VCS/BW Legal - writing defence

MadHatter752

I can't see anything specific mentioned re a bundle a week before. Here is the order....

https://www.dropbox.com/s/l0plfbiaz89hq4k/Order%20p2.jpg?dl=0

https://www.dropbox.com/s/urqo59emqadtdb4/Order%20p3.jpg?dl=0

How much do you think I will have to say on the day? I don't have a good grasp on the issues here or the legislation etc. Still toying with the idea of seeing if someone can come with me.

Loadsofchildren123

ok, your order doesn't include that direction (normally it does)
So you don't refer to page numbers, just para numbers


If your own bundle is paginated, refer to those page numbers eg [page x of D's bundle]. If their bundle is paginated do likewise.

Loadsofchildren123

I've tried to simplify the SA. I like the idea of a table form, comparing each element of their case and your defence of it, and giving the page/para references in each case. Underneath the table I've put in the general comments about their evidence and all the inaccuracies/false statements.


Not sure a table will come out in a post though! I will email it to you as well Madhatter. In case the table unformats itself, I've put the Claimant's case on the left and the D's on the right - if you look at the different paras you will see where one ends and the next begins. I just think it makes it nice and simple for the judge.





Claimant
Defendant

The Defendant’s case is that the Railway Byelaws 2005 apply to the car park.

If this is the case, the court only needs to consider paragraph 1 below because the claim has been wrongly brought and is unsustainable.

1.
Railway Byelaws 2005 do not apply because this is private land, so this is a civil claim for breach of contract which is properly brought [paras 20-23 of C’s Statement].
Railway Byelaws 2005 do apply, so this is a criminal matter for the Magistrates, and there is a 6 month limitation period which has expired [Defence paras 2(a), 5-7, D’s Statement paras x-x and pages xxx of RH1].

The land is clearly railway land: the car park is described as a “Railway Car Park” in the contract (paragraph 7 of C’s Statement and page 2 of IC1), and as a “Station Car Park” and “strictly for Park and Ride Customers whilst using the Rail and/or the Metro” in the signage (page ?8check page and 15 of IC1, pages xxx of RH1 [insert references to your photographs showing entrance and interior signage describing it as a station car park]

The landowner of the car park (Centro) has acknowledged that it is only non-railway park and ride sites to which civil claims apply (para 8 of D’s statement and page x of RH1).

If the court decides that the Byelaws do not apply, then it will need to consider whether a contract was formed between driver and Claimant, whether its terms were breached and whether the Defendant can be liable, either on the presumption that she was driving (with no evidence of that) or as the vehicle’s Keeper. These matters are set out below:
2.
Liability as driver or keeper:

i.
Defendant was the driver of the vehicle at the time alleged (para 8 C’s Statement)
No evidence produced by Claimant (Defence paras 9-10, paras x-x D’s Statement). As the court found in Lamoreux [put in full citation] it is for the Claimant to produce evidence to show who was driving.

ii.
In the absence of such evidence, a presumption should be made that a vehicle’s keeper was its driver pursuant to Elliott v Loake (Statement para 30).

There can be no such presumption. Elliott v Loake was a criminal case in which there was overwhelming forensic and witness evidence that the Registered Keeper was the driver at the date of the offence. Elliott is not authority that a keeper can or should be presumed to have been driving, rebuttable only by the Defendant (Statement para x, Defence para x). There is no reverse burden of proof: the Claim is for the Claimant to prove. The irrelevance of Elliott has been held many times, but more recently in case number C9DP7T5D – Vehicle Control Services Ltd v Hall on 12.6.17 in Blackwood County Court, where the District Judge rejected the relevance of Elliot v Loake (and the AJH Films case below) and ordered costs of c£550 against VCS (the same Claimant as in this case, with the same solicitors as are acting in this claim). Also another recent case heard on 22.6.17 with the Claimant this time being VCS’s sister company Excel (they are under common ownership): Excel Parking Services Ltd v Mrs. Lynzi Evans, before DJ McKay in Cardiff Civil Justice Centre, Claim C8DP79CC where it was held that Elliott (as well as the AJH Films case below) was irrelevant and did not apply to a private parking case.
iii.
Alternatively, the keeper is liable for any contract entered into by the driver while in possession of the vehicle – it asserts that the authority for this is Combined Parking Solutions v AJH Films (Statement paras 31-32)
AJH Films applies only to employee-employer type relationships; it is an absurd proposition that anyone using a car belonging to someone else has deemed authority to act on their behalf (the car hire business would become unviable, where would such liability end – eg would it apply to criminal acts committed with the vehicle?). This has been held many times by other District Judges, and was recently determined on 8.6.17 by a Circuit Judge (HHJ Smith) in an appeal case Excel Parking Services Ltd v Smith (original claim numbers: C0DP9C4E and C1DP0C8E, Appeal number M17X062) [print of Prankster’s report of this and take it with you].
It is worth noting that the parking company in that case and the Claimant in this case are under common ownership and instruct the same solicitors, so the judgment must be known to the Claimant and its solicitors. See also VCS v Hall and Excel v Evans referred to above.
iv.
Alternatively, the keeper is liable for any contract because the driver had her authority and the keeper has refused to name the driver (Statement para 32)
There is no such obligation to name a driver (Statement para x and page x of RH1) and the burden of proof rests on the Claimant (cite Lamoreux case here). There is no authority for the proposition that a keeper grants such authority to a driver as a matter of course.
3.
Formation of a contract: whether or not an enforceable contract was entered into by Claimant and driver, whether it was breached
i.
Offer: made in displayed signage (Statement paras 9-12, 33-45) [see also 5 below]
No offer was made in the signage (Defence para x, Statement paras x-y)
ii.
Acceptance: the signage was clearly displayed and the terms offered were accepted by the driver proceeding to park (Statement paras 13/35/40/41/42)
Signage was so poorly displayed that there cannot have been acceptance of any terms offered – signage was unclear, not clearly communicated and not made sufficiently known to drivers (they were not displayed with any prominence, were displayed in such a way that they were impossible to read, parts of them were small and cluttered and/or they were obscured) (Defence para x, Statement para x, RH1 pages xx).
None of the photographs exhibited to the C’s Statement, other than those ones at pages 16-19 of IC1, show the Defendant’s car. Those which do show the Defendant’s car show no signs in sight of where the car was parked. The Claimant is in fact obliged by the IPC Code of Practice to make and keep meticulous records of, inter alia, its signage, but such records have not been produced. The Defendant has dealt with the signs in the car park in some detail in her Statement (paras #25 & 26), demonstrating that the signs were not prominently displayed.
Whilst the writing on the signs is legible in the print-outs of the signs exhibited to the C’s Statement at pages 14 and 15 of IC1, it is denied that the words are legible on the signs themselves as seen in the Defendant’s Statement (RH1 pages 8-13 and dealt with at paras# 25 & 26). The signs are not “clearly displayed” or “obvious”.
iii.
Consideration: the parking facility (Statement para 43)



The terms of that contract are, inter alia, that:
· the driver must “purchase a valid ticket” which (s)he breached (Statement para 33)

· The driver also failed to park within a marked bay (para 33)





· if (s)he does not comply with the terms, the driver is contractually bound to pay the Claimant £100 plus additional charges representing interest and costs) (Statement paras 11 , 35, 53-55)


· No such term is shown in the signage (pages 8-15 of IC1).


· The Defendant accepts that the photographs show this – however, these photographs should clearly have been produced much earlier, in the pre-action phase, pursuant to the Claimant’s obligations in paragraphs 6(a) and (c) of the Practice Direction – Pre-Action Conduct

· The additional charges and interest are undefined and this term must therefore be void for uncertainty and unfairness (para 16 of Defence) – a party entering into a contract must know and understand all of its terms (Statement para x)


4.
Whether Defendant can be liable for any breach
Claimant asserts Defendant is liable either as driver or keeper, as per 2 above.

As the Claimant cannot show that the Defendant was driving it cannot show that she was party to any contract formed between it and the driver (Statement para x). There is no authority for holding a keeper liable as if they had been driving. Any contract that may exist is therefore unenforceable against the Defendant.
5.
What signage was displayed at the car park on the relevant date?

The Claimant relies on the signage exhibited to its Statement
The Claimant has not satisfied its burden of proof as to what signage was displayed at the time of the parking event.

The Defendant asserts that the entrance signage exhibited to the Claimant’s Statement is different to the signage displayed at the relevant time
6.
POFA 2012

Claimant confirms it does not rely on POFA 2012 (para 28 of Statement)
For Keeper liability to apply, POFA 2012 must be complied with – C admits it has not complied. In any event, POFA does not apply to land to which byelaws apply.
7.
Landowner authority

Claimant has now produced evidence of landowner authority
Defendant has throughout questioned what authority the Claimant operates under - this should clearly have been produced prior to proceedings being issued (paragraph 6(a) and (c) of Practice Direction – Pre-Action Conduct
8.
Additional charges of £54 and interest

Defendant is liable for £54 in additional charges, plus interest (para 55 of Statement).
Claimant relies on Chaplair Limitd v Kumari [2015] in order to support the claim for “additional costs”.
Chaplair does not support this assertion - it was a decision about contractual fees set in lease terms, not “additional costs” bolted onto an already significantly disproportionate and not ‘agreed’ parking charge, the “additional costs” of which continue to rise since the claim has been allocated to this Court. The Defendant refers to the wording on the signs at pages 14/15 of IC1 – for such charges to have formed part of the contract they should have been set out clearly and definitively, whereas they were undefined and vague. To bolt on an additional charge of over 50% of the original charge of £100 (and 90% of the original discounted charge of £60) is a significant amount. This contract “term” is both void for uncertainty and is unfair pursuant to S62 of the Consumer Rights Act (para 16 of Defence and paras xxx of D’s Statement)

Loadsofchildren123

This is what then follows in narrative form under the table:



General points about the Claimant’s evidence:


False and contradictory evidence:


1. The Witness and the matters set out in his Statement are not credible. The statement contains invalid, contradictory and false statements, set out below. Mr Callaghan shows a general lack of knowledge and understanding of the facts. He was not a witness to the parking event, is not a witness to the Claimant’s procedures and record keeping, and in fact has no personal knowledge of any of the matters upon which the Claim is based. The Claimant has also said that it will not attend the hearing and so there will be nobody available for cross-examination or to explain the serious discrepancies in its own evidence, a significant disadvantage for the Defendant.

2. The claim is fundamentally misconceived and flawed and the Claimant has behaved unreasonably.

3. Inaccuracies in the Statement of Ian Callaghan:

3.1. Para #20 the Witness: “The Car Park is a non railway ‘park and ride’ car park and therefore not subject to Railway Byelaws 2005”. This is not true – see page 15 of Exhibit IC1 which is a picture of the signage in the carpark, which it can be seen clearly states “This car park is strictly for Park & Ride Customers whilst using the Rail and/or Metro”. See also page 8 of IC1, a picture of the entrance signage, which clearly states “Marston Green Station and Sheldon Country Park car park” and includes the logo of Network West Midlands who operate Marston Green Railway Station. The car park is identified as a station car park in the contract between Centro and the Claimant (page 3 of IC1). Furthermore, para #35 of the Claimant’s own Witness Statement confirms the fact that this car park is for “Park & Ride Customers whilst using the Rail and/or Metro”. It is worth mentioning that there is no Metro at this site, only Railway. Exhibit RH1, page 18 contains a confirmation from a West Midlands Passenger Transport Executive that Byelaws are in operation at such carparks (see paras #9-11 of Defendant’s Statement).

3.2. Para #21 – This paragraph is irrelevant, because the car park clearly is a railway park and ride, as confirmed in the documents produced by the Claimant with Mr Callaghan’s statement.

3.3. Para #23 – asserts that “The Claim has therefore correctly been brought in the Country Court”. This is incorrect. The correct Court would be Magistrates Court (Defendant’s Witness Statement para #6).

3.4. Para #33 the Witness states “The signage at the Car Park clearly states that the Defendant must “purchase a valid ticket” . This is wrong. The car park does not operate a Pay & Display, it is a free carpark where no tickets are available.

3.5. Para #37-39 refer to the Approved Operator Scheme and the Witness claims that “As the Claimant was an established member of the BPA at the time of the contravention, it had to adhere to the BPA’s Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks”. The BPA’s Code of Practice binds only members of its AoS. The Witness is wrong – at the time of the “contravention” the Claimant was, and in fact still is, a member of the IPC, not the BPA. It is therefore the IPC’s Code of Practice which binds it.

4. In addition to these blatant inaccuracies, the Statement is littered with assumptions, yet expressed as statements of fact, concerning the identity of the driver (the Witness should know better – he describes himself as a senior paralegal in the employ of the Claimant’s solicitors). The matters which he describes as fact are neither fact nor are they within his personal knowledge:


4.1 Para #8: The Claimant has submitted no evidence that the Defendant was driving, or that she used the carpark on the day of the contravention at all [never mind there being no evidence that the Defendant failed to park the Vehicle within the markings of a parked bay [but there’s a photo!]. If you say there was no such breach, add this into section 3 iii above.

4.2 Para #13: there is an assertion that “the Defendant, by physically entering and leave their vehicle at the Car Park therefore accepted the Terms and Conditions in operation”. There is no evidence that the Defendant physically entered the Car Park at all.



4.3. Para #15: the Witness claims that “The Defendant’s contravention of the Car Park’s Terms and Conditions was captured by the CPW who took photographs of the Vehicle. The images capturing the Defendant’s breach of the Terms and Conditions are now shown in pages 16-20”. The images do not show the Defendant at all, so they cannot demonstrate the Defendant contravening the Terms and Conditions. In the absence of evidence, it cannot be assumed that the Defendant was the driver and contravened the Terms and Conditions.

4.4. Para #17: “The Defendant’s stay at the Car Park exceeded the 10 minutes grace period”. Again, a purported statement of fact which cannot be in the witness’s personal knowledge. There is no evidence the Defendant entered the Car Park at all or indeed exceeded the grace period.

4.5. It cannot be assumed that the Defendant was the Driver. This is brought to the attention of the Court in the Defendant’s Witness Statement #18.1, in particular the comments by Henry Michael Greenslade.


Keeper Liability

5. The Claimant chooses not to rely on POFA 2012 and therefore cannot hold a keeper liable under that legislation.

6. Reliance on Elliott v Loake (para #30 of the Claimant’s Statement): That case has been distinguished from cases of this nature by other courts, most recently in…… (see Defendant’s Witness Statement paras #18.3-18.3.2).

7. Reliance on CPS vs AJH Films Ltd: the relevance of this case to non-employer/employee relationships was recently ruled upon in an appeal and the appeal was upheld in favour of the Defendant [cite the case and produce it]. In private non-employer/employee relationships a keeper is not liable in law for the actions of a driver (if it were otherwise then the car hire business would not exist and it is frankly absurd to suggest that person A can borrow person B’s car and person B is then responsible for everything they do with it).

8. Para #47: Claimant asserts that the present case is not distinguishable from Parking Eye v Beavis – there are significant differences, set out in the Defendant’s Statement paras 33-34.5. I’ve taken this all out as it repeats what’s in the table already

Signage: prominence and legibility

9. At para #9 it is asserted “At the time the PCN was issued, the Car Park benefitted from highly prominent information signs”. This is denied. There is no evidence that the signs the Witness has said were in place, were actually those in place at the time the PCN was issued. None of the photographs exhibited to the Statement, other than those ones at pages 16-19, show the Defendant’s car. Those which do show the Defendant’s car show no signs in sight of where the car was parked. The Claimant is in fact obliged by the IPC Code of Practice to make and keep meticulous records of, inter alia, its signage, but such records have not been produced. The Defendant has dealt with the signs in the car park in some detail in her Statement (paras #25 & 26), which shows that the signs in operation within the Car Park were not prominent.

10. Para #34: it is claimed that there is a sign beneath the railway company’s large blue sign referring to parking terms and conditions. The Defendant lives near to this car park and uses it from time to time, and has never seen this sign. She denies that it was in place at the time of the parking event and her evidence confirms it was not in place when she recently visited to take photographs. There is no evidence it was in place at the time the PCN was issued.

11. Para #35, 40 & 41:Whilst the writing on the signs is legible in the print-outs of the signs exhibited to the Statement at pages 14 and 15 of IC1, it is denied that the words are legible on the signs themselves as seen in the Witness’ own Statement (RH1 pages 8-13 and dealt with at paras# 25 & 26). The signs are not “clearly displayed” or “obvious”.

Claimant’s Claim for Additional Costs of £54

12. Para #55: Claimant relies on the ruling in the case of Chaplair Limitd v Kumari [2015] in order to support their claim for “additional costs”. The case of Chaplair Limited v Kumari [2015] does not support this assertion since it was a decision about contractual fees set in lease terms, not “additional costs” bolted onto an already significantly disproportionate and not ‘agreed’ parking charge, the “additional costs” of which continue to rise since the claim has been allocated to this Court. The Defendant refers to the wording on the signs at pages 14/15 of IC1 – for such charges to have formed part of the contract they should have been set out clearly and definitively, whereas they were undefined and vague. To bolt on an additional charge of over 50% of the original charge of £100 (and 90% of the original discounted charge of £60) is a significant amount. This contract “term” is both void for uncertainty and is unfair pursuant to S.62 of….. [cite legislation]

Claimant’s Exhibits IC1

13. Page 1-3 (Letter of Authority from Centro) – but see page 5 of RH1 where Centro confirmed that they “cannot give powers to enforce to an agent or subcontractor that it does not have itself and legal are investing [is there a mistake here, it doesn’t make sense] the legal methods by which such an enforcement could be undertaken”. This is admission from Centro that they are aware of the issue over enforcement of parking charge notices on railway land, and the Claimant has not produced any evidence that the Byelaws do not apply to this car park, which is clearly a station car park.

14. Page 7: this sign is meaningless. The green circles do not show that signs were there on the day of the Parking Charge Notice, what these signs said, what terms were offered and how the signs were displayed (ie were they prominent/legible or not).

15. Page 8 – The picture is not dated and the signs are illegible so are not evidence of anything.

16. Page 9 -12 – The pictures are dated 22 September 2014, which is different to the date of the parking event. The signage shown is illegible so cannot prove anything.

17. Page 13 – This picture is poor quality and illegible.

18. Page 14 – This particular sign the Defendant has never seen at this carpark and this sign is not currently present in the Car Park (it is assumed that the claim that this is a facsimile of the sign shown on page 8, although this is unclear).

MadHatter752

Thanks LoC123!

13. Page 1-3 (Letter of Authority from Centro) – but see page 5 of RH1 where Centro confirmed that they “cannot give powers to enforce to an agent or subcontractor that it does not have itself and legal are investing [is there a mistake here, it doesn’t make sense] the legal methods by which such an enforcement could be undertaken”.

This is what it says... by legal, I think Centro are referring to their own Legal Dept.

I will make some changes to the page numbers in the paragraphs after the table too. Thank you so much the table is great... it is so clear.

Do you think there is anything else I need to add? Should I ring the Court to see if anything else has been said/submitted? The DJ never did get back to me regarding the email I sent in to him.

Getting really nervous now... just feel I will have no idea what to say on the day. One week to go! :eek:

Loadsofchildren123

Yes "legal" is shorthand for legal dept or lawyers.
I think "investing" must be a typo and should be "investigating"

Perhaps put (sic) after it and point out after the quote in square brackets that it must mean to say investigating and appears to be a simple typographical error.

Loadsofchildren123

The whole point of a SA is that it largely replaces the need for you to say much. It summarises your case and your response to their case and gives all relevant page/para references. So you basically refer the judge to it and ask if he wishes you to add anything, and you respond to any further points they have raised orally on the day.

If judge says he hasn't read it, then you use it as a crib sheet, running through each point one by one. That's why the table is useful.

Practice doing it, explaining each argument one by one.

Another poster claretmad had a win today - basically they couldn't prove his wife (the D) was driving and the judge rubbished Elliott and AJH Films. Quote that one too. You'll find it on here and Parking Prankster has probably blogged it too by now (it was only today).

MadHatter752

Ill check out the claretmad case today. I have seen him posting but didn't realise it was today.

When ideally would be best to submit the SA... on the day or a few days before?

Coupon-mad

A few days before, with your costs schedule if you've not filed one yet.

MadHatter752

A few days before, with your costs schedule if you've not filed one yet.

Thanks CM. That will have to be posted then ideally... I am completely out of reach tomorrow with no computer and Friday would probably be too late to post.

Yes "legal" is shorthand for legal dept or lawyers.
I think "investing" must be a typo and should be "investigating"

Perhaps put (sic) after it and point out after the quote in square brackets that it must mean to say investigating and appears to be a simple typographical error.

Sorry I understand now! that's my typo not theirs!! will alter... thanks for spotting it!



Just want to clarify what I have left to do then..... i keep seeing references to my "bundle"- is this just my Defence, WS and SA?

I have never included any copies of documentation DRP/BW Legal have sent me, do I need to?

Is there anything else I need to submit along with my SA?

thanks!