Ticket From VCS Brookshaw Sheffield

Umkomaas

RichieBoy56 wrote: »

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.

It might not stop them though. And if they manage to turn the Judge’s head towards that argument (and they have used it enough times in the past for us to be wary) you need to be prepared.

RichieBoy56

I understand what you are saying C-m but I want to keep my witness statement short and concise. What if I take a crib sheet into the Court with the details of Excel v Smith in case they bring up the issue of agency?

Coupon-mad

They will - and you would be MAD not to put Excel v Smith in as evidence.

You will KICK yourself if you need it on the day - please put it in, please. You cannot ambush with new evidence not filed & served before, they could object and get the Judge to kick it out and you would then not be able to mention it!

It will add ONE SENTENCE to your WS!

At trial, based on previous cases reported, the Claimant may decide to try a very loose interpretation of the law of agency, however this has been decided against this Claimant's owner in court before and the authority for this is the Higher level, persuasive Appeal case of Excel Parking Services Ltd v Smith (Exhibit xx) which VCS will be familiar with, given the fact that it was a parking case with similar facts, involving VCS' sister company.

RichieBoy56

Thank you for persisting with your point C-m, I will put that sentence in.


Just for my benefit/education, if VCS raise the issue of agency then they are ambushing me with new evidence aren't they?

RichieBoy56

Here is the final version of my witness statement:

• I am xxx of xxx, the Defendant in this matter. I will say as follows:
• Background
• I am the registered keeper of a xxx Registration xxx.
• The vehicle attracted a Parking Charge Notice (PCN) when parked at Brookshaw Retail Park, Sheffield S3 8RW on the xxx 2017.
• I received through the post a Notice to Keeper (NTK) from Vehicle Control Services (VCS) dated xxx 2017 (Exhibit RE1), demanding payment from the driver of £100 within 28 days for parking longer than the permitted period.
• As I was not the driver of the vehicle in question on the material date I chose not to respond.
• 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. This was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. Quote:

“However keeper information is obtained, there is no ‘reasonable presumption’ in

law that the registered keeper of a vehicle is the driver. Operators should never

suggest anything of the sort. Further, a failure by the recipient of a notice issued

under Schedule 4 to name the driver, does not of itself mean that the recipient

has accepted that they were the driver at the material time. Unlike, for example,

Notice of Intended Prosecution where details of the driver of a vehicle must

be supplied when requested by the police, pursuant to Section 172 of the Road

Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to

name the driver. Any evidence in this regard may therefore be highly relevant”.

• Three people were insured to drive the car on the material date and it is incumbent upon the Claimant to prove who was driving.
• It is my understanding that the Claimant has two ways in law in which they can hold somebody liable for unpaid parking charges; either by identifying and pursuing the driver, or by transferring liability to the keeper by following the strict requirements of POFA 2012.
• 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.
• No Registered Keeper Liability
• I was not the driver on the material date and the Claimant has no evidence to prove who was driving the vehicle.
• I have a signed statement from my wife confirming that I was not the driver on the material date (RE2).
• The Claimant relies on the Protection of Freedoms Act 2012 (PoFA), Schedule 4, Para 4 subsection (4) (Exhibit RE2) to transfer the liability to the Registered Keeper (the Defendant).
• 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”.
• 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.
• At trial, based on previous cases reported, the Claimant may decide to try a very loose interpretation of the law of agency, however this has been decided against this Claimant's owner in court before and the authority for this is the Higher level, persuasive Appeal case of Excel Parking Services Ltd v Smith (Exhibit RE3) which VCS will be familiar with, given the fact that it was a parking case with similar facts, involving VCS' sister company.
• The Defendant avers that the Claimant hasn’t complied with the strict requirements of POFA and is unable to prove on the balance of probabilities that I was the driver.
• No Contract
• The Claimant avers that a contract existed with the driver by Terms and Conditions advertised on signage at the site.
• 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.
• There are two large signs at the entrance to the site stating ‘The Bed Shop, Open 7 Days, Free Car Park’ (Exhibit RE4).
• These signs do not state that the car park is only for the use of The Bed Shop customers.
• 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.
• 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.
• 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.
• Signage at the entrance to the car park has been improved since the material date to now include entrance signage (Exhibit RE5).
• The Claimant avers that the signage has been improved as the original signage (on the material date) was inadequate.
• The Claimant has included a plan of the car park in their witness statement (TH1). This plan is not dated and represents the current signage locations, not the locations on the material date.
• No Locus Standi
• 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.
• 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.
• 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.
• The signatories to the agreement are not identified
• The land at Brookshaw Park is listed on HM Land Registry under Title No. SYK372232 (Exhibit RE6) and indicates the Registered Owner of the land to be Brookfarn Properties Ltd, not Zurich Assurance Ltd or GBR Phoenix Beard.
• 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.’
• It is averred that the Claimant does not have 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.
• The Claimant Witness Statement
• The Claimant states (at 11) that ‘In accordance with their contract appointing the Claimant, the Claimant was entitled to pursue any parking charges as a result of breach of the Terms and Conditions of the parking scheme in their own names.
• The copy of the contract included in the Claimants bundle (TH1) makes no mention of the Claimant being entitled to pursue any parking charges as a result of breach of the Terms and Conditions of the parking scheme in their own names.
• The contract in any case is not with the Landowner.
• The Claimant cites Thornton v Shoe Lane Parking 1971 2 QB 163 (at 26). It is contended that Thornton v Shoe Lane Parking 1971 is not relevant as this case only shows that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later.
• The Claimant cites Vine v Waltham Forest LBC 2002 (at 28). This case has been misquoted and is out of context. In this case the court goes on to note that the signage was insufficient and that the case was fact specific. It was judged that in that situation Ms Vine could not have read and understood the terms.
• The Claimant cites Parking Eye v Beavis 2015 (at 33). Again, this case is distinguished from the facts in the Beavis case. It is contended that the Beavis case supports the defence based on the fact this sort of ticket is a punishment of a paying driver, and not an 'understandable ingredient of a scheme serving legitimate interests'. In addition the maximum amount permitted in the Beavis case was £85, which was deemed to be reasonable, whereas the amount claimed in this case is more than double that at £185.
• The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.
• It is averred that the Claimant has not shown that they have the legal right to recover parking charges in their own name.
• Conclusion
• For all of the above reasons 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

I know I need to sort out the numbering.
Do you think that I have things in the right order?
Do you think that this will be sufficient?


Should I claim costs for wasting my time or sue VCS after a win?
Again, your valued advice would be appreciated.

KeithP

RichieBoy56 wrote: »

Should I claim costs for wasting my time or sue VCS after a win?

Claim costs.

File and serve a costs schedule a few days before the hearing.

The are example costs schedules in post #2 of the NEWBIES thread.

Coupon-mad

I never like a sentence that says 'they can't prove I was the driver':

The Defendant avers that the Claimant hasn’t complied with the strict requirements of POFA and is unable to prove on the balance of probabilities that I was the driver.

...because all it will take is the Judge to ask you 'so, were you the driver?'

Better to have this (and 'has not', instead of hasn't):

The Defendant avers that the Claimant has not complied with the strict requirements of POFA and is unable to prove the identity of the driver. Given that this is too long ago for me to recall, especially as the date, site and photo evidence is unremarkable and fails to narrow the event down to one driver, the Claimant has failed to tip the balance of probabilities in their favour that the driver can be confidently held to be one or other of the insured family members including myself, as well as x others (see Exhibit xx, insurance showing more than one driver)

Include a copy of your insurance as an exhibit if that helps, if it names more than one driver.

x = the number of possibles.

RichieBoy56

Again, many thanks C-m.

"File and serve a costs schedule a few days before the hearing"
Presumably deliver this by hand to the court and registered post to the Claimant?

Do I have to show unreasonable behaviour?

Also, "insured family members including myself", shouldn't it be "insured family members including me"?:) One of my pet hates.

KeithP

RichieBoy56 wrote: »

Presumably deliver this by hand to the court and registered post to the Claimant?

Do not use any service that requires a signature upon receipt. All that does is give the intended recipient the opportunity to refuse delivery - not quite what you want.

Send the thing by standard First Class post, getting a free Certificate of Posting from the Post Office counter, and it is deemed delivered two working days later - unless proved otherwise.

Coupon-mad

Also, "insured family members including myself", shouldn't it be "insured family members including me"? One of my pet hates.

Not sure about that one but I am also a grammar pedant, and yours sounds better.