PCN from VCS, Gallagher retail park Scun thorpe

Cerberus1007

Ive got the court claim and PoC through and have done the AoS. They want £100 for the PCN, a £60 debt collection charge and the £25 court fee. Theyre not asking for a legal rep fee. The PoC was minimal, just said I breached the T&C and didn't pay the charge. Ive adapted a defence from a similar case. please tell me what you think.




In the County Court Business Centre
Claim Number: ___

Between:

Vehicle Control Services (Claimant)

v

___(defendant's name) (Defendant)

DEFENCE

Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.



Background

3) It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.

4) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated.

5) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.

5.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:

5.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and

5.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and

5.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6) It is denied that any parking charges or debt collection charges as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.

7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.


Failure to set out clearly, or offer parking terms

8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

9) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.

9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

9.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community's ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory and the driver was not offered a sufficient grace period to read the signs and decide whether to remain on site in accordance with the Code of Practice.

9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3


9.2. In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who park. The Defendant avers that the signage creates a prohibition against parking on the roadway. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.

9.2.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: ''All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.''

9.3. Even if the Court finds that a motorist should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because ParkingEye Ltd were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification ‘reasoning that disengaged the penalty rule for ParkingEye, given the unusual and case-specific facts in the Beavis case.
10) The Claimant seeks a £60 “debt collection charge” but offers no explanation of this charge and no argument as to why the defendant is liable. This charge is denied in its entirety.



11 This operation at this location is predatory in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.

12) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015) and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

13) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

14) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court considers exercising its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

15) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed...........................


Date.....................

Coupon-mad

£60 debt collection charge

A fabrication, they have not paid any such charge.

Cerberus1007

So after 2 years of silence I have finally received my notice of allocation. My case will be heard on papers on 15/09/20 at Grimsby court unless I return a form disagreeing to this. As my case includes an abusive £60 for DRP I was thinking of emailing VCS a letter similar to ones found in the abuse of process threads asking what authority do they have to add this charge etc and inviting them to discontinue. Maybe even let them know I have a screenshot from the DRP website stating they offer a no win no fee service? Any advice would be welcome.

Coupon-mad

My case will be heard on papers on 15/09/20 at Grimsby court unless I return a form disagreeing to this

Yawn, again?  Obviously you are going to disagree...

I hope you've been reading all the zillions of other threads where we answer that about once a week, and the TELEPHONE HEARINGS thread that has a reent reply showing how to object to an Order suggesting a hearing on the papers.

Maybe even let them know I have a screenshot from the DRP website stating they offer a no win no fee service?

Well clearly stuff like that goes with your WS and costs assessment.  It's evidence and you are at that stage.

A new tactic on a thread today - report Excel or VCS to UKAS (read about their accreditation and dob them in to UKAS if you feel they have breached it).

MothballsWallet

KeithP said:

Cerberus1007 wrote: »

Strange, when I open the code of practice 15.3 doesn't come up.

You were reading an older version.

Why the IPC still host an older version is beyond me.
It can only be to confuse the motorist.

Maybe under orders from their pal at Gladrags?

KeithP

MothballsWallet said:

KeithP said:

Cerberus1007 wrote: »

Strange, when I open the code of practice 15.3 doesn't come up.

You were reading an older version.

Why the IPC still host an older version is beyond me.
It can only be to confuse the motorist.

Maybe under orders from their pal at Gladrags?

It was nearly three years ago that I wrote that. Glad to see that you have spotted it. 

Cerberus1007

Telephone hearing was today but had to be adjourned because the rep hadn't received my witness statement and evidence. I served them to VCS by email after explicitly asking permission to do this to which they agreed and I can prove this. The rep must now provide me an email address to serve the documents before a hearing next week I think she said. Once I receive the court order I will send evidence to the court that I sent the WS etc to the claimant along with a costs claim for taking the day off work today.

Coupon-mad

Same trick as they tried here, basically, VCS/Excel are (it seems, from all recent accounts) telling their reps to say the D has failed to provide their defence/WS/evidence:

https://forums.moneysavingexpert.com/discussion/comment/77591068#Comment_77591068

You won't get a court order before the next hearing if it's only adjourned till next week, so send your updated costs assessment now, showing TWO hearings' worth of attendance/loss of leave.

Cerberus1007

I'll get a letter confirming the date and time of the new hearing though right?

Coupon-mad

 The rep must now provide me an email address to serve the documents before a hearing next week I think she said.

That will be confirmed, if you don't know the date and time.