Letter of Claim Defence - help needed

frostop

And it's a N180 from the court themselves?
Not a N159 (no hearing version! eeek!) sent by VCS is it?

Hi Coupon-mad. It is a N180, yes.. this is headed "Directions Questionnaire (Small Claims Track)" and the footer says
"N180 Directions Questionnaire (Small Claims Track) (04.14)"

accompanied with another sheet attached headed "Notice of proposed allocation to the Small Claims Track" and the footer of this sheet says
"N149A Notice of proposed allocation to the Small Claims Track"

It's not the 159 version so this definitely sounds like a good thing... but is there anything I should be aware of here, or is this good to go?

frostop

Hi all - to update, I received notification of allocation to court with a scheduled court date, and I also received a copy of VCS's witness statement. So i have prepared a witness statement and evidence. I am aware of the 14 day deadline and to provide a copy to vcs, court and to take a copy myself on the day. the URLs have been taken out as it won't allow me to add them.

Any comments, advice and help is much appreciated. Thanks in advance.

Incidentally, I have discovered that the car park in question is no longer managed by VCS, but by Parking Eye. Does this matter?

Evidence:
• Bank Statement showing transaction of food and drink at the pub
• Photos and stills of video showing no signs or ticket machines on front of building or entrance, and view towards the edge of the carpark illustrating inconspicuous signage
• Defence
• Appeal
• IPC Code Of Practice
• Documents in support of IAS as a kangaroo court
• Documents relating to Vine v Waltham Forest
• Article from ParkingCowboys.co.uk – ‘Excel and VCS tickets’
• Parking Code of Practice Bill
• ParkingEye v Beavis [2015] UKSC 67

IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

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

-and-

xxxxxxxx (Defendant)


WITNESS STATEMENT

Introduction

1. I, xxxxxxxx of xxxxxx, will say as follows:

2. I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked xxxx to which I will refer.

3. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, which I will go in to detail:

a) Insufficient signage.
b) Signage out of context
c) No Contract
d) No offer of independent Alternative Dispute Resolution (ADR)
e) Claimant failed to adhere to the International Parking Community Code of Conduct
f) The charge of £100 is a penalty and unfair consumer charge

Background

4. I visited Manchester Airport Pub and Grill on xxxxx 2017 and had a meal, before picking up a friend from the airport. I parked in a space in front of the pub building near the entrance. There were no signs nearby pertaining to parking charges, and no signs in front of the pub building or entrance pertaining to parking charges. There were no ticket machines in front of the building.

5. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them.

My response to the NTK / PCN

6. In my response to the NTK / PNC I requested evidence as to signage:

“Please provide photos of the signs that you say were on site, which you contend formed a contract with the driver.”

This request was refused, as worded in a response letter dated xxxxxx 2017 in relation to this request:

“we will only answer pertinent points at this stage.”

7. The Claimant has used its witness statement to provide photographs of the car park which should have been disclosed much earlier. The claimant has deliberately avoided and delayed this evidence. It is evidence that was and is pertinent, and serves to highlight the lack of signage and ticket machines on the entire front of the pub building, and the inconspicuousness of the signage and ticket machines from the viewpoint of where I parked.

8. Further, I asked for information relating to the landowner and whether charges were based on damages for breach of contract. This information was not provided.

Appeals and the Independent Appeals Service

9. Following an unsuccessful appeal to the Claimant via myparkingcharge, I did not send a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee (IPC). This was for the following reasons:

a) My research revealed that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which was set up and run by the same two Directors who also operate the Independent Appeals Service (IAS), (URL) which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. the individuals in question being John Davies, and William Hurley. The independence of this body has been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

b) Excel and VCS are members of the IPC’s AOS, second stage appeals must go to the Independent Appeals Service (IAS). Unlike the BPA’s POPLA service which is relatively open and transparent, there are concerns that the IAS is a ‘kangaroo court’ where normal legal principles are not followed (e.g. showing all of the claimants evidence to the appellant, and placing the burden of proof on the claimant). As such, anecdotal evidence shows very few appeals are upheld.
(URL)

c) Further findings shows that the IAS is widely regarded as a kangaroo court.
• (URL)
“Unlike the BPA’s POPLA service which is relatively open and transparent, there are concerns that the IAS is a ‘kangaroo court’ where normal legal principles are not followed (e.g. showing all of the claimants evidence to the appellant, and placing the burden of proof on the claimant). As such, anecdotal evidence shows very few appeals are upheld.”

d) Due to the above conflict of interests the Claimant does not come to this matter with clean hands and I decided I would prefer a truly independent court to hear this defence and there was no reason to engage with anonymous assessors chosen by Mr Hurley and Mr Davies.

c) Further research uncovered a very negative reputation of the Claimant and the industry in which it operates.

d) Below are some of the comments made by MPs in Parliament concerning the private parking industry (Feb 2018). The private parking industry's 'outrageous scam' (Hansard) was condemned unanimously by MPs in Parliament in the private parking Code of Practice Bill debate, where the IPC and IAS were named and shamed.

(URL)

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

Insufficient signage.

10. I strongly contest that there was sufficient signage to consider an agreement to pay for a parking ticket.

11. There is legitimate grounds for not reading terms, as the existence of those terms was not reasonably advertised.

12. I rely on photographic evidence which shows:

a) No signage or pay and display machines were present on the entire front of the pub building and entrance.

b) Ticket machines pictured in evidence are on the sides of the pub building, and not visible from the front of the pub where the defendant was parked.

c) Ticket machines are obscured from view in the presence of people and cars on entering the car park.

d) Signs at the edge of the carpark are illegible from the viewpoint of the area in which the defendant parked.

e) Signs at the entrance of the car park did not display any information pointing in to the car park, only outward in to the road. On entering the carpark my full concentration was on traffic and entering the carpark safely. There was a car close behind me attempting to overtake as I turned in to the car park. Another car was coming out of the exit of the car park at the same time. It is unreasonable to assume that I would be able to give any attention to peripheral signage in this circumstance.

13. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

Signage out of context

14. I am not familiar with this pub and is not somewhere I habitually visit. I am also not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park. I argue that the signage is out of context.

15. It is reasonable to assume that a pub / restaurant carpark would not charge for parking, and that there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space. The defendant would like to draw the court’s attention to Denning’s Red Hand Rule which supports this context.

No Contract

16. I deny entering into any contract with the Claimant, and I deny any breach of contract, as there was no consideration, consent, acceptance and therefore no agreement to any terms and conditions. There being a contract relies on being able to see any signs dotted around the car park displaying their terms and conditions, and therefore signing up to the terms and conditions displayed. The claim for any charges for a breach of contract cannot bear any weight if the contract relies on signage which is not reasonable in order to be noticed.

17. I deny that I would have consented to any charge for a contravention of the notices had they been seen and understood.

18. The defendant relies upon ‘Vine v Waltham Forest’ case whereby in this context it relates as such:

“although it might reasonably be inferred that a motorist will see and understand the signs as a result of their numbers, size and location it is insufficient that he or she has simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to any charge if they parked in contravention to the notices. In addition, if the fee is exorbitant then consent to its payment cannot be implied.”

19. The claimant has failed to adhere to the International Parking Community Code of Conduct, which VCS is a member. Part 5.1(m) states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is 02/10/2017 and the ‘Contravention Date’ is 10/09/2017. Therefore, this serves to highlight that Vehicle Control Services Limited have failed to act in time for keeper liability to apply. As a result, I am not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the IPC Code of Conduct. Further, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.

20. The charge of £100 is a penalty and unfair consumer charge. The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying. The risk was clearly brought to the attention of the consumer in a huge font. Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is hidden in small print. It is submitted that no motorist would agree to pay £100 instantly on stopping and this is therefore and unfair consumer term in breach of the Consumer Rights Act 2015.

21. In addition to the £100 ‘parking charge’, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding costs of £60 which I submit 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. The Court is invited to report VCS to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

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

Statement of Truth

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


[Signed]






Date: 18/12/2018

frostop

Hi - can anyone tell me if this has any effect on my case - if the carpark management company taking me to court no longer manages the carpark in question in this case?
Thanks

Umkomaas

frostop wrote: »

Hi - can anyone tell me if this has any effect on my case - if the carpark management company taking me to court no longer manages the carpark in question in this case?
Thanks

Very little at all. If there's any 'dirt' around why they have lost the contract it might be worth mentioning at the hearing - but only if it helps your case.

frostop

I'm pleased to say I went to court and won! On account of insufficient signage. Submitted my claim for expenses too. All the time and effort paid off. Worth noting that in this case it was not straight forward and I had to fight my case with a well-prepared defence and witness statement. To anyone who is in a similar position: make the effort, go the distance, and don't back down.

Coupon-mad

Yay, yet another one bites the dust! Well done! :T

Please tell us which court, which Judge? Was it today?

Did they send a legal rep, who was it, and were they spitting feathers when you won?

frostop

Thank you!

It was Sheffield Crown Court, a couple of weeks ago. They sent a legal rep 'Mr Jackson'. He introduced himself before we went in and tried to negotiate a settlement.. I said no. He seemed very experienced and he hinted that he knew he would lose, and afterward almost commended me on my preparation. it was like it was just another day at the office to him, but for me it was the culmination of over a year of crap; I was damned if I was going to give them anything.

Thanks Coupon and everyone else who has helped

Coupon-mad

VCS beaten at their 'home' court yet again - hooray, and you got costs too!

So Manchester Airport Pub and Grill car park has insufficient signs then. Was their evidence of signs pretty awful?