CCJ Claim Help - Vehicle Control Services

PugT

Thanks KeithP for the feedback.

I am the driver, not the owner of the vehicle but the vehicle's owner notified them I was the driver (I know this as I did it for them, although I did not use my full birth certificate name but the name I'm known by and my full address) and then all correspondence has been to me since then at my address. Does this class as acknowledgment of contact?

PugT

Le_Kirk wrote: »

Where is point b

Typo I will amend.

Many thanks for spotting.

PugT

Hi All

So tomorrow is the final day I can file my defence and wondered if there is any knowledgeable legal people that could give it a final look over and provide relevant feedback?

Furthermore, can someone just clarify my understanding that providing evidence e.g photographs is done at a later stage not in the defence?

Many thanks in advance for your time and support!

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

Vehicle Control Services (Claimant)

-and-

Xxxx (Defendant)


I am xxx, the defendant in this matter, the insured driver of the vehicle relating to this claim but not the registered keeper of vehicle Xxxx xxxx.

I deny I am liable for the entirety of the claim on the following grounds:

1. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. This is a speculative serial litigant, issuing a large number of ‘Robo Claims’. The badly mail-merged documents contain very little information.

b. The Schedule of Information is sparse of detailed information.

c. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about, why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents should have been produced, pursuant to paragraph 6 of the Practice Direction and Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

iv. support the efficient management of proceedings that cannot be avoided.

d. The claimant has failed to supply evidence, despite the defendant requesting these at the appeal stage, that the driver left 'the site', and no site boundaries have been defined by the claimant.

i. Such evidence should include photographs of the contravention, including the defendant ‘leaving the site’, a site map and pictures of the signage that would communicate to the defendant a clear defined boundary of the site they have allegedly left.

ii. The burden of proof shifts to Vehicle Control Services to prove otherwise and to explain why their attendant (presumably) watched a driver or occupant walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises, nor confirm if they intended to use the Western entrance.

iii. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012: District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?...there is a duty to mitigate the loss.' In this case now under POPLA appeal, I contend that Vehicle Control Services have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.


2. The Claimant has added unrecoverable sums to the original parking charge. The Defendant believes that Vehicle Control Services Ltd has artificially inflated this claim. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £185.00 minus the court costs of £25.00. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage none of this applies in this material case.

4. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

c. Inadequate signs incapable of binding the driver this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. BPA CoP breaches this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract
iv. Signage specifying which car park belongs to which retail units does not exist therefore leaving a driver to believe that both car parks are for the use of all retail units.
v. Furthermore, the defendant has evidence that the signage has been altered since the alleged contravention, between the following dates 22.10.17 - 21.12.17, thus further suggesting that the signage at the time of the alleged contravention was inadequate and therefore needed replacing.

5. No standing this distinguishes this case from the Beavis case:
It is believed Vehicle Control Services do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

6. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

7. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

8. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 23.08.18
The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

Xxx
Xxxx September 2018

Coupon-mad

That's far too long & waffly, and doesn't get to the facts, at the start.

Here is an example defence by bargepole, that does:

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

You would obviously have to amend it to suit the facts of your case and your main arguments, but you can see the waffle has been cut out.

Remove any !!!8221 (etc.) if copying bargepole's defence (it's a forum glitch).

And you need a heading DEFENCE, and the shorter statement of truth at the end.

PugT

Many Thanks Coupon-mad.

Is this more succinct?

IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

Vehicle Control Services (Claimant)

-and-

xxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration xxxx xxx, of which the Defendant is not the registered keeper, was parked on the material date in a marked bay.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The claimant’s signage also fails to specify the site boundary.

a) Additionally, no evidence has been provided to the defendant showing the claimant’s site boundary or the defendant actually leaving the site, despite the defendant requesting this at the appeal stage.

b) Signage specifying which car park belongs to which retail units does not exist therefore a driver would assume that both car parks are for the use of all retail units.

c) Furthermore, the defendant has evidence showing that the signage has been altered since the alleged contravention, between the following dates 22.10.17 - 21.12.17, thus further suggesting that the signage at the time of the alleged contravention was inadequate and therefore needed replacing.

d) The burden of proof shifts to Vehicle Control Services to prove otherwise and to explain why their attendant (presumably) watched a driver or occupant walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises, nor confirm if they intended to use the Western entrance.

e) The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012: District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish? The Defendant contends that Vehicle Control Services have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.


6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand directly in front of a it. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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 parking charge notices, and to pursue payment by means of litigation.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

XXXX

XXX 2018

Coupon-mad

Yes that's better but you say nothing in the introductory paras about the alleged contravention, then suddenly the poor Judge reads this:

a) Additionally, no evidence has been provided to the defendant showing the claimant's site boundary or the defendant actually leaving the site, despite the defendant requesting this at the appeal stage.

The reader thinks 'what? It's about 'leaving the site, then? why didn't you say earlier?'

You need to say near the start that you were the driver, and that the allegation (not stated in the POC but you must assume it's the same PCN you appealed) seems to be that the driver 'left the site' - but this is denied and the Claimant is put to strict proof. The Defendant avers that he/she was a patron of a shop 'Hobbycraft' that certainly appeared to be part of 'the site' and there was nothing (no barrier, boundary, or different line markings, or prominent signage) to suggest otherwise.

...then have a paragraph explaining this too:

After the incident the driver went back to the said car park (stayed in the car) and looked at the signs etc. The driver noticed the usual, very small writing, two or three signs in the whole car park and then that the name of the smaller side of the retail park is different to the larger side which I went into.

And if you haven't already, go and get some damning pictures of illegible signs. They don't go with the defence (no attachments at this stage, no evidence) but you will need them at WS and evidence stage around the pre-Christmas time when you might be too busy.

PugT

Thanks for the previous replies Coupon Mad. I had to submit the above defense as I was back in class (with no access to the forum until after 4pm) at the time of your reply and the deadline was later that afternoon.

I have since completed and submitted the directions questionnaire following the newbie threads advice. Furthermore, I have received a court date of early January and I am in the process of writing my WS and collating my evidence. I have also received VCS WS package.

In the letter from the court it states:

Additional Directions in a contractual Claim for breach of Parking terms. Additional Directions: The evidence which the claimant must file at court and send to the Defendant must include:
a. A copy of any written terms of contract;
b. Details of the location where the contract was made,
c. Detailed allegations of any breach of contract relied upon by the claimant; and
d. An explanation of how the amount of the alleged debt is calculated under the agreement.

Does this mean:
a. A contract between me and VCS or as what I think they've sent between the landowner and VCS?
b. Location of where the above contract was made e.g their solicitors etc?
c. In depth explanation of how the claimant believes I broke the contract?
d. A breakdown of how the amount has added up in regards to the so called contract referenced in a?

Any advice/support would be greatly appreciated.

onlyfoolsandparking

PugT wrote: »

Thanks for the previous replies Coupon Mad. I had to submit the above defense as I was back in class (with no access to the forum until after 4pm) at the time of your reply and the deadline was later that afternoon.

I have since completed and submitted the directions questionnaire following the newbie threads advice. Furthermore, I have received a court date of early January and I am in the process of writing my WS and collating my evidence. I have also received VCS WS package.

In the letter from the court it states:

Additional Directions in a contractual Claim for breach of Parking terms. Additional Directions: The evidence which the claimant must file at court and send to the Defendant must include:
a. A copy of any written terms of contract;
b. Details of the location where the contract was made,
c. Detailed allegations of any breach of contract relied upon by the claimant; and
d. An explanation of how the amount of the alleged debt is calculated under the agreement.

Does this mean:
a. A contract between me and VCS or as what I think they've sent between the landowner and VCS?
b. Location of where the above contract was made e.g their solicitors etc?
c. In depth explanation of how the claimant believes I broke the contract?
d. A breakdown of how the amount has added up in regards to the so called contract referenced in a?

Any advice/support would be greatly appreciated.

This is how I see it (others will know if I'm right )


a, Claimant must produce copy of Contract with Landowner showing exactly what they can/cannot do.
b, The car park you allegedly entered.
c, What terms and conditions, contract/s if any did you breach
d, How they come to their stupid inflated cost in full detail.


I think that's it but as I said the regulars will know better than me, it's promising though that the Court are asking Claimant for this extra info if it is indeed extra?? and not just standard procedure as it maybe shows Judges are wising up to parking scammers BS.

PugT

Thank you for the swift reply only fools!

PugT

This is the Witness Statement so far (I haven't attached the evidence yet but just referenced it throughout the document):

Witness Statement


In the matter of

VCS (Claimant)
v
Xxx (defendant)

Claim no:xxx

Witness statement of xxx, defendant

I am the defendant in this matter, I am unrepresented, with no experience of court procedures. If I do not set out documents in the way the Claimant may do, I trust the Court will excuse my inexperience.
In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.


1. The alleged contravention location is a Retail Park in Chesterfield. This retail park has two parts to it, a smaller part with 4/5 retail units on the left hand side and then across an access/service named Hipper Street (approximately 50 meters long) the larger side with 10+ retail units.


On the 22nd October 2017 the defendant turned left, off the A619 main road on to the service/access road named Hipper Street and then left again into the smaller side of the retail park where the defendant parked the vehicle in question. The space the defendant parked in was very close to the car park's entrance. The defendant was not familiar with the car park having never used it before. Picture evidence 1. The defendant then crossed the service/access road and entered the retail unit, Hobbycraft. The defendant has a receipt detailing a purchase from Hobbycraft around the time the alleged contravention took place see evidence 2. The approximate time spent in Hobbycraft was 15 minutes as the defendant recalls going in to Hobbycraft for a specific items rather than to browse.

Upon returning to the vehicle the defendant noticed a yellow PCN on the windscreen. The defendant double checked the signs and failed to understand the reason a PCN had been issued. Furthermore, the defendant looked around for the car park’s attendant to discuss the matter further but could not find said attendant. The defendant drove home.

At the beginning of November 2017 the registered keeper received a letter from the claimant - PCN-Notice to Keeper requesting £100 by 27.11.17.

Upon receipt of the notice to keeper the defendant on behalf and with permission of the keeper notified the claimant of the defendants details online.


Around the 6th December the defendant posted an appeal letter see evidence 5 to the claimant refuting the PCN. Within the letter the defendant requested the claimant provide photographic evidence of defendant leaving the site as per the claimants alleged contravention: vehicle parked in a customer only car park/site and driver observed leaving premises.

In between sending the appeal letter and receiving a response from the claimant, the defendant went back to the alleged contravention car park (stayed in the car) and looked at the signs etc. The defendant positioned the vehicle as close as possible to the signs whilst remaining inside the vehicle, noticed the following: the usual, very small writing on the signs; that there were only two or three signs in the whole car park and finally that the name of the smaller side of the retail park was different to the larger side of the retail park see evidence 3. The larger side retail park was the part that the defendant entered on foot across Hipper Street. Furthermore, the defendant noticed the signs in the smaller side (Markham Vale Retail Park) of the retail park where the defendant had parked, contained no reference to the car park only been for the use of Markham Vale Retail Park customers see evidence 4.
Between 22.10.17 and 21.12.17 the signage at the Markham Retail Park changed suggesting that the claimant felt the signage was inadequate at the time of the contravention see evidence 6.

On the 14th December 2017 the defendant received a letter from the claimant stating that they were unable to accept the defendants appeal see evidence 7. No photographs of the claimant leaving the site were provide only photographs of the vehicle and a PCN adhered to the windscreen.

Shortly after the 12th January 2018 the defendant received a letter from the claimant threatening court proceedings if £100 was not paid before the 26.01.18 see evidence 8


The defendant then received a letter from DRP requesting payment on behalf of the claimant for £160, an increase of more than 50% see evidence 9

Around the 21st February the defendant received another letter form DRP - Debt Recovery Plus Ltd demanding payment for £160 but this time threatening further court action and using language such as ‘This is your last chance for an easier …’ see evidence 10.

Again the defendant received another letter see evidence 11 from DRP dated 08.03.18, demanding payment but offering a settlement offer of £136 to be paid by 22.03.18.

The defendant received a letter see evidence 12 dated 26.03.18 from Zenith Collections stating they were responsible for recovering the amount on behalf of the claimant. The letter from Zenith Collections offered a discounted settlement figure of £79.99 if paid with 14 days.

Again the defendant received another letter see evidence 13 from Zenith Collections dated 16.04.18 offering the £79.99 discounted settlement figure for an additional 14 days but if the defendant doesn't pay this within the given time frame the amount would increase back up to the £160.

Shortly after the 17.07.18 the defendant received a letter directly from the claimant advising that if £160 was not paid within 30 days then court proceedings would begin see evidence 14.

Upon returning from holiday 28.08.18 the defendant received a claim form from the claimant through the County Court Business Centre. The claim form requested a total amount of £185 see evidence 15.
The defendant submitted acknowledge of service on 29.08.18 via MCOL see evidence 16.

On the 25.09.18 the defendant submitted their defence via email to CCBCAQ@Justice.gov.uk and received an acknowledgement email back at 15:36 on 25.09.18 see evidence 17.

Shortly after the 26.09.18 a Directions Questionnaire was received by the defendant.

The defendant sent the Directions Questionnaire to the courts and the claimant by recorded delivery on the 07.10.18 see evidence 18.

Letter received from the claimant dated 05.10.18 enclosing a copy of the claimants Directions Questionnaire see evidence19.

The defendant received the court letter Notice of Transfer of Proceedings dated 16.10.18 see evidence 20.
The defendant received court letter Notice of Allocation to the Small Claims Track (Hearing) dated 16.11.18.
Letter received shortly after 28.11.18 from the claimant containing the claimant’s Witness statement and evidence.

Any advice on additional information I should include or things I should remove?

The main points im trying to get across are:
1. The signage is not clear and does not specify which retail park it is for. E.g If you park in Markham Retail Park and then walk across the small service/access road to the other part you'll get a PCN. It is not clear that the car park is only for Markham customers not both!
2. The Claimant has still not provided any photographic evidence of the defendant leaving the site.
3. The Claiment has changed the signs between Oct and Dec 17 thus suggesting that they were in adequate at the time of the alleged contravention.