VCS/BW Legal - writing defence

Loadsofchildren123

This is as far as I got, I'll have to finish this tomorrow now!


Claimant is not the lawful occupier or owner of the land, has not shown authority to operate on the land, to issue parking charge notices or to issue and pursue proceedings to enforce such notices

• The Claimant has not provided any documentation and relevant contract(s) with the landowner/occupier that authorise it allow the claimant to issue parking charge notices or to enforce those by issuing claims on its own or upon the landowner’s behalf. I put the Claimant to full proof of its authority. challenge VCS Ltd to provide proof of their authorisation from the landowner and not just self-generated approval. This is the sort of documentation which the Claimant should have produced at the pre-action stage of the claim, rather than late in the day, because it is core information/documentation which proves that they have standing to bring a claim.

No contract was formed between Claimant and driver

• The Claimant has produced no evidence of what signage was displayed the car park on the relevant date. I have myself visited the car park and taken photographs on x date and a copy of these photographs is at pages x to x of RH1.
  

Assuming that the signage at the car park on the date of my visit is the same as it was on the date of the parking event, it is incapable of forming a contract. It must be capable of making, and it must have made, an offer capable of being accepted (from which it follows that the terms offered must be clear and unambiguous, and displayed in such a manner that a driver would have seen and understood them), there must have been acceptance of the terms offered (from which again it follows that the signage must be clear, unambiguous and appropriately displayed), and there must have been consideration (and an intention to create legal relations).

Loadsofchildren123

Byelaws are not my speciality - can any of the regulars comment on what I've said here about them? Or beef this part up?

MadHatter752

Thank you so much Loadsofchildren123... you are amazing. I will email you some info that I am not sure I should make public at the moment!

Also should mention, Network West Midlands called me again today. They can't find any pics in their archive of what the signs used to say at the entrance so guess that is a dead end.

My Court Date is 4th July... my WS has to be in 14 days before... I make that Tuesday 20th... so next Tuesday. If I am posting it I guess I should be sending it off Thursday at the latest do you think? or would Friday be ok?

Coupon-mad

Loadsofchildren123 wrote: »

I've just lost all my work on your statement.


Much easier if you pm me your email and I'll send it to you and you can post the finished version on here. This is the second time this has happened to me today!!!!

You can certainly trust LoC123.

System

The issue the court has to decide is whether the simple removal of signs negates the Byelaw - which is what VCS want the court to believe. Since Byelaws are in effect mini-laws then can only be removed or amended by legislation and by those with the power to amend - which is the Secretary of State on request from Centro. Centro have confirmed they are a) still in operation and b) haven't been removed by the SoS. They are always live until the enabling legislation to remove them has been authorised usually by a Statutory Instrument as happened with the 2005 amendments to Rail Byelaws.

Four elements are essential to the validity of a byelaw:

(1) it must be within the powers of the local authority which makes it [1];

(2) it must not be repugnant to the law of England [2];

(3) it must be certain and positive in its terms [3]; and

(4) it must be reasonable [4].

If a byelaw can be divided into separate and distinct parts it may be upheld in part even if the rest is bad [5]. A byelaw ceases to be operative upon the repeal of the statute under which it was made unless it is preserved by the repealing statute [6]. A byelaw which has not been enforced for a long period may nevertheless be relied on in civil proceedings [7].

5 Dodwell v Oxford University (1680) 2 Vent 33; Fazakerley v Wiltshire (1721) 1 Stra 462; Lee v Wallis (1756) 1 Keny 292; R v Faversham Fishermen's Co (1799) 8 Term Rep 352; R v Lundie (1862) 8 Jur NS 640; Reay v Gateshead Corpn (1886) 55 LT 92, DC; Strickland v Hayes [1896] 1 QB 290, 60 JP 164, DC. See also Olsen v City of Camberwell [1926] VLR 58, Vict FC. In DPP v Hutchinson; DPP v Smith [1990] 2 AC 783 at 804, HL, Lord Bridge of Harwich: 'A legislative instrument is textually severable if a clause, a sentence or phrase or a single word may be disregarded, as exceeding the law-maker's power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in its legislative purpose, operation and effect.'

6 Watson v Winch [1916] 1 KB 688, 14 LGR 486, DC. As to the savings for byelaws under the Local Government Act 1972 upon the reorganisation of local government see para 14. See also para 559.

7 The Ladywell v Port of London Authority [1958] 2 Lloyd's Rep 24 at 32-33 per Willmer J, citing Pells & Son v Port of London Authority (1920) 2 Ll L Rep 327.

Halsbury's Laws of England/LOCAL GOVERNMENT (VOLUME 69 (2009))/5. POWERS AND DUTIES OF LOCAL AUTHORITIES/(5) BYELAWS AND LOCAL LEGISLATION/(iii) Validity of Byelaws/561. Byelaws must be intra vires.

Loadsofchildren123

Re timing of service/filing of your WS: if you delve into the rules the 14 days is not supposed to include the day of the hearing, or the day of receiving, and then there are provisions for what happens if the due date is not a working day and so on. Technically (and without looking at the rule to see how it treats non working days) I think you should be posting the docs to be received a bit earlier than the 20th.


However, this isn't clear from the wording of the order and a LiP wouldn't be expected to research the rule, but merely to follow the ordinary English meaning of the order. If this is technically incorrect, nobody will take a point on it and I doubt BW Legal knows the ins and outs of the rule either and will bother looking it up.


So yes, post it to arrive by the 4th and I think you can leave it til Friday if you're not ready on Thursday. Post it to the court then, but don't "serve" it on the solicitors until the 20th - email it to them. If your bundle of documents is long, you want to make sure their server doesn't reject it because the file is too large - I usually scan a bundle in batches and send each in a separate email.


You want a nice index and the bundle must be paginated, and put the page numbers on the index.


Are you serving documents that you aren't referring to in your WS? If so these need to be indexed and paginated separately from the exhibit. I think you are probably referring to everything in your WS so there is no separate bundle/index required.

MadHatter752

Could I hand deliver it on 20th to the court?

Loadsofchildren123

yes but the court counters close at 2 (I think it's 2, it might be 2.30). The court building of course remains open after this, but the counter is closed - if you don't deliver before the cut off you have to put it into the postbox which is outside the front door (security staff will show you where it is). If you put it into the post box of course you won't get any sort of receipt (which you will if you hand it in at the counter).

Loadsofchildren123

New para for the end of the byelaws section (I think it ends at para 10) - I've taken this from Iamemanresu's posts:

The Claimant may assert that the Byelaws no longer apply to the car park. However, I would dispute this. In the same way that byelaws can only be enacted by way of formal legislation, neither can they be removed or amended other than by way of legislation (I believe by way of Statutory Instrument, as was the case with the 2005 amendments to the Byelaws), and only by those with the power to amend them (ie the Secretary of State, not private parking companies such as the Claimant, or train operating companies). The train operating company in this case has in any event confirmed that the Byelaws are a) still in operation and b) haven't been removed by the Secretary of State.

MadHatter752

Thanks LoC123... I know my WS isn't finished yet but thinking about starting to get my exhibits together. When I am putting page numbers on... can I do this by hand or would it be better to have typed stickers.... we have a dymo sticker machine I could use... more faff but if it would be better....