HELP Vcs private land pcn derby

Le_Kirk

You need to sort out your numbering. You might want to look at some of the defences posted in the NEWBIE thread post # 2 by Bargepole and others and adapt one of them to suit your issue. Also have a look at THIS LINK to add to your point about excess charges being added.

loosegoose

Ok this is my redraft of my defence, is this to much do I need to shorten? also do I need to add paragraph explaining that I was delivering a parcel to the flats?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VCS Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)
Defence:

1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

3. The signage displayed clearly only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering was 'NO UNAUTHORISED PARKING' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.

4. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

5. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

5(I) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

5(ii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

6. In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

7. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

8. The Defendant was making a delivery that day with full permission and only for the minutes the delivery took. The vehicle was not parked and left unattended for any period of time and the ticketer must have used predatory tactics and seized the chance to take a few quick photographs, having witnessed the driver stop for the delivery.

9. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the overall landowner to pursue payment by means of litigation, in a case where a driver had prior permission, having been allowed to enter to deliver to the businesses.

11. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

12. On the one hand the security/reception staff verbally allowed access and opened the gate, to enable loading/unloading on more than one occasion (the vehicle could not have entered without such express permission and this is proved by the very fact that the gate was opened to allow the entry of the vehicle). Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

13. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

14.Costs on the claim - disproportionate and disingenuous
- CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

15.- Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

16.- The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

17.- Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

18.- According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

19.- The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

20.- Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

21.- In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

22.- There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

23.- The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

KeithP

Why does your paragraph numbering stop at 12?

All subsequent paragraphs need numbering.

loosegoose

sorry overloaded brain from reading and trying to understand pages of threads and legal mateial etc

Coupon-mad

Very good.

Remove these:

[STRIKE]8. There is no clear mentioning of loading/unloading rules on the sign board. Photograph evidence of sign boards are available to be provided upon request.

9. The provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999 the Consumer Rights Act 2015.[/STRIKE]

Replace with:

8. The Defendant was making a delivery that day with full permission and only for the minutes the delivery took. The vehicle was not parked and left unattended for any period of time and the ticketer must have used predatory tactics and seized the chance to take a few quick photographs, having witnessed the driver stop for the delivery.

9. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

...and move your #10 down to come under #12, where it sits better and makes sense underneath the para where you explain you were relying on a promise.

Replace your #10 with this:

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the overall landowner to pursue payment by means of litigation, in a case where a driver had prior permission, having been allowed to enter to deliver to the businesses.

loosegoose

ok made changes as advised Coupon mad, are we good to go?

Coupon-mad

Yep, get the ball rolling and stick around, and read in the NEWBIES thread, what happens next and how to complete the forms, and when to file & serve your evidence.

loosegoose

im abit worried regards the witness statement stage as I have no evidence to support my claim of delivering a parcel thaty day

Redx

loosegoose wrote: »

im abit worried regards the witness statement stage as I have no evidence to support my claim of delivering a parcel thaty day

was it a one off ? or do you regularly deliver parcels (perhaps its your job ?)
aka maybe you work for Hermes or DPD or similar ?


plus , they have no evidence to disprove your statement either

Ralph-y

as above was it ebay , for a friend ,



do you have a smart phone with tracking ,



Ralph:cool: