Urgent help please VCS Claim form received

Coupon-mad

The car parking tariff board does not refer to £100 fine, this is only contained in the separate small signs shown in the pics I uploaded. So I could expand the info relating to signage to include this.

I would make that point.

As regards the byelaws, if you've never said who was driving (because if you have, the following point is pointless!) you could turn the tables, given this is the Claimant's claim to prove, not yours, and state that:

The Defendant believes this area falls within Harbour Byelaws and the Claimant is put to strict proof that it does not, given that they are attempting to hold a registered keeper liable and cannot do so under the POFA, if the land is within one of the categories excluded from the statute.

Bellaandme

Thanks for your suggestions nosferatu1001. I've incorporated them best I can, I would be grateful if you could read the amended version and let me know your thoughts?

In regard to the address for service, we didn't inform VCS of our new address per se, however we did post 2 Subject Access Requests, both of which contained our new address.

In the matter of

VEHICLE CONTROL SERVICES(Claimant)
v
******** (defendant)

Claim no:

Witness statement of *******, defendant


In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. I confirm that I was the Registered Keeper of the vehicle concerned on 7 October 2017.

2. The Defendant denies being the driver at the time of the supposed event. I was collecting my children from their home in Houghton-Le-Spring, as I do every weekend.

3. The vehicle has multiple drivers depending on personal and work commitments. There are occasions where a work colleague may be insured on the vehicle so that driving can be shared, as my job often entails driving long distances. I also allow colleagues access to the vehicle if they are covered to drive other vehicles under their own insurance policy. My partner is a named driver on the insurance policy at all times. I am unable to access details of my policy from 2017, however I enclose my current policy for reference (exhibit x).

4. The Claimant does not rely on the Keeper provisions of POFA 2012; instead they have made an assumption that the keeper is the driver. I enclose the NTK for reference (exhibit x).

5. If the Claimant relied on POFA, they have failed on a number of counts. Exhibit x shows that the Claimant did not specify the period during which the vehicle was parked, nor state whether a notice was given to the driver or placed on the vehicle.

5.1 Para 12 schedule 4 POFA 2012 relates to adequate signage. The Claimant's signage fails to set out the terms and conditions in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms and conditions sign states ‘if a valid permit/ticket is required…’ and does not explain what a valid ticket/permit is (exhibit x).

5.2 The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily (exhibit x).

5.3 The SAR information provided by the claimant shows that the Keeper details were requested from DVLA on 13 October 2017, only 6 days after the date of the alleged contravention. A NTK was issued on the same day. Under POFA 2012, where a Notice to Driver was issued (i.e. a ticket affixed to the windscreen) applications should not be made to the DVLA earlier than 28 days after the vehicle was parked, and a NTK should not be issued earlier than 28 days after the service of notice to the driver. This constitutes a breach of POFA and Data Protection. I enclose Schedule 4 POFA 2012 for reference (exhibit x).

6. The signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC). I enclose the IPC Code of Practice for reference (exhibit x).

7. In contrast to the Claimant’s assertions that ‘the warning signs are visible upon entry to the Car park and throughout the location’, the Claimant supplied numerous photographs showing the position of the vehicle and the surrounding land. The photographs clearly show that there were no visible signs near to where the vehicle was parked. In fact the only sign which can be seen is very small, mounted at least 6 feet off the ground and is quite a distance behind the vehicle (exhibit x). In addition, the aerial map which the Claimant provided shows that there are no signs located at the entry points (exhibit x).


7. The claimant’s Witness Statement and evidence were sent to the Defendant’s previous address on 19 February 2019, despite having been advised of the current address on 18 September 2018 and 4 October 2018 when the Defendant submitted a SAR to the Claimant (exhibit x) . It is lucky that the Defendant was able to retrieve this as the current occupiers forwarded it on. The Claimant is in breach of the Court Order dated 13 February 2019 which states that ‘each party must deliver to every other party all documents on which he intends to rely at the hearing…’



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

Bellaandme

Thanks Coupon-mad, that's a very good suggestion. Should I be including the info about bye-laws in the skeleton argument rather than the witness statement?

nosferatu1001

You cannot introduce new arguments now, and you dont argue in a witness ststament. You cannot assert something you dont have evidence for, ina WS.
C-M - prety sure VCS still dont try for Keeper compliance do they? Just the "reasonable presumption" rubbish?

nosferatu1001

You did not use "address for service"? Then more fool you, sorry but its true

You cannot claim they used an address they had NO reasno to think was not still current. the SAR has nothign to do with this, I am afraid

I dont think you can complain about thtis. You did NOT formally inform them of yoru address for service.

Bellaandme

I must have missed the stage where we were supposed to confirm our current address for service.

I assumed that as the correct address was provided in the AOS and the Courts have been corresponding to the correct address that VCS should have been aware.

I'll remove that point....

nosferatu1001

Its not a "stage", but a fairly obvious thing to do - if you move while you are in a legal process, they need to have your current address. THis is your "address for service"
It is quite common for people to hold a different address for service to their home address, if you think about it.

Coupon-mad

I wouldn't remove that point though.

It's something you want the Judge to know, and as a SAR goes by definition to the firm's Data Protection Officer, and you had your address showing properly on the DQ N180 as well, the data should have been updated IMHO even if you didn't use the term 'address for service'.

I would also add in the point about byelaws into your Witness Statement because this is small claims, anything goes and (arguably) it leads on from your defence which already said you were not liable as keeper...

C-M - prety sure VCS still dont try for Keeper compliance do they? Just the "reasonable presumption" rubbish?

Yes, but you know me, I like to throw banana skins and watch the PPCs slip on one!

Bellaandme

Thanks Coupon-mad and nosferatu1001 for your feedback. I would be grateful for your thoughts on the most recent version of our witness statement.

I'm unsure about point 4. The Claimant says that they rely on POFA in their WS but then go on to say that they can pursue the claim outside of POFA.

In the matter of

VEHICLE CONTROL SERVICES(Claimant)
v
******** (defendant)

Claim no:

Witness statement of *******, defendant


In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. I confirm that I was the Registered Keeper of the vehicle concerned on 7 October 2017.

2. The Defendant denies being the driver at the time of the supposed event. I was collecting my children from their home in Houghton-Le-Spring, as I do every weekend.

3. The vehicle has multiple drivers depending on personal and work commitments. There are occasions where a work colleague may be insured on the vehicle so that driving can be shared, as my job often entails driving long distances. I also allow colleagues access to the vehicle if they are covered to drive other vehicles under their own insurance policy. My partner is a named driver on the insurance policy at all times. I am unable to access details of my policy from 2017, however I enclose my current policy for reference (exhibit x).

4. The Claimant does not rely on the Keeper provisions of POFA 2012; instead they have made an assumption that the keeper is the driver. I enclose the NTK for reference (exhibit x).

5. If the Claimant relied on POFA, they have failed on a number of counts. Exhibit x shows that the Claimant did not specify the period during which the vehicle was parked, nor state whether a notice was given to the driver or placed on the vehicle.

5.1 Para 12 schedule 4 POFA 2012 relates to adequate signage. The Claimant's signage fails to set out the terms and conditions in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms and conditions sign states ‘if a valid permit/ticket is required…’ and does not explain what a valid ticket/permit is (exhibit x).

5.2 The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily (exhibit x).

5.3 The SAR information provided by the claimant shows that the Keeper details were requested from DVLA on 13 October 2017, only 6 days after the date of the alleged contravention. A NTK was issued on the same day. Under POFA 2012, where a Notice to Driver was issued (i.e. a ticket affixed to the windscreen) applications should not be made to the DVLA earlier than 28 days after the vehicle was parked, and a NTK should not be issued earlier than 28 days after the service of notice to the driver. This constitutes a breach of POFA 212, IPC Code of Practice and Data Protection. I enclose Schedule 4 POFA 2012 for reference (exhibit x) and also refer to part C(q) of the IPC Code of Practice (exhibit x).

6. The signage and operating practice of the Claimant fails, on numerous counts, to adhere to the standards laid out by the relevant accredited parking operator - The International Parking Community (IPC). I enclose the IPC Code of Practice for reference (exhibit x).

7. In contrast to the Claimant’s assertions that ‘the warning signs are visible upon entry to the Car park and throughout the location’, the Claimant supplied numerous photographs showing the position of the vehicle and the surrounding land. The photographs clearly show that there were no visible signs near to where the vehicle was parked. In fact the only sign which can be seen is very small, mounted at least 6 feet off the ground and is quite a distance behind the vehicle (exhibit x). In addition, the aerial map which the Claimant provided shows that there are no signs located at the entry points (exhibit x).


8. Part B 9.1 of IPC Code of Practice states that it is the parking operator’s responsibility to establish whether any land which they operate is subject to any Byelaw. Where land is subject to Byelaws operators must ensure that their practices are in accordance with wit them, or that they operate a scheme which is not prohibited by them. The Defendant believes this area falls within Harbour Byelaws and the Claimant is put to strict proof that it does not, given that they are attempting to hold a registered keeper liable and cannot do so under the POFA, if the land is within one of the categories excluded from the statute.

9. The claimant’s Witness Statement and evidence were sent to the Defendant’s previous address on 19 February 2019, despite having been advised of the current address on 18 September 2018 and 4 October 2018 when the Defendant submitted a SAR to the Claimant (exhibit x) . It is lucky that the Defendant was able to retrieve this as the current occupiers forwarded it on. The Claimant is in breach of the Court Order dated 13 February 2019 which states that ‘each party must deliver to every other party all documents on which he intends to rely at the hearing…’


Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

Coupon-mad

Add these words to #4 as well!

The Claimant says that they rely on POFA in their WS but then go on to say that they can pursue the claim outside of POFA.