thanks CM

Where should I put the request to stay the judgment?

Which sentence should I go with right at the top, in italics.

Do I email BW to say that I am requesting the case to be set aside?

Do I put in anything about the correspondences from BW containing the incorrect reg?

Sorry for all the questions but need this in the post asap.

[Deleted User]

Johnersh would say that you don't need all the defence as well, but it's your choice.

Yes and no. Invalid service requires the Court to set aside Judgment - it is mandatory in that circumstance. The discretionary basis for set aside is that the case is defensible. The judge needs to show that the prospects of defending the claim are more than "false, fanciful or imaginary" Some defence evidence may well be prudent, but you see why I major on the former point.

I am a firm believer that statements should be limited to fact not a statement of case (legal argument).
What you currently have is a messy hybrid of why you are in this position and a defence. Separate them. That being my view, I propose the solution below:

1. Limit your witness statement dealt with what you said/did and why you seek a set aside. this clarifies the position regarding invalid service and makes clear the PPC slapdash approach

Some points on the statement element: This is your primary argument. It needs to be better.
*I would exhibit the supporting documents as Exhibit [initials]1 to your statement and, if you were on the publicly listed electoral roll or phone book, for goodness sake say so;
*You need to make clear not just that you moved, but that you were there to be found had even minimal diligence been exercised;
*You should also state that it was not reasonable for the Claimant to proceed in 2017 when it appears that they did a DVLA request some years previously (no explanation is available as to why they did not bring proceedings when they had a current address from the DVLA and it is illogical to obtain an address and not proceed with a claim only to then allow matters to lapse and undertake no address enquiries when the serious matter of court proceedings are contemplated); and
*the lack of any response to pre-action correspondence must have at least suggested to them the possibility that you had moved.
*There is no duty to use a current address. Read the CPR service rules, which permit a 'last known address'. That is what the Claimant will argue, so anticipate it. You need to show that it was not reasonable to use a last known address that was as old as it was since it was more likely than not that you had moved (no responses etc) AND IN THE ALTERNATIVE in the event that the Court finds that it was reasonable for the Claimant to issue, you should make clear that at no point have you not engaged with the court process and that you should now be permitted to defend it.

So to the Defence element:

2. The place to set out a defence to the case is (unsurprisingly) in a defence. In order to show that the case is defensible and is capable of being defended, you should attach it to the witness statement as an Exhibit as follows: "I attach to this witness statement as Exhibit [intials]2 a copy of the Defence that would have been filed in the event that the claim had been brought to my attention."
(this makes the legal arguments nice and clear and shows why a trial of the issue would be needed

I think the Defence is a little messy, but it probably does the job. The counter claim shouldn't be there. They have judgment. By all means counter claim if new proceedings are brought (or bring proceedings if the claim is set aside), but as things stand, there is no basis to bring a counter claim nor is there a claim for misuse of the DPA where the PPC has obtained judgment (which on the face of it implies that they were right to access the data).

You MUST lodge with the application notice a draft Order, stating the terms you seek (i.e. the set aside and any order as to costs). I would not seek an alternative order. I would simply seek the judgment to be set aside on the basis that the proceedings were not validly served. Indeed, if the Court is with you on that and the Defendant has failed to serve proceedings within 4 months of issue, the claim is out of time. It will be for the Claimant to then choose whether to issue fresh proceedings. If you ask the Court to set down a fresh hearing, they may salvage this.

That is all.

[Deleted User]

The application and all accompanying documents should be served on the lawyers representing the Claimant. For good measure you may wish to copy in the Claimant at their registered address in the event that they choose to obtain alternative representation.