VCS Letter Before Claim

rb331

i have taken pictures of the lack of signs on the side of car park where it is believed vehicle may have been parked on the date last year so will include that in the witness statement evidence. They seem to have an answer in their witness statement to every single one of my paragraphs on my defence ... should I be worried?

rb331

In response to POFA they have stated they are entitled to pursue outside sofa or under pofa ... alternative remedy outside pofa english legal system

Snakes_Belly

rb331 wrote: »

So I received claimants witness statement and evidence, 50 odd pages with references to: Thornton V Shoe Lane Parking, Vine v Waltham Forest , Parking eye vs Beavis , VCS vs Ctutchley, Chaplair vs Kumari . I really hate VCS with a passion , I have since parked there within the 2 hour limit to recieve yet another fine stating I didnt pay for parking, having gone back to the site they have now added a meter and changed the signs slightly, not obvious to people that know the site as a max of 2 hours. Another £100 charge! Any advise appreciated. I will read up on the next steps in the process on the sticky with regards to court but any help/advise much appreciated.

Thornton v Shoe Lane relates to a barrier car park where the signs were prominent at the entry to the car park. The entry would only be one way traffic and the car would be stationary at the point of entry. In this case the contract was formed at this point and could not be varied later. You need to evidence that upon entry to the car park that the signage was inadequate to form a contract.

Vine v Waltham Forest again this is about signage and Ms Vine had not seen the signs. You need to read this case and there is a transcript available. IMO (I am no expert) they have misunderstood the case and are taking it out of context.

VCS vs Crutchley I have not read the transcript in this case but it is one which VCS won so they will play this. It appears that the judge was of the opinion that the driver should be aware that there are terms and conditions to parking on private land and should make themselves familiar with the terms and conditions before parking. You will need to look at the signage. Excel and VCS signage can include a lot of text in small font.
Read up on the Martin Cutts case and article.

See also Lord Denning's Red Hand Rule. There is also the question of reasonableness and what a reasonable person would do. Thinking of some of Excel's signs (same company) they contain that much information that a person would have gone over the grace period by the time they had read them and taken it all in.

Parking eye vs Beavis. Beavis can work for you on signage if the signage is unclear. Compare the VCS signage with the signage in the Beavis case. The 'no true pre-estimate of loss' will not work with a free car park on a retail site. ParkingEye v Cargius may work with a pay car park .

Chaplair limited vs Kumari They are using this case to justify adding £60.00 in respect of debt collectors fees that they have not paid. The case involved a lease (signed contract) and an amount which had actually been paid. In your case no contract and no payment has been made to a debt collector because they work on a no collection no fee basis.

Was the car park a free car park or free for the first couple of hours and then pay? The Peel Centre appeared to be a free car park but was actually a pay car park. (Cutts case).

Another positive is that this company will be well known by the courts in Sheffield.

Snakes_Belly

You also need to insist that they evidence that they have authority from the landowner. If they are pursuing a case for which they have not the authority this is a waste of court time. Did they provide anything in their WS? They should be narrowing the issues by providing this information. VCS v Ibbotson.

rb331

Thanks for the input snakes I will post my draft shortly I think my main argument is that they seem to use POFA when it suits them , they sent the notice 21 days after the alledged contravention not within the 14 day timeframe.

Speaking of 14 days timeframes, the hearing is 29th March , that gives me until 4pm tomorrow to file witness statement and evidence , do I need to send this today by end of post recorded delivery or email tomorrow by 4pm ?

Le_Kirk

Always suggested that you take your WS and evidence in a neatly labelled ring binder to the court personally. Search the forum using "ring binder" as your search term and "Coupon-mad" as user name, change radio button from threads to posts and see what she (C-m) says about how to present WS and evidence. Either e-mail the same to the claimant or, if you have to post it, just go to a Post Office and get a FREE certificate of posting. If you use a recorded or signed for service, the claimant can refuse delivery and then they have proof it wasn't delivered.

Coupon-mad

Not recorded delivery (nor email, except to VCS)!

Parking firms are unlikely to sign for a recorded delivery item, and then it is not a record of delivery, it's proof of NON delivery which is not what you want.

So email their version of it all.

Courts are unlikely to print from an email, so no emailing your court. Take the entire file in person to the court in the morning, with the claim number and HEARING DATE and who you are and what it is, on the front, and with a contents page and draft costs schedule.

rb331

Thanks guys, i will send it VCS by email in PDF form with all exhibits attached etc and hand deliver to the court tomorrow morning in a binder if that works best?

Let me know if this looks good and any suggestions:

IN THE COUNTY COURT - Claim No.: XXXX

Between

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

XXXX (Defendant)
____________________________
WITNESS STATEMENT
__________________________

I, XXXX of XXXX am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. The car in question is also driven by other family members.

4. Within this statement I make reference to various documents these are produced in a paginated bundle GG1 .

5. The paragraph numbers mentioned below relate to the Witness Statement filed by the Claimant’s paralegal XXXXXXX:

6. Re #30: The claimant appears to follow POFA only when it suits them, the claimant submits that they rely on Schedule 4 POFA clause 4 and pursue the defendant as the keeper of the vehicle yet later in #48 the claimant wishes to pursue to keeper outside of POFA when the defendant points out they did not follow direction in POFA Schedule 4 with regards to sending the notice to the keeper within 14 days of the date of the alleged contravention.

7. The notice was received by the defendant 21 days after the alleged contravention date. Had the notice been sent within the POFA guidelines earlier and with some further clearer photographic evidence the defendant may have been able to establish who was driving.

8. Re #12: The claimant states that the defendants vehicle was captured by the claimants ANPR system having parked in the car park for longer than the maximum stay period permitted. The ANPR system does not take into account any waiting times within the car park when the car is not parked. The car could be in a queue with other cars waiting for a space nor does it take into account waiting outside the shops within the carpark loading shopping into the car. It only shows extry/exit timings and not how long the vehicle is parked.

9. It is impossible to read the terms and conditions at the site when stood directly under the sign as the font is too small nor do the signs clearly show the fine incurred for the alleged offence see exhibit GG1 Exhibit A.


10. The case Parking Eye vs Beavis [2015] addresses the need for the signs to be clear of which VCS do not show the charges incurred for breach in a large font nor do they set out the terms and conditions in a readable format without a step ladder and magnifying glass. I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

11. At the front of the car park there is a large area where 13 bays are situated , signs do not appear in this area, it is possible to park here and not notice any signs. I attach evidence GG1 Exhibit B and GG1 Exhibit C to demonstrate this.

12. The Entry sign which shows the PCN charge in a very small non clear square box is mounted next to the pavement at a low height where people walking on the pavement can obstruct it. The driver would only have a couple of seconds to notice the sign when pulling into the car park even if no pedestrians were to block it , the driver would also have to look to the left at the sign. Please see GG1 Exhibit D for an example of this.


13. The claimant states that the defendant did not respond to any of the notices referred to in Mr XXXX WS, nor were the parking charges settled or appealed.

14. I did not respond to the brightly-coloured alarmist Notices sent to me by VCS because nor the Debt Collection letters from a company that appears to be also be part of VCS as I believed they were spam (this sort of scam had been exposed on Watchdog). Also, as I was not the driver and these were not offences or fines from an Authority like a Council, there was no reason or obligation upon a registered keeper to ‘appeal’ to what appeared to be junk mail. I have since researched this, hence my knowledge that these are non-POFA PCNs, incapable of holding me liable anyway. ?????? <<

15. It is submitted that the main reason that the Claimant is ‘unable to take steps to enforce’ the charges they allege apply, is due to their own choice not to use the POFA Schedule 4 and issue the notice to keeper in a timely manner. Had they done so, then they might have had cause to pursue me as registered keeper.

16. There are many significant and crucial differences between this and PE vs Beavis, as laid out in my defence para. 6. In the Beavis case one of the key factors was the clear and prominent signage in the car park the parking charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.

17. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

18. Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.


19. Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”


20. Mr XXXX even refers to The Beavis Case judgement in #34, proving the claimant understands the importance of clear and prominent signage. The sign referred to in the Beavis case is enclosed as GG1 Exhibit E. When compared to the VCS car park sign – GG1 Exhibit F , I submit that no reasonable person would agree that their terms are brief, clear and prominently proclaimed.

21. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

22. Re #44: The claimant submits that the signs around the carpark are clearly visible and meet the requirements set by the IPC. They further claim that their signs adhere to both codes of practice (CoP) and are therefore deemed reasonable.

23. The IPC state that signs should be simple and easy to read, and there should be strong colour contrast between text and background.

24. I submit that VCS’s do not comply with IPC CoP. The font sizes on the VCS signs are far too small packed with confusing patterns and symbols around them.

25. The sign is a mass of confusing and contradictory words. The icon showing the PCN charge of £100 is hidden in the small print It is not prominent or obvious and not easy to see by a motorist driving, even very slowly, past the sign.

26. In support of the above 3 points I enclose GG1 Exhibit G – the IPC code of practice; and GG1 Exhibit H – an VCS sign from the car park in question.

27. Even though I was not the driver. I submit that the case of Vine vs Waltham Forest LBC [2002 supports my case not the claimants.

28. Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in far larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

29. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(a) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(b) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

30. The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.


31. This judgment is binding case law from the Court of Appeal.

32. This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established


33. I believe the facts stated in this Defence Statement are true.

rb331

What is also interesting is VCS have included a sign in the witness statement that has in tiny writing a couple of clauses about wheel clamping and vehicle removal in operation!

rb331

Any help on the witness statement above would be much appreciated since I have to file it in the morning (talk about cutting it fine i know! I think I would have given up a long time ago were it not for this forum.