My Defence / VCS Simon Renshaw-Smith

Umkomaas

Sharp Judge who seems to have a good grip on PoFA. There are plenty who might have missed the significance of the dates - unless the defendant also had his/her head around it and could talk the Judge through it with confidence.

Snakes_Belly

Great to see people winning but particularly when this company are losing. Simon Double-Barrelled does not even treat his work force very well. W A Cadbury he isn't.

beamerguy

polarbear19642 wrote: »

VCS lost E7QZ5X87 their case on 6 Nov 2018

No doubt the Renshaw-Smith chappie will go crying to the District judge about this terrible judge BOO HOO:rotfl::rotfl::rotfl:

leftandfred

Just Another update everyone whos helped.

Recieved a letter this week

"Notice of Transfer of Proceedings"

"To all parties, as a result of an order made on

---

this claim has been transferred to the county court at stockport".

"Witness attending court for the Defendant is from Tameside area; this court is more local than Sheffield.
Claimant has no witness and is being represented by a solicitor agent" :j

At least they now have to travel and pay expenses, by the time they win this it will have cost them much more than it was worth, just wish i had put down Isle of white :rotfl:

I suppose now i should start to look at a witness statement and this summary/skeleton argument, i will do some more reading this weekend on the forum try and get myself ahead for the big day
Thanks everyone

Umkomaas

Stockport is a good venue. Has become a bit of a PPC graveyard. I rather suspect SRS is much less looking forward to this than you (and we ) are!

onlyfoolsandparking

Yes good old Stockport, my local court and Home to the infamous Peel centre where SRS took a beating a while back, could be a good omen for you getting this court, I certainly hope so

leftandfred

"Notice of Transfer of Proceedings" again :rotfl:



Transferred to Manchester, don't think it will be in time for me to see the Christmas markets :santa2:

leftandfred

Sorry Guys and Gals I need your help yet again,


I received a letter last week from the court, it stated



Upon consideration of the court file



IT IS ORDERED THAT


1) The particulars of claim do not comply with CPR (1) (a) and are by this Order struck out.


2) The claimant must by 4pm on 15 January 2019 file and serve a Particulars of claim, supported by a statement of truth, identifying:


a. Whether the claim id brought under schedule 4 to the Protection of Freedoms Act 2012 if so,


a. By reference to the definition of “relevant obligation” in paragraph 2 of the schedule 4 to the Protection of Freedoms Act 2012, whether it alleged that the claim is based on a relevant obligation:


i. “arising under the terms of a relevant contract” or


ii. “arising, in any circumstances where there is no relevant contrast, as a result of a trespass or other tort committed by parking the vehicle on the relevant land”


b. If a contract is alleged, what was the consideration provided by the claimant and what was the breach of contract.


c. If no contract is alleged, what was the “trespass or other tort committed by parking the vehicle on the relevant land”


if the claim is not brought under the protection of freedoms Act 2012


a. The cause of action and how it arose.


b. If the cause of action is breach of contract, the parties to the contract, the consideration provided by the claimant and the alleged breach of contract.


3) If the claimant fails to comply with the above direction, the claim shall be struck out automatically and without further order.


4) If the Claimant complies with this order the Defendant shall by 4pm on 29th January 2019 send to the court and the claimant’s solicitors a Defence in substitution for the existing Defence.


5) At the expiry of the time limit at paragraph 4 above the file will be referred back to District Judge XXXXXXX for further case management.


Because this order has been made without hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this order.




VCS have replied to myself today 14.01.19 so i imagine have filed and served a Particulars of claim.
below is their response:


1/ The claimant is a national car park operator that provides car park management on behalf of its clients at a number of car parks across Great Britain. This includes monitoring compliance with the terms and conditions of parking outlined within the signage present on each site and issuing charges to motorist who breach these terms and conditions.

2/The claimant manages a parking scheme and regularly inspects the development in accordance with their appointment. The claimants’ role is to erect signs within the development explaining the terms and conditions associated with parking in order to regulate parking. Any vehicles identified in breach of the terms and conditions will be issued a charge notice.

3/ The defendant has been issued with a charge notice relating to a Renault Traffic L129 Dci115 bearing the vehicle registration number(s) of XXXXXX, for failure to adhere to the advertised terms and conditions at the development(s) known as xxxxxxxxxx (xxxxxxxxxx) (“the development”) on the xxxx 2017. The offer advertised by the way of the terms and conditions was accepted by conduct. As reiterated a charge notice was issued by the claimant which allowed the defendant the opportunity to either pay, appeal or transfer liability.

4/The terms and conditions states “A maximum period of 15 minutes is allowed to purchase a valid pay and display ticket after a vehicle has entered the car park, and any vehicle/driver remaining on this private land 15 minutes after entry is subject to and agrees in full to the terms and conditions.’

5/The Defendant’s vehicle was captured by the claimants ANPR cameras entering the car park at 18.04pm and later leaving the said car park at 18.23pm. The defendants vehicle was parked for the duration of 19 minutes without payment of the parking tariff, thereby breaching the terms and conditions of the car park and incurring a parking change accordingly.

6/The terms and conditions further state ‘By parking on this private land you agree to pay a charge for any action breaching the terms and conditions’ ‘Parking Charge Notices will be issued and charged at £100.00.’ The £100.00 is the consideration.

7/The Supreme court in Parking Eye V Beavis (2015) UKSC 67 has established that in cases as this, a contract exists between motorist and the operator, whereby the Motorist is granted a contractual licence to park their car in the car park on the terms of the notice posted at the site, which are accepted by entering and leaving the vehicle at the site.

8/ The claimant is not pursing the Defendant under the provision of Schedule 4 of the protection of freedoms act 2012.

9/ The Claimant issued this claim against the defendant for payment of unpaid charges, in the sum claimed of £160.00, arising from the above vehicle as to which the Defendant is responsible for either as the driver and/or the registered keeper of the vehicle on the material date and time. For the avoidance of doubt, the sum claimed includes the £100.00 charge notice plus debt collection charge of £60.00.

10/ The cause of action is a breach of the contract for parking without payment of the parking tariff for the vehicle which was parked on site. The terms and conditions are displayed in prominent locations around the development and ought to have been known by any motorist or to an objective observer who would consider that someone has had the opportunity to have read the prominent terms but have chosen not to read them.

11/ The claimant is also entitled to claim statutory interest at the rate of 8% pursuant to s69 of the country courts act 1984 and fixed costs pursuant to CPR 27.14. This includes the fixed costs payable under part 45, namely the appropriate court fee or fees paid by the claimant.

12/ Despite demand having been made, the defendant has failed to settle their outstanding liability. The claimant had no alternative other than to bring action against the Defendant and seek final determination by bringing legal proceedings against the defendant.



"4) If the Claimant complies with this order the Defendant shall by 4pm on 29th January 2019 send to the court and the claimant’s solicitors a Defence in substitution for the existing Defence."


Is it possible that you guys and gals could offer advise as to whether or not i need to send in a further defence or will the judge take into consideration other parts of my defence i.e



[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]
[/FONT]
[FONT=&quot]Thank you for any help and advice
[/FONT]

Coupon-mad

Is it Manchester's finest, DJ Iyer who put this bomb under them?!

He of PACE v Lengyel fame? He doesn't like PPCs one jot & it sounds like him!

8/ The claimant is not pursing the Defendant under the provision of Schedule 4 of the protection of freedoms act 2012.

Good to know.

Do you feel you need to revise your defence?

As we are on post #50 now, to help us and save us scrolling right back, could you confirm:

- do VCS know who was driving and has that been admitted?

- what did your defence say? Please copy & paste it here in a reply, don't say 'it's in post #3 at the start of this thread' or whatever, let's see it here again to think about the relevance of it all.

leftandfred

"Is it Manchester's finest, DJ Iyer who put this bomb under them?! "

Hassall, are these names made up lyer and Hassall, LOL

"Do you feel you need to revise your defence?"

At first i did because they have now stated a grace time of 15 minutes, so i thought maybe i should go back to the site and see if this is stated on their signage, as i certainly never saw anything at the time explaining this.

But now i have read back through the defence i do not think anything needs revising.

"do VCS know who was driving and has that been admitted?"

NO

"8/ The claimant is not pursing the Defendant under the provision of Schedule 4 of the protection of freedoms act 2012."
"Good to know"

I think i may be understanding this now, after reading back through the defence is it like a clever little trap has been set, maybe more laying bait ?

My Defence below

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: XXXXXXXX

BETWEEN:

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

-and-

XXXXX XXXX LTD (Defendant)


DEFENCE
1. 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.



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.

5.1 The Driver has informed the Defendant that he 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 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.

5.2. No consideration flowed between the Claimant and the driver of the vehicle 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 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.
5.4. This Claimant has indirectly discriminated against the Driver (a carer of the protected person) within the legislative framework of the EA.

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'
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.

6. VEHICLE CONTROL SERVICES LIMITED has 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."

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.

8. 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.

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.

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

Dxxxxx xxxxxxx (xxxxxx xxxxxxx limited)