VCS Letter Before Claim

Nuddmann

VCS v Ibbotson. Just read this, talk about ripping the claimant's brief a new one. And I quote, "you will be coming to see me and I suggest you bring a toothbrush."

Fan-bloody-tastic !!!

Coupon-mad

Nuddmann wrote: »

VCS v Ibbotson. Just read this, talk about ripping the claimant's brief a new one. And I quote, "you will be coming to see me and I suggest you bring a toothbrush."

Fan-bloody-tastic !!!

Yes at the time but it's old now, and doesn't set a precedent and was in some respects superseded by the Beavis case in 2015.

So not great in 2019 defences.

Coupon-mad

rb331 wrote: »

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!

Add that as an observation in your WS, and state that this casts doubt over the dates claimed for the signs shown, given that:

(a) private clamping became a criminal offence in October 2012 in the POFA, and that parking firms thereafter only had a few months allowed by their Trade Body - the only one at the time, the British Parking Association (BPA) - to remove all clamping signs and comply with the updated Code of Practice that came into force with the POFA,

and

(b) clamping signs can only have been there when VCS were in the BPA, yet they have been AOS members of the IPC instead, since 29/09/2014. So the entire evidence about the signage is called into question, regardless of the claimed dates manually stamped onto the images.

rb331

Thanks coupon mad I will add that in , the images they have used have 2010 stamped on them! If you could take a look at my witness statement a few posts back and let me know if there is anything you would add/remove that would be much appreciated , I need to driver this to the court tomorrow and send email copy to vcs so sweating 😅 many thanks !

rb331

URGENT - I need to submit this i guess latest early afternoon in person to the court and via email to claimant today if anyone could have a quick look through and offer guidance it would be very much appreciated. Many many thanks!

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. It is noted that in the claimants Site Information XX1 - Page XX / VisualX there is small print about clamping which casts doubt on the date these images were taken.


(a) private clamping became a criminal offence in October 2012 in the POFA, and that parking firms thereafter only had a few months allowed by their Trade Body - the only one at the time, the British Parking Association (BPA) - to remove all clamping signs and comply with the updated Code of Practice that came into force with the POFA,

and

(b) clamping signs can only have been there when VCS were in the BPA, yet they have been AOS members of the IPC instead, since 29/09/2014. So the entire evidence about the signage is called into question, regardless of the claimed dates manually stamped onto the images.


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








IN THE COUNTY COURT AT XXXXXXX - Claim No: XXXXXX

Between

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

XXXXXXXXX (Defendant)


DEFENDANT'S SCHEDULE OF COSTS
__________________________


DEFENDANT'S SCHEDULE OF COSTS

Ordinary Costs


Loss of earnings/leave, incurred through attendance at Court 29/03/2019 £50.00

Return mileage from home address to Court (e.g. 5 miles x £0.45) £2.25

Parking near Court £6.00

Sub-total £58.25 ======


Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Research, preparation and drafting of documents (3 hours at Litigant in Person rate of £19 per hour) £57.00

Stationery, printing, photocopying and postage, ink cartridges : £20.00

Sub-total £77.00 ======


£ 135.25 TOTAL COSTS CLAIMED

Snakes_Belly

Has the Claimant included in their WS evidence that they has the authority from the landowner? You did mention that a case at the same court/same car park had been dismissed because there was no evidence of landowner authority.

rb331

They have a full contract in their WS signed by land owner Henderson Property and a contract statement of authority also signed by Henderson

rb331

Does the above WS look good? ... am sweating here! haha

Le_Kirk

I, XXXX of XXXX am the defendant in this case

Should be: -

I am XXXX of XXXX, the defendant in this case

9. It is impossible to read the terms and conditions at the site when stood directly

Should be: -

9. It is impossible to read the terms and conditions at the site when [STRIKE]stood[/STRIKE] standing directly

14. I did not respond to the brightly-coloured alarmist Notices sent to me by VCS because nor the Debt Collection letters from

Should be: -

14. I did not respond to the brightly-coloured alarmist Notices sent to me by VCS [STRIKE]because[/STRIKE] nor the Debt Collection letters from

rb331

Thanks for that , have amended