VCS/BW Legal - writing defence

Loadsofchildren123

last part of WS coming up:

No contract was formed between Claimant and driver

19. In making this Statement, I have assumed (although this is not entirely clear) that the Claimant will assert that the wording on its signage at the car park sets out the terms of the contract it claims was entered into between it and the driver, and which it is claimed the driver breached. However, the Claimant has produced no evidence of what signage was displayed the car park on the relevant date. I have therefore myself visited the car park in order to take a video on 20 January 2017 and to take photographs on x and x dates, at different times of day and in different lighting. A disc containing the video and copy of the photographs is at pages x to x of RH1. The Claimant has produced no documents to me at all, or any information about the claim, and so I also assume that the signage now displayed at the site (save for the entrance sign) is the same as that which was displayed on the date of the parking event (although see my comments at paragraph x below about the entrance signage) – of course I should not be expected to second guess these matters and, particularly since 2 ½ years have passed, I put the Claimant to full proof as to the size and positioning of such signs and their precise wording (the Claimant is required by its ATA Code of Practice to keep meticulous records of these matters and so providing such evidence should put it to no trouble whatsoever).

20. The signage at the car park is incapable of forming a contract. To be capable of doing so, it must be capable of making, and it must have made, an offer, and that offer must be capable of being (and must have been) accepted. Dealing with each of these:

20.1 Offer:
For an offer to be made, (from which it follows that the its terms offered must be clear and unambiguous. They must also be adequately communicated to in such a manner that the offeree (in this case the driver). would have seen and understood them Assuming that the Claimant will assert that the wording on the signage was the offer (although this is not clear), my case is that the signage did not make any offer because:
20.1.1 it was not displayed in suitable positions. There were only x signs inside the car park, and they were displayed at a height of 2.6 to 2.8 metres (I took these measurements myself, measuring from the ground to the bottom of each sign) – in particular I refer to the photographs at pages x and x which show a man of [height] and a woman of [height] standing underneath them. The only suitably lit and noticeable signs were the two which are immediately next to the entry/exit points of the car park, but these were were positioned facing away from the entrance, so that they could only be seen by the drivers of cars exiting the car park, not those entering and parking in it (page x of RH1). [there is one sign in your photos that is at a much lower height, where is this situated, I think you should mention it and say why it would not be seen – eg is it in the far corner of the car park and would be obscured from vision because during the day the busy car park would have cars parked in the line of sight of a driver?]
20.1.2 The signs are very small and so high up that even in broad daylight none of the wording on them is legible (and indeed the signs are not even noticeable) to a motorist sitting in a car (see paragraph x below in relation to the mandatory requirement that signs must be legible from a parked car COLOR=seagreen]this is currently para 20.1.8 but check final numbering[/COLOR). Much of the wording is also illegible to a motorist who takes the trouble to go and search out the signs – even if one stands directly underneath the sign there are parts of it that simply cannot be read at all because the font is so small and the yellow/blue on white and the white on blue design is difficult to read (particularly if the lighting is gloomy, as it would be in poor weather or at dawn/dusk, or in the hours of darkness).
20.1.3 The signs are cluttered and not legible. The most important wording for the purpose of this claim (the right to charge £100 and the warning that proceedings such as this claim may be issued) is hidden in very small white on blue print at the bottom of the sign, which is impossible to read. The case of Parking Eye Limited vs Beavis [2015] UKSC 67 (“the Beavis case”) confirmed that terms must be displayed on prominent signage so that it is “bound” to be seen, particularly the right to levy a charge. The signs are also unlit (apart from one sign shown on page x of RH1, but the lighting is so far above the sign as to render it useless in assisting anyone attempting to read it) – I should draw attention to the fact that the parking charge notice to which this claim relates was issued in [month] when the mornings and evenings, when most commuters would have been using the car park, would have been dark.
20.1.4 As for the wording on the signs, even if it were legible, it is forbidding and therefore makes no contractual offer.
20.1.5 The entrance sign conflicts with the signage inside the carpark – at page x of RH1 is a copy of the current entrance signage, but one can see that new wording has been stuck over previous wording (underneath “This free car park….only”). At page x of RH1 is a similar sign from another railway car park under the control of the same train operating company and I believe that this shows the wording which has been covered over and was previously on the sign. I put the Claimant to full proof of when this sign was changed so that it no longer referred to the Byelaws but to “terms and conditions” on other signage.
20.1.6 This wording on the entrance sign is also too small to be read from a vehicle entering the car park – the sign is displayed 2.15m from the ground (I measured this myself on x date and it is the distance between the ground and the bottom of the sign – a driver would struggle to read the wording on it as they entered the car park - and the only parts of it that can be read from a car entering is the larger wording (from “Marston Green Station” down to “This free car park is provided for rail users and park visitors only”). The part referring to terms and conditions (if indeed this was part of the sign on the relevant date) is not legible from a car. The sign is also unlit and it is situated directly beneath an overhanging tree and above dense undergrowth – whilst on the date of my visit to take photographs the sign was not obscured by the plants, one can see from page x of RH1 that immediately underneath the sign Japanese Knotweed is growing. This is a notoriously fast growing plant (according to the website www.japaneseknotweedspecialists.com it can grow at a rate of 10-20cms a day and can reach 3-4 metres within just 10 weeks – see page x of RH1), and the Environment Agency has described it as “indisputably the UK’s most aggressive , destructive and invasive plant”.
20.1.7 The entrance sign also fails to identify the Claimant but only names the train operating company, and it states that free car parking is available to “rail users and park visitors” whereas the Claimant’s internal signage states that the car park is “strictly for Park & Ride customers whilst using the Rail and/or Metro”.
20.1.8 The Claimant’s ATA Code of Practice, compliance with which is a mandatory condition of its membership (without which it could not effectively operate as a private parking company), is exhibited hereto at pages x to x of RH1. I refer to sections xxxxx on pages x, x and x…., which state [summarise what they say] – I have highlighted the relevant parts. [make sure you use the version of the CoP in force at the time of the parking event and if it’s different from the current version say so]
20.1.9 Ironically, even the Claimant, on its own website, states that “Signage is the most effective deterrent against parking abuse and many clients find that problems are dramatically reduced immediately following its erection. We have thus designed our signage to be as visually arresting as possible and ensure that all terms and conditions are visible at the entry to and from all points within a parking area.” (page x of RH1).

20.2 Acceptance:
It must follow that for any offer to be capable of acceptance, and to have been accepted, the offer must actually be adequately communicated to the offeree. So even if it is held that the wording on the signs was capable of making an offer, such offer was not communicated, adequately or at all, because it was impossible for a driver to have seen and read the terms being offered. Therefore any terms offered cannot have been accepted. I repeat the matters set out in paragraph 20.1 above.

Loadsofchildren123

21. As an example of signage which has been held capable of offering a contract, I refer to page x of RH1, which Exhibited hereto marked xxxx is a copy of a sign which was the one displayed in the car park concerned in the case of Parking Eye Limited vs Beavis [2015] UKSC 67, a case (which the Claimant’s solicitors BW Legal themselves brought to my attention). The difference between this sign and the Claimant’s signs in this case can clearly be seen. distinguishing the contrast between the Parking Eye Limited sign and the VCS Ltd signs in operation in the carpark in question. [I haven't seen your sign - if it is forbidding wording, then consider also producing and exhibiting the sign in the case of PCM v Bull et al [you'll find this on the parking prankster's blog]Relevant cases also featuring prohibitive As an example of singage which has been held incapable of offering a contract because its wording is ‘forbidding’ I refer to pages x and x of RH1 which is a copy of the signs in the case of parking’ signs include PCMUK vs Bull et al (Ex. ** ) and UKPC vs Masterson (Ex. **) where it was ruled such signs offer no contract a driver can accept.
Can I use PCM vs Bull – does it apply here from Parking Prankster? It may do, I don' t know what your signage said. Your court order says you don't have to produce legislation etc (this includes case law) until the hearing itself, so no need to exhibit it. Is it clear whether I can use this now that I have provided the other photos?






Breach of contract
22. It is claimed that the driver breached the alleged contract because he/she parked “outside of a marked bay”. It is difficult, if not impossible, for me to deal with this allegation in light of the Claimant’s failure to provide me with any evidence of where and how the vehicle was parked.


23. Of course, had Since the Claimant has failed to complied with its pre-action obligations pursuant to paragraphs 6(a) and (c) of the Practice Direction -Pre-Action Conduct, and had it complied with paragraph x of the Order of DJ X of 4 May 2017, further information and documents such as photographs taken by the Claimant’s operative would have been produced long ago. [do I exhibit this too?no, but take 2 copies to court on the day] by not providing any evidence of the alleged breach of contract,. I am simply unable to comment on it let alone defend it.For instance the Claimant will have photographs taken by its operative of the car and where it was parked and it will have a contract with the landowner and a record of the signage in place at the relevant time (wording, location, size etc). All that I know is that it is alleged that the vehicle was not parked in a marked bay. This sort of scenario is exactly what the Practice Direction seeks to avoid - Defendants having to "fight blind". The Claimant is a professional parking company which has so far this year pursued 252 cases against motorists. Furthermore the Claimant is professionally represented by solicitors who claim to be experienced in this area of the law (they are certainly prolific litigators, acting for several nationwide parking companies similar to the Claimant). This conduct is reprehensible and it is immoral, unlawful and contemptuous of this honourable court and should not go unpunished.

Loadsofchildren123

Disproportionate Penalty

You need to say here how Beavis is distinguished from this case and so the penalty rule is not disengaged:
eg. Beavis was a retail park where there was a commercial interest in ensuring a turnover of vehicles and no overstays
in Beavis the driver accepted that there was a contract
In Beavis the signs were clear and prominent


etc - look at my skeleton or defence for some ideas.
Also highlight that Beavis held that compliance with the ATA CoP was paramount, and in this case there are countless breaches (you don't have to go into what they are at this stage, and you can refer to the earlier paragraph where you highlight a few).

Loadsofchildren123

Data Protection Act breach
24. I believe that my rights under the Data Protection Act have been breached. I reserve my position in respect of any claim or counterclaim, and intend to report the Claimant VCS Ltd to the Information Commissioner for misuse of my data, obtained from the DVLA in 2014. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for a period of some 2 ½ years and then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £254, including the legal insult of over two years' interest, for an original (and unproven) what was apparently an unproven £60 charge. I reserve my position in relation to making a counterclaim, or a separate claim, against the Claimant for damages for a breach of my data protection rights. The Claimant knew or ought to have known that the Byelaws applied to the car park and that only the train operating company was entitled to issue and pursue any charge from the driver, and that it had only 6 months within which to do so. Its breach is aggravated by its conduct in passing my details to various debt collection agencies who have bombarded me with aggressive and threatening chaser letters, referring to county court judgments which would result in bad credit and so on, all of which I have found incredibly stressful and upsetting.



Claimant’s disregard of the court rules

25. The court is already aware of the Claimant’s disregard of its pre-action obligations set out in the Practice Direction – Pre-Action Conduct (specifically paragraphs 6(a) and (c)), namely its failure to explain its claim in any detail and to provide core supporting documents/information. It is also aware of its failure properly to particularise its claim, a serious breach of CPR Rule 16 and to produce the contract it asserts was formed between it and the driver (a breach of Practice Direction 16). The court is also aware of the Claimant’s contempt of the order of 4 May 2017 in failing to provide a Reply to my Defence (that order having been designed to remedy its breaches and to allow me to defend this claim to the best of my ability, as is my fundamental right).

26. I have already explained in my Defence, and now in this Statement, about how difficult this absence of cogent information makes my position in understanding and defending this claim.

27. The CPR and the Practice Direction – Pre-Action Conduct do not exempt parties to a small claim from compliance. They bind all parties, whoever they are and regardless of the subject matter or size of the claim. I am aware that the court will not require a slavish approach and it will not disapprove of minor breaches. However, the Claimant and its solicitors seem to consider themselves immune from the court rules and believe that the court will ignore or forgive their contempt of due process, although their behaviour seriously disadvantages Defendants such as me. I have put the Claimant on notice of my intention to seek a costs order pursuant both to Rule 27.14(2)(g) and paragraph 16 of the Practice Direction – Pre-Action Conduct. In view of the Claimants non-compliance with its pre-action obligations and the Defendant’s belief that the claim has been incorrectly brought and pursued, which must be clear to VCS Ltd and BW Legal, the Defendant will be seeking a costs order.



I believe that the facts stated in this Witness Statement are true.

Signed …………………….

Dated …………………….

Loadsofchildren123

I think that's it!

Loadsofchildren123

MadHatter752 wrote: »

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....

It doesn't matter - the neater it all is the better, so you could do, but as long as handwritten numbers aren't illegible it's fine.

MadHatter752

Thank you, thank you, thank you!!

I am so appreciative to you. I can't believe that there are people like yourself and others on this forum who are willing to spend so much time helping others, with nothing to gain for theirselves. I am forever grateful to you all, no matter how the case ends.

So what's left for me I guess is just to go through it and fill in the gaps and sort everything.

I have had an email back from the Court this morning confirming they will put my email of yesterday (the one you drafted for me) in front of the DJ so guess I should wait this out.

Did you see my email by the way? It means I will need to make a few changes to the WS but I will post a final draft before I print it all off and send it.

Any further thoughts regarding the Council's evaluation of the signage? Apologies if you have already mentioned it somewhere!!!

MadHatter752

IamEmanresu wrote: »

Print this one out and add it to your pack

https://www.whatdotheyknow.com/request/railway_byelaws_at_sandwell_and#incoming-875363

Highlight this bit

2. There are no car parks at this location to which WMCA believe the
byelaws do not apply

Add that you have a reasonable belief that Byelaws apply throughout the CENTRO network as indicated in the tender that CENTRO issued when outsourcing the parking contract.

IamEmanresu - I am looking for the evidence of byelaws applying as indicated in the tender offer as you suggested we use this.... do you have it?

Loadsofchildren123

MadHatter752 wrote: »

Did you see my email by the way? It means I will need to make a few changes to the WS but I will post a final draft before I print it all off and send it.

Any further thoughts regarding the Council's evaluation of the signage? Apologies if you have already mentioned it somewhere!!!

I did reply, didn't you see it? That email raises an interesting question.
I'll look at the start of the statement in relation to the other thing, but in the morning.

MadHatter752

Hi, yes I saw your email with bpa and WS attached... thanks
I meant my first email I sent this morning but you must have seen it. Thanks again.