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VCS parking ticket requiring log on at MyParkingCharge.co.uk

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  • Thanks KeithP
    I'll go through the SAR posts and draft one for review.
    Need to get the defence completed by Tues.
  • KeithP
    KeithP Posts: 41,296 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    Thanks KeithP
    I'll go through the SAR posts and draft one for review.
    Need to get the defence completed by Tues.
    Concentrate on your Defence. You have a fixed deadline for that.

    When you get arround to the SAR, look again at the guidance in post #2 of the NEWBIES thread.
  • Info from signage at the car park, for info ahead of posting defence later, including their typos etc.


    Main sign on entrance to car park:
    ---
    xxx Station Car Park
    This free car park is provided for rail users only. Cars parked at owners' risk.


    Terms and conditions apply to use this car park. By parking here you agree to be bound by the terms and conditions displayed on the signage throughout the car park. Failure to comply may result in the issue of a Parking Charge Notice


    Without prejudice to the Terms of Conditions of car park use, all persons in charge of any motor vehicle, bicycle or other conveyance ("hereinafter called the vehicle") are required to comply with the Railway Byelaws 2005 (as amended).


    Any vehicle which contravenes the Byelaws may be liable to incur a Penalty as outlined in Section 14(4)(i) or be subject to being clamped and/or removed for storage as outlined in Section 14(4)(ii).
    All rights to rely on the Bylaws are reserved. Nothing within the car park Terms and Conditions of use shall prejudice or restrict these rights. Copies of byelaws are available from the Train Operator.


    WMCA accepts no liability for loss or damage to vehicles or occupants or contents therein parked in this car park unless such loss or damage is caused by negligence of WMCA.
    ---


    Smaller sign next to the big sign, challenging to read from a distance ie in your car:
    ---
    Park and Ride Car Park
    PRIVATE LAND
    TERMS AND CONDITIONS APPLY: Please refer to the Terms and conditions signs located around the car park.
    ! Any Vehicle/Driver remaining in this car park 10 minutes after entry is subject to and agrees in full to the Terms and Conditions.
    PCN £100: By parking on this private land otherwise than in accordance with the Terms and Conditions you are to pay a Parking Charge of £100.
    VEHICLE CONTROL SERVICES LTD manage and operate this private car park
    HELPLINE: telephone number
    [postal address details]
    ----


    Notes
    1. Even the writing on the big sign is a challenge to see from the car when driving in; the smaller sign no chance. Plus it is part obscured by railings in the line of sight. Are there rules on signage clarity / size of font that can be used in defence?


    2. "Terms and Conditions around the car park"
    There are some signs near car parking spaces such as the below, difficult to read from the car or from any real distance other than right next to them:
    Park & Ride Car Park
    Parking Terms and Conditions
    This car park is strictly for Park & Ride customers whilst using the Rail and/or Metro
    Park only between the lines of a single marked bay
    No parking or waiting on double yellow lines
    No parking or waiting on pedestrian walkways, hatched areas, roadways, raised kerbs, grass, pavements or within doorways, entrances or exits.
    Vehicles in disabled bays must have a valid disabled Blue Badge and clearly displayed in the front windscreen of the vehicle at all times.
    By parking or remaining [?on this private?] land otherwise than in accordance with any of the above "you" the driver agree to pay a Parking Charge in the sum of £100.00 (Per Day or Part Day). The Parking Charge must be paid within 20 days of the Notice Issue Date. This is reduced to £60.00 if payment is received within 14 days of the Notice Issue date.
    [some other text below this but too small to see]
  • Coupon-mad
    Coupon-mad Posts: 152,548 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Working on the defence this weekend so will upload draft soon for review.
    For info, I found the details of the contract between Centro and VCS on the web here:
    https://www.whatdotheyknow.com/request/use_of_the_railway_byelaws_by_ce


    Noting the alleged contravention was in July 2017, when it was London Midland, then a new company took on the franchise from 10 December 2017. Relevant?


    Do we definitely need to do the SAR to VCS? In the contract accessed by the link above it states all Request For Information requests should be sent to Centro, so should I send the SAR to Centro?

    Yes I would add that to the 10th May Centro example defence you hopefully found when you searched the forum for VCS Centro defence.

    It's already written for anyone in your shoes, by me, a month back on another thread.
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  • Thanks Coupon-mad


    Re contract, we've submitted a FOI request on the London Midland aspect.


    On with the defence now...
  • PrincipledPete
    PrincipledPete Posts: 33 Forumite
    edited 11 June 2019 at 2:39PM
    Thank you everyone for all your help thus far; really appreciated.


    Here we go with the defence draft for your comment please. Thanks.


    Reminder of particulars of Claim:
    The claimant's claim is for the sum of £xxx being onies due from the Defebdant to the Claimant in respect of Charge Notice (CN) for a contravention on dd/mm/2017 at Centro Tile Hill Station Park and Ride.
    The CN relates to a [vehicle] under registration [xxx]. The terms of the CN allowed the Defendant 28 days from the Issue Date to pay the CN, but the Defendant failed to do so. Despite demand having been made the Defendant has failed to settle their outstanding liability. The Claimant seeks recovery of the CN and interest under section 69 of the County Courts Act 1984 at the rate of 8% at the same rate up to the date of Judgment or earlier payment".


    Points to note:
    1. Once the defence is finalised I will get on to the SAR since some of the comms from PPC have been destroyed given time since alleged contravention & no action for 18mths. This will then inform the WS.
    2. The larger sign in the car park refers to "Tile Hill Station Car Park"; the smaller VCS sign refers to "Park & Ride Car Park". Relevant? Especially for para 2 and 5v
    3. Para 17 - this covers the fact that some parking spaces had black plastic bags over the parking signs at the time of the alleged contravention?
    4. Do we need to include comment on Noting the alleged contravention was in July 2017, when it was London Midland, then a new company took on the franchise from 10 December 2017... is there provision for assigning/delegating rights and obligations under the contract between WMPTE (Centro) and VCS? Should VCS need to prove this? How would we comment on this?
    5. Is it relevant that the court is county court Northampton, as opposed to a court local to the station?
    6. The original piece of card on the windscreen, stated 'document enclosed' but no document was enclosed -> confusing! Mention here or leave for WS?
    7. I also received a response from DVLA regarding who accessed the registered keeper records: VCS did so electronically 6 days after the ‘event date’, citing “breach of terms and conditions of a private car park” albeit no evidence was provided to support the request. Is this under "reasonable cause"? The combined NTK/PCN was received 10 days after the 'event date' so I think VCS are ok on dates accessed DVLA. However, given that if it was a paper ticket on the car, they cannot ask for Keeper details earlier than the 29th day nor later than the 56th day, and the piece of card put on the car said "documents" enclosed, but there were no documents, can we apply the 29/56 day rule?




    For ease of review, the following paras have been amended, look for a *: 1, 2, 5i, 5ii, 5v, 13, 14..




    In The County Court


    Claim No: XXXXXXX


    Between
    Vehicle Control Services Ltd (Claimant)
    -and-
    XXXXXXX (Defendant)




    DEFENCE


    1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date, which the Claimant has stated as July 2017, some 23 months ago. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


    The location is subject to statutory control and the parking charge is statute barred


    2. The facts regarding this location – *Tile Hill Station car park* - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').


    3. The current national Railway Byelaws ('RB2005') apply to this land:


    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf


    The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.


    4. Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.


    5. Therefore the Claimant is in difficulty regarding their claim, due to these facts:


    (i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event,* ie by xx January 2018*. That period has long since expired and is statute barred.


    (ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005. *Evidence of VCS being a private company is from its statutory filings at Companies House, using Company Registration number 02498820.*


    (iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.


    (iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. [...] Centro's legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.


    (v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on or before *XX January 2018*, and not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro. At Tile Hill Station Park and Ride car park, the parking is provided under terms agreed with WMCA, a 'strategic authority' with powers over transport, economic development and regeneration, established by statutory instrument under the Local Democracy, Economic Development and Construction Act 2009.


    Liability cannot be transferred to the registered keeper


    6. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2017 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.


    7. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2017.


    8. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.


    9. The Defendant was under no legal obligation to disclose the name of the driver and can prove to the Court that more than one person had access to and was insured to drive the vehicle at the time of the alleged breach of contract, so the balance of probabilities is not tipped in the Claimant's favour.


    10. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.


    11. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at


    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf


    12. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''


    Alternative defence - unclear signs & contractual terms


    13. The Defendant is aware from visiting the site as a result of this claim, that *the sign at the time of the alleged contravention and* the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by VCS are considerably less prominent, *are partly obscured by railings from driver line of sight * and indeed entirely unreadable by the driver of a moving vehicle.


    14. There appears to be a small, non-prominent VCS sign advising of the rules of the car park, with a lack of white space/large lettering. Regarding the £100 (described not as a contractual charge but as a 'penalty' by the WMCA on their website) there is a minuscule small print paragraph at the foot of the sign, in the smallest of the fonts used. *Photographic evidence is available.*


    It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.


    15. The signage fails to communicate that a contract or licence to park is on offer in areas of faded/no markings, and this Claimant offers nothing of value by way of consideration to drivers parking there.


    16. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.


    17. The Defendant is aware from local knowledge and newspaper articles, that Centro were continuing to re-paint faded lines and demarcate spaces at its rail car parks in that period and it is believed there may have been work in progress which obscured any older faded lines on the tarmac and that parking bays were likely to have been out of action on or around the material date. The Defendant avers that a driver of this vehicle arriving for the park & ride, with a train to catch, would only park in non-designated spaces if there was no alternative, or indeed if the parking areas were poorly marked, or not marked at all.


    18. There would not have been an informed decision to risk or agree to paying £100 to use the local 'park and ride' when parking on street and/or getting a taxi instead would have cost ten times less. Thus the Defendant avers that there was a lack of transparent consumer contract terms and information capable of binding a driver, and the elements of a contract did not exist.


    19. Deterrence, in these circumstances, is inappropriate. By failing to provide enough spaces - even temporarily due to re-painting faded lines - it is unconscionable that a park & ride service (either by themselves or through their agents) should penalise drivers for their own failure to fulfil the 'park' element of the advertised 'free' service. This Claimant is put to strict proof regarding the signs and markings not just around the car, but in the surrounding car park to show the conditions and spaces on offer or not, on the material date.


    No standing


    20. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).


    21. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.


    ParkingEye Ltd v Beavis [/I][2015] UKSC 67 is fully distinguished


    22. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:


    (i) The land, as mentioned previously, is covered by byelaws


    (ii) The driver has not been identified


    (iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines


    (iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.


    (v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.


    Added costs - disproportionate and unrecoverable


    23. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.


    Summary - the claim discloses no legal basis or cause of action.


    24. The Defendant invites the court to dismiss the claim as having no prospect of success.


    25. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and/or to attend a preliminary hearing regarding the fundamental matter of keeper liability. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.


    Statement of Truth: I believe that the facts stated in this Defence are true.


    Name


    Signature
    Date
  • Hi there,
    Any comments on the draft? Needs to be filed on Wednesday ��
    Thanks
  • Thanks; please see draft defence below, plus some queries :)
  • Coupon-mad
    Coupon-mad Posts: 152,548 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 12 June 2019 at 1:13AM
    I see your draft defence above.

    Does anyone see previous posts listed BELOW? That's news to me!
    2. The larger sign in the car park refers to "Tile Hill Station Car Park"; the smaller VCS sign refers to "Park & Ride Car Park". Relevant? Especially for para 2 and 5v

    Not sure it helps?


    3. Para 17 - this covers the fact that some parking spaces had black plastic bags over the parking signs at the time of the alleged contravention?

    No, you need to add that, if true.


    4. Do we need to include comment on Noting the alleged contravention was in July 2017, when it was London Midland, then a new company took on the franchise from 10 December 2017... is there provision for assigning/delegating rights and obligations under the contract between WMPTE (Centro) and VCS? Should VCS need to prove this? How would we comment on this?

    Yes I would just say what you said above, and add that you put the Claimant to strict proof of their authority from the landowner on the material date (London Midland).


    5. Is it relevant that the court is county court Northampton, as opposed to a court local to the station?

    No. The county court which will hear your case is not Northampton, if you read bargepole's COURT PROCEDURES thread linked just under the red heading: 'IMPORTANT - KNOW WHAT HAPPENS WHEN' in the 2nd post of the NEWBIES thread, you will know you never had to ask this...!


    6. The original piece of card on the windscreen, stated 'document enclosed' but no document was enclosed -> confusing! Mention here or leave for WS?

    It would be better if a document was enclosed because you could use the usual VCS defence points about the confusing, misleading and 'hybrid Notice to Driver' marked 'this is not a PCN' followed by a premature NTK, meaning that VCS got the data prematurely from the DVLA and failed to follow either the para 8 route or the para 9 route of the POFA.

    Like the person who won their case a couple of weeks ago and convinced their Judge.



    7. I also received a response from DVLA regarding who accessed the registered keeper records: VCS did so electronically 6 days after the ‘event date’, citing “breach of terms and conditions of a private car park” albeit no evidence was provided to support the request. Is this under "reasonable cause"? The combined NTK/PCN was received 10 days after the 'event date' so I think VCS are ok on dates accessed DVLA. However, given that if it was a paper ticket on the car, they cannot ask for Keeper details earlier than the 29th day nor later than the 56th day, and the piece of card put on the car said "documents" enclosed, but there were no documents, can we apply the 29/56 day rule?

    Yes you would be saying that neither the 'para 8 route' nor the 'para 9 route' was followed.

    As explained above, you need to read the VCS thread by the person who won on that point.

    Search for it, I'm exhausted of looking for threads that anyone can search & find.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Thanks Coupon-Mad; I appreciate your help especially given the probable gazillion other things you have to do...
    Keeping the reference points:
    2. Just nomenclature really, I will ensure consistency even if the Claimant has none.
    3. There has been some covered with plastic bags: I'll leave out for now, dig around for photos illustrating this and put in WS if find some.
    4. Insert the below at new point 5 (vi) or create new point 21 (ii) ?


    The Claimant is further put to strict proof of their authority from the landowner on the material date and subsequently, including landowner provision for assigning and/or delegating rights and obligations under any contract given there was a change in franchise owner from 10 December 2017.
    5. noted


    6 / 7:
    I’ve searched the threads for over an hour and apologies, but cannot find the thread you refer to.


    Suggest add point to the defence statement or WS – which is better? Below draft


    The Claimant is put to strict proof of the legality of the process followed and that it is not intended to mislead a consumer with respect to the POFA paragraphs 8 and 9. It appears neither the paragraph 8 nor the paragraph 9 route was followed. The initial 'notice' (piece of card) placed on the vehicle stated a document was enclosed: “!Attention! Document Enclosed”; there was no document enclosed but there was an instruction to “Log on using the Serial Number above and the Vehicle Registration Mark”. What does the Claimant claim is the purported legal standing of this 'notice'? Subsequently, a letter was received by the registered keeper 10 days after the material date, purporting to be a “Notice To Keeper / Parking Charge Notice”. With reference to accessing DVLA records, I have been informed the Claimant did so electronically 6 days after the material date, citing “breach of terms and conditions of a private car park” albeit no evidence was provided to support the request. The Claimant cannot ask for Registered Keeper details earlier than the 29th day nor later than the 56th day after the material date if the ‘notice’ left on the vehicle is construed as a ‘ticket’.


    What about the comments indicated by * in the above defence draft – ok to include?


    Thanks
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