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

BrownTrout

You dont need a dm

KeithP

As Umkomaas said:

Unlikely that any regular will do that...

PrincipledPete

Content of their WS, part 1 of 2


Salient points below, numbered for ease of reference here


Introductions & Background:

• Claimant has been accredited member of Approved Trae Associations certified by DVLA, was awarded approved operator status through full compliance with code of practice for private enforcement on private land and unregulated car parks. Code of practice gives recommendations in regards to signage and claimant follows recommendations.
• ..there are disabled badges that require a blue badge to be displayed. It is this condition that is material to this case.

Title & Interest

• …The lawful occupant, Centro appointed the claimant to manage within the development. Following their appointment the claimant erected warning notices throughout the development making clear that anyone parking within the development did so on in accordance with the terms and conditions of the sign.
• The claimant submits that they have the authority to implement a parking scheme since xx September 2014. There has been no notice of termination and the claimant remains contracted to enforce parking to date. The claimant is contracted to undertake parking management activities and issue Parking Charge Notices (“PCN”) where vehicles are identified on the development in breach of the advertised terms and conditions. A copy of a statement with our client can be identified in exhibit xx.
• The claimant was appointed to monitor the development for compliance with the terms and conditions … the claimant’s role was therefore simply to enforce the conditions.
• In accordance with their contract appointing the claimant the claimant was entitled to pursue any parking charges as a result of the breach of the terms and conditions of the parking scheme in their own names. The signs throughout the development clearly advise anyone parking within the development that they were entering in to a contract with the claimant. The claimant was entitled to contract with drivers on behalf of the owners of the development in accordance with their appointments

Breach of the terms and conditions

• ..customer only system in operation … managed by claimant … patrol officers monitor … issue PCN in breach of advertised terms and conditions
• Any vehicles not identified as not belonging to a customer of the Centro station park and ride whilst in the premises would be deemed to be parking in breach of advertised terms and conditions. This system was chosen by client as it was low tech, relatively inexpensive and proven to work. This was to use warning notices to create a system where people are warned that they are entering upon private land where parking is controlled by the claimant and that they offer to admit them only on the published terms. The drivers accept the offer by entering on the land in knowledge of the advertised terms and conditions. The warning notices are clear, prominent and there to be read and understood by any motorist who enters on to private land
• The claimants production identified enclosed in [appendix] contains information as to the development. Within the productions enclosed is statement of authority, photographs of the car park, overhead of the car park.
• The claimant manages the parking scheme and regularly inspects the development … role is to erect signs …. Explaining terms and conditions ... warning signs are visible upon entry to the car park and throughout the location – entrance board, [over 50] warning signs
• Amongst other things the above signs specifically detail the terms and conditions of parking and the consequences of failing to comply with these terms and conditions. In particular the signs specifically state their charge for breaching the terms and conditions is £100 discounted to £60 if paid within 14 days. This is a contractual clause which specifies the amount owed. There is sufficient and adequate signage for the terms and conditions to have been brought to the attention of any motorist wishing to use the car park.
• Whilst the vehicle was in the development the said vehicle was recorded parked in a disabled space without clearly displaying a valid disabled persons badge thus resulting in a PCN being issued.

Liability of the defendant to the claimant

• The claimant’s production of exhibit xx is evidence of the date, time and location that the defendant parked their vehicle in contravention of the terms and conditions associated with parking within the development. The claimant would ensure compliance of the terms and conditions and when noting that the defendant’s vehicle was parked in breach of the terms and conditions, the claimant affixed a card to the defendant’s windscreen informing that they may have breached the terms and conditions of parking.
• The card provided the defendant with a unique code that allowed the defendant the opportunity to access an online portal, myparkingcharge.co.uk in order to tview the alleged breach, the photographic evidence and either appeal of pay the charge.
• In the absence of such an appeal or payment within 5 days of the contravention, the claimant will apply to DVLA in order to obtain the RK details. Once received then the claimant would issue a PCN usually within 14 days of the contravention. This, again, allows the defendant the opportunity to either appeal or pay the charge notice.
• Should the motorist wish to appeal there is a two tier appeals procedure….
• Should the adjudicator accept the contents of the appeal… however should the appeal be rejected…escalate appeal further to IAS
• IAS is independent body provided by our trade association, the IPC…
• Any appeal to IAS .. made within 21 days…
• In absence of any payment or correspondence from the charge notice … send final reminder…
• It is submitted that liability exists in each instance of parking in accordance with the notice issued to the defendant on each instance. The claimant submits the claimant’s evidence ought to be preferred in this matter. The claimant implemented a parking scheme and the defendants’ vehicle was identified in breach of the advertised terms and conditions of parking within the development.

Authorities

1. It is settled that individuals may enter in to a contract with a sign and reference is made to Thornton v Shoe Lane Parking 1971 2 QB 163. The sign was the offer and the act of parking the acceptance of the offer on each occasion.
2. The claimant is entitled to charge for each instance in which the defendant was observed parked in a disabled space without clearly displaying a valid disabled persons badge at the development. In this case the charge for breaching the terms and conditions is £100 discounted to £60 if paid within 14 days.
3. The claimant wishes to rely on the precedent set under Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390, where Roch L J stated “the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking spaces or parking areas on their property”.
4. The claimant further relies upon schedule 4 of the POFA 2012 and contends that they can hold the defendant liable for the PCN under the said enactment. The relevant clause is “4(1) the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle…5 1 (b) … if they are unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver…”
5. In the defendant’s failure to act upon each notice addressed to them by putting forward their position or transferring liability, the claimant is able to pursue the registered keeper of the vehicle, which is the defendant, as confirmed by the DVLA
6. The signage is prominently displayed and visible on entry to the site. It is submitted that the claimant has done what is reasonable to draw attention to the existence of the contractual terms and therefore has given sufficient notice of them.
7. The Supreme Court in Parking Eye v Beavis [2015] UKSC 67 has established that in cases as this, a contract exists between the motorist and the operator, whereby a motorist is granted a contractual licence to park their car in the car park on the terms of the notice posted at the site, which are accepted by entering and leaving the site.

...contd

PrincipledPete

Part 2 (having trouble posting since IP address blocked)

The Defendants' Defence

The claimant will address the defence by way of paragraphs

1.!!!!!! Paras 1-5 of the defence are denied. The defendant is liable to pay
the claimant £160 for breaching the terms and conditions of private parking
as the defendants vehicle was parked in a disabled bay without displaying a
blue badge.

2.!!!!!! In response to the byelaws, it is the claimants submission that
such byelaws are not compulsory irrespective of whether there are byelaws in
place or not (the defendant is put to strict proof on this). The claimant
relies upon the authority of Jones & Tighilt (on behalf of National Taxi
Association) v First Greater Western Ltd [2013] EWHC 1485

3.!!!!!! The claimant submits the land in question is defined as private
land. There is no public right of way. The land is not shown on the list of
highways maintainable at public expense kept under the Highways Act 1980. In
short, there are no official document records any public right of way over
the land.

4.!!!!!! The claimant hereby submits that the court should adopt the above
approach on paragraph 41 in so far that station premises are private land.
The court is referred to the cases of Perth General Station Committee v Ross
[1856 18 CB 46 where it is held that there was no right of access to the
station for hotel porters; and to Baker v Midland Railway Company [1856] 18
CB 46 where it was held that there was no right of access to the station for
bus drivers.

5.!!!!!! Therefore the land owners are entitled to introduce a scheme as
both a private landholder and under the Byelaws (if any). As such they have
an unqualified private right to determine who, and on what terms, it permits
to come on to the land of which it is the lessee.! HHJ McCahill cited at
paragraph 390 "even if the byelaws did not permit its introduction, and even
if FGW had wrongly invoked byelaws powers, its position as a private
landowner, with power to control those who came on to its land, justified
and rendered lawful the permit scheme"

6.!!!!!! It was further cited at paragraph 402, "whatever arguments one
might make about the running of trains and similar core functions of the
railway industry being of a public nature and therefore the defendant being
a hybrid body with some public functions, the control of vehicular access to
private land, consisting of a station approach, strikes me as a private act
and private aspect of the defendant's operations, notwithstanding the
existence of and any reliance on its rights as a private landowner...in this
case I am satisfied that it is a matter of private relationship between, and
the respective private rights of, the two parties"

7.!!!!!! It is argued that the Byelaws are therefore arbitrary. It is not
mandatory that the Byelaws are utilised so long as the relationship is
established between the two parties. The claimant submits the terms and
conditions relayed to the defendant were clearly set out on a contractual
basis. In addition, it also warned the motorist that the Byelaws applied to
the car park and that such rights to utilise the Byelaws were "reserved" and
"without prejudice" to the advertised terms and conditions displayed. This
is supported in the First Great Western Ltd case at para 195 " I see no
reason, in principle, why a taxi stand on private land should not be subject
to both regulatory regime of the licensing authority to matters within the
jurisdiction, whilst simultaneously be subject to the management restriction
and controls imposed by landowner as condition of access to the land"

8.!!!!!! The claimant submits that what landowners do with private land and
who it lets on to its land are private matters for it. The scheme introduced
is necessary and proportionate to the aim pursued. The defendant is being
asked to sign up to the terms and conditions and if in breach is required to
pay a fee of £100 reduced to £60 if payment is prompt. This charge levied is
used to police the car park and is heavily reinvested to improve the layout,
the facilities and to alleviate congestion to the benefit of the users. This
is supported within the scope of the tender document.

9.!!!!!! In submission that the car park is private land and that the
landowner had unequivocal rights and power to control those who came on to
its land, justified and rendered by a parking enforcement scheme, it is
irrelevant whether the Byelaws did not permit such an introduction. Its
position as a private landowner permitted such a right by regulating who and
what terms motorists could access its land

10.!! Paragraph 6 to 12 of the defence is denied

11.!! The claimant submits that its notice is compliant with schedule 4 of
the POFA 2012 and contends that they can hold the defendant liable for the
PCN under the said enactment. The relevant clause is "4 (1) the creditor has
the right to recover any unpaid parking charges from the keeper of the
vehicle... 5 1 (b) ... if they are unable to take steps to enforce that
requirement against the driver because the creditor does not know both the
name of the driver and a current address for the service of the driver..."

12.!! In the defendants failure to act upon each notice addressed to them by
putting forward their position or transferring liability the claimant is
able to pursue the registered keeper of the vehicle , to which is the
defendant as confirmed by the DVLA

13.!! The PoFA 2012 is a piece of legislation introduced to provide Keeper
Liability. This means that if the Operator does not know the name or address
of the driver they can hold the keeper liable. To do this an operator will
need to meet the requirements contained within the POFA - such as timescales

14.!! The claimant submits that the notice sent to the defendant is
compliant with schedule 4 of the POFA 2012. The defendant has had the
opportunity to name the alleged driver but failed to do so. As such, the
defendant rendered himself liable to the charges levied. The defendant was
naïve in thinking we could not pursue the Keeper Liability

15.!! In the defendant's failure to act upon each notice addressed to him by
putting forward his position or transferring liability, the claimant is able
to pursue the RK of the vehicle, to which is the defendant, as confirmed by
DVLA

16.!! In this instance para 9 relates to notices which are issued through
the post. For a notice to be relied upon under para 9 certain requirements
need to be met these requirements are laid out within para 9 (2)

17.!! The first requirement is that the notice must specify the vehicle the
relevant land on which it was parked and the period of parking to which the
notices relates too. The notice to keeper clearly stated that the
defendant's vehicle (xx) was parked on the relevant land (xx) including the
date it relates too

18.!! The second requirement is that the notice to keeper must inform the
driver that they are required to pay a parking charge in respect of a
specified period parking and the parking charge remains unpaid. The notice
to keeper states the date of the contravention and states that the
outstanding balance has not been paid

19.!! The third requirement is that the notice to keeper must describe the
parking charge due from the driver, the circumstances in which the
requirements to pay arose and other facts that make them payable. The notice
to keeper clearly sets out the breach in which the parking charge notice
occurred and states the terms and conditions of parking are clearly
displayed in the signage in and around the development.

20.!! The fourth requirement is to specify the total amount of the parking
charge that is unpaid as specified in the notice. The PCN sent to the D
specifies that the outstanding balance is £100 discounted to £60 if paid
within 14 days.

21.!! The fifth requirement is that the NTK must state that the creditor
does not know the name and address of the driver and must invite the keeper
to either a) pay the PCN or b) notify the creditor of the name and address
of the driver and pass the notice to the driver. The PCN was issued to the
defendant gave the defendant the opportunity to pay the PCN , appeal the PCN
or transfer the liability of the PCN

22.!! The sixth requirement is that the NTK must warn the keeper that after
a period of 28 days beginning with the day after that on which the notice is
given the amount of unpaid parking charges have not been paid in full and
the creditor does not know both the name and address of the current driver
then the creditor will have the right to recover from the keeper so much of
that amount as remains unpaid. The claimant submits that they have complied
with this point.

23.!! The seventh requirement is that the NTK must inform if any discounted
offered prompt payment and the arrangement for resolution of disputes or
complaints that are available. The claimant submits that they have complied
with this point as the PCN issued gives the keeper the opportunity to pay
the reduced charge of £60 in addition to the opportunity to appeal the
charges and/or lodge a complaint about the PCN if they wish

24.!! The eight requirement is that the NTK must identify the creditor and
specify how and to whom payment or notification to the creditor may be made
too. The NTK clearly states how to make payment, the deadlines for payments
to be made and who the payment is to be made to

25.!! The final requirement is that the NTK specifies the date in which the
Notice is sent via post. On each occasion the PCN was issued it clearly
state din the top right corner the date the notice was sent

26.!! Paragraph 9 (3) states that the NTK must only relate to a single
period of parking. Each PCN issued by the claimant was for an individual
parking event

27.!! Para 9(4) states that the notice must be given by either a) handing it
to the keeper or leaving it at a current address for service to the keeper
within in the relevant period or b) sending it by post to a current address
for service for the keeper so that it is delivered to that address within
the relevant period. The PCN was sent to the defendant it was sent by post
to the address provided by DVLA

28.!! Para 9 (5) states that the notice must be sent within 14 days
beginning with the day after the contravention. The claimant can confirm
that the PCN issued to the defendant was sent within 14 days of the
contravention date

29.!! Para 9(6) states that a notice sent by post is presumed unless the
contrary is proved, to have been delivered on the second working day after
the day on which it is posted. The claimant submits that their notice was
issued by post to the defendant. It is therefore deemed served as per the
above as to date no evidence has been received to prove otherwise

30.!! In accordance with para 11 of schedule 4 POFA 2012 the claimant has
made an application for the RK detail in relation to the period parking to
which the unpaid parking charges relate. The claimant made the application
during the relevant period for purposes of schedule 4 para 4 of the POFA
2012 and posted the notice to the driver through the post to the registered
keeper address. At the same time all details of the keeper were provided
from the secretary of state in this cases the DVLA

31.!! The claimant submits that at all the materials they have complied with
the requirements and conditions of the POFA 2012. Due to this the claimant
has the right to pursue the defendant as the registered keeper of the
vehicle and not the driver of the vehicle in respect of these Parking Charge
Notices.

32.!! Para 13-19 of the defence are denied, the defendant is referring to
unclear signage, the signage which is located around the private land
clearly and boldly states the following "vehicles in disabled bays must have
a valid disabled blue badge fully and clearly displayed in the front
windscreen of the vehicle at all times"

33.!! The claimant's evidence will show the following, the defendant's
vehicle parked in a disabled bay without displaying a valid disabled blue
badge. A note was displayed on the defendant's dashboard which stated "no
children's parking spaces left" breaching the terms and conditions of
private land

34.!! The claimant avers that its signage is sufficiently clear to ensure
that drivers are notified of the terms and conditions of parking. The
signage is displayed in a font that is legible for any reasonable person.
Thus, rendering it capable of creating a legally binding contract

35.!! Further the claimants signs are compliant with the IPC code of
practice

36.!! Further to the above the site photograph which is enclosed in xx
(notices and evidence) will show the disabled bay where the defendant had
parked his vehicle in, the signage which is located around the property make
it clear the bay is a disabled bay with a warning sign located behind the
vehicle

37.!! Paragraphs 20-21 of the defence are denied. The claimant respectfully
refers the court to exhibit xx this contains a copy of the statement of
authority confirming that the defendant has the authority to manage and
enforce parking controls

38.!! Paragraph 22 of the defence is denied. The claimant relies on the case
ParkingEye v Beavis [2015] UKSC 67 and avers that it is relevant in the
sense that it has established that in cases as this a contract exists
between the motorist and the operator, whereby the motorist is granted a
contractual licence to park their car in the car park on the terms of the
notice posted on the site, which are accepted by entering and leaving the
vehicle at the site.

39.!! Para 23 f the defence is denied. The claimant refers to signs located
in and around the development. The signs in and around the development state
the following "if payment for the parking charge is not made in accordance
with the payment terms, VCS and/or its agents will be entitled to take debt
recovery & legal proceedings to recover any outstanding charges, including
interest and any additional costs incurred"

40.!! The claimant submits it is clearly set out in the terms and conditions
that additional costs may be incurred if the PCN has not been paid.
Therefore the claimant is pursuing for the £60 debt recovery charge it has
occurred

41.!! The claimant refers to the IPC code of practice part E schedule 5
-parking charges, which states the following "where a parking charge becomes
overdue a reasonable sum may be added. This sum must not exceed £60
(inclusive of VAT where applicable) unless court proceedings have been
initiated"

42.!! The claimant submits that the debt recovery charge included within the
claim does not exceed £60 and therefore is in accordance with the IPC code
of practice

43.!! The claimants evidence will show the defendants vehicle parked in a
disabled bay where parking is not only prohibited for blue disabled badge
holders

44.!! The claimant was not displaying a valid disabled blue badge but had
displayed a note in his vehicle which stated "no children's parking spaces
left"

45.!! The defendant clearly has no respect for private property and had
failed to acknowledge under what basis the claim has been brought and the
reason if breach of contract

46.!! The defendant writing a note is him addressing the fact he had parked
in a disabled bay and this should not have been done. The defendant parking
his vehicle and leaving a note shows the claimant the utter disrespect the
defendant has for the claimants private property

47.!! The defendant has failed to address why he was under the impression
that he was able to park his vehicle in a disabled bay without displaying a
blue badge but thinking it was appropriate to leave a not advising the
claimant how there was no parking bays left

48.!! The claimants evidence will show the patrol officers comments stating
how there were no bays prebooked on the date of the contravention. This is a
car ark where the bays have to be prebooked

49.!! The defendant clearly has no remorse for his actions and has gone on
to write a long winded defence which does not explain the defendants
actions on the date of the contravention

50.!! The claimant is pursuing the defendant for the full outstanding
balance

Summary

51.!! The claimant was entitled to erect signs in the development in
accordance with their appointment by the freeholder. The signs were duly
erected at the development. The defendant ought to have been made aware of
the terms and conditions of parking. The defendant could not have been in
doubt, at worst, after the issue of the first PCN

52.!! The claimant wishes to rely on ParkingEye v Beavis 2015 UKSC 67 and
submits it has a legitimate interest in enforcing the parking charges as
stated. This is how the claimant can support the services they provide to
their client. The claimant avers that its charges are "neither extravagant
nor unconscionable"

53.!! Accordingly the claimant is entitled to a judgement. It is a matter of
agreement that the instance of parking in contravention of the terms and
conditions of the signs. Liability is agreed to be £100 in accordance with
the amount stated on the signs. The claimant submits they are therefore
entitled to a judgement for the amount together with the expense of the
cause

54.!! In view of the defendant not paying the charge within 28 days the
breach of the contract entitles the claimant to damages as of right in
addition to the CN incurred. The warning notices make it clear that damages
will be sought and added to the charge levied. The maximum amount awarded is
£60 which is identified as a debt recovery charge. The claimant would place
reliance upon the Court of Appeal ruling in Chaplair Limited v Kumari [2015]
EWCA 798 " that does not alter the fact that it remains a contractual
entitlement which the Court will enforce subject to it equitable power to
disallow unreasonable expenses. There is nothing in the rule making powers
in respect of the CPR which enable the rules to exclude or override that
contractual entitlement and I therefore agree with Arden LJ that the Judge
had jurisdiction to assess the costs free from any restraints imposed by CPR
27.14".

[Appendices]

Site information:

Letter of authority dated xx Aug 2015 (stating landowner as Centro); copies
of signs on A4 paper (much clearer than physical signage in car park some of
which is faded, obstructed by railing); overhead photo of site depicting
signage placements; undated photos of car park with cars in (showing
disabled bays fully occupied but they were not on date of alleged
contravention).

Notices & evidence:

PCN NTK (combined) contravention date xx/7/17, issue date xx+7

PCN final reminder issue date xx+36 calendar days

Demand for payment, issue date xx +19months

Final demand, date posted 15 calendar days after demand for payment

LBC dated 29 calendar days after final demand

Photos of parked vehicle, date/time stamped. Disabled bay sign behind
vehicle & a parking notice near it - unreadable from inside vehicle

Photo of note on dashboard inside vehicle

Photo of vehicle was piece of card "!attention! document enclosed" [no
document enclosed just reference to their website with a code"

Le_Kirk

If you are trying to post from Word, you will get a blocked IP address. Use WordPad or similar.

PrincipledPete

Thanks Le_Kirk
It was the blocked IP address issue as a result of Word.
I've managed to post the rest of the claimant WS via another device earlier, so now await comment from regular, learn-ed contributors hopefully.

PrincipledPete

Before the RK prepares their WS, there is one key query, in that does the note inside the windscreen indicate contract formation?


Secondly, in other threads there is comment about 'disabled bays on private land have no standing in law" and if the claimant is asserting the land is private land, the WS should include this point?


Thanks

clarkcj

I just lost an n244 application due to the Great Western point on byelaws - beware!

nosferatu1001

1) Before the RK prepares their WS, there is one key query, in that does the note inside the windscreen indicate contract formation?

Please explain what you mean by this?

2) Secondly, in other threads there is comment about 'disabled bays on private land have no standing in law" and if the claimant is asserting the land is private land, the WS should include this point?
This is that simply saying "disabled bay" doesnt mean anything. Any terms and conditions are set by signage.