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Vcs letter before claim...mistake of calling VCS when receiving NTK...Help!
Comments
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Just a quick question, I will act as lay rep for my OH. Would I need to add that anywhere in the documents?
Or do I just attend on the day?0 -
You just mention to the court usher as you arrive at the court. Be prepared to explain to the judge what a lay rep is and why you are able to act as such. It was reported on the forum last week that a judge refused a defendant permission to have a lay rep because he/she (the judge) did not understand.0
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“in the XXXXXXXX Court at
Claim No. XXXXXXXX
Between
XXXXXXXX (Claimant)
and
XXXXXXXX(Defendant)
Witness Statement
1. I am,XXXXXX ofXXXXXXXXXX, the Defendant in this matter. I assert that I am not liable to the claimant for the sum claimed, or any amount at all.
2. I am a private hire taxi driver, in partnership with Uber. Exhibit XX, is my letter of partnership with Uber.
3. On XXXXXXXX, I had picked up a fare, who wanted to go to New Street Station. However, my fare wanted to be dropped off in the car park of Albert Street Birmingham as they were getting late and wanted to walk it towards the Station, rather than being driven around. I drove my vehicle, at 5pm, registration number XXXXXX, into the car park. I stopped my vehicle on the side so my fare can leave; I was not blocking the driveway or obstructing any other users of the car park. Exhibit XX, is a map of my fare journey.
4. Upon driving off, my cars warning lights had appeared and my vehicle wasn’t accelerating. It had some mechanical fault, which meant I couldn’t get out of the car park in time. Exhibit XX, an image of the car warning lights.
5. I deny that by stopping in the area where “stopping is prohibited” I breached the terms and the contract was formed between me and the Claimant.
6. As I experienced sudden problems with the accelerator, I had no other option other than stopping, but to steer my vehicle into the zone where it was safe for me to restart the car and drive off.
7. Since I was focused on trying to move off, I have not had the chance to read the signs that were posted there or even if there were any signs informing motorists that stopping is prohibited. Even, if I had known about this, this would not prevent me from stopping. As it was the evening, lighting was not so good to read signs, with small print. After a short while I managed to drive out of the car park.
8. The terms and conditions specified by the Claimant basically do not mention the circumstances in which you can stop in this area.
9. A PCN was later received via the post from the claimant for an alleged breach of their terms and conditions for a non-payment; I felt confused as to why and challenged it. I called VCS, but they told me to dispute the charge directly through the use of https://www.myparkingcharge.co.uk. I did this immediately after receiving the PCN. However, I did not receive any correspondence regarding my appeal result and decided to call VCS on 30th March 2018. They told me my appeal was rejected as no ticket was purchased on the day in question, and that a breakdown was not exempt from payment. I demanded for a copy of the rejected appeal, to which I was told by the claimant that I should email VCS and they will get back to me.
10.The claimant statement in paragraph 24, mentions if the appeal is rejected then a Representation of Rejection (ROR) should be sent to motorists, by email. However, the Claimants bundle CT2 has a letter dated 22nd February of the rejection but neither were received, hence the need to call VCS by phone on 30th March 2018. I only saw this letter after the 6th April 2018 via email from Excel Parking. Exhibit XX the call record to VCS. I could not use the appeals process to IAS due to VCS not sending me my appeal rejection letter within the time limit, which was too late to appeal.
11.The claimant is alleging that the driver formed a contract with them by reading the terms and conditions on the sign and accepting them by remaining on site (as opposed to rejecting them and leaving). This is called acceptance by performance. However, the defendant could only form a contract with Excel Parking LTD, not the claimant, by virtue of the signs being in the name of Excel. This is further confirmed by the email correspondence by Excel Parking. The claimant is clearly a stranger to any contract and has no legal capacity to issue a claim. Exhibit
12. The defendant refers to the following blog posts (and a significant number of other online sources), which confirm of this matter from other frivolous cases brought by VCS:
a) h t t p : // parking-prankster.blogspot .co .uk/2017/02/vehicle-control-systems-lose-wrong.html
Date of Post 10/02/2017
“Vehicle Control Services lose – “Wrong claimant”
Vehicle Control Services v Ms A C6DP7P37. Birmingham County Court. District Judge Williams
Ms A was in court with VCS regarding an alleged parking incident at Albert Street Car Park, Birmingham. Ms A was not the driver and all the signage at Albert Street suggested Excel were the operator, not VCS. Confused? So was Ms A, and the Judge as all the photo evidence in BW Legal's witness statement seemed to confirm that Excel were the operator.”
b) h t t p : // parking-prankster.blogspot .co .uk/2017/02/vehicle-control-services-discontinue.html
Date of Post 24/02/2017
“Vehicle Control Services discontinue Albert Street claim
Vehicle Control Systems (VCS) have a huge problem with historic parking charges issued at Albert Street, Birmingham, and the problem is that they had no right to issue the charges in the first place.
This is because the signage is all in the name of a different parking company, Excel Parking Services.”
And
“VCS are of course fully aware of this, but this does not stop them from filing claims. They know that most motorists will take fright at the sight of a claim form, and pay up; so VCS play the numbers and file anyway.”
13. The posts above are just two of a number of online entries that demonstrate that VCS are knowingly and actively engaged in a campaign of vexatious litigation for the sole purpose of frightening members of the public into parting with their cash.
14.Therefore the following discontinued / dismissed cases where VCS are erroneously named as the claimant.
Claims Discontinued
VCS v Zozulya - A8QZ6666
VCS v Ms M - 3QZ53955
VCS v Ms O - C8DP9D8C
15. VCS are members of the International Parking Community (IPC). It states in the IPC code of Practice (Appendix 12) the following• (14.1) you must not use predatory or misleading tactics to lure drivers into incurring a parking charge. Such instances will be dealt with as a serious instance of non-compliance and will be dealt with under the sanctions system described in schedule 2 to the code.
16. I have been honest and transparent in admitting to my Human error and to being the driver even though I was not obliged to give out this information; I certainly have not attempted to conceal the fact I was the driver in an attempt to gain any advantage. This honesty and transparency hasn’t been reciprocated or displayed by both Excel parking and Vehicle control services for the following reasons.
17. The entrance and exit signs both have the Excel parking logos so alleged contract is with Excel not VCS. Email received refusing my initial appeal was from excel parking. If the occupant is Excel and the signs are Excel then VCS must as requested provide proof that the deed has been assigned and VCS have legal standing.
18. I had requested a Subject Access Request (SAR) from VCS to provide proof of their contract with the landowner that authorises the issuing of penalty notices. I’ve sought clarification as to whom I entered said contract with as even at this late stage it is ambiguous, unclear and in breach of being a contract because of the lack of transparency. This information has not been received and is in breach of data protection act. I had written twice to VCS regarding the SAR and a reply letter to VCS to the Letter before claim. To which neither I received a response. I wrote a further letter, but there was no response at all. I later emailed VCS, but it was Excel who had replied not VCS. Exhibit XX is letters with proof of posting receipts. Exhibit XX the emails from Excel.
19. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner or Excel parking to issue parking charge notices and to pursue payment by means of litigation as a third party. Despite my SAR, the claimant and Excel have both failed to provide me with most of the information requested, specifically the non redacted copy of the contract for the car park with the land owner.
20. Should the claimant provide evidence to substantiate their claim then the signage at the entrance to the car park and in and around the car park must have been unclear, insufficient and/or confusing to the vehicle driver. Excel parking and Vehicle control services are two different legal entities see Exhibit XX vat details.0 -
21. Sign at the entrance to the Albert Street car park said that Excel Parking Services Ltd managed and controlled that car park, this is a 24 hour Pay Car Park, not pay and display, and it contained a lot of information about the consequences of drivers non-compliance. Clearly, Excel Parking Service Ltd claim to be a landholder of Albert Street car park, not the Claimant, Vehicle Control Services Ltd. The car park is no longer operational and hasn’t been since approximately July 2018 putting the Defendant at a disadvantage to recover further evidence.
22. According to Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011), the key information that needs to be conveyed to the drivers is that it is a pay and display car park, not the consequences of failing to comply.
23. Any contract, in a private car park, can only be formed by signage, and it is therefore clear that if there was any contract, it would have been between Excel and the motorist.
24. According the claimants CT1 bundle with the signs board artwork, there is only one board that mentions VCS, the rest are in the name of Excel. This further proves, the defendant can only enter into a contract with Excel.
25. Terms and Conditions display in Claimants evidence contained information in small font that in case of breaching those terms and conditions, Vehicle Control Services would collect the registered keeper's details data from DVLA.
26. Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011) said that defendant (the driver in that case) had to be able to see the offer so that he can choose whether or not to accept it, and thereby enter in to a contractual relationship. Therefore, 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. It is, therefore, denied that the Claimant's signage at the entry and in and around that site was capable of creating a legally binding contract.
27. Alternatively, even if there was a contract, the provision requiring payment £185 is an unenforceable penalty clause consisting of company costs. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover as it is a cost to the business, therefore, cannot be reclaimed twice.
28. Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.
29. Between
and
2018 I received several letters from the claimant and debt collectors acting on behalf of the claimant, asking for payment to be made, or court proceedings would be issued At no time did the Claimant try to resolve the matter. Exhibit XX copy correspondence received.
30. On 7th February 2019 I received a Copy of a claim form which had been issued by the claimant.
31. The claim appears to be based upon damages for breach of contract. However, it is denied that any contract existed. Accordingly it is denied that I breached any contractual terms, whether express, implied or by conduct.
32. On 18th March 2019 I received a Notice of Recovery from the claimant, that they have been awarded a County Court Judgement (CCJ) against me on 13th March 2019. They gave only 7 days to pay up otherwise they threatened me with bailiff’s removal of goods. The Claimant had sent this letter via 2nd class to mislead me and so I pay up in 2 days rather than the 7 day non- existent deadline. Exhibit SA
33. I telephoned the County Court Business Centre the very same day, and was told there was no CCJ on this claim and that the paperwork was filed in time. The claimant was deliberately trying to mislead me into paying up.
No standing or landowner authority
34. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue parking charge notices under defined and to form/offer contracts in their own name, and to pursue payment by means of litigation.
No legitimate interest or commercial justification
35. It is my case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this witness statement.
36. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.
Unconscionable sum claimed - double recovery - abuse of process
37. Costs on the claim - disproportionate and disingenuous
- CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
38. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
39. On the Debt Recovery Plus (DRP) website, they work on a ‘no collection, no fee basis’. Therefore there was no £60 paid, as the amount was not collected, and is basically an extra add on the original £100. Exhibit XX
40. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.0 -
41. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
42.The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost allegedly incurred by already remunerated administrative staff.
43. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
44. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing (Exhibit XX):
''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
45. The so called contract received in the claimant's witness statement is a poorly written and almost unreadable document between Excel parking and the claimant, it isn't the contract from the landowner giving authority to the claimant to issue a PCN. This has a date of signing Jan 15th 2010 for 60 months so it expired Jan 15th 2015 before alleged contravention. The claimant is not complying with the British Parking Association paragraph 3.6.
Distinguishing cases mentioned by the Claimants Witness Statement.
46. Claimant's witness statement is from a Paralegal, Charlotte Trayers, representing the Claimant, has been employed by the company since July 2019. As the alleged contravention took place in February 2018, none of the statements provided in her witness statement can be of her own knowledge. She is not aware of the alleged offence, the location, the signage or the facts in this case.
47.The Claimant witness statement Paragraph 50 refers to the parking overstay of 30 minutes, when the PCN notice to keeper, it mentions the duration of stay is 29minutes.
.
48. The Claimant wishes to rely on Thornton vs Shoe Lane Parking [1971] 2 QB 163 to attempt to try and prove individuals may enter into contracts with a sign. That case is fully distinguished from this case in question as that relates to a car park with a barrier on entry. The sign is clearly visible to motorists entering the car park and they are able to read the sign and decide whether they want to enter the car park while they take a ticket and wait for the barrier to open. In this case, there is no barrier, and there is a large sign with states “this free car park is provided to rail users only”. The case above has no relevance on this case.
49. In Paragraph 35 of the Claimants witness statement, the Claimant refers to ‘Vine v Waltham Forest’. The Court of Appeal on this case ruled in favour of the Defendant on the basis that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. It would appear that the Claimant is attempting to wrongfully persuade the court by mis-quoting Roch L.J. The full quote is this;
“the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method landowners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.”
50. As you can see, Lord Justice Roch was simply reading one side of the argument. Roch L.J. found in favour of the motorist in this case. Therefore, this case can be immediately dismissed as it has no bearing on this case in question.
51. Paragraph 36 states the Claimant is intending to rely on the ParkingEye v Beavis case. This case can be fully distinguished from my case due to the following facts;
a. There was no contractual offer made giving a licence to park nor any promise made, or contract agreed based on any prominent signs or properly marked lines.
b. There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages.
c. The Beavis case was a free car park.
52. Further and in the alternative, 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 Department for Transport "Know Your Traffic Signs" publication states that "drivers may stop to pick up or set down passengers" where waiting restrictions are in force, yet the Claimant avers that the Defendant is in breach of the advertised terms and conditions; namely stopping in a zone where stopping is prohibited - this is not the case, I didn’t see any signs displaying "No Waiting" symbols. In addition, there are no markings on the carriageway to indicate that restrictions are in force, eg. yellow or red lines.
53. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, 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. There has been no "grace period" applied to allow the Defendant to read the Claimant's signage. For these reasons, the case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, should not have a bearing in this instance. This is because with respect to VCS v Ward, HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represented an offer of a contractual licence, which was accepted when the user drove onto the private land. In this instance, the text is too small to alert the user to the fact that they are entering private land, and is therefore, not capable of creating a legally binding contract.
54.The defendant can only rely on an image from Google maps of the entrance sign that was in the name of Excel, and does not mention anything regarding the stopping of vehicles. From the exhibit XX, you can see the sign is behind a gate and driving, around 5pm in the evening, meant visibility will be less, and the driver would have to stop to read the sign. Which from the claimants bundle CT1 of entrance sign, it doesn’t mention any terms or conditions, and rather they are inside the car park, which have to be read by getting outside of the car. The driver cannot agree to a contract that has the terms inside the car park.
55.The CT2 of the claimants bundle shows the ANPR images of the vehicle in transit, the visibitly of the images is poor as it was evening you can only just make out the VRN, and headlights of the car. This only proves further as it would have been difficult to see signage in poor lighting, whilst driving.
56. CT1 of the claimants signs with the terms and conditions name VCS in small print is unreadable and can only form a contract by getting out of the vehicle and reading them, which would mean you have to stop. The defendant didn’t have any time to read any terms as I was trying to sort out the mechanical fault and wanted to move my car out of the car park.
57.The claimant CT1 bundle has shown pictures of the car park, with signs. However, these are images of the car park time stamped 14th February 2017, 1.38pm. These images are taken one year before the alleged contravention; they do not represent the car park around the time of the alleged contravention. They are not a true representation of the car park at the time, as it was around 5pm, which meant the lighting was not the same.
58. In Jopson v Homeguard Services Ltd 9GF0A9E (Exhibit XX) his Honour Judge Harris QC found that “The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time. The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant collecting an item for sale. Any other approach would leave life in the block of flats close to unworkable.”
59.The claimant at Paragraph 52 cites Vehicle Control Services Limited V Alfred Charles Crutchley (2107), which can be dismissed as it was a case based on “stopping on a roadway where stopping is prohibited” in a private business park. There is no relevance to this case, where the driver had the authority to enter the car park.
60. In the Claimants bundle CT1 the site map does not mention any ‘no stopping’, or ‘no waiting signs’. There is no mention in the claimants evidence of any ‘no stopping’ sign that was breached.
61. The claimant is intending to rely on Chaplair v Kumari to attempt to justify an unknown £60 “debt recovery charge”. This case is distinguished from the case above by the following facts; the Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms, whereas parking charges are capped by the POFA/the will of Parliament at the sum on any Notice to Keeper, and not higher, and the Beavis case confirmed this by only allowing £85 and no bolt on 'damages' or imaginary debt collector costs.
62. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.
63. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
64. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.
65. I invite the Court to dismiss this Claim in its entirety, and to award my costs of attendance at the hearing, permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Witness Statement are true.0 -
An expansion on Le-Kirk's post re Lay Rep - the following is quoted from a recent post by C-M:-
"None in advance, as long as the D appears with you, too, and understands that they will not be allowed to speak. This was the same for StubbornGoat as I represented him yesterday, and we just handed the Usher a copy of the Lay Reps (Rights of Audience) Order 1999 and asked the Usher to please tell the Judge that I would be the lay rep for the case we were signing in for:
http://www.legislation.gov.uk/uksi/1999/1225/made0 -
Thanks for that La_Kirk and 1505grandad.
So I just print from that link and hand it in to the usher, on the day. The Defendant will be with me on the day.0 -
Aren't paras 64 and 65 saying the same thing?0
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Oh yes, i forgot to delete that one, will take one out. Thnx KeithP0
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This is called acceptance by performance. However, the defendant could only form a contract with Excel Parking LTD, not the claimant,
And in your points about claims being struck out due to the added fake costs that cannot be recovered in addition to the parking charge, you need the words that include the recent VCS case in Carenarfon! Search the forum for that word and include the Judge's order as an exhibit.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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