My Defence / VCS Simon Renshaw-Smith

leftandfred

Company Defendant is the owner

leftandfred

Hi everyone,
Could i please ask for some advise with this section i was thinking of putting in my WS

"6. 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,
See EXHIBIT 1A and 1B"

My exhibit 1A would be a copy of the Equality act 2010 Chapter 15
My exhibit 1B would be medical evidence of my sons condition, but this obviously identifies who the driver was ?

Than you

Umkomaas

My exhibit 1B would be medical evidence of my sons condition, but this obviously identifies who the driver was ?

I've not gone back over the thread, but could you explain please?

leftandfred

Sorry i don't know why but at the beginning of page 4 of this thread the very first draft of my defence has been placed there, with much help from Coupon-mad it was changed numerous times.

Here is the last version that i sent to the courts


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)

Coupon-mad

My exhibit 1B would be medical evidence of my sons condition, but this obviously identifies who the driver was ?

How do you work that out? Anyone can drive your son places!

leftandfred

Was thinking about his surname being on the consultant's letter regarding his Duodenal biopsies

Fruitcake

9. The [STRIKE]driver [/STRIKE] defendant has checked on Google maps historical street view which [STRIKE]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 [/STRIKE]clearly shows that the vivid entrance signs were there in 2016 and part of 2017 but in 2018 they are gone, which leaves VCS’s signage evidence questionable in relation to the date of this event.

Are the signs in the latest images from the scammers identical in every respect (size, location, colour, wording etcetera) to the earlier streetviews? If not then it would indicate they have been changed.

leftandfred wrote: »

Was thinking about his surname being on the consultant's letter regarding his Duodenal biopsies

Unless the surname of the driver is also known, I wouldn't have thought this would matter. However, since you are dealing with a minor, might it be possible to redact the child's identity?

Coupon-mad

Lots of people with that surname in the World? Or redact the surname for privacy.

leftandfred

First of all I would like to thank everyone on this forum who offered me their help and advise.
The selflessness of you people is amazing.
One person I would personally like to thank is coupon-mad the help you gave me with my Defense surely won the day. I could not have done this without you guys :beer:

Dave

Coupon-mad

Hooray, well done Dave! ANOTHER VCS ONE BITES THE DUST! :T

Can you give us a full 'court report' of your day from when you arrived, to what the rep said outside court, to what happened and how you felt inside the court room...and then which court and Judge was it and what did he/she say at the end.

i.e. which point(s) won the day and did you also ask for your costs before leaving?