VCS "This is not a parking charge notice" - guidance please

Wildsound

Missing pieces of information for this thread - see below:

https://imgur.com/a/qrLfDoA (signed copy of Lease received back from Land Registry)
http://www.filedropper.com/leaseredacted
http://www.filedropper.com/leasetomancoredacted (Other leases related to the property, received from the lettings agency on request (unsigned) - they also provided an unsigned copy of the lease I received from the Land Registry)
Reply to the LBC was sent to the PPC early/mid November requesting further information within 30 days - no such response or information has been received as at 06/01/2019.
Received 2x County Court Claim forms issued 28th December 2018.


Good evening everyone, I hope you are all well:

Update regarding this thread - I have had County Court Claim Forms through (x2) for the cases.

Today I have spent the majority of the afternoon making sure I have all my paperwork/evidence in order. I have read the claim forms fully and understanding what I need to do, both via the forms received and also the internet. I have now submitted 2x Acknowledgement of service forms online through government gateway stating that I wish to fully dispute the claims. The issue date was 28th December, so I believe I have until the 30th January 2019 to submit my defence in full (with the intention of submitting at least a few days before this). I have set alarms for the day, day before, 2 days before, 3 days before and 1 week before so that everything runs smoothly.

1) I have a list of cases which could be referenced in my favour including the following:

Jopson v Home Guard [2016] B96F0A9E PACE v Mr N. [2016] C6GF14F0 Link Parking v Ms P [2016] C7GF50J7

2) I have a list of defence templates (similar to my case) which I intend to study but by no means copy and paste:
http://forums.pepipoo.com/index.php?s=&showtopic=122492&view=findpost&p=1412564
https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302
https://forums.moneysavingexpert.com/discussion/comment/74708527#Comment_74708527
https://forums.moneysavingexpert.com/discussion/5890657/my-defence-vcs-simon-renshaw-smith#20
https://forums.moneysavingexpert.com/discussion/comment/72977032#Comment_72977032

If anyone has anything of note that I should add or consider, please let me know!

The lettings agency have provided me with unsigned versions of the lease (see above), so does this mean they are not valid as evidence in the court? The only signed copy I have is the one from the Land Registry which refers to these leases.

I received no response from VCS to my LBC response letter requests. Does this mean they have breached pre-court proceeding protocol by not providing me with what I requested within the 30 days I specifically stated? Please advise on this please and whether this can be input in my defence?

Also, can anyone point me in the right direction to obtain case files for the cases listed above? Is there a website which allows me to obtain these?

I look forward to reading your responses and guidance.

Regards

Wild

KeithP

Wildsound wrote: »

I have had County Court Claim Forms through (x2) for the cases.I have now submitted 2x Acknowledgement of service forms online through government gateway stating that I wish to fully dispute the claims. The issue date was 28th December, so I believe I have until the 30th January 2019 to submit my defence in full (with the intention of submitting at least a few days before this).

Yes your dates are fine.

With a Claim Issue Date of 28th December, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 30th January 2019 to file your Defence.

That's over three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

beamerguy

I received no response from VCS to my LBC response letter requests. Does this mean they have breached pre-court proceeding protocol by not providing me with what I requested within the 30 days I specifically stated? Please advise on this please and whether this can be input in my defence?

I think most of these parking cowboys are on the funny stuff.

If VCS think they can ignore you, they are making a big mistake because if they cannot provide you with the info required, you are not in a position to defend yourself properly and if it proceeds to court, you advise the court and ask for it to be dismissed.

Wildsound

IN THE COUNTY COURT BUSINESS CENTRE
Claim No.: XXXXX
Between
Vehicle Control Services Limited
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

3. It is admitted that, at all material times, the Defendant's vehicle was parked at [location] in the correct parking space allocated to his apartment XXX.

4. The Defendant has held an Assured Shorthold Tenancy agreement at XXX (the “Premises”) between himself and XXX (the “Landlord”) where the Landlord has let to the Defendant (i.e. the “Tenant”) the Premises for a period of 24 months, with the tenancy starting on and including the XXX and shall end on and include the XXX. This agreement was brokered and administered via XXX (the “Agent”). A copy of the tenancy agreement will be provided to the Court.

5. Under the terms of the Defendant’s tenancy agreement, a number of references are made to conditions of parking motor vehicles:
“SCHEDULE 1
OBLIGATIONS OF THE TENANT
Cars and Parking
15.1. To park a private vehicle only at the Premises.
15.2. To park in the car parking space, garage or driveway allocated to the Premises, if applicable.
15.3. To keep any garage, driveway, or parking space free of oil and to pay for the removal and cleaning
of any spillage caused by a vehicle of the Tenant, his family, contractors or visitors.
15.4. To remove all vehicles belonging to the Tenant, his family or visitors at the end of the Tenancy.
15.5. Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.
SCHEDULE 6
SPECIAL CONDITIONS
Special clauses individually negotiated between Landlord and Tenant
1. Including one allocated parking and use of bike shed.”

6. There are no terms within the tenancy agreement requiring the Tenant to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of the same.

7. It is noted that within the terms of the tenancy, references are made to a head lease:
“THE MAIN TERMS OF THE TENANCY
6. Definitions and Interpretation
In this Agreement the following definitions and interpretation apply:
o) "Head Lease" or "Superior Lease" means the document which sets out the promises the Landlord
has made to the Superior Landlord. The promises contained in this Head Lease will bind the Tenant
if he has prior knowledge of those promises.
SCHEDULE 1
OBLIGATIONS OF THE TENANT
21. Head Lease
21.1. To comply with the obligations of the Head Lease provided a copy of the obligations is attached to
this Agreement.”

7.1. The Defendant received no such copy of the Head Lease with the agreement and therefore had no prior knowledge of any promises, should any exist, made to the Superior Landlord by the Landlord and therefore, as per the tenancy agreement, the Defendant cannot be bound to such promises until such promises present themselves to actually exist. The Defendant therefore has no contract with and thus any direct obligation to the Superior Landlord.

7.2. Relevant leases have been provided to the Defendant by the Agent, after the alleged contravention took place, upon his own request. Copies of these leases which were provided to the Defendant will be provided to the Court, along with the correspondence between the Defendant and the Agent.

7.3. A current title number and current title plan were requested from HM Land Registry by the Defendant, after the alleged contravention took place, upon his own request. A copy of these documents will be provided to the Court.

7.4. A further relevant lease was requested from HM Land Registry by the Defendant, after the alleged contravention took place, upon his own request. A copy of this lease will be provided to the Court.

7.4.1. A party to the lease is a management company known as “the Company”. The Company is not the owner or the occupier of the allocated parking space and, in consequence, is not endowed with the powers usually exercised by an owner or occupier.

7.4.2. The relationship between the Defendant’s Landlord and the Company is governed directly by the lease, not via any contract with the Claimant.

7.4.3. If the Company has imposed any such regulations in accordance with any specific clause, should it exist, the Defendant has never been presented with a copy of those regulations.

7.4.4. The Defendant has no contract with the Company and does not, therefore, have any direct obligation to the Company.

7.5. If the Defendant had breached any term or condition of his tenancy agreement, which is denied, that would be a matter for the Defendant and his Landlord to resolve.

7.6. It may be that any breach of the tenancy agreement by the Defendant may result in his Landlord being in breach of his lease. However, in that event, the Lessor’s remedy would be to seek damages, not a parking charge, from the Defendant’s Landlord and/or to seek an injunction ordering the Defendant’s Landlord.

7.7. Consequently, neither the Company nor its agents, if any, have any standing in relation to the claim.

8. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy agreement. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the tenancy agreement. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

9. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's property, or his use or enjoyment of that property.

10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

13. In the tenancy agreement, it states the following:
“SCHEDULE 2
CONDITIONS TO BE KEPT BY THE LANDLORD
1. Quiet Enjoyment
1.1. To allow the Tenant to quietly hold and enjoy the Premises during the Tenancy without any unlawful
interruption by the Landlord or any person rightfully claiming under, through or in trust for the
Landlord.”

13.1 The Defendant is confident that he has met and will continue to meet the obligations and conditions he has to his Landlord through his tenancy agreement. The Defendant being harassed to the point of being taken to Court over non-payment of a parking charge, which the Defendant regards as being not only invalid but also exorbitant and disproportionate, is hardly likely to smooth the way to quiet enjoyment of the property by the Landlord.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

14. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4..

14.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

STATEMENT OF TRUTH
The defendant believes that the facts stated in the defence are true.
Signed:
Date:

Wildsound

With regards the above defence, I am uncertain about points 7.1, 9., 13. and 13.1

Le_Kirk

Your numbering also goes awry at about 13. Have you looked at other residential threads on here? One of the main points when PPCs are introduced is that the MA or MC MUST carry out a consultation of the residents/tenants/owners and gain 75% agreement (with not more than 10% disagreeing) BEFORE they can introduce external/third party parking "management" companies.

Umkomaas

Have you compared your defence with the example defence prepared by legally qualified bargepole for newbies to use to prepare their own? I'm sure there's a 'residential' example provided. Check the NEWBIES FAQ sticky, post #2.

Yours looks about 3 times longer than his, and seems (to my non-qualified eye) to have 'evidence' contained in it, which should come much later in the process via the Witness Statement (like all the heavy detail from the tenancy agreement).

The_Deep

What a waste of your time. Hopefully these scammers will be outlawed from residential car parks. They affect resales and rental values, and harass owners and tenants alike. Have you read this?

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

Wildsound

Thanks for the responses:

I have made some changes (and cut it down a lot), following your comments, and will post a new draft here soon.

I have taken another look at some of the threads and have come across some potential points which could be inserted:

6. The Claimant is put to strict proof that it has sufficient propietary proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

let me know your thoughts.

Wildsound

DEFENCE (v2)

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

3. It is admitted that, at all material times, the Defendant's vehicle was parked at [location] in the correct parking space allocated to his apartment XXX.

4. The Defendant has held an Assured Shorthold Tenancy agreement at XXX (the “Premises”) between himself and XXX (the “Landlord”) where the Landlord has let to the Defendant (i.e. the “Tenant”) the Premises for a period of 24 months, with the tenancy starting on and including the XXX and shall end on and include the XXX. This agreement was brokered and administered via XXX (the “Agent”). A copy of the Tenancy Agreement will be provided to the Court.

5. The Defendant has the right to park a vehicle granted by the Tenancy Agreement, which does not require the display of a permit or to pay penalties to third parties, such as the Claimant. The Claimant has no consideration to offer the Defendant that the Defendant does not already possess. The relevant paragraphs of the agreement are:
“SCHEDULE 1
OBLIGATIONS OF THE TENANT
Cars and Parking
15.1. To park a private vehicle only at the Premises.
15.2. To park in the car parking space, garage or driveway allocated to the Premises, if applicable.
15.5. Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.
SCHEDULE 6
SPECIAL CONDITIONS
Special clauses individually negotiated between Landlord and Tenant
1. Including one allocated parking and use of bike shed.”

6. It is noted that within the terms of the Tenancy Agreement, references are made to a “Head Lease”. The copy of the Head Lease which the Defendant possesses contains no requirement to display a permit, does not override his right to park granted by the Tenancy Agreement and, therefore, the Claimant is still without any possible consideration they can offer that the Defendant does not already possess. A copy of this Head Lease will be provided to the Court.

7. Even if the Claimant claims the vehicle was in breach of any of the enumerated requirements, which they do not, as a third party, they have no rights to enforce any of the terms of the Tenancy Agreement or of a Head Lease.

8. The Defendant, at all material times, kept a vehicle in accordance with the terms granted by the Tenancy Agreement. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the Tenancy Agreement. Accordingly, the Defendant denies having breached any contractual terms as no contract was entered into, by intention or by conduct.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement and the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that state ‘This is not a Parking Charge Notice' and to then pursue payment by means of litigation.

9.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is not a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal Notice to Keeper, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

9.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

10. The Claimant, or a Superior Landlord, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to section 37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in of its own initiative, using its case management powers pursuant to Civil Procedure Rule 3.4, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

13.2. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.