My Defence / VCS Simon Renshaw-Smith

leftandfred

Hi All,

I am now at the point where i have to send in my Defence.
Could you guys please take a look over it and let me know if it is acceptable ?


Defence

[FONT=&quot]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.

[/FONT]
[FONT=&quot]The so called Contravention was detected and recorded by Automatic Number Plate Recognition Cameras (ANPR)[/FONT]

[FONT=&quot]2. The notice to keeper is incorrect[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The parking charge notice was issued 39 days after the alleged parking offence, and did not arrive with the Defendant until 41 days after the alleged parking offence.[/FONT]


[FONT=&quot]3. The charge is disproportionate and not a genuine pre-estimate of loss[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]The amount being charged is not based upon any genuine pre-estimate of loss to the claimants company or the landowner.[/FONT]

[FONT=&quot]In the Defendants case the [/FONT][FONT=&quot]£100.00 [/FONT][FONT=&quot]INVOICE the claimant is asking for far exceeds the cost to the landowner of £1.50 per hour for the overstayed 19 minutes. [/FONT]

[FONT=&quot]
No locus standi[/FONT]
[FONT=&quot]4. 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.

5. 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.

6. 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 £60.00. The defendant has the reasonable belief that the claimant has not incurred £60.00 costs to pursue an alleged £100.00 debt.

6.1. Whilst £60.00 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, the claimant has not expended any such sum in this case.[/FONT]
[FONT=&quot]This claimant uses two debt recovery agents one being “Dept Recovery Plus” the other being “Zenith Collections” Both work on a no WIN no FEE basis.[/FONT]
[FONT=&quot]Proof of this is within the dept recovery agent’s letters to the defendant.[/FONT]
[FONT=&quot]The first one being from “Debt Recovery Plus Ltd” where the original invoice has jumped from £100.00 to £160.00, then a second Invoice from “Debt Recovery Plus Ltd” now reduced to £136.00, then a third Invoice from “Zenith Collections”[/FONT]
[FONT=&quot]Now reduced to £79.99[/FONT]
[FONT=&quot]
6.2. The added 'debt collection charge’ is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.

7. 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 claimant’s contractual authority to operate there as required by the claimants Trade Association's Code of Practice B1.1.


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 parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £100.00 to £160.00. 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 £100.00 (or the early payment option of £60.00) to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

10. 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.

11. 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).


12. 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.

13. 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''.

14. 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.

15. 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.[/FONT]

Dave_TH

:wall::wall::wall::wall::wall::wall:

Coupon-mad

The above post is because that defence is ANCIENT and this will lose:

3. The charge is disproportionate and not a genuine pre-estimate of loss

The amount being charged is not based upon any genuine pre-estimate of loss to the claimants company or the landowner.

In the Defendants case the £100.00 INVOICE the claimant is asking for far exceeds the cost to the landowner of £1.50 per hour for the overstayed 19 minutes.

Bin that draft and start again.

Please read the example defences in the NEWBIES thread second post, and also have you done the AOS online, to extend your time to submit the defence? All explained, with far better/more recent and more relevant defence examples, in the NEWBIES sticky thread, post #2.

leftandfred

"The above post is because that defence is ANCIENT and this will lose"


Do you mean all of it or just No3 ?
as most of it was only used 3 months ago by ben smith uk.



So far i've managed to read 5 examples but they all seem to be very similar to the one i have used.
i will carry on reading them to see if i can get the grasp of it, but it seems really hard to put up a defence when i stayed in a car park for 19 minutes but did not get a ticket from the machine.



other defences seem to be people who's ticket or blue badge fell down, blew away, had some other right to park there etc.


i just rushed into this restaurant/pub/car park to ask the chef if they did anything Gluten free for my son.
but unfortunately it took about 15 minutes to get to speak to the bloody chef, and they didn't cater for celiacs anyway :doh:



Yes i have done the AOS online.
Thanks i will have another go tomorrow

Guys_Dad

If the out of time point is valid, then that is all you need.

But you need to phrase it properly as in other winning appeals.
You do not admit to driving and you appeal as registered keeper under the out of time provisions of POFA.

Too many people think that an out of time NTK is invalid. It is not. It only removes the keeper liability, not the driver's.

System

i just rushed into this restaurant/pub/car park to ask the chef if they did anything Gluten free for my son but unfortunately it took about 15 minutes to get to speak to the bloody chef, and they didn't cater for celiacs anyway

That is your defence - not the other nonsense.

If you try to hide you were the driver there are downsides that have not been explained to you so it will be your call on that one.

Are you able to get something from the restaurant to confirm as that would help your case. You would also need to pad it out with comments about the signs, the wording on the signs, and the location of the signs.

Also when it says 15 minutes can you confirm the timings from the ANPR cameras.

But by far the most important issue is to tell us what they actually are claiming e.g overstay, non-payment, no permit etc.

leftandfred

Hi Guys Dad,

Thanks for the advise.
There is definitely 39 days between the issue date (posted) and the contravention date both stated on what seems to be a combined PCN and NTK.

As this happened 12 months ago i did follow the advise at that time in the newbies section which was to only reply once, not to give my name and to dispute the parking charge.
And then to have no more correspondence with VCS or any of the debt collection agents (of which there was two).
The vehicle is registered to a small business, in one letter VCS have asked me to provide them with the full name and address of the driver so they can pursue the matter with that person (i never replied to any demands).

Hi IamEmanresu.
Thanks for your help and advise.
Unfortunately its 12 months ago, and at that time i suppose i did follow a different rout of ignoring almost everything (not expecting it to go this far) so asking the restaurant to confirm anything 12 months later is not really an option.

15 minutes was about the time i spent waiting to speak to the chef. The conversation with the chef was very short and abrupt as they were busy and probably didn't want me bothering them about food containing Gluten.
The actual time stated for my full duration of stay from the ANPR camera is 19 minutes.
The pictures show the vehicle entering and leaving the entrance/exit.

The contravention reason states

"101) parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site"

"If you try to hide you were the driver there are downsides that have not been explained to you so it will be your call on that one"

Is there any advise in the newbies section ragarding the downside ?

Again Thanks for any help and advise with this



Dear Moderator,
is it ok if i change my username later this evening as the email you want me to reply back with a new name is my home email and i will not be able to get home until late.

I did try to join the forum from my works email but it is a BT email and they blocked MSE's authentication email.

Coupon-mad

"If you try to hide you were the driver there are downsides that have not been explained to you so it will be your call on that one"

Is there any advise in the newbies section regarding the downside ?

The downside at a hearing (if the keeper was the driver but hides it - which IS an option) can be:

- you can't speak openly and honestly with a true account of what happened which is what the Judge wants to hear as part of a defence

- the Judge might then conclude you were likely the driver anyway and might take an adverse inference from the fact you tried to hide it in a defence.

So in your case, as you have a defence about making any service provider having a legal duty to make a 'reasonable adjustment' under the Equality Act 2010, that's what i would stick with. Look it up, or search the forum for Equality Act service providers and maybe look for posts/letters I've written for people before, to understand the legal issue.

Coeliac disease (spelling is with an 'o' in Britain - I think 'celiac' is a typical US wrecking of the spelling!) is a 'protected characteristic' under the EA, and your party needed a longer grace period to merely make an enquiry wholly related to the disability (and it is one, believe us - we are not talking about Blue Badges by the way, which have no fair application on private land).

I meant bin the entire defence which is ancient (all of it).

Search the forum for bargepole defence and see a concise version that cuts to the chase and says 'the facts are'. Defend on that basis - show us your new draft.

leftandfred

Coupon-Mad thank you so much for the help and pointers.
Although it will be obvious iv'e never tried to write a defence before lol

Mk 2 version of my Defence



IN THE COUNTY COURT

CLAIM No: EXXXXXXX

BETWEEN:

VEHICLE CONTROL SERVICES LIMITED (Claimant)
2 EUROPA COURT
SHEFFIELD BUSINESS PARK
SHEFFIELD
S9 1XE


-and-

XXXXXXXXXXXXXX (Defendant)



DEFENCE

1. It is admitted that the Defendant was the driver on the material date.

2. The Defendant denies entering into any contract with the Claimant.

2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.

No agreement of terms/no contract

3. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.


4. VEHICLE CONTROL SERVICES LIMITED are in breach of the Equality Act 2010.

4.1 The Equality Act provides a legislative framework to protect the rights of individuals and advance equality of opportunity for all.
The Act simplifies and brings into one act existing discrimination law including the Disability Discrimination Act 1995

5. The Defendant was simply making an enquiry on behalf of a person who has a Disability and a protected characteristic under the EA, that being Coeliac disease.

5.1 The Defendant was simply asking the pub/restaurant's chef if they offered meals that did not contain gluten before deciding to eat within the premises.

5.2 VEHICLE CONTROL SERVICES LIMITED have Directly discriminated within the legislative framework of the Equality Act 2010.

5.3 The Defendant's party needed a longer grace period to merely make an enquiry wholly related to the disability

6. VEHICLE CONTROL SERVICES LIMITED have a legal duty as a service provider to make a 'reasonable adjustment' under the Equality Act 2010.

7. VEHICLE CONTROL SERVICES LIMITED has breached its contract with the DVLA regarding the Keeper of a Vehicle at the Date of an Event using an Electronic Service (the KADOE Service).

The contract expressly states:

"The Customer must not unlawfully discriminate either directly or indirectly or by way of victimisation or harassment against a person on such grounds as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, colour, ethnic or national origin, sex or sexual orientation, and without prejudice to the generality of the foregoing the Customer must not unlawfully discriminate within the meaning and scope of the Equality Acts 2006 and 2010, the Human Rights Act 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment thereof."


I believe the facts contained in this Defence Statement are true.

With a signature and date below

Coupon-mad

This is not DIRECT DISCRIMINATION, it is INDIRECT.

Familiarise yourself by searching the EHRC Equality Act Statutory Code of Practice for Service Providers, for the word 'indirect' and also the word 'tours' (which gives a clear example):

https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

https://www.equalityhumanrights.com/en/advice-and-guidance/core-guidance-using-businesses-offer-goods-facilities-and-services-public

5.1 The Defendant was simply asking the pub/restaurant's chef if they offered meals that did not contain gluten before deciding to eat within the premises. This took a few minutes to ascertain from the chef who was not immediately available, and as they did not cater for coeliacs, the party left the site.

5.2. No consideration flowed between the Claimant and the Defendant during this reasonable 'grace period' and no contractual relationship can be alleged that attempts to override the statutory rights of a patron who has 'protected characteristics' under the EA.

5.3. Even if the Claimant protests to the court that they were unaware of the protected characteristics of the Defendant's passenger and the nature of the brief enquiry relating to their medical condition, ignorance is no excuse under the 'indirect discrimination' protection provisions within the EA.

5.4. [STRIKE]VEHICLE CONTROL SERVICES LIMITED have[/STRIKE] [STRIKE]Directly[/STRIKE] This Claimant has indirectly discriminated against the Defendant (a carer of the protected person) within the legislative framework of the EA. [STRIKE]Equality Act 2010.[/STRIKE]

5.5. The Defendant's party needed a longer grace period to merely make an enquiry, wholly related to the disability. The Claimant has broken the law, by not making provision for those people who need a longer grace period, and has breached their own Trade Body Code of Practice regarding 'grace periods' and 'disability discrimination'.

5.6. The Claimant has a statutory duty as a service provider, to make provisions in advance for the disabled population 'at large' and in this regard, the claimant has failed, and cannot rely upon ignorance of the law, or even ignorance of the medical condition of the passenger.

5.7. Whilst the offence of 'direct' discrimination is only made out if the trader/service provider knows about the protected characteristics of the person, this is not a valid excuse or justification, when it comes to a matter of indirect discrimination, a failure to make provision for the diverse needs of the disabled population at large.

5.8. For the avoidance of doubt, this defence point has nothing to do with disabled bays or Blue Badges, which are the only 'disabled' provisions that notorious parking firms such as this Claimant seem to consider necessary. The Claimant cannot rely upon their ignorance of the law, which calls for much more than just physical adjustments made by service providers in consumer facing roles and locations. The statutory duty to remove barriers causing detriment to disabled people who wish to access services, is a far wider legal duty than just considering physical barriers.

5.9. Even if the Claimant has authority from the landowner to issue PCNs after a short (few minutes) period of grace, the Defendant avers that such authority is unlawful when an arbitrary time limit is applied in blanket terms, to a person with protected characteristics, whose needs will clearly often require extra provision (in advance) to create a level playing field with the rest of the population. Something as restrictive and onerous as a secret, unpublicised 'grace period' before charging or enforcement can commence, must be fluid when it comes to the needs of those who meet the definition of disability and it is contended that this Claimant is (at best) ignorant of the law and is leading the landowner and retailers down a path that could result in their being held jointly and severally liable for disability discrimination.

I would also add an extra couple of points before the statement of truth:

(penultimate point): In the alternative, the signs were sparse, the parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

(last point): Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.

leftandfred

Win or lose the average layman like myself would not stand a chance without the help of Coupon-mad.


thank you for the edits and points i will add them all to my defence.
Should i post a MK 3 version just in case ? lol


I don't know if it's relevant now or within a witness statement but after receiving my PCN / NTK

i did contact the pub manager by telephone to ask who the land owner of the carpark was, she did get back to me and said the whole site was owned by the brewery.


I then wrote a complaining letter to the brewery explaining that i had only called in to enquire with the chef about Gluten free meals, and how it took so long to speak to the chef as the pub/restaurant was so busy. (i did also include a copy of my only contact with VCS)



again thank you so much