Defence mitigating circumstances

Staceyplindfield

I am attempting to write my SA, however I'm using several different templates but the links aren't showing all the pages, I'm interested in the Dropbox version of Sarah Quayle (originated from a link on newbies) any ideas how to view in full please?

Staceyplindfield

https://www.dropbox.com/s/ojb2w37vx7hhegm/VCS-v-Quayle_Defendant-Skeleton-Argument%28rev%29.pdf?dl=0

KeithP

I can see all sixteen pages of that dropbox pdf.

Maybe it has something to do with how you are trying to view it.

Staceyplindfield

Very strange can only get 1st introduction page (maybe because I'm on an iPad?) will try at work tomorrow when on pc

Staceyplindfield

Apologies. Can anyone help please as they have quoted in there ws vcs v hm revenue & customs, yet I cant find any info/ template to respond to this?

System

vcs v hm revenue & customs

What is the quote?

claxtome

If you have access to a scanner you could scan their WS and then host it on some cloud server like dropbox and post a link to it on here.
Will need to redact it (i.e. use MS Word to cover up any sensitive info of the driver/vehicle/dates)

Staceyplindfield

Thankyou, I have pretty much adapted your skeleton argument claxtome, I have added there witness statement in links above (few feeds above) .

Here is my skeleton if anyone can please check over! Excuse grammar

Is anyone able to help me fill in the blanks for number 11 please?

In The XXXX County Court
Claim Number

UK Car Park Management Ltd
(Claimant)
-AND-
Xxxxxxxxxxxxx
(Defendant)


Defendant Skeleton Argument

Preamble

1) This skeleton argument is to assist the court in the above matter for the hearing dated XXXX.

2) The defendant is unrepresented with no court experience, if I do not set out arguments in the way the Claimant may do, I trust the court will excuse my inexperience.

Defendants Arguments

3) The defendants primary defence is the vehicle XXXX was not present at Xxxxx on the date of Xxxxx as per the Particulars Of Claim.

4) The date of Xxxxx the defendants daughter required urgent medical attention and was in distress and pain. The defendant parked in a layby for all intents and purposes appeared to be a public road with residential homes.

5) The defendant received a penalty notice letter, which had all the hallmarks of scam/junk mail as no parking charge notice was served on the material day.

6) Several letters were sent to the defendant which stated the date the vehicle was parked at Xxx was Xxx with increasing demands of money.

7) The signage is inadequate at Xxxxx and are placed in such a position the driver driver of the vehicle is unable to see them clearly upon entering the site.



Rebutting Claimant Evidence and Arguments.

8) The Claimants witness statement states 'the facts and matters set out in this statement are within my own knowledge unless otherwise stated'

This is untrue as Xxxxx was not present and not a witness on the day.

9) The claimant states a 'minor error on the letter before claim is irrelevant' due to the date of charge showing Xxxxxx. However the vehicle was not present on this date and have countinously been incorrect on several correspondence received from the Claimants (exhibit 7,11 defendants witness statement)

10) I respond to the Claimant that the Particulars of Claim are incorrect and not concise as required by Code Of Practice 16.4 (attached exhibit A).

i) The Claimant has not been concise on the facts as the date given on the Particulars of Claim are incorrect as the vehicle was not present at XXXX on this date.

ii) There is no disclosed legal recognisable claim against the defendant as required by the Claimants trade Associations code of practice.


11) No authority to enforce charges.


12) The Claimant relies on the Court of Appeal case of Vehicle Control v Her Majesty's Revenue & Customs (2013) EWCA 186 and Parking Eye v Beavis (CA 2015) as establishing a precedent that the present Claimant can bring proceedings in its own name (witness statement 17-24 exhibit 20) (Claimant's statement para 5).

a. The Defendant asserts that the facts of VCS v HMRC were substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

i. The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS’s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with VCS were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

ii. It was held, at para. 27, that “ ... in my judgment the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts “contracts entered into as agent for the landowner”. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

iii. It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

b. Also, in VCS v HMRC it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass). Not even ParkingEye in the Beavis case tried to argue 'damages' and the Judges there said:

i. “97. ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.”

ii. Lord Mance at 190: “Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.”

iii. and later:‘’ But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

Contract

13) The Claimant has not provided the full contract between themselves and landowner as this should be read in conjunction with the "service proposal".

i) The authorisation form only allows Uk Car Parking Management to provide enforcement and does not allow Uk Car Parking Management to offer parking.

ii) The contract does not allow Uk Car Parking Management to issue court proceedings.

iii) The contract submitted is dated 2014.

Signage

14) The Claimant relies on Vine v London Borough of Waltham Forrest (2000) that once it is established that sufficient and adequate warning notices were in place, a car driver can not be heard to say "that he or she did not see the notice"

a. The Defendant refutes this as there was no distinct signage/contract terms. The defendant cannot be deemed to have agreed to any terms of parking specific to the Claimant (i.e. distinguishing Vine v London Bor. of Waltham because the Claimant's signs (if any) were neither sufficient in number or sufficiently distinct from those complied with).

15) The claimants have provided a picture of the signage (claimants witness statement page 7), however this is different signage to the defendants (defendants witness statement exhibit 15)

i) The signs are different locations within Xxxxxx

ii) The signage photo provided by Claimant is dated XXXX and is before the parking charge occurred.

iii) The claimant states the content of the sign has been audited by the International Parking Community , however the signage shows that a 'valid tax date must be clearly displayed'
Tax discs have not been required as a legalisation since 01st October 2014, I put it to strict proof of when the signs were audited.

iiii) The signage is not prominent and no contract is offered.

iiii) Signage at the entrance of Xxxxx is placed high on a post and not lit. (Defendants witness statement exhibit 17)

v) No signs are within the drivers eyeline and are placed on the side of a brick wall, that you would only see if the motorist was looking left/right when passing the post within that moment.

The defendant invites the court to dismiss the claim.

claxtome

No harm in plagiarism.
No wonder you have as I recognise a lot of the Claimant's WS words in the WS I received in my case.

Is anyone able to help me fill in the blanks for number 11 please?

I think number 11 is a heading, looking at their WS, for your current point 12?
(Isn't it)

IamEmanresu the quote you were asking about is in this pages of Claimant's WS from post #68->
https://ibb.co/nt9E9w
https://ibb.co/i0CO2G

Lamilad

I do not see the point in paras 3-7... You do not need to restate points already made in your defence and/or WS