My Defence / VCS Simon Renshaw-Smith

nosferatu1001

Did they respond?

leftandfred

no they never responded

nosferatu1001

So what does it matter? Personally chasing them up would have made sense...

leftandfred

Just a quick question please as i am going to send my Defence today.
I was reading the newbies section regarding the best way to send the Defence and i cam across this comment

"Good points IamEmanresu.
And the classic:
The person named on the claim form is the registered keeper but for some daft reason, the driver thinks they can defend the Claim in their name - nononono!"

My claim form defendant box is named as my small business (it is ltd)
In my Defence do i put only the name of my business or should i put both my personal name and the business name ?
something like leftandfred (shoeshiners Ltd) Defendent

cheers

KeithP

This post I made less than five minutes ago will help with some of that:

forums.moneysavingexpert.com/showpost.php?p=74752104&postcount=9

leftandfred

Thats great thanks,
But one thing on the MCOL website in the defence section the email is
ccbc@hmcts.gsi.gov.uk

would you email both and should i also send one by post ?

Cheers

KeithP

leftandfred wrote: »

Thats great thanks,
But one thing on the MCOL website in the defence section the email is
ccbc@hmcts.gsi.gov.uk

would you email both and should i also send one by post ?

Cheers

I would send it to the address I stated.

The MCOL webpage has for some reason dropped the CCBCAQ address but I believe that was a mistake.
It has been reported on here that people sending their defence to the CCBC@ address are getting a response telling them to use the CCBCAQ address.

The hmcts.gsi was changed to justice some months ago - as can be seen here:
https://courttribunalfinder.service.gov.uk/courts/county-court-business-centre-ccbc

Coupon-mad

In my Defence do i put only the name of my business or should i put both my personal name and the business name ?
something like leftandfred (shoeshiners Ltd) Defendent

I think in the heading, put the Defendant company name, exactly as named in the claim.

Change the start:

1. [STRIKE]It is admitted that the Defendant was the driver on the material date.[/STRIKE] The Defendant is a Ltd company, and such an entity cannot possibly be held liable as 'the driver' of the vehicle.

1.1. The Claimant was a party involved in the appeal case of Excel Parking Services v Smith (appeal M17X062) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E and that transcript will be adduced in evidence by the Defendant. In his decision, HHJ Smith criticised the Claimant's ''improper citation of Combined Parking Solutions Limited'' which ''established no new principle. It was clearly and on its face decided on the specific facts of that case [...] and it also was a very short judgment of a single Lord Justice. Therefore it is not a judgment which should have been cited and [...] counsel for Excel agreed with me that the appropriate approach was based on the law of agency in general terms even without reference to that specific case.''

1.2. The Claimant's citation in that case under appeal, was regarding the irrelevant case of Combined Parking Solutions Ltd v AJH Films. This was an essentially uncontested appeal case, where the driver was held to have been acting on behalf of the company and the law of agency applied, given the facts of that case.

1.3. In this current case being defended, the driver was indisputably not acting 'on behalf of' the Defendant company on the material date. The driver was using the car for a family outing and, whilst the Defendant is a company, that is the only similarity with Combined Parking Solutions Ltd, and given the facts of this case, the law of agency cannot apply.

2. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant, or that there was any relevant obligation or relevant contract (at all) and it is denied that the Claimant has suffered loss or damage or that there is any lawful basis to pursue a claim under contract.

2.1. The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. The Defendant company denies entering into any contract with the Claimant and denies that the driver was acting 'on the Defendant's behalf' on the material date.

3. Without any application of the law of agency in this case, the Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("the POFA").

3.1. It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:

3.1.1. there was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and

3.1.2 that the alleged obligation and contractual terms the Claimant relies upon, do not impact on any statutory rights that the Defendant enjoys, and

3.1.3. that the requirement for 'adequate notice' of the parking charge was complied with and

3.1.4. the driver had ample time, under the specific given circumstances set out later in this defence, to be held to have agreed to a contract, and

3.1.5. that it has followed the required deadlines and prescribed/mandatory wording as described in the POFA, to 'transfer liability' from the driver to the registered keeper.

3.2. It is the Defendant's case that none of the above has occurred, and as such, there is no mechanism by which they can be held liable in law for the personal actions of a driver, one of several drivers in the company and in the family, who may use a vehicle that happens to belong to the company, in their own time and for their own purposes.

Then move the other points down...re-number as applicable.

Double check all the other points so none of them say 'The Defendant parked' or 'the Defendant was...doing this, that...' - these must now all be changed to 'the driver has informed the Defendant that the car was being used for...' etc.

Hope that makes sense, because the 'Defendant' is not you.

Then change the end point:

(number) 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 it out. In the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the following legal points:

(i) the lack of liability of the Defendant, which cannot have been 'the driver', and

(ii) the indirect discrimination issue, which overrides any alleged contract.

It is within the court's own remit, without need for an application by the Defendant, and a preliminary hearing will save burdening the court with the Claimant's usual template scatter-gun documents and baseless arguments about contractual breach, which bear no scrutiny in a claim that has no merit.

At the bottom in the signature under the statement of truth, I believe you would sign your own name and in brackets put your position as an officer of the company.

e.g. in a Ltd company as set out at Companies House, are you a Director? Company Secretary? both?

If I am wrong in that suggestion I stand corrected!

leftandfred

Coupon-mad you have a brain the size of a planet

here is the modified defence, i did as you said regarding the driver / defendant, but i have highlighted in red
a section im not sure about so i used both Defendant and driver.


[FONT=&quot]IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: E

BETWEEN:

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

-and-[/FONT]

[FONT=&quot]SHOESHINERS LTD (Defendant) [/FONT]
[FONT=&quot]

DEFENCE

[/FONT] [FONT=&quot]1. The Defendant is a Ltd company, and such an entity cannot possibly be held liable as 'the driver' of the vehicle.

[/FONT]
[FONT=&quot]1.1. The Claimant was a party involved in the appeal case of Excel Parking Services v Smith (appeal M17X062) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E and that transcript will be adduced in evidence by the Defendant. In his decision, HHJ Smith criticised the Claimant's ''improper citation of Combined Parking Solutions Limited'' which ''established no new principle. It was clearly and on its face decided on the specific facts of that case [...] and it also was a very short judgment of a single Lord Justice. Therefore it is not a judgment which should have been cited and [...] counsel for Excel agreed with me that the appropriate approach was based on the law of agency in general terms even without reference to that specific case.''

1.2. The Claimant's citation in that case under appeal, was regarding the irrelevant case of Combined Parking Solutions Ltd v AJH Films. This was an essentially uncontested appeal case, where the driver was held to have been acting on behalf of the company and the law of agency applied, given the facts of that case.

1.3. In this current case being defended, the driver was indisputably not acting 'on behalf of' the Defendant company on the material date. The driver was using the car for a family outing and, whilst the Defendant is a company, that is the only similarity with Combined Parking Solutions Ltd, and given the facts of this case, the law of agency cannot apply.

2. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant, or that there was any relevant obligation or relevant contract (at all) and it is denied that the Claimant has suffered loss or damage or that there is any lawful basis to pursue a claim under contract.

2.1. The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. The Defendant company denies entering into any contract with the Claimant and denies that the driver was acting 'on the Defendant's behalf' on the material date.

3. Without any application of the law of agency in this case, the Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("the POFA").

3.1. It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:

3.1.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and

3.1.2 that the alleged obligation and contractual terms the Claimant relies upon, do not impact on any statutory rights that the Defendant enjoys, and

3.1.3. that the requirement for 'adequate notice' of the parking charge was complied with and

3.1.4. the driver had ample time, under the specific given circumstances set out later in this defence, to be held to have agreed to a contract, and

3.1.5. that it has followed the required deadlines and prescribed/mandatory wording as described in the POFA, to 'transfer liability' from the driver to the registered keeper.

3.2. It is the Defendant's case that none of the above has occurred, and as such, there is no mechanism by which they can be held liable in law for the personal actions of a driver, one of several drivers in the company and in the family, who may use a vehicle that happens to belong to the company, in their own time and for their own purposes.[/FONT]
[FONT=&quot]

[/FONT]

[FONT=&quot]4. VEHICLE CONTROL SERVICES LIMITED is 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 Driver has informed the Defendant that he 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.[/FONT]

[FONT=&quot]5.1 [/FONT][FONT=&quot]The Driver has informed the Defendant that he was simply[/FONT][FONT=&quot] asking the pub/restaurant's chef if they offered meals that did not contain gluten before deciding to eat within the premises. This took several minutes to ascertain from the chef who was not immediately available, and as they did not cater for coeliacs, the party left the site.[/FONT]

[FONT=&quot]5.2. No consideration flowed between the Claimant and [/FONT][FONT=&quot]Defendant or driver[/FONT][FONT=&quot] of the vehicle [/FONT][FONT=&quot]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.[/FONT]

[FONT=&quot]5.3. Even if the Claimant protests to the court that they were unaware of the protected characteristics of the Drivers 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.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]5.4. This Claimant has indirectly discriminated against the Driver (a carer of the protected person) within the legislative framework of the EA. [/FONT]

[FONT=&quot]5.5. The Driver'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'[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]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.[/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]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.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]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.[/FONT]

[FONT=&quot]6. VEHICLE CONTROL SERVICES LIMITED has a legal duty as a service provider to make a 'reasonable adjustment' under the Equality Act 2010.

[/FONT]
[FONT=&quot]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 [/FONT]
[FONT=&quot](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."

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.

[/FONT]
[FONT=&quot]8. 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 following legal points:

(i) the lack of liability of the Defendant, which cannot have been 'the driver', and
(ii) the indirect discrimination issue, which overrides any alleged contract.

This is within the court's own remit, without need for an application by the Defendant, and a preliminary hearing will save burdening the court with the Claimant's usual template scatter-gun documents and baseless arguments about contractual breach, which bear no scrutiny in a claim that has no merit.[/FONT]
[FONT=&quot]
I believe the facts contained in this Defence Statement are true.

Leftandfred (Director) shoeshiners limited[/FONT]

[FONT=&quot]05-09-2018[/FONT]
[FONT=&quot]
[/FONT]

[FONT=&quot]"e.g. in a Ltd company as set out at Companies House, are you a Director? Company Secretary? both?"[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot] yes both[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Yet again i can't thank you enough
[/FONT]

KeithP

5.2. No consideration flowed between the Claimant and Defendant or driver of the vehicle...

That should be:

5.2. No consideration flowed between the Claimant and driver of the vehicle...

The alleged contract, if ever formed, would always be between the PPC and the driver.