VCS Sheffield County Court Claim Form Received

qazitory

KeithP wrote: »

You would be wise to remove your claim number from that post.

It uniquely identifies you to the Claimant.

Thaks, I did remove it so I'm not sure why it came back??

qazitory

KeithP wrote: »

Only stuff that has been submitted earlier - at Witness Statement and evidence stage.

Thanks, so can I add images to my statement?

KeithP

qazitory wrote: »

Thanks, so can I add images to my statement?

Post #2 of the NEWBIES FAQ sticky thread has a section on submission of evidence.

nosferatu1001

Any question you ha ve, cehck post 2 of the newbies thread FIRST. Carefully.
Any procedural step in the Court process is covered there.

Coupon-mad

qazitory wrote: »

Thanks, so can I add images to my statement?

Not at this stage. This is not your witness statement.

It would help you to read the 'know what happens when' section and bargepole's walk through the court paperwork, linked in the NEWBIES thread post #2.

qazitory

Sorry I have been ill, so I haven't had time to dedicate to this.

I have relooked at my statement after reading other threads, and I'd be gratefu for any comments so I can scan and send ready for tomorrow's deadline.


[FONT=&quot]In the County Court[/FONT]

[FONT=&quot]Claim Number: ********[/FONT]

[FONT=&quot]Between:[/FONT]

[FONT=&quot]Vehicle Control Services Limited [/FONT]

[FONT=&quot]2 Europa Court[/FONT]

[FONT=&quot]Sheffield Business Park[/FONT]

[FONT=&quot]Sheffield[/FONT]

[FONT=&quot]S9 1XE[/FONT]

[FONT=&quot](Claimant)[/FONT]

[FONT=&quot]-and-[/FONT]

[FONT=&quot][personal details removed]
[/FONT]

[FONT=&quot](Defendant)[/FONT]

[FONT=&quot]___________________________________________________________________________[/FONT]

[FONT=&quot]DEFENCE[/FONT]

[FONT=&quot]___________________________________________________________________________[/FONT]

[FONT=&quot]Preliminary[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant was not the driver and for the reasons stated below and denies that she is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The facts are that the vehicle in question was parked at the English Institute of Sport in Sheffield on Monday, **th of ****, 20**. The driver (not the defendant) and passenger were visiting the gym facilities in the building. [/FONT]

[FONT=&quot]Failure to comply with the procedural requirements of POFA 2012[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant was at their home address during the stated time so could not agree to the terms of such parking.[/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4 (also referred to as PoFA). For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: ether the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:[/FONT]
[FONT=&quot]‘However keeper information is obtained, 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. Any evidence in this regard may therefore be highly relevant.’[/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]Schedule 4 of PoFA also states that the maximum sum that may be recovered from the keeper under keeper liability is the amount specified on the notice to keeper. None of the sums whether separately or jointly as a total correspond with the amounts on the notices to keeper therefore the claimant has failed to comply with the provisions. Therefore, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.[/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]Schedule 4 paragraphs 8 and 9 of the PoFA stipulate the mandatory information that must be included in the Notice to Keeper. If all this information is not present, then the Notice to Keeper is invalid.[/FONT]
[FONT=&quot]7. [/FONT][FONT=&quot]Contact by the defendant was made via email with every letter received, although no response was ever received, apart from generic letter received via the post. A request was made under the GDPR for all personal information relating the Defendant and the vehicle. These requests have been repeatedly ignored. [/FONT]

[FONT=&quot]No contract on any terms[/FONT]

[FONT=&quot]8. [/FONT][FONT=&quot]A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage is not adequate. Photographs of the area can be provided as the yellow disabled road markings are faded. Two small signs which state the area is for disabled parking, are pointed away from the road so are unreadable to drivers. Also the road conditions at 8.45pm on a Monday night in March would have all the markings completely unreadable. The passenger in the car also had a valid disabled pass and was entitled to park there. Failure to provide clear signage relating to charges and terms of parking invalidates any alleged contract between the claimant and the driver let alone the keeper. [/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on 27/03/17 to £160 on subsequent correspondence. This appears to be an added cost with no /apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.[/FONT]

[FONT=&quot]The agreed damages clause is a penalty[/FONT]

[FONT=&quot]10. [/FONT][FONT=&quot]The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £185 which is an extravagant and unconscionable penalty.[/FONT]
[FONT=&quot]11. [/FONT][FONT=&quot]In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).[/FONT]
[FONT=&quot]12. [/FONT][FONT=&quot]The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £120 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.[/FONT]
[FONT=&quot]13. [/FONT][FONT=&quot]The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and costs must be proved. With reference to paragraph 31, the Claimant claims a sum of £185 as a ‘parking charge’ (for which liability is denied).[/FONT]
[FONT=&quot]14. [/FONT][FONT=&quot]The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.[/FONT]
[FONT=&quot]15. [/FONT][FONT=&quot]I would like the Court to take note that I was aggressively harassed by letter after letter from different collection agencies, despite not being liable.[/FONT]
[FONT=&quot]16. [/FONT][FONT=&quot]The Defendant invites the court to strike out the claim for the above grounds or at the very least order better particulars and evidence from the claimant in order for the defence to be properly based on the facts of the case. The defendant invites the court to dismiss any evidence which the claimant wishes to rely on during the hearing if this is not disclosed to the defendant prior. [/FONT]


[FONT=&quot]The defendant believes that the facts stated in this defence are true.[/FONT]


[FONT=&quot]............................................................... ...........................[/FONT]

[FONT=&quot](Name) (Date)[/FONT]

Coupon-mad

I have answered as SchoolRunMum on pepipoo:

http://forums.pepipoo.com/index.php?showtopic=122856

Why is there nothing in there about the passenger having a blue badge and being entitled to use a disabled bay?

EDIT, found that hidden in #8.

Bring it nearer the top, in the facts (make sure you are admitting or denying everything the Particulars say).

Was the windscreen 'PCN' in fact not one at all, but a 'myparkingcharge.co.uk' effort in an envelope emblazoned THIS IS NOT A PARKING CHARGE NOTICE?

If so, you can plagiarise some of this VCS defence I wrote on MSE:

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

It talks about the CN not being a PCN, then the NTK being premature and non POFA. Even if you can't recall, you can tell, if there was a windscreen effort and then the NTK arrived too soon, before 28 days.

qazitory

Thank you for everyone's help with this.

I have received the letter below today and I want to make sure I'm reading it correctly: http://tinypic.com/r/117zl3t/9

I'm guessing the other side have messed up by not submitting the correct documents and I don't need to do anything?

waamo

They have indeed messed up. That letter is pure courtesy. This might be over by next week.

KeithP

That's right, you don't need to do anything.
The Claimant has seven days from service of that order to file a DQ.

You did file and serve you DQ on time didn't you?