Ticket From VCS Brookshaw Sheffield

Coupon-mad

OK, that's good - but if she was the driver she will squirm if she attends with you and the Judge decides to ask her if she was driving. It would put her in a tight spot.

Have you done those searches and sussed what I mean about Mr Wilkes?

Modern

Does the witness have to attend, or would a statement be enough? I’m asking for the RK in my own case, where the RK was away at work on the day of the parking charge, and colleagues could confirm this - but wouldn’t want to take time to go to court.

Just to reiterate what’s on this thread- RichieBoy says he is the RK, he was not the driver, 3 people are insured on the vehicle (though I am aware anyone insured can drive it with his permission), his wife is the main driver of the car but was not driving on the day of the parking charge (step-daughter was).

Coupon-mad

his wife is the main driver of the car but was not driving on the day of the parking charge (step-daughter was).

OK so in that case the wife's WS is useful and she should attend the hearing too. She can even say that a family member was the driver but neither of them have to name that person to a Judge or anyone (certainly not to a PPC scammer). Just appear at the hearing and be honest that it was not them.

Witnesses should always appear if possible, otherwise their statement is hearsay.

RichieBoy56

Thanks C-M and Modern.
I have revised the statement to:

1. I am xxxxx of xxxxxx, the wife of the Defendant in this matter. I will say as follows:
2. I am the principal driver of a xxxxx Registration xxxxx.
3. I hereby state that (defendant) was not the driver of the above named vehicle on the xxxxx 2017.
4. The driver on the material date was a family member but there is no requirement in law for me to reveal their name and address to the Claimant.
Statement of Truth
Signed

My wife will attend.
Would she be entitled to costs?

RichieBoy56

Here is my latest witness statement:

1. I am xxx of xxx the Defendant in this matter. I will say as follows:
2. Background
3. I am the registered keeper of a xxx Registration xxx.
4. The vehicle attracted a parking charge notice when parked at Brookshaw Retail Park, Sheffield S3 8RW on the xxx.
5. I received through the post a Notice to keeper from Vehicle Control Services dated 5th September 2017 (Exhibit RE1), demanding payment from the driver of £100 within 28 days for parking longer than the permitted period.
6. As I was not the driver of the vehicle in question on the material date I chose not to respond.
7. The PCN also invited me to name the driver. I refused to do this on the basis that there is no requirement in law for me to do so.
8. Three people were insured to drive the car on the material date and it is incumbent upon the Claimant to prove who was driving.
9. In this Witness Statement I will show that the Claimant has not been able to transfer liability to the Defendant, that no contract existed and that the Claimant has no Locus Standi to pursue motorists in their own right.
10. No Registered Keeper Liability
11. I was not the driver on the material date and the Claimant has no evidence to prove who was driving the vehicle.
12. I have a signed statement from my wife confirming that I was not the driver on the material date (RE2).
13. The Claimant relies on the Protection of Freedoms Act 2012 (PoFA), Schedule 4, Para 4 subsection (4) (Exhibit RE2) to transfer the liability to Registered Keeper (the Defendant).
14. In order to enforce keeper liability the Notice to Keeper (Exhibit RE1) must have the correct 28 day period stated in the notice. “The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given” However the notice to keeper in this instance has the wrong 28 day period stated within, and instead states “beginning with the day after the issue date of this notice”.
15. It is my position that since a defective notice to keeper has been issued, that does not comply fully with the Protection of Freedoms Act 2012, then the claimant is unable to rely on keeper liability to enforce its claim and since I was not the driver there is no liability on my part.
16. No Contract
17. The Claimant avers that a contract existed with the driver by Terms and Conditions advertised on signage at the site.
18. It is my opinion that the signage at the site on the material date was confusing, sparse and not sufficiently clear to form a contract.
19. There are two large signs at the entrance to the site stating ‘The Bed Shop, Open 7 Days, Free Car Park’ (Exhibit RExx).
20. These signs do not state that the car park is only for the use of The Bed Shop customers.
21. There were no signs at the entrance to indicate that car parking was controlled by VCS Ltd. Signage around the car park was sparse, and mounted too low and could be obscured by other parked vehicles.
22. The Claimant is a member of the International Parking Committee (IPC) and as such is bound to comply with the IPC Accredited Code of Practice.
23. Part E of the IPC Accredited Code of Practice states ‘Signs should, where practicable, be placed at the entrance to a site.’ No such signs were present.
24. Signage at the entrance to the car park has been improved since the material date to now include entrance signage (Exhibit RExxx).
25. The Claimant avers that the signage has been improved as the original signage (on the material date) was inadequate.
26. No Locus Standi
27. The Claimant does not own nor have any interest or assignment of title of the land in question. As such, I do not believe that the Claimant has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract.
28. The Claimant has produced a copy of a Services Agreement (not a contract) between Zurich Assurance Ltd C/O GBR Phoenix Beard and Vehicle Control Services Ltd relating to Car Park Ticketing at Brookshaw Park, Sheffield.
29. The agreement is dated 11th September 2012 for a period of 1 year. The Claimant has not provided any evidence of renewal of the agreement after the first 1 year.
30. The signatories to the agreement are not identified
31. The land at Brookshaw Park is listed on HM Land Registry under Title No. SYK372232 (Exhibit RExxx) and indicates the Registered Owner of the land to be Brookfarn Properties Ltd, not Zurich Assurance Ltd or GBR Phoenix Beard.
32. The IPC Accredited Code of Practice, Part B, Para 1 states ‘If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.’
33. It is averred that the Claimant has not shown that they have the legal right to recover parking charges in their own name.
34. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.
    
    Statement of Truth
    I believe that the facts stated in this Witness Statement are true.
    Signature
    Date

Your valued comments would be appreciated.

The_Deep

I am struggling with paragraphs 14 & 15, please humour me and explain.

Coupon-mad

Really DP?

It is the same as all VCS NTKs and misstates the 28 day period.

The PCN also invited me to name the driver. I refused to do this on the basis that there is no requirement in law for me to do so.

As evidence for this, include Sch4 of the POFA and Henry Greenslade's words about Understanding Keeper Liability from the POPLA annual Report 2015.

And what about Excel v Smith and VCS v Quayle from the Parking Prankster's case law pages, the actual transcripts? The former case was ON APPEAL so it was heard at a higher level by a Senior Circuit Judge.

Please list what you are including as evidence so we can see?

RichieBoy56

C-m,
I'm not clear on the relevance of Excel v Smith in my case. The Claimant in his witness statement relies upon POFA for transferring liability. They do quote Paragraph 4 (6) of Schedule 4 "Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle" but they have not mentioned any other remedies.
I can see that VCS v Quayle is useful as the claimant has failed POFA.
I will amend in due course and include evidence.
Thanks again.

Coupon-mad

RichieBoy56 wrote: »

I'm not clear on the relevance of Excel v Smith in my case.

It's persuasive - carries more clout than VCS v Quayle which wasn't an appeal:

The former case was ON APPEAL so it was heard at a higher level by a Senior Circuit Judge.

It also kills and nips in the bud the other irrelevant/desperately clutching at straws 'remedy' that the Claimant will try at the hearing, the law of agency (CPS v AJH Films!):

https://forums.moneysavingexpert.com/discussion/5477023/excel-bw-legal&page=5

Read post #126 on how that Defendant won, using Excel v Smith. Excel & VCS are sister companies and use the same paperwork, NTKs and argue their cases the same in court.

RichieBoy56

Thanks for the link C-m.
I am struggling to understand something here.
If the Claimant has not mentioned the law of agency in their witness statement I didn't think that they could bring it up in court as that would be ambushing.