Urgent help please VCS Claim form received

Le_Kirk

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Bellaandme

Thanks for letting me know Le_Kirk. I've tried copying and pasting from the browser and using the link icon on the map. Have you any idea what else I can try?

KeithP

Use google street view and post the link they supply.

Bellaandme

Hello

Would anyone be so kind as to offer me feedback on our witness statement and skeleton argument below? I am hoping to get it posted off by the end of this week. Many thanks in advance.

In the matter of

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

Claim no:

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


I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

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

1. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver.

2. The Defendant denies being the driver at the time of the supposed event, and therefore puts VEHICLE CONTROL SERVICES to strict proof that any contract can exist between the Defendant and themselves.

3. The vehicle has multiple drivers and VEHICLE CONTROL SERVICES has failed to comply with the POFA 2012 Schedule 4, para 14 and thus failed to transfer liability to the Defendant in law. Given that the car is insured with more than one driver, the Claimant cannot assume nor tip the balance of probabilities, that the registered keeper was necessarily the driver. Thus, the Claimant has failed to establish a cause of action and liability against the Defendant.

4. The NTK issued was not compliant with POFA 2012 for a number of reasons, including not specifying the period during which the vehicle was parked, nor whether a notice was given to the driver or placed on the vehicle. Further non- compliance is indicated in paras 4.1, 4.2 and 4.3 below.

4.1 Para 12 schedule 4 POFA 2012 relates to adequate signage. It is denied that the Claimant's signage sets out the terms 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.

4.2. The terms on the Claimant's signage are also 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.3. 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 as the Claimant’s photographs clearly show was the case) 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.

5. 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). Further details are included in the Defendant’s skeleton argument enclosed.

6. 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 is 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 (appendix ?).


7. The claimant’s Witness Statement and evidence were sent to the Defendant’s previous address, despite having been advised of the current address in September 2018. It is lucky that the Defendant was able to retrieve this as the current occupiers forwarded it on. The Claimant has therefore failed to comply with para 2 of the Small Claims Track Hearing procedures which states that ‘each party must deliver to every other party all documents on which he intends to rely at the hearing…’

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe that the facts stated in this Witness Statement are true.



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

Bellaandme

And here is our skeleton argument...

IN THE COUNTY COURT AT MIDDLESBROUGH

CLAIM NO:

BETWEEN

VEHICLE CONTROL SERVICES LIMITED

And

XXXXXXXXXXXXXX


SKELETON ARGUMENT ON BEHALF OF

PREAMBLE

1. This skeleton argument is to assist the Court in the above matter for the hearing dated 22 March 2019.
2. The Claimant’s witness statement is not credible. It contains invalid, false and vexatious statement which can be shown in this skeleton argument. Moreover, it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.
3. Para 5 refers to the Approved Operator Scheme and the Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks, which is only of relevance to BPA members. VCS Ltd were a member of IPC at the material time.

THE ISSUES

4. The Defendant has identified the following areas of dispute:
a) The identity of the driver
b) The presumption of the driver
c) The burden of proof
e) Keeper Liability
f) Non-Compliant NTK
g) Prominence, illegible terms and confusing signage
h) Penalty
i) Conduct
j) Authority
k) Consumer rights

SUBMISSIONS

5. The Defendant submits that they were not in Hartlepool at the material time of the PCN
6. The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the material time that they were not from an authority such as local council or the police. The Claimant referenced nothing in relation to holding the Defendant liable under statute.
7. It is submitted that the Defendant did not appeal the PCN and was under no obligation to do so as the keeper. The Defendant correctly assumed at the material time (and to date) that the issue was of no relevance to them.
8. It is submitted that it is impossible for the Defendant to speculate whether the signs were there at the material time (or looked as the Claimant avers) as they were not in the area.
9. The Defendant submits that there are pictures showing a PCN on the windscreen of a vehicle bearing the same mark to which they are the registered keeper, but cannot adduce any further information.
10. The Defendants submits that they did not receive the PCN either at the material time or otherwise
11. The Defendant submits that it would not be in the interest of Court time to rebuff each and every individual accusation by the Claimant that the Defendant was the driver.

GENERAL ARGUMENTS

12. As detailed in para 29 of the Claimant’s witness statement, the primary argument for issuing the claim against the Defendant is predominantly based on the crucial but rebutted piece of information; that the Claimant can hold the driver liable under Protection of Freedom Act 2012, or in para 31 that the Claimant can pursue the Defendant outside of POFA 2012.
13. The Defendant will show that the claimant failed to transfer liability from the driver to the keeper and that the Claimant has no ground to pursue the Defendant outside of POFA.
14. The Claimant has failed their obligation to comply with IPC code of Practice
15. Any single one of the above is fatal to the Claimant’s case

PRESUMPTION OF THE DRIVER

16. It is clear in trite law that where there is no forensic and/or reliable evidence, that a registered keeper of vehicle cannot be declared the driver at any given point in time. In fact, in some instances they may barely drive the vehicle at all.
17. The Defendant brings to Court’s attention POPLA Lead adjudicator and Barrister Mr Henry Greenslade’s statement regarding keeper liability in the POPLA Annual Report of 2015:
‘there is no ‘reasonable assumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort’.
18. District Judge Skalskyj-Reynolds in the case of Excel v Lamoureux [2016] c3DP56Q5 although only persuasive, comes to a comparable conclusion as Mr Greenslade:
‘the defendant denies he is the driver and the claimant has absolutely no evidence that he was the driver. There is no assumption in law the registered keeper is also the driver of the vehicle. That is trite law…’
19. District Judge Skalskyj-Reynolds concludes the judgement by stating:
The claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver.

BURDEN OF PROOF

20. There is no statute requiring the registered keeper to identify the driver of a parking charge on private land.
21. Mr Henry Greenslade comments on this particular issue in the 2015 POPLA Annual Report:
‘a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not in itself mean that the recipient has accepted that they were the driver at the material time’


KEEPER LIABILITY
22. Liability can only be transferred lawfully by strictly following Schedule 4, Protection of Freedoms Act 2012 which was enacted into statute to prevent this very issue and ensure lawful transfer of liability for private land owners.
23. Where a charge is aimed only at a driver no other party can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.
24. The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
‘There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

25. The NTK issued was not POFA compliant as evidenced in the Defendant’s Witness Statement and in paras 32-25 below
26. The Claimant states in para 31 of their witness statement that ‘the Claimant may pursue the claim outside of POFA’; however there is no other legislation that can be used in this instance. Please refer to the transcript of Excel vs Lamoureux which states that POFA must be used (Appendix ?)
27. No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v Total Parking Solutions in September 2016, where POPLA Assessor Carly Law found:
“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”
28. In Excel v Mr B. C0DP33Q9 19 December 2016, Stockport in front of District Judge Dignan. As the driver could not be identified, there could not be a contract between the private parking company and any individual.
29. In Excel v Ian Lamoureux, C3DP56Q5 at Skipton 8230; The Judge was critical of the claimants attempts to hold the keeper liable without being able to rely on PoFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated ‘I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012. I enclose the transcript of the judgement in this case.
30. In VCS v Quayle C1DP0H0J, the keeper was found not liable for drivers actions if POFA not complied with.

NON-COMPLIANT NOTICE TO KEEPER

31. The NTK issued was not compliant with POFA 2012 for a number of reasons, including not specifying the period during which the vehicle was parked, nor whether a notice was given to the driver or placed on the vehicle. Further non-compliance is indicated in paras 32 to 35 below.
32. Para 12 schedule 4 POFA 2012 relates to adequate signage. It is denied that the Claimant's signage sets out the terms 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. Despite this lack of explanation, the sign states that ‘if you fail to comply with the terms and conditions you agree to pay the Parking Charge as stated below…’
33. The terms on the Claimant's signage are also 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
34. The Subject Access Request 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 is in breach of POFA and Data Protection.

PROMINENCE, ILLEGIBLE SIGNS & UNCLEAR TERMS & CONDITIONS

35. The Defendant disputes the witness’s judgement that the signs or more specifically the terms and conditions, were prominent.
36. It is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
37. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
38. In this case 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).
39. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. There are no entrance signs on the either of the two potential entries to the car park. This is illustrated on the map provided by the Claimant (appendix ?).
40. The IPC guidelines state that text on signage ‘should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’ The text on the signage, particularly that which refers to ‘terms and conditions’ and a ‘parking charge’ is very small. This, coupled with the fact that the sign is mounted at least 6ft off the ground on a post makes it very hard to read and impossible to read from a vehicle.
41. The IPC guidelines state that signage that is intended to form a contract should ‘Be clearly legible and placed in such a position that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’. The Claimant has provided an overhead map of the car park in question (appendix ?), showing numerous ‘warning signs’ are located on the site, however the map clearly shows that there are no Entrance board signs at either of the 2 entrance points (although the map only refers to one entry point, there are actually two). In addition, the warning signs which are marked on the map are impossible to read whilst driving, and even on foot due to the font size and being located at least 6 feet off the ground (appendix ?). In addition, there are large areas of the car park where even these signs are not visible once parked.

PENALTY

42. The charge is a penalty. This case can clearly be distinguished from ParkingEye v Beavis [2015] UKSC 67 by reason that the Supreme Court heard that ParkingEye had complied with the ATA Code of Practice, the relevant signs were ‘large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature’ and ‘The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it’. That is not the case here as evidenced by (appendix ?).

CONDUCT

43. the Defendant’s view is that the witness statement Is merely a ‘copy and paste’ exercise by the Claimant by reason that several paragraphs propagate irrelevant points.
44. The Claimant requested the Keeper details from the 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 is in breach of POFA 2012 and Data Protection.
45. The Claimant’s Witness Statement and evidence were sent to the Defendant’s previous address, despite having been advised of the current address in September 2018. The Claimant has therefore failed to comply with para 2 of the Small Claims Track Hearing procedures which states that ‘each party must deliver to every other party all documents on which he intends to rely at the hearing…’
46. In their witness statement the claimant sites Chaplair Limited V Kumari (2015) EWCA 798 stating that the maximum amount that can be charged for debt recovery is £60.00. VEHICLE CONTROL SERVICES employed Debt Recovery Plus to pursue this matter, and this organisation works on a no collection no fee basis. As the collection agents did not collect any debt this is abuse of process by the Claimant.

AUTHORITY

47. The Claimant sites Thornton V Shoe Lane Parking 1971 2QB163. I do not see this case as being relevant as it only relates to a car park with a barrier. The sign which forms part of the contract is visible at the point of entry whilst the car is stationery whilst waiting for the barrier to open. The car park in question has no such barrier and there are no signs on either of the two entry points. Reading signs whilst driving would amount to driving without due care and attention.
48. The Claimant refers to ‘Vine v London Borough of Waltham Forest’. The Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. The map (appendix ?) shows that there are large areas of the car park where a motorist would not be adjacent to the signs, and the height of the signs would make them difficult to see whilst parking the vehicle.
49. The Claimant refers to ‘ParkingEye vs Beavis’. There are key differences in this case namely that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice. In this case 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) as evidenced above in paras 39-41.

CONTRACT

50. If a contract were deemed to exist between the Defendant and the Claimant it would, under the terms of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 be defined as a ‘distance contract’. As ‘distance contract’ is defined as ‘a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.
51. As a ‘distance contract’, the signage at the site does not carry the information required by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (appendix ?), specifically on the right to cancel required by paragraph (l) of Schedule 2.
52. As the signage does not carry the information required as specified I have the right to cancel the contract as specified by The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (exhibit 13) clause 31 ‘Cancellation period extended for breach of information requirement’

Coupon-mad

Bellaandme wrote: »

Thanks for letting me know Le_Kirk. I've tried copying and pasting from the browser and using the link icon on the map. Have you any idea what else I can try?

In Dropbox, you just needed to make a link to 'share'.

Bellaandme

Thanks Coupon-mad. Does this one work?

https://www.dropbox.com/s/k37q6ujeym4bruh/VCS%20signage.pdf?dl=0

Coupon-mad

Yes I can see those signage photos.

IamEmanresu told you this:

IamEmanresu wrote: »

AFAIK the VCS signs are along the waterfront and there are few if any along the shop/restaurant side. There are P&D machines there and a large tariff board (which may not warn people about the £100)

Pics of the site now and of the tariff board would be useful to show the car in relation to the signs. The normal VCS signs are small and have dense type. They don't meet the requirements for clarity.

You said this about the circumstances:

The car was parked behind the 'Port' bar...(...my local court will be Peterlee).

The ticket was issued on private land on Hartlepool Marina (Hope I'm allowed to say this!) No valid ticket was displayed. Mandale own the land but it appears that VCS control the car park. Found some interesting info on Google about it may be covered by some bye laws therefore keeper liability may not apply,

Make sure you have all the the above in your evidence and exhibits.

Don't say this, it sounds like you are hiding being the driver:

Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver.

nosferatu1001

Skellie isnt needed until 3 days before the hearing date.

"I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. "
Delete this. Its not necessary and will not help.

1) YEah so this doesnt help.
It just begs the question "who was the driver" - if youre not going to say who the driver was, and cannot say you were NOT the driver, then say neither. Just confirm you were teh RK of VRM XXXXX on Y date.

2) As you then deny being the driver you should add where you were on that day, plus any evidence you can give to support that.
Youre not making arguments here, so no "putting VCS to proof" of anything.
You should also state here there are also multiple drivers insured for use, plus any driver with "DOV" cover. Then exhibit your insurance doc showing this to be true. Dont waffle on about balance of probabilities - thats for the court to decide. You do NOT argue in a WS. State facts.

3) Make a SIMPLE statement here that VCS *do not* rely on the Keeper provisions of POFA, instead they "make an assumption" that the keeper is the driver. They havent failed to meet POFa, they have CHOSEN to NOT use it at all. Then exhibit their NtK to prove your assertion

4) Because they havent used POFA, you could simplify this substantially> State that even if the claimant tries to claim they used POFA, they failed on the following counts - and exhibit them.

A note on exhibits - do it properly. Exhibited at INITIALS/001 is a photo showing....

5) Nope nope nope. You cannot refer to "details" in a skeleton argument. Your witness statement contains facts, and evidence to support those facts.

6) Nope, an exhibit not an appendix.
Rermulate the sentence

The only signage was... located... at ... in contrast to the claimants assertions that ...

7) The claimants... were served on address OLD ADDRESS on DATE, despite having been notified on Y date (exhibit ....) that the address for service of documents was required at NEW ADDRESS. The claimant is in breach of courts order XYS of Z date which required...

8) Thats not a WS sumary at all. You dont need one. You dont ask for costs in a WS.

Bellaandme

Thanks Coupon-mad. I'll amend my witness statement to remove point 1. Unfortunately I wasn't able to find anything to say that the land is covered under bye laws. It looks like the SI may have been dissolved.

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.

The map VCS supplied shows that there are a number of warning signs along the shop fronts/restaurant side, albeit not as many as on the harbour side, so not sure if it would be in our interests to make this point.