VCS Claim received, defence help please

Le_Kirk

When you have PM'd a board guide to have your threads merged change: -

DEFENCE [STRIKE]STATEMENT[/STRIKE]

It's just a DEFENCE!

rob800

Thanks for advice Redx. I mistakenly started a new post as it says to do so in newbie and it doesn't let you change the name of your previous post to show you are now at the claim stage. I will request they are merged.

I have looked at some more posts similar to mine (not parked wholly within a bay) and amended and slimed mine down to the below. Any comments/advice welcome please.

1.It is acknowledged that the Defendant is the registered keeper of the vehicle xxxx. In addition to the Defendant, four family members have access to use this vehicle. It is noted that the Claimant states that this vehicle is a Hyundai I30, which is not. Therefore the claimant has either mistakenly identified the vehicle xxxx as the target of this claim or have made an error in their initial recording of the alleged infringement, which they have failed to carry out any deal diligence on at any point since or when issuing these proceedings.


2. It is denied that any monies related to the "Charge Notice" (whatever they might be) as stated on the Particulars of Claim ('POC') are owed and any debt is denied in it's entirety. The POC fail to state anything about the alleged breach of terms.


3. Notwithstanding the failure of the POC to state any detail, the Defendant is aware that there was one unfair parking charge notice (PCN) affixed to this vehicle in January 2018, where the PCN was punitive and appeared to be no more than a predatory scam as featured heavily in the media. The narrow parking bays in question vary greatly in size and shape, for no more reason than seemingly, to cause difficulty for and to entrap motorists.

4.1 It is not admitted that on ******* the Defendant's vehicle committed any infringement at the location identified by the Claimant as !!!8216;Southgate Retail Park!!!8217;.
The Claimant has provided no comprehensive evidence, photographic or otherwise that the vehicle committed any infringement. The photographs the claimant has provided, apparently taken on a mobile phone of one its employees, are of poor quality and show only a partial vehicle registration plate in several photos. The only photographs that appear to show the registration plate of the claimants vehicle are close up photographs of the plate, which make it impossible to identify where these were taken or if in fact the vehicle was actually parked at the time (rather than in the process of parking or otherwise manoeuvring). Requests for additional photographic evidence from the Claimant, clearly showing the vehicle registration plate in all cases, have been ignored.


4.2. The car shown in the claimant!!!8217;s photographs, which the Defendant is unable to confirm is their own with any certainty due to the issues mentioned above, appears to be have been positioned as such due to the way adjacent vehicles are parked. The adjacent to this vehicle to the right was parked right up to the line, causing the driver of the vehicle in question to have to place the car carefully and courteously alongside and an equal distance between the two adjacent vehicles, albeit at a angle with one wheel over the white line. This appears to have been done to prevent access issues and possible damage to any of the three vehicles, when the doors of any of the vehicles were opened.

4.3. This exact situation was briefly touched upon by the Judges at the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67, where the concept of ticketing cars for having to park at an angle due to the line of the first car in the row, was considered to be potentially unfair, but that was not the situation so the discussion moved on to consider the facts of the case and whether the charge at hand was unconscionable or justified, as must always be considered with any PCN, on a case-by-case basis.

4.4. However, the Supreme Court Judges stated that the penalty rule was undoubtedly engaged in all parking charge cases and the Beavis case charge was only saved from being held to be an unrecoverable and unconscionable penalty, due to the compelling commercial justification of the value of offering a licence for '2 hours free' parking in that busy retail park and the necessity to ensure a regular turnover of bays. None of this applies in this case and the Defendant avers this charge is punitive and not saved by any compelling legitimate interest, which cannot be to punish drivers. The Claimant has failed to provide any claim or evidence to demonstrate an obstruction to parking being caused by this vehicle. In fact the photographs provided by the Claimant show all bays fully occupied.

4.5 The site in question, identified by the claimant as !!!8216;Southgate Retail Park!!!8217;, is actually two separate car parks separated by a central access aisle from the main road. From the limited information provided by the claimant, the alleged infringement is claimed to have taken place in the right hand car park of the two on site. Upon entry to this car park there is a prominent, permanent metal sign identifying the car park as !!!8216;Southgate Innovation Centre!!!8217;. It is not identified as !!!8216;Southgate Retail Park!!!8217; as the claimant alleges. The only parking condition on this sign is a 2 hour maximum stay, with no mention of any penalty charges for any breaches of this. This sign is presented in the colour scheme, font and including logos of the !!!8216;Southgate!!!8217; brand seen elsewhere on the site. It would be considered by any user to be a genuine piece of signage, identifying the name of the car park and the conditions of parking within.
The VCS signage present on the !!!8216;Southgate!!!8217; site, which the claimant is relying on for claim, are generic signage without any of the Southgate branding, referring to terms and conditions for parking at !!!8216;Southgate Retail Park!!!8217;, not !!!8216;Southgate Innovation Centre!!!8217; as the car park in question is identified by the signage on entry to that car park. The VCS signage would therefore be considered by any user as not valid to the !!!8216;Southgate Innovation Centre!!!8217; car park and would any user would naturally believed they referred to the left hand car park, as that is a retail area containing Pound World and Lidl retail units. The !!!8216;Southgate Innovation Centre!!!8217; part of the site including a gym, an assessment centre, various office units and a charity donation centre, no retail units.

5 It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.3.1. There was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
5.3.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.


6.It is denied that the Claimant has authority to bring this claim.
a) 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.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


7.The Letter before Action omitted the following information
a) Include details of the breach of contract.
b) A list of the relevant documents/evidence on which the Claimant intends to rely.


8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

9. It is submitted that (apart from properly incurred court fees) any added legal fees/debt recovery costs in addition to the original £100 charge, are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

10. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.


11. 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 is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

12. I request 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 the Claimants 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''.

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

[Deleted User]

1.It

is acknowledged that the Defendant is the registered keeper of the vehicle xxxx. In addition to the Defendant, four family members have access to use this vehicle. It is noted that the Claimant states that this vehicle is a Hyundai I30, which is not. Therefore the claimant has either mistakenly identified the vehicle xxxx as the target of this claim or have made an error in their initial recording of the alleged infringement, which they have failed to carry out any deal diligence on at any point since or when issuing these proceedings.

Or put another way:

The defendant is keeper of a [eg. Ford focus] registration XXX ("the Car"). This is a different vehicle than that described in the Particulars of claim. At all material times, the Car has been insured, with 4 named drivers.

Prune the rambling....

rob800

Any more help please guys ? many thanks

KeithP

As suggested above, prune the rambling.
Then perhaps post a revised Defence.

Have you read any of the concise Defences linked from post #2 of the NEWBIES FAQ sticky thread?

rob800

Please see my updated defence attached, any advice would be great thanks in advance.

1.It is acknowledged that the Defendant is the registered keeper of the vehicle xxxx, a Hyundai I20, a different vehicle type to the one identified in the Particulars of Claim. In addition to the Defendant four other family members have access to drive the vehicle

2. It is denied that any monies related to the "Charge Notice" (whatever they might be) as stated on the Particulars of Claim ('POC') are owed and any debt is denied in it's entirety. The POC fail to state anything about the alleged breach of terms.


3. Notwithstanding the failure of the POC to state any detail, the Defendant is aware that there was one unfair parking charge notice (PCN) affixed to this vehicle in January 2018, where the PCN was punitive and appeared to be no more than a predatory scam featured heavily in local media. The narrow parking bays in question vary greatly in size and shape, for no more reason than seemingly, to cause difficulty for and to entrap motorists.

4.1 It is not admitted that on ******* the Defendant's vehicle committed any infringement at the location identified by the claimant as !!!8216;Southgate Retail Park!!!8217;.
The Claimant has provided no comprehensive evidence, photographic or otherwise that the vehicle committed any infringement. The photographs the claimant has provided, apparently taken on a mobile phone of one its employees, are of poor quality and show only a partial vehicle registration plate in several photos. The only photographs that appear to show the registration plate of the claimants vehicle are close up photographs of the plate, which make it impossible to identify where these were taken or if in fact the vehicle was actually parked at the time (rather than in the process of parking or otherwise manoeuvring). Requests for additional photographic evidence from the Claimant, clearly showing the vehicle registration plate in all cases, have been ignored.


4.2. The car shown in the claimant!!!8217;s photographs, which the Defendant is unable to confirm is their own with any certainty due to the issues mentioned above, appears to be have been positioned as such due to the way adjacent vehicles are parked. The adjacent vehicle to the right was parked right up to the line, causing the driver of the vehicle in question to have to place the car carefully and courteously alongside and an equal distance between the two adjacent vehicles, albeit at a angle with one wheel over the white line. This appears to have been done to prevent access issues and to prevent possible damage to any of the three vehicles, when the doors of any of the vehicles were opened.

4.3. This exact situation was briefly touched upon by the Judges at the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67, where the concept of ticketing cars for having to park at an angle due to the line of the first car in the row, was considered to be potentially unfair, but that was not the situation so the discussion moved on to consider the facts of the case and whether the charge at hand was unconscionable or justified, as must always be considered with any PCN, on a case-by-case basis.

4.4. However, the Supreme Court Judges stated that the penalty rule was undoubtedly engaged in all parking charge cases and the Beavis case charge was only saved from being held to be an unrecoverable and unconscionable penalty, due to the compelling commercial justification of the value of offering a licence for '2 hours free' parking in that busy retail park and the necessity to ensure a regular turnover of bays. None of this applies in this case and the Defendant avers this charge is punitive and not saved by any compelling legitimate interest, which cannot be to punish drivers. The Claimant has failed to provide any claim or evidence to demonstrate an obstruction to parking being caused by this vehicle. In fact the photographs provided by the Claimant show all bays fully occupied.

4.5 The site in question, identified by the claimant as !!!8216;Southgate Retail Park!!!8217;, is actually two separate car parks separated by a central access aisle from the main road. From the limited information provided by the claimant, the alleged infringement is claimed to have taken place in the right hand car park of the two on site. Upon entry to this car park there is a prominent, permanent metal sign identifying the car park as !!!8216;Southgate Innovation Centre!!!8217;. It is not identified as !!!8216;Southgate Retail Park!!!8217; as the claimant alleges. The only parking condition on this sign is a 2 hour maximum stay, with no mention of any penalty charges for any breaches of this. This sign is presented in the colour scheme, font and including logos of the !!!8216;Southgate!!!8217; brand seen elsewhere on the site. It would be considered by any user to be a genuine piece of signage, identifying the name of the car park and the conditions of parking within.
The VCS signage present on the !!!8216;Southgate!!!8217; site, which the Claimant is relying on for claim, are generic signage without any of the Southgate branding, referring to terms and conditions for parking at !!!8216;Southgate Retail Park!!!8217;, not !!!8216;Southgate Innovation Centre!!!8217; as the car park in question is identified by the signage on entry to that car park. The VCS signage would therefore be considered by any user as not valid to the !!!8216;Southgate Innovation Centre!!!8217; car park and would any user would naturally believed they referred to the left hand car park, as that is a retail area containing Pound World and Lidl retail units. The !!!8216;Southgate Innovation Centre!!!8217; part of the site including a gym, an assessment centre, various office units and a charity donation centre, no retail units. Any user would therefore not be aware that they were involved in any contract with the Claimant when parking in the area in question.

5 It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.3.1. There was a !!!8216;relevant obligation!!!8217; either by way of a breach of contract, trespass or other tort; and
5.3.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.


6.It is denied that the Claimant has authority to bring this claim.
a) 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.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


7.The Letter before Action omitted the following information
a) Include details of the breach of contract.
b) A list of the relevant documents/evidence on which the Claimant intends to rely.


8. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

9. It is submitted that (apart from properly incurred court fees) any added legal fees/debt recovery costs in addition to the original £100 charge, are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

10. The Claimant failed to provide a truly independent appeal service, despite requests to do so. The only service offered was the !!!8216;IAS!!!8217;, which is a trading name for the IPC, to which the Claimant belongs, a clear conflict of interest. No figures or reports are published by the IAS, compared to the POPLA service, where 40%-50% of appeals have consistently been upheld since its inception in 2012. There is no scrutiny board, unlike POPLA. The IAS decisions in the public domain blatantly disregard recognised standards of law or justice. The Claimant believes that access to an independent service like POPLA would have resulted in access to a fair hearing and resolution of this case some months ago.


11. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.


12. 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 is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

13. I request 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 the Claimants 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''.

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

rob800

Any more advice on this please before I get it sent off ?

Thanks

rob800

Anything please guys ? :-)

Coupon-mad

I would remove #11 as that relates to a Gladstones case. Is yours BW Legal?

I would also remove this admission:

with one wheel over the white line.

And 4.4. appears to be repeated, pretty much, by #8 so remove one.

4.5. is far too long. Every paragraph should have a number. Break it up & renumber it.

I assume you have the usual headings at the top, and signature/date at the end? And know to email the defence to the CCBC, not post it?

rob800

Thanks, Coupon Mad, much appreciated. I have had nothing from BW Legal, is that unusual ? The claim form has VCS on it. It may be because in my last strongly worded message to them I told them I would not be communicating with the 'Debt Collectors' and not to share my details with BW or any other associates ?

I will be emailing it off this week with the heading and footer on. Let's see if they keep on it with it, no doubt they will.