fluttering ticket going to court

Umkomaas

As an aside only @claxtome ....

The contract with redacted bits is first page of:
https://www.dropbox.com/s/kof2fflbkldo0ip/11%20Claimant%20Evidence.pdf?dl=0

If there was any doubt that Trev Whitehouse (of the defunct and discredited ANPR Ltd) is involved - here's some evidence. Compare the ESPEL contract with that of ANPR Ltd from 11 years ago.

https://www.whatdotheyknow.com/request/195108/response/480115/attach/html/2/Contract.pdf.html

Loadsofchildren123

claxtome, go to my Millennium thread where there will be a link (quite late on in the thread) to my anonymised Skeleton. Look at the section on Locus Standi at para 18. In addition to no locus, there is the issue at 18.4 which is that the entity which entered into the contract has no "legal personality" (this concept is also explained on my thread), and it is incapable of entering into a contract. See also 18.9.5 - these matters are for the C to deal with.


At 18.9.4 I refer to an ancient case:
The Defendant relies on Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.
I seem to remember I couldn't find this case on google, but only another case which relied on it and cited it.
This argument applies to your case.

See also para 22 over the issue with what signs were displayed, which was raised by another poster. Under the relevant CoP (don't know if your PPC is BPA or IPC) they have fairly detailed record-keeping obligations, so you quote that part of the Code to show that they could easily produce evidence of what signs were displayed at the time.

I appreciate that I got a bit technical in my Skeleton (which included just about every argument anybody had ever made) and I wouldn't recommend going in with something so detailed, but I think the Ebbw Vale case is a good one for you. The same principle must apply here and must make the contract unenforceable by the Claimant because they weren't a party to it and therefore have no landowner authority.

claxtome

Interesting Umkomaas the ANPR contract is so similar to the ES one.
(Think IamEmanresu pointed it out previously)

Thanks Loadsofchildren123 once again for your help. I will update my skeleton with your suggestions and post it when ready...

I ventured to the car park today and noticed the conflicting signs stuck to the side of the parking machines. Maybe a bit late to use as evidence for my case but not for others.

Loadsofchildren123

claxtome, it's late but not too late. Send a photo to the Claimant, point out the discrepancies and tell them that you will be relying on this at the hearing.


The rules are designed to avoid trial by ambush, so the court doesnt' like last minute evidence. But you are a litigant in person and they are a professional litigator. So even if you provide it a couple of days in advance, they've still got time to consider it. Just explain that in your final prep you went back to the site just to remind yourself of the lay of the land and that's when you realised about the signs.


Remember, it's for them to prove their case. Use this to show that they have been less than truthful about what their signage says (assuming they exhibited what they say are the signs to their WS, you will be saying their WS is inaccurate, which is a serious matter - then you start asking why the witness isn't in court to be cross examined about this matter....)

Loadsofchildren123

It's also their own sign, so they can't argue the new evidence is news to them and shouldn't be allowed - if they argue this you just say "but it's their sign, they must know what's there, and they're obliged to keep meticulous records of their signage under the CoP para x, so this is not new information for them, but it's clearly relevant information for the court to have (particularly as their WS, which bears a statement of truth, is not true about the signage)"

claxtome

claxtome, it's late but not too late. Send a photo to the Claimant, point out the discrepancies and tell them that you will be relying on this at the hearing.

Thanks LoadsofChildren123 for the advice as always gratefully received.

After careful consideration, as the sign mentions, "ticket displayed with expiry date and time displayed" which the main signs don't AND don't want to give them a stick to beat me with.
In my favour it does however mention a smaller fee £75 not £100 and "clamping" which is not allowed now.

Therefore I have decided to submit as new evidence to Court and serve it to the Claimant on Monday as it casts some doubt over signage.

claxtome

I have finished off my draft Skeleton Argument (SA).
Any comments/suggestions for improvements are welcome.
A lot of the content has mostly come from Loadsofchildren123 case and some has come from my previous case for the same car park.

Note: I will cut and paste it in the next 2 posts in case someone can't access the link.

claxtome

IN THE XXXX COUNTY COURT Claim Number: XXXXXX

ES Parking Enforcement Ltd
(Claimant)
-AND-

XXXXXXX
(Defendant)

___________________________________________________________________________

DEFENDANT!!!8217;S SKELETON ARGUMENT
FOR THE HEARING XX.03.18
___________________________________________________________________________


Terms used in this document:

AOS Approved Operator Scheme run by the ATA (members of an ATA must be members of its AOS in order to obtain driver data from the DVLA)
ATA Accredited Trade Organisation (there are only 2 in the parking trade BPA and IPC)
Beavis Case: Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis [2015] UKSC 67
BPA: British Parking Association
CoP: Code of Practice (issued by both BPA and IPC)
ESPEL: ES Parking Enforcement Ltd !!!8211; issued the NtD and NtK in this case
IPC: International Parking Community
The Land: Land near Winwick Street, Warrington
NtD: Notice to Driver
NtK: Notice to Keeper
The Parking Contract: The agreement dated 12.02.15 between Total CarPark Solutions and ESPEL exhibited to the Claimant!!!8217;s Statement [Orange tab p39].
PCN: Penalty Charge Notice (the same as the NtD, a !!!8220;ticket!!!8221; stuck to the windscreen of a vehicle informing the driver of a charge)


References in [] are to tab, page and para numbers of the Defendant!!!8217;s bundle.
!!!8195;
Summary of Defendant!!!8217;s position
The suggest approach to this matter is for the court to decide in turn upon the following issues:
ISSUE A: Has the Claimant Locus Standi to offer a contract?
ISSUE B: Are the terms of the Signage/Contract consistent?
ISSUE C: Was signage on site permitted to be displayed?
ISSUE Was the contract between the Claimant and the Defendant breached at all?

ISSUE A: Has the Claimant Locus Standi to offer a contract?
1. The Claimant has no Locus Standi to bring this claim because:

1.1. The party which entered into the Parking Contract, and was granted rights to manage parking on the Land/Site was ESPEL. The party identified in the signage as the offeror was ESPEL. However, ESPEL has no legal personality and was not capable of entering into any contract, thus rendering both the Parking Contract and any contract with the driver incapable of performance or enforcement.

1.2. The party !!!8216;Total CarPark Solutions!!!8217;, in the Parking Contract, is claimed has the right to grant the rights in the Parking Contract is not the landowner or another entity authorised by the landowner. !!!8216;Total CarPark Solutions!!!8217;, or similar name, is not even a recognised company according to Companies House [Orange tab p39].

1.3. Strict proof is required that there is an assignment of contractual rights from the landowner to the Claimant. The Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the !!!8220;right to enforce the contract!!!8221; or the !!!8220;right to sue!!!8221;.

1.4. The Land is divided into 4 title numbers; 3 Freehold and 1Leasehold; none of which mention the landowner or leaseholder similar to !!!8216;Total CarPark Solutions!!!8217; [p88].

1.5. Indeed the landowner according to titles CH178919 and CH506108, and the leaseholder according to title LA139982, is Winwick Partnership which is registered in England and Wales under ref LP009364. There are two general partners; Faraday Management Ltd (registered in the Isle of Man) and Winwick Ltd, (Register 04969819) [p93, p98 and p101].

1.6. The landowner according to the final title CH588779 is ZOE Warrington Ltd which is registered in England and Wales under Register 03563382 [p105].

1.7. The Defendant relies on Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 (as set out in Air-Care Ltd v Blais and Les Immeubles Pro-Car Limitee et al) in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.

1.8. The Defendant relies on the following case in relation to paragraphs 1.1-1.5 above: VCS v HMRC [2013] EWCA Civ 186, paragraph 22:
!!!8220;The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages.!!!8221;
This makes it clear there is a difference between the power to make a contract and perform a contract. A trespassing parking operator is in the position of a rogue trying to sell Buckingham Palace. They can make a contract, but cannot perform it. And if they cannot perform it, they cannot enforce it.

1.9. The Defendant also relies on:
ParkingEye Ltd v Gosnold (parking contract with non-landowner not valid)
ParkingEye Ltd v Rickard (Claimant did not produce evidence of a contract with the landowner).

1.10. The Parking Contract evidenced by the Claimant is incomplete and is now out of date. Clause 8 states !!!8220;This agreement is for an initial period of one year and thereafter is subject in accordance with the terms and conditions overleaf!!!8221; therefore there are missing pages describing terms and conditions and is now out of date as was signed on 12.02.2015.

1.11. Part B Paragraph 1.1 of the IPC CoP specifically provides that the Claimant must have written authorisation of the landowner [Blue tab p60]. Compliance with the CoP is mandatory (see paragraph 5). Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

1.12. Although this issue has been drawn to the Claimant!!!8217;s attention, and although the Claimant has since the start of these proceedings been asked to produce evidence of the landowner, the Claimant has refused to provide any more information about this. It has not therefore satisfied the burden of proof of its claim. It is not for the Defendant to unearth the connection between the companies, nor whether there was any formal assignment of the rights of one company to the other, or whether the rights and obligations pursuant to the Parking Contract bind the new owner of the Site !!!8211; these matters are for the Claimant to prove.

1.13. The proper Claimant is the landowner. Absent a contract between the lawful occupier and the Claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the Land, it cannot show any authority to issue charges on the Land in its own name and no locus standi to bring this case.

!!!8195;
ISSUE B: Are the terms of the Signage/Contract consistent?
2. The signage displayed on the Land on the relevant date (XX.05.17) is inconsistent:

2.1. The printout of the sign exhibited to the Claimant!!!8217;s Statement [Orange tab p40] cannot be a true copy of the signage displayed at the relevant time, as the Defendant has discovered different signage on the Land [p87].

2.2. It has therefore failed to demonstrate the terms of any contract which goes to the heart of the claim (the assertion being that the signage was the offer, and contained all of the terms of the contract) which must call into question the veracity of the Claimant!!!8217;s evidence.

2.3. The Defendant reminds the court that he is an ordinary individual, whereas the Claimant is a professional parking company !!!8211; it has various obligations pursuant to the IPC CoP which include meticulous record keeping, regulations on signage and familiarity with relevant legislation (A3.1, A4 and E Schedule 1).

2.4. In Beavis it was held that compliance with the CoP is paramount when it comes to the enforceability of any contract and the disengagement of the penalty rule (see paragraph 7).

ISSUE C: Was signage on site permitted to be displayed?
3. The Claimant!!!8217;s advertising consent for signage has expired:

3.1. The Defendant!!!8217;s evidence shows it expired on 24.02.17 long before the day in question [Green tab p28-31]. The Claimant!!!8217;s statement refutes this but has not provided any evidence to back this. This proves the Claimant is aware that advertising consent for signage is required [Orange tab p37 para 18].

3.2. It is a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 to display advertisements (which these signs are) without the relevant consent.

3.3. Claimant is not entitled to rely on an illegal or immoral act in order to profit from it pursuant to doctrine ex dolo malo non oritur actio.

3.4. The rationale for the doctrine is set out in the early case of Holman v Johnson (1775) 1 Cowp 341 where Lord Mansfield said:
!!!8220;The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.!!!8221;

3.5. The principle was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015) where, at paragraph 34 of the judgment the above passage was cited.

3.6. The Court!!!8217;s attention is also drawn to Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507. Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court!!!8217;s attention is drawn to paragraph 20 of the judgment
!!!8220;It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful!!!8221;.
Paragraph 28 continues !!!8211;
!!!8220;cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.!!!8221;

3.7. It was clearly unlawful for the Claimant to have in place the signs upon which it relies for the formation of that asserted contract. There has been a clear transgression of a law (the 2007 Regulations) and it is submitted that the Court should not !!!8220;lend its aid!!!8221; to this Claimant !!!8220;who founds his cause of action upon an illegal act!!!8221;.

3.8. Further, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct. ParkingEye v Somerfield Stores [2012] EWCA Civ 1338 concerned an alleged illegal contract. Whilst the facts of that case are not relevant, the Judge!!!8217;s comments at paragraph 29 are of importance:
!!!8220;At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently!!!8221;.

3.9. In Somerfield the contract was upheld because the Claimant had no intention, when creating the contract, to deliberately break the law. Differently in this case, the problem arose at the formation of the contract and not in relation to any subsequent act: the Claimant did deliberately break the law by keeping the parking signs displayed which it asserts stated contractual terms, without first renewing the mandatory consent required by law. Thus a crime was committed. Therefore, the illegality in this action was not merely incidental to the creation and part of the performance of the contract as in Somerfield but was central to it. Somerfield guides us that where there was a chance to remove the illegality from future performance the contract could remain in force. In this action the illegality of the Claimant!!!8217;s signage that existed on the day of the parking cannot be undone, even by any subsequent grant renewal of advertisement consent.

3.10. The Claimant relies on the signage as having formed a contract with the driver [Orange tab page 35 para 4]. The contract formed between the Claimant and the driver, was illegal at its formation because it was incapable of being created without an illegal act (the erection of the un-consented signs which the Claimant relies on as having made a contractual offer).

3.11. Where a contract is illegal when formed, neither party will acquire rights under it, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

3.12. If the Claimant were to obtain consent, this cannot and will not grant authority and legality for display of the signage prior to the approval date so that the crime being committed when the car was parked will remain a crime for all time.

claxtome

ISSUE Was the contract between the Claimant and the Defendant breached at all?
4. The Defendant complied with the signage he saw at the site and entered a contract by purchasing and displaying a valid ticket for the time parked in the car park.

4.1. The contract was not breached as the signage states “A valid ticket must be purchased to park on this site and displayed clearly in your front windscreen” [Orange tab p40].

4.2. The Claimant’s own evidence shows the valid ticket displayed on the windscreen [Orange tab p48]. The defendant’s evidence shows the ticket in more detail [Green tab p16]. The Claimant doesn’t argue a valid ticket was purchased on the day [Orange tab p38 para 8].

4.3. The main Claimant argument is the ticket is not displayed the right way up so couldn’t check the validity of the ticket. The Defendant would counter this that the Claimant has had plenty of opportunity to see a copy of the valid ticket sent to them and quash the parking charge. Both at appeal and Letter Before Claim stages [Green tab p19-20 and p26].

4.4. Comments about the upside down ticket:
4.4.1. It was a sunny but windy day and as the ticket is very flimsy and can easily be flipped.
4.4.2. Has no sticky back to allow it to be fixed to the windscreen.
4.4.3. It has a serial number on the reverse side of the ticket.
4.4.4. A number plate needs to be entered in the ticket machine so either a check on this or the serial number on the back of the ticket, especially as the parking charge was sent through the post, could have been done prior to sending the parking charge out.
4.4.5. The defendant is interested to know how many parking charges have been raised for the same cause for this car park. It is almost as if they wanted this to happen so they could gain from it
4.4.6. The Claimant avers that the ticket is flimsy and says having no sticky back is irrelevant [Orange tab p36 para 11]. Council adjudicators (included here as in the Beavis case they were happy to draw similarities with Council parking cases) have often referred to the issue of “fluttering flimsy tickets”:
4.4.7. In DB05057D the adjudicator said “.. having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver’s responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.” [Yellow tab p13 para 21]
4.4.8. In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars.” [Yellow tab p13 para 21].

4.5. The Defendant relies on Jolly v Carmel (2000) in which the court held that a party who makes reasonable endeavours and reasonable steps to comply with contractual terms should not be penalised for breach outside of their control and outside of any contractual term within their knowledge [Yellow tab p12 para 19].

4.6. On the day the Defendant had every intention to pay for parking, and did so, and complied with the terms of parking in the car park. Any breach (which, for avoidance of doubt, is denied) was de minimis “too trivial or minor to merit consideration” and the ticket flipping over was casus fortutitus ”chance occurrence, unavoidable accident”.


5. Breaches of IPC CoP

5.1. As a member of the IPC’s AOS at the relevant time, the Claimant was bound by its CoP. The CoP is not a “take it or leave it” voluntary document and compliance with it is paramount (see 5.3).

5.2. The initial paragraphs of the IPC CoP make clear that compliance is mandatory (A2.1, A2.2, A4.1, A4.2 and A4.3) and that this is a condition of membership of the AOS (A2.1). Members are audited at least annually to ensure compliance (A4.2, A4.3 and E Schedule 4), are expected to have in place adequate internal procedures to ensure strict compliance (A4.3 and B6.3), to know and observe the law (A3.1). Importantly, it provides that members will be suspended or expelled from the AOS if they breach the CoP (A2.2 and A4.7). The IPC is not a body subject to the Freedom of Information Act and so the Defendant cannot establish the history of its compliance.

5.3. The Supreme Court in Beavis also considered compliance with the CoP to be paramount in relation to the issue of the enforceability of a parking charge:
96. ''…The BPA Code of Practice is a detailed code of regulation governing signs,charges and enforcement procedures.''
111. ''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''.

5.4. The Court’s attention has been drawn (paragraph 3) to the Claimant’s failure to ensure that it has complied with the relevant legislation, thereby resulting in criminal conduct in their operation of parking enforcement. This is a clear breach of paragraph A3.1 of the CoP. If there is any liability argued on the part of the Defendant, then it is submitted that a contractual term cannot be fair if the requirements of the CoP are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.


!!!8195;
REBUTAL OF CLAIMANT EVIDENCE AND POINTS OF LAW IT IS ANTICIPATED THE CLAIAMANT MAY MAKE

6. Agency: the Claimant may assert that: it was acting, and entitled to act, as the landowner’s agent and that the alleged contract with the driver is enforceable by it as agent.

6.1. In relation to this point:
6.1.1. The Claimant had no contractual agreement with the landowner. The Parking Contract was made with a company which was not the landowner, and the Claimant has demonstrated neither a connection to the landowner nor any authority to act as its agent.
6.1.2. In VCS v HMRC [2013] EWCA Civ 186 it was held at paragraph 22 that “The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages” - this makes it clear that there is a difference between the power to make and to perform a contract. A trespassing operator is in the position of a rogue trying to sell Buckingham Palace. They can make a contract, but cannot perform it. And if they cannot perform it, they cannot enforce it.


7. The Beavis Case:
The Claimant will no doubt assert that the principles in Beavis apply to this case, that the court should hold that a contract was formed by the signage and that the charge does not have to reflect actual loss because the penalty rule is disengaged. The factual matrix of the Beavis case was very different, in several important respects:

7.1. In Beavis the Defendant accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed (a photograph of the sign in the Beavis case is at page [Green tab p33]). The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admission has been made in this case.
7.2. The car park in Beavis was at a retail park, where a free period of parking was offered, and where there was a commercial justification in deterring visitors from overstaying so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. This is a standalone car park with no such commercial justification/interest where such a departure is NOT justified.

7.3. In Beavis the Claimant paid the landowner to operate the parking, and so the Claimant had to generate an income from doing so in order to cover its costs and make a profit. In this case, the Claimant is paid by the other party to the Parking Contract, so has no need to manage the parking in such a manner as to profit from PCNs.

7.4. In Beavis it was significant that the Claimant had complied with the CoP of its ATA (BPA). In this case there are multiple breaches (see 5). The court held that compliance with the CoP was paramount. Paragraphs 96 and 111 of the judgment stated:
96. ''As at April 2013, there was only one relevant accredited trade association, the BPA, to which reference was made on the Notice, and to which ParkingEye still belongs. The BPA Code of Practice is a detailed code of regulation governing signs, charges and enforcement procedures.''
111. “''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.'' (emphasis added).

7.5. The issue of illegality and Ex dolo malo non oritur actio was not an issue in Beavis, as it is in this case.

8. The Claimant’s map of signage [Orange tab p41] submitted as evidence is now out of date as it shows no border between the Claimant’s part and the Council-run part. (The Boundary is approximately from the pub vertically downwards)

9. The Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty’s Revenue & Customs [2013] EWCA Civ 186 and Parking Eye v Beavis (CA 2015), as establishing a precedent that the present Claimant can bring proceedings in its own name [Green tab p25] and [Orange tab p37 paras 19/20].

9.1. 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:
9.1.1. 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.
9.1.2. 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. "
9.1.3. 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.
9.1.4. 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:
9.1.4.1. “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.”]
9.1.4.2. 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.”
9.1.4.3. 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.’’


SERVED BY THE DEFENDANT
26 March 2018

claxtome

The last 2 posts in case you hadn't realised is my draft Skeleton Argument (SA).
The full version is in my dropbox folder linked from initial post #1 OR can click this link->
https://db.tt/TITV8WnX5l

Any comments/suggestions for improvements gratefully received.

I intend to send it on Monday to Claimant and hand deliver to Court along with costs schedule and supplemental evidence bundle that includes->
1) Evidence of conflicting signage hinted at by WireWire previously
2) All the searching I did on Land Registry titles to find landowner

Note: I have decide to not try and prove unreasonable behaviour by Claimant which if proved would have enabled extra costs.
Think I had better case last time and was not successful.

1 quick question if I may please as have struggled to find the answer->
How do you calculate loss of earnings?
(I believe it is net income but my take home each month is a lot less as paying a wack in my pension and other benefits like health etc)
So is net income (gross - Income tax - National Insurance)?

thanks for reading