VCS Ltd - County Court Claim - DEFENCE HELP

lanethomp

Hi, posting here on behalf of my father. He has his own electrical business and parked at a site where he was contracted to work for approx four weeks. On day 1 he arrived on site with three other vehicles where they had to wait for 3-4 hours until the site caretaker arrived with the parking permit. During this time, a parking attendant arrived and asked what they were doing, an explanation was given and he seemed happy with this. 30 mins later he came back and said he'd spoken with head office who had instructed him to give all four vehicles a PCN. He advised they should appeal and were likely to be successful. Once the caretaker arrived with the permit he went on to do the job and the permit lasted for the duration of the four weeks after which point he handed it back.

My father received a letter asking for payment, replied with the explanation above, and was subsequently asked for a copy of the permit. A photo was sent back.
VCS Ltd replied to say that the permit was not specifically dated (from 30/01/17-29/01/18) and could therefore have been transferred from somebody else etc. The permit is issued by VCS Ltd.
"While we appreciate that you have privided us with a permit, the fact remains that this was not displayed as per the T&Cs, as such a contravention was clearly committed. Furthermore, as this permit is an 'open' permit, there is no way of identifying it specifically to yourself and your vehicle. 'Open' means it can be passed between different vehicles or obtained after the date in question."

Following this, my father received multiple debt collection letters which were ignored, and we have now received a County Court claim. I have read lots of info in the sticky threads and tried to draft a defence (although cannot find an example which relates to a similar situation).

Any help gratefully received. Many thanks.

lanethomp

Defence:

1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.


3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

4. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

5. The driver was allowed the right to park by the Managing Agent, initially via an express verbal agreement with the on duty caretaker staff, and subsequently by issue of a Parking Permit (reference number VCX1465171) for the duration of the works.

6. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

7. Alternatively, even if there was a contract, the provision requiring payment of £185.00 is an unenforceable penalty clause.

8. Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

9. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.


10. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

11. In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.

12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

lanethomp

One other point - unlike other examples, there is no mention of a legal company. The Particulars of Claim are signed by Jake Burgess.

Coupon-mad

Is the named defendant the company name (electrical business) or him personally as an individual?

VCS should be ashamed of this one. His time is being wasted and he should invoice them, IMHO.

Can he (later, no rush) get a witness statement from the other 3 van drivers and the caretaker?

Have the other 3 all got claims too, hope no-one has paid, this is a scam PCN if ever we saw one.

https://uk.linkedin.com/in/jake-burgess-34a714a6

Pathetic PCN, pathetic claim against a tradesperson who had a permit.

This is why the industry needs stamping out.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

lanethomp

The others were able to appeal directly with the managing agent for the site. My father is a sub contractor and wasn’t provided with the details. H will definitely be able to get witness statements from the other van drivers - not sure about the caretaker, will ask.

Do you think the defence covers everything?

Thanks v much for taking the time to reply

lanethomp

Oh and sorry it!!!8217;s against him personally. Unsure actually if it was NTK, will find out tomorrow

Coupon-mad

I think you could add a bit more to the defence, have a look at one I wrote the other day:

https://forums.moneysavingexpert.com/discussion/comment/74116029#Comment_74116029

I felt your draft was good but needed a point distinguishing this case from PE v Beavis, pointing out that it surely MUST be 'unconscionable' for the ticketer to come back to the contractors who had full landowner authority to be there, saying ''Head office told me to ticket you anyway''. Clearly no commercial justification saves VCS here.

Adding that there can be no 'legitimate interest' excuse that saved the £85 charge in the unique fact-specific case of Beavis, from being held unrecoverable under Lord Dunedin's usual tests for a penalty, basic trite law tests which are still applicable to more 'ordinary' parking charge cases, as the Supreme Court said in Beavis.

And pointing out that signs requiring a permit offer nothing of value to a worker who is there to carry out a contract and could not have had a permit until the caretaker arrived to meet him.

A point about trespass - only a matter for the actual landowner - is needed.

And a point about the added 'damages' inflating the claim to twice the parking charge, even though damages cannot be recovered by a parking firm not in possession, i.e. kicking out the added made up twaddle that takes the claim over £200 or so.

You should find most of these points covered in the linked example and can copy/adapt it.

Nice job so far!

lanethomp

@coupon-mad thanks so much, will have another draft in the morning. Only just filed the AOS so will post my redraft on here.

Really appreciate your help! Cheers

lanethomp

Hi just a quick Q. I!!!8217;ve filed the defence (thanks for help with that). Had the DQ through and completed it as per instructions.

Can I email the DQ to the CCBAQ email address or is it best to post it as well?

Cheers

lanethomp

Also:
Is it wise to start prepping the witness statements now or is there a good chance this will be discontinued before then?

Thanks