VCS Parking - CCCF Letter - MCOL: Defence help

nosferatu1001

Thornton, Vine and Beavis shoudl all be known to you. Easy to show how they either help you or dont help the other side.

When is your WS due? Unusual for VCS to be far in advance...

Read through it. No doubt they will have a WS written by someoen who was never there, and who makes assumptiosn e.g. the defendant was the driver, when they werent there and don't even know who the keepe ror driver are....

ajplag

WS Draft

• The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.
• I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.
• This matter relates to Parking Charge Notices (PCN) issued between August 2015 and October 2016 in the Globeside Business Park. The defendant maintains that, at all times, the vehicle in question was parked on a public road, and therefore was never applicable for parking enforcement by Vehicle Control Services. This can be seen on APS1, an excel document produced by Buckingham County Council which lists both Fieldhouse Way and Fieldhouse Lane as public roads, with the relevant Eastings & Northings showing this road is public across the entirety of the Business Park. –should this be another exhibit added?
• Vehicle Control Services admit in their own Particulars of Claim that they are permitted by the landowner to ‘enter directly into contract with any motorists in breach of the Terms & Conditions using the car park.’ The defendant maintains that the vehicle was, at all times, parked on a public road and therefore can never have parked in a car park. As such, it is up to the Claimant to clearly explain exactly why tickets were issued to vehicles parked on a public road. In addition, the Claimant must also delineate exactly where the car park they are permitted to monitor is located.
• In addition, Vehicle Control Services are in direct breach of their own terms and conditions for operating parking enforcement in Globeside Business Park. This is due to the insufficient lack of signage in the area and a total lack of signs at the Eastern entrance to Fieldhouse Lane. This can clearly be seen in APS2, APS3,APS4, APS5, APS6 & APS7. The only sign that can be seen when entering from the Eastern entrance is beyond the Medina House Entrance on the right hand side, concealed behind a hedgerow and only visible in APS6 & APS7. The signage present in the area is woefully inadequate and at no point can be considered suitable for “Terms and Conditions” to be breached, or any form of contract whatsoever.
• The most visible signage when entering Fieldhouse Lane from the Eastern entrance is ‘Lunar House Parking Only’. This can be seen in APS2, APS3, APS4. Given the Defendant was, throughout the duration of this claim, employed at Softcat plc working from Lunar House, it is entirely reasonable to park in this area on a regular basis. Indeed, the Defendant freely admits to parking in this area from the start of his employment with Softcat plc, which began in 2012. In fact, this road has been utilised by Softcat to park on before the Defendant’s employment, and continues to be used to this day. This can be seen in APS10, as well as cars parked in this area, without issue, in APS5 & APS6.
• In addition, APS8 and APS9 are examples of the PCN fine that VCS produce. The glaring error on the number of visible signs is an omission that signage is woeful and foreboding.
• The claimant is still unable to justify why fine VC0545180A is issued where APS12 shows the correct fine issued on this date. This is a false claim by VCS.
• During the period that these alleged breaches occurred, Softcat plc were the only occupier of office space directly adjacent to the area in question. Given the long term parking issues that Softcat plc faced, regular communication was kept up throughout the office as double parking, or parking blocking someone in, was a regular and unfortunate occurrence. However, given only Softcat employees parked here, due to being the only company operating from this area of the Business Park, it is maintained that no neutral party was ever impacted by this parking challenge.
• Medina House, which sits alongside Lunar House on Fieldhouse Lane, has been ‘To Let’ since before the dates of these alleged breaches. It is, to the best of my knowledge, still ‘To Let’ today. This can be seen in APS4, which shows the office still up for Let as of September 2016. The parking facilities that are aligned to Medina House were never occupied by the vehicle in question, or to the best of my knowledge, Softcat employees in general. Should any issues arise, Softcat was quick to contact the relevant person who owned the vehicle to ensure it was moved to a more appropriate spot. This was evident during the construction work that Globeside Business Park has undertaken of the last 5 years, which required multiple large lorries to manoeuvre down the roads adjacent to Solar & Lunar House.
• Throughout the duration of this claim, the Defendant was employed at Softcat plc as an Account Manager, specifically working from the Lunar House office which directly borders Fieldhouse Way. It is maintained that Softcat employees were encouraged to park on this road, which can be seen in APS10, an e-mail from Softcat’s Facilities Manager outlining the public roads around the office that are suitable for parking. It’s worth noting that this e-mail was issued on 27th June 2017, almost 2 years since these PCN in question were issued. The defendant maintains that, to this day, there is still uncertainty as to Vehicle Control Services eligibility to operate on this land, which is currently being investigated by Softcat plc, Highways Agency & The Globeside Business Park Team.
• It is noted in point #7 that parking around the Solar & Lunar House Offices was a challenge for Softcat employee’s due to the unanticipated growth of the company. This growth increased headcount dramatically and put a real strain on parking facilities allocated to both Solar House & Lunar House offices. Given the area surrounding Globeside Business Park is residential, it was, and still is, encouraged by Softcat that all overflow parking from the allocated car parks, be strictly on the roads surrounding both Lunar & Solar House. This is documented in APS10. This is due to the roads being public, and whilst not ideal, is a preferable solution than vehicles parked on residential roads, and the various issues & inconveniences that would cause.
• The claimant is put on notice that on the 30th August 2017 Judgement was handed down by District Judge MacMillan sitting at the Nottingham County Court in the matter of case no. D0QZ924M. As part of the Judgement in that case the Court found that Vehicle Control Services had no authority to issue a parking charge notice on the land upon which the vehicle was parked.
• The claimant relies upon the Judgement of Thornton v Shoe Lane Parking [1971], whereit was held that a parking contract starts when the driver consents to terms, by performance (in that case, only when the driver decided to stay and put money in a machine). The terms on the machine itself constituted the offer. The acceptance was by putting the money into the machine and not before, not 'on entry' as this operator has wrongly argued. This is not the same as my case
• The well-known and often used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:
  
  ‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’!
  
  i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for not displaying a valid ticket in a car park) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.
  
  The signs are on poles, higher than normal line-of-sight nor do they communicate full contractual terms & conditions visible to the occupants of the car. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by VCS will show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign is. As such, I require VCS to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping, cropping or lighting aids (including lighting adjustments made by camera or software) and showing where the signs are placed.
• The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio).
• Notwithstanding that the claimant claims no right to pursue the defendant as the registered keeper under The Protection of Freedoms Act 2012 (PoFA 2012); the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver.
• It is denied that the Claimant served the required documents with statutory wording as prescribed under the POFA and as such, there can be no keeper liability in any event.
• The Claimant alleges that parking charges notices were given for “failure to adhere to the advertised terms and conditions” but no terms are given nor is any valid breach established.
• The place of the alleged breach is given as “development known as Globeside Business Park Infrastructure Marlow and Unit 3 Globeside Business Park” which contains many registered parcels of land as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
• Vehicle Control Services Ltd are not the lawful occupier of any land around Globeside Business Park Infrastructure Marlow and Unit 3 Globeside Business Park. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
• If it does transpire that the claimant is entitled to issue charges on the private land, certain parking spaces do not and cannot include spaces which are covered under the leases without specific authority being proved to be held from the owners of leases for each of those spaces.
• PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative’s costs.
• No contract, terms and conditions or sum payable were accepted by any driver.
• The claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.
• The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of the claim are not clear and concise as is required by CPR 16.4 1(a).
• The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice A7.1 which says that if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
• I believe the facts stated in this Witness Statement are true.
  Signed:

nosferatu1001

When is your WS due?

That isnt, strictly, a WS. It contains arguments.

ajplag

It was due to the court by tomorrow as the date is the 28th September


I assume that now this has been posted it cannot be amended?

nosferatu1001

What do you mean by "posted"?
If you mean "can i edit post 33?" then yes. Of course

I you have already sent this to the court and to the claimant, then no, you cant really change it now. If so, dont call it "WS Draft" as its "final"!

Cant you see that this is quite uncler for us!

ajplag

to true nosferatu - this was my final WS and it has been posted to the court and VCS today via special delivery


most of the facts are the same as Saarchys case but my response has been tailored to reflect my scenario

Coupon-mad

It'll be fine, anything goes in small claims ans we do often see WS with legal arguments - and after all, most of VCS' 130 pages is meant to be a WS as well and I bet Mr Glasby's statement includes legal argument.

In readiness for the hearing you can prepare a crib sheet of your defence points, just headings to help you move swiftly on to the next point, if the Judge looks unimpressed at any given time.

And in your Costs Schedule, include the receipts/costs for those Special Delivery letters as they are expensive, as well as your travel, parking for the hearing and loss of wages, with proof.

ajplag

Morning All,


Court is this week on Thursday, I have put together a schedule of costs and will put together a skeleton argument for you all to look have a muster over later.


Thanks all in advance for all your help

ajplag

*HELP*


hi guys, panicking slightly with some evidence that was sent across by VCS. These are the title deeds to the property that the landowner has. A strong part of my defence was that this was parking on public roads, therefore not enforceable, but I'm trying to decipher whether or not the title deeds help or hinder my case.


hxxps://app.box.com/s/2ol513hel0ky6sdzqhw1jomujsmon62f




Admin can you transfer this into a working link please?

System

Is the name on the title deeds, the same name [exactly] on their "authority" letter?

You can get a copy of a title for £3 from the Land Registry but there has to be a chain from that landowner to VCS, perhaps through an occupier or a management company. You have to check the chain.

In addition, if you were in Lunar House did you actually park on any of the area within the redlined box? Can't see how VCS can demonstrate that unless you confirm it. [Usual warning about putting stuff on the internet that can be printed out]