My Defence / VCS Simon Renshaw-Smith

leftandfred

Hi Umkomaas,
We have stated that case in my defence, and said that the driver was using the car for a family outing and that the defendant is a company and that is the only similarity, and given the facts of the case the law of Agency cannot apply.

I do wonder however will the judge actually ask me who the driver was, as the judge did in the cs049 case (12)
and will my answer have a bearing on the outcome ?

VCS have also now supplied some very detailed pictures of the signage.
I have to say that i do not remember such vivid signage being at the entrance to the pub car park.

I have however checked on google maps street view which if you put the little man on the street and are lucky there could be a clock symbol in the left top corner box that allows you to look at previous years. It clearly shows that the vivid entrance signs were there in 2016 and part 2017 but in 2018 they are gone.
Is it worth me pointing this out in my WS and printing the pictures as exhibits ?

https://www.google.co.uk/maps/@53.3640683,-2.2586047,3a,75y,120.11h,82.69t/data=!3m6!1e1!3m4!1s_5-4o3JzlskhJUXbJTAgig!2e0!7i13312!8i6656?hl=en-GB

https://www.google.co.uk/maps/@53.3641297,-2.2585681,3a,60y,148.76h,83.71t/data=!3m6!1e1!3m4!1sAlo0Z634v7gmXzTdRKLzow!2e0!7i13312!8i6656?hl=en-GB

Also regarding Exhibits as i don't have any should i take proof of the driver's child's disability ?

Thank you

Coupon-mad

Also regarding Exhibits as i don't have any

You do. The NEWBIES thread gives you some and so does any other VCS thread.

leftandfred

Hi Coupon-mad and thanks for all the past help.

Do you mean things like Beavis case sign as a comparison
and a copy of Schedule 4 of the POFA, cant find the link to this as mentioned in the newbies

case transcripts i have printed off CS049

Thank You

Coupon-mad

Do you mean things like Beavis case sign as a comparison
and a copy of Schedule 4 of the POFA, cant find the link to this as mentioned in the newbies

Yes.

The POFA Schedule 4 is easily Googled in a split second but is linked in the 1st post of the NEWBIES.

case transcripts i have printed off CS049

Which one is that?

I do wonder however will the judge actually ask me who the driver was, as the judge did in the cs049 case (12)
and will my answer have a bearing on the outcome ?

Yes it's possible. If asked directly you'd have to be honest.

VCS have also now supplied some very detailed pictures of the signage.
I have to say that i do not remember such vivid signage being at the entrance to the pub car park.

I have however checked on google maps street view which if you put the little man on the street and are lucky there could be a clock symbol in the left top corner box that allows you to look at previous years. It clearly shows that the vivid entrance signs were there in 2016 and part 2017 but in 2018 they are gone.
Is it worth me pointing this out in my WS and printing the pictures as exhibits ?

Yes yes and more yes, if you are saying that the signage evidence is questionable in relation to the date of this event.

What about the Caernarfon and IOW Judgments as linked in the Abuse of Process thread by beamerguy, my post #14 there?

What about reading the win v VCS from today? Learn from that and use jonesthebones' linked judgment too, it covers a fair bit!!

leftandfred

Excel v Smith M17x062

Coupon-mad

See above, I edited in more info!

leftandfred

Evening Guys and Gals,
my first attempt at the witness statement, any advise much appreciated

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No:xxxxxxx

BETWEEN:

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

-and-

xxxxx xxxxx (Defendant)


WITNESS STATEMENT

I, The King of Misery on behalf of The Prince of the torn apart Ltd (the Defendant), works address ?, will say as follows

I am employed by The Prince of the torn apart Ltd (the Defendant) I am unrepresented with no legal background or training and have had no previous experience of county court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

Attached to this statement is a paginated bundle of evidentiary documents marked Exhibit 1, 2, 3, 4, 5, 6 to which I will refer.


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The claimant has admitted they are not able to rely upon the POFA, and
3. The company cannot have been the individual driver in question, and
4. The company will evidence that the driver was not acting in and agency capacity, and
5. The company will evidence that the child passenger had ‘protected characteristics’ and
Enjoyed the protection under statute, of the rights & remedies in the Equality Act 2010, and
6. The driver was the disabled child’s carer and is entitled to a reasonable adjustment of any
Inflexible fixed policy, including arbitrary time limits/grace periods applied to the able bodied population.

- there is no lawful justification for indirect discrimination and a failure to make a reasonable adjustment of time for the disabled population at large, and the Claimant cannot be heard to say they did not know about the individual's condition or need for more time, because that is not a lawful justification in a case of indirect discrimination.

All of which was pleaded in the first defence and the Claimant has failed to respond to it.

Background

On the evening of the 09/09/2017 the driver and his son (9 years old at the time) were returning from a youth football match, as the driver in his spare time is a grassroots football coach and fills his spare time coaching and managing a youth football team. As it was getting late around 6pm the driver decided to pull into the car park of the Airport Pub and grill ringway road Manchester to Ask in the restaurant if they provided any Gluten free meals, As the drivers passenger son suffers from a gluten intolerance disease called coeliacs disease.
Unfortunately the driver had not predicted how busy the restaurant would be (having never been there before). It took several minutes to speak with the chef who was not immediately available, and as they did not cater for coeliacs, and the chef being quite rude when asked if anything other than chips were cooked in their fryer, the driver and son decided it was not worth the risk of eating at the premises so decided to leave the site, but the drivers son also needed to use the toilet which added a few more minutes to their short stay.

7. Within the claimants witness statement they have provided some pictures of the signage at the entrance to the Airport pub car park which is very vivid and I have to agree is probably hard to miss.

8. The driver does not remember this signage being visible at the time, However he was slightly distracted by his son, as a huge aeroplane was landing at the rear of the car park and as they entered the car park off the main road his son yelped in disbelief having not seen or heard an aircraft so close.

9. The driver has checked on Google maps street view which if you put the little man on the street and are lucky there could be a clock symbol in the left top corner box that allows you to look at previous years. It clearly shows that the vivid entrance signs were there in 2016 and part 2017 but in 2018 they are gone, which leaves VCS’s signage evidence questionable in relation to the date of this event.

10. See photographs marked EXHIBIT 1, 2, 3

11. The claimants witness statement (summary 44) states that “in view of the Defendant not paying the charge within 28 days the breach of the contract entitles the claimant to damages as of right in addition to the CN incurred. The maximum amount awarded is £60.00 which is identified as a debt recovery charge. The claimant would place reliance upon the court appeal ruling in Chaplair Limited v Kumari (2015) EWCA 798:”

12. Schedule 4 section 4 sub paragraph (5) of the POFA act 2012 states that the maximum sum that may be recovered from the keeper is the amount stated on the Notice to Keeper, in this case £100. The claim includes an additional £60 Dept recovery, which appears to be an attempt at double recovery

13. See the two orders printed & appended as EXHIBIT 4, 5

14. See POFA schedule 4 as EXHIBIT 6


Costs on the claim – disproportionate and disingenuous

15. In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.

16. CPR 44.3 (2) states: “Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.”

17. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

18. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

19. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

20. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

21. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case. The Defendant refers to the following paragraphs given in the judgement on the 4th of November 2015 in ParkingEye v Beavis:

at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

22. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

23. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

24. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware that their artificially inflated claim, as pleaded, constitutes double recovery.

25. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process (Exhibit HC21). The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

26. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies Exhibit HC22) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

27. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

28. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature of Defendant:

Name: XXXXXXX
Date: XX/XX/XXXX

KeithP

Check spelling - Distract Judge.

leftandfred

Ok thanks KeithP iv'e made some amendments and edited my post.

i'm now really struggling with how to address that the driver was not acting within an agency capacity
do i just rely on my defence ? or should i have some evidence within my WS ?

I was going to refer to the Claim C0DP9C4E/M17X062 which was a won appeal but i just dont understand the legal jargon at sub heading 4 where it mentions the defendant being a company

Thanks All

Coupon-mad

i'm now really struggling with how to address that the driver was not acting within an agency capacity

You just say that the driver was not acting 'on behalf of' the Defendant company on this occasion, was not on duty, thus the law of agency cannot apply and the company cannot be held liable for the alleged actions of an individual on a family visit to a restaurant outside of normal working hours.

Remove #11 which is a bit muddled and adds nothing:

11. The claimants witness statement (summary 44) states that “in view of the Defendant not paying the charge within 28 days the breach of the contract entitles the claimant to damages as of right in addition to the CN incurred. The maximum amount awarded is £60.00 which is identified as a debt recovery charge. The claimant would place reliance upon the court appeal ruling in Chaplair Limited v Kumari (2015) EWCA 798:”

Is the Company Defendant the owner of the vehicle or is it leased? Was the Company named as the 'keeper' by a lease firm in the first PCN instance or are they the owners/keepers and got the first PCN direct?