Defence Statement - due in one week, any advice would be appreciated

Ben_Smith_UK

Hi all,

I've put together my defence statement which is due on the 22nd of this month. I think I'm going to have to upload it through the online system just in case the post is delayed and I miss the deadline. Thanks for your help in the other threads, getting to this stage - hopefully you think I have a valid case. I havnt been able to cite any specific cases, getting together all the information has been time consuming enough, i can see why most people would pay the fine rather than go through all this hassle. Anyway.... my defense is...

In The County Court
Claim number: XXX
Between CLAIMANT and DEFENDANT

Defence Statement

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. The sign that had been printed and attached to the Gallowgate car park ticket machine was misleading. It stated that “parking tickets for the Gallowgate car park can be purchased from either machine”. The text was accompanied by an arrow pointing right, in the direction of the adjacent car park. The sign was attached to the first machine I came across but as there was a queue, I followed the arrow to the payment machine located across the road where I made my payment for my stay (proof of purchase attached). As the sign led me to pay for parking at another machine, I believe the signage was misleading and does not inform people about any distinction between the two car parking facilities.
tinypic[dot]com/r/noacxt/9

2. Upon receiving the parking charge notice, I contacted Vehicle Control Services to explain what I believed was their mistake. They instructed me that I had paid for parking at the wrong location and that the signage referred to another machine within their premises. The other machine however was obstructed from view and resides up some steps. It’s not obvious that the signage on the machine referred to this machine which is why I paid for parking at the adjacent car park. There was also building work going on, as can be seen from the photographs where my vehicle was parked, which obstructed the full terms and conditions signage around the pay points.

3. The claimant stated that “The entrance boards and site signage differentiates the Gallowgate Car Park from the Council Car Park and gives the motorist sufficient Notice of the requirements to park in adherence to the Terms and Conditions.” I have provided images of the Southern entrance to the car park, at which I entered, which shows that there is no signage which would help distinguish between the two car parks.
tinypic[dot]com/r/2lxup7d/9

4. After receiving a Letter Before Claim from the Claimant, I asked the claimant to provide certain documents related to their argument in accordance to the guidelines laid out in the pre-action protocol. The claimant did not attempt to communicate with me on any level and provided not of the evidence which they are relying on, including a request to prove that the signage used on the payment machine was compliant with the IPC Code of Practice. I received a letter of intent of court proceedings several days later. I believed the matter could have been resolved outside of court so responded to this letter but again, I received no reply.

5. The operator claimed that “A series of images were taken showing the location of the vehicle in relation to the signs on site, they are time and date stamped and show the appellant’s vehicle parked adjacent to at least one of the warning signs.” These photos were uploaded to a ‘secure portal’ but do not show my vehicles location in proximity to any signage. There was in fact no full terms and conditions signage from where my vehicle was parked to the ticket machine. The only sign being that which pointed me in the direction of the adjacent car park. Again, I asked for evidence to be sent to me to prove this, which was ignored.
tinypic[dot]com/r/2e0jzoy/9 (thankfully this car has since been scrapped :rotfl:)

I believe the facts stated in this Defence are true

Redx

Ben_Smith_UK wrote: »

Hi all,

I've put together my defence statement which is due on the 22nd of this month. I think I'm going to have to upload it through the online system just in case the post is delayed and I miss the deadline. Thanks for your help in the other threads, getting to this stage - hopefully you think I have a valid case. I havnt been able to cite any specific cases, getting together all the information has been time consuming enough, i can see why most people would pay the fine rather than go through all this hassle. Anyway.... my defense is...

its not a defence statement , its a DEFENCE , so edit it


you DO NOT UPLOAD IT on the portal , you print it , sign and date it , scan back to pc and save as a pdf , then you EMAIL it as an attachment to the new CCBC email address , with the claim number and name in the email title and add basic details like the claim number , name , address etc in the email body


it is not a "fine" , its for a Parking Charge Notice, the legal term is INVOICE


no private company can "fine" you


I suggest you edit post #1 accordingly and then await legal feedback and critique on your DEFENCE


ps:- what you have written above looks more like a WITNESS STATEMENT to me , which comes further down the process, so study the defence examples in post #2 of the NEWBIES FAQ sticky thread


a defence is a set of legal arguments , nothing like a witness statement



good luck

Coupon-mad

Yes that's written as a WS, so it will save you time at WS stage! This will be good evidence, the sign at the bottom does point you to the nearest other machine:

http://tinypic.com/view.php?pic=noacxt&s=9#.WyOq3KdKjIU

But it doesn't go in a defence, no links or attachments go in a defence.

A defence doesn't look quite like that and should be written in the 3rd person as 'the Defendant' no 'me, myself or I'.

Have a look at the examples of defences in the NEWBIES thread, and show us a revised version. And also look at other VCS defence threads by searching for those words in bold.

If it's BW Legal acting for VCS, search for BW Legal defence misleading machine or similar words, have a practice at searching the forum and you will find really good ones written already, long forgotten but easy to find in 20 seconds.

Ben_Smith_UK

Back to the drawing board, thanks for pointing those things out, I will scour the forums and amend.

Ben_Smith_UK

Well, another weekend consumed by researching cases and defences for a process that should never have gone as far as this. Not how I thought I'd be spending my Saturday nights but here is my revised defence. I've taken points from a couple of similar cases and believe that everything in this is relevant to my case. Any final advice would be greatly appreciated guys.

Defence

Background.
1. The Claim relates to an alleged debt arising from the driver's alleged breach of contract when parking at XXX car park on DATE. Any breach is denied, and it is further denied that there was any agreement to pay the claimant!!!8217;s 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was parked without displaying a valid ticket/permit' based on images taken using handheld terminals. The defendant had paid for parking at the time of the alleged contravention at a machine which was believed to in accordance to the terms and conditions based on the onsite signage.

No locus standi
3. In order to issue and to pursue unpaid charges via litigation, the claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. The claimant has taken no steps to provide evidence that such authority has been supplied by the claimant, and the claimant is put to strict proof.

4. Even if the claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the claimant in this case.

5. Unconscionable and unrecoverable inflation of the 'parking charge'. In addition to the original parking charge, for which liability is denied, the claimants have artificially inflated the value of the Claim by adding a debt collection charge of £60. The defendant has the reasonable belief that the claimant has not incurred £60 costs to pursue an alleged £100 debt.

5.1. Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, the cliamant have not expended any such sum in this case. This claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

5.2. The added 'debt collection charge!!!8217; is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.

6. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the claimants contractual authority to operate there as required by the claimants Trade Association's Code of Practice B1.1.

7. The defendant wrote to the claimant on 10/04/2018 asking for:
an explanation of the cause of action
whether the claimant is pursuing the defendant as the driver or keeper
whether the claimant are relying on the provisions of Schedule 4 of POFA 2012
what the details of the claim are (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
a copy of the contract with the landowner under which they assert authority to bring the claim
a copy of any alleged contract with the driver
a plan showing where any signs were displayed
details of the signs displayed (size of sign, size of font, height at which displayed)
if the claimant had added anything on to the original charge, what that represents and how it has been calculated.
all photographic evidence showing where the car was parked when the (alleged) breach was made.

7.1 The claimant breached both the requirements of the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(b), 5.1 and 5.2 and did not provide any information requested above by the defendant.

8. The claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

8.1. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

8.2. The claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the claimant may not pursue any charge.

9. The claimant has at no time provided an explanation of how the !!!8216;parking charge!!!8217; has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
9.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
9.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9.3. The defendant denies that the driver would have agreed to pay the original demand of £100 (or the !!!8216;early payment!!!8217; option of £60) to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
9.4 The NTD sent to the defendant does not contain the duration the vehicle is stated to have been parked, which POFA requires.

10. Failure to set out clear parking terms. The signs on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case.
10.1. The defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, woefully inadequate and misleading.
10.2. At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
10.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the claimant was a signatory. The signage informed that defendant that tickets could be purchased at either machine and pointed in the direction of the machines later found by the defendant to not be part of the same car park.
10.4. There are no signs at the entrance at all and no additional signs or notices near the payment machines to alert drivers that there is a distinction between the two car parks which are situated adjacent to each other.
10.5. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed in any event. The signs were insufficient in terms of their distribution and wording hence incapable of binding the driver, which distinguishes this case from the Beavis vs ParkingEye case which the claimant has stated they are relying upon.
10.6. Should the claimant rely on the case of ParkingEye v Beavis, the defendant also wishes to point out that there is a test of good faith.
10.6.1. Para 205: !!!8216;The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.!!!8217;
10.6.2. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
10.6.3. 2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
10.6.4. 2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
10.7. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above. The defendant claims that the signs were misleading and designed to trick visitors into breaching the operators terms by pointing visitors in the direction of payment machines that were not part of site operated by the claimant.

11. The claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the defendant that a County Court Judgment would apply if matters were taken to court and that the defendant's ability to obtain credit would be affected) adding further unexplained charges with no evidence of how these extra charges have been calculated.

12. Wholly unreasonable and vexatious claim. It is submitted that the conduct of the claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the claimant filing a Notice of Discontinuance) the defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

13. The Court is invited to take Judicial Notice of the fact that the claimant is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the claimant, pursuant to CPR Practice Direction 3.1(3).

14. The Court is also invited to take Judicial Notice of House of Commons, Friday 2 February 2018 meeting on Parking (Code of Practice) Bill where the MPs highlight these scams of the private parking companies and their solicitors.

15. The defendant respectfully requests the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

16. If the court is not minded to make such an order, then when Directions are given, the defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

17. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the claimant in ignoring the defendant is wholly unreasonable. As such, the defendant will keep a note of their wasted time/costs in dealing with this matter.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Coupon-mad

5.1. Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, the cliamant have not expended any such sum in this case. This claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

Is this VCS acting for themselves or BW Legal?

Either way I would remove this. And remove this, it's aggressive and unhelpful:

13. The Court is invited to take Judicial Notice of the fact that the claimant is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the claimant, pursuant to CPR Practice Direction 3.1(3).

And this is not the name of the IPC and hasn't been for 2 years:

Independent Parking Committee ("IPC")

Finally, I saw nothing at the start telling the Judge the facts. I found this buried in the 10th para:

10.7. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above. The defendant claims that the signs were misleading and designed to trick visitors into breaching the operators terms by pointing visitors in the direction of payment machines that were not part of site operated by the claimant.

Should be one of the first things you say.

Ben_Smith_UK

Thanks for the help CM!

Is is VCS acting for themselves in my case. The only other communication I've had from anybody else are the two debt collection companies (2 names 1 company), so I think the additional £60 is still uncalled for. I will it along with point 13 too.

Thanks for pointing out the incorrect IPC name, I'd read it as this in some of the older forums. It is the International Parking Community now, isn't it?

I'll shift point 10.7 up too, you're right it should go higher. I was worried it may seem a little disjointed as this is all new to me.

I'll print and sign it then send it as a PDF attachment later today. Thanks again

Coupon-mad

The only other communication I've had from anybody else are the two debt collection companies (2 names 1 company), so I think the additional £60 is still uncalled for.

No collection no fee'', is how Debt Recovery Plus/aka Zenith work.

https://forums.moneysavingexpert.com/discussion/comment/74392635#Comment_74392635

PPCs lie, there has been no £60 paid out.

It is the International Parking Community now, isn't it?

Yes it is.

Ben_Smith_UK

I've submitted my defence using the current email address for the Country Court Business Centre.

I asked for confirmation that they have received the defence but do you know if I have to do anything else on the MCOL website? Do I have to go through the 'start defence' option online for example?

Thanks

Redx

no you dont do that


as far as the portal is concerned , keep checking the status on it , to see if it changes to the fact that they have notified the claimant of your defence , or moved it to the small claims track


DO NOT DO ANYTHING ELSE on that site


wait for the DQ stage and meanwhile familiarise yourself with the process as explained by BARGEPOLE and LOC123 in their threads and links from that NEWBIES FAQ stread , post #2


be forewarned, not on the back foot

Quentin

If you have inadvertently used your real name as your forum name you need to get MSE to change it to something anonymous


The ppcs monitor here and can use your thread against you