Vcs letter before claim...mistake of calling VCS when receiving NTK...Help!

nosferatu1001

To be fair its literally Southpaws day job, and it CAN make it a lot easier to read a document when it gets complicated, as you have a set of facts (WS) and then arguments (skellie)

Suggii

can anyone advise on how to distinguish between Davies Contractors v Fareham, Frustation of contract, im struggling to find anything on here via the search tool.

Coupon-mad

nosferatu1001 wrote: »

To be fair its literally Southpaws day job, and it CAN make it a lot easier to read a document when it gets complicated, as you have a set of facts (WS) and then arguments (skellie)

I know, he is more knowledgeable than me (and legally qualified) but I tend to go with what works for litigants in person day in day out, so that no-one gets overwhelmed.

And a skelly isn't mandatory anyway as we know.

Despite three people today reporting that they forgot to do any WS, I think it's easier to just tell posters to do one document, with evidence, in one file, with their costs schedule.

That's enough info for anyone.

Suggii

Would nicholls & knight v ashton be worth citing for the frustration argument? As a breakdown made it difficult to leave the car park in time.

VCS on the other hand are using davies contractors v Fareham, arguing that payment should have been made or called the helpline on the signs, believing the a breakdown did not stop the driver paying for time in car park.

I'm having trouble trying to fight this point.

Suggii

just added few more bits and rearranged some points. would be great if anyone can give critique. also if the whole thing flows.

“in the XXXXXXXX Court at
Claim No. XXXXXXXX
Between
XXXXXXXX (Claimant)
and
XXXXXXXX(Defendant)

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Witness Statement

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1. I am,XXXXXX ofXXXXXXXXXX, 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.
2. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise. Attached to this statement is a paginated bundle of documents marked XX 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.
4. I am a private hire taxi driver, in partnership with Uber. Exhibit XX, is my letter of partnership with Uber.

5. 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.

6. 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.
7. 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.

8. 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.

9. 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.

10. The terms and conditions specified by the Claimant basically do not mention the circumstances in which you can stop in this area.

11. 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.
12.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 2018 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.

13.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 Limited (LTD), not the claimant, by virtue of the signs being in the name of Excel. According to Companies House website, Excel Parking Services Limited company number is 02878122, whereas V.C.S Car Park Management Limited company number is 02638134. This only proves that both are different legal entities. Exhibit XX companies house website. It is further confirmed by the email correspondence by Excel Parking that the claimant is clearly a stranger to any contract and has no legal capacity to issue a claim. Exhibit

14. 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.

15. 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.”

16. 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.

17. 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

18. VCS are members of the International Parking Community (IPC). It states in the IPC code of Practice (Exhibit XX) 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.


19. 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.


20. 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.


21. 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.

No standing or landowner authority
22. 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.


23. Sign at the entrance to the Albert Street car park said that Excel Parking Services Ltd managed and controlled the 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.

24. 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.

Suggii

25. 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.
26. 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.

27. 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.


28. 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.

29. 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.

30. Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.


31. Between

---

and

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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.

32. On 7th February 2019 I received a Copy of a claim form which had been issued by the claimant.

33. 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.

34. 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

35. 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 legitimate interest or commercial justification

36. 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.

37. 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
38. 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.

39. 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.
40. 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

41. 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.

42. 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.

43.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.

44. 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.

45. 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...''
46.That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.'' Exhibit XX


47. 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.
48. 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.
49.This is further proved in the claimants witness statement Paragraph 50, which refers to the parking overstay of 30 minutes, when the PCN notice to keeper, it mentions the duration of stay is 29minutes. Exhibit XX
.
50. The Claimant wishes to rely on Thornton v 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 the this case, there is no barrier. The case above has no relevance on this case.


51. In Paragraph 35 of the Claimants witness statement, the Claimant cites ‘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.”

Suggii

52. 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.

53. 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.

54. Reason for stopping should be considered. In case “Jopson vs. Homeguard Services Ltd” (9GF0A9E), the Defendant stopped for a few minutes to unload some furniture and a desk outside the entrance to the building containing her flat and was issued a parking ticket. In his verdict/statement Judge Harris QC, made the following statement:

“20. […] However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required”. 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. Merely to stop a vehicle cannot be to park it’ otherwise traffic jams would consist of lines of parked cars. “

55. Based on the above statement, I consider the issues I have encountered with my vehicle as minor vicissitude
56. The Claimant Is relying upon VCS v Ward case. That case can be fully distinguished and is far from persuasive when scrutinised:

a) At appeal, the Defendant did not appear at the court and the case ran against the interest of the victim consumer

b) In VCS v Ward case, the Defendant failed to adduce relevant cases such as Jopson that already existed. In this case the matters regarding ‘stopping’ as opposed to parking and agreeing a contract, were more thoroughly considered. This case is persuasive and could have helped the Defendant provide winning argument.

57. 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, where my vehicle was, there are no markings on the carriageway to indicate that restrictions are in force, eg. yellow or red lines.

58. The terms and conditions 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.
59. 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.
60. The defendant can only rely on an images from Google Street View 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, although it is a picture in daylight, you can see the sign is behind a gate. However, driving in February, 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, while entering the car park without reading the terms and conditions which were inside the car park.
61. Signage in the Parking Eye V Beavis case were unusually clear and not a typical example for this notorious industry. In the Beavis case, the £85 charge itself was the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. Exhibit XX is the 'Beavis case' sign as a comparison to the signs under dispute from Google Street View Exhibit XX.
62. Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.
63.The £100 penalty charge is of a small font and obscured with writing around it, it is not clear like the Beavis sign.

64. It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.
65.The CT2 of the claimants bundle shows the ANPR images of the vehicle in transit, the visibility of the images is poor as it was 5pm in the 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.
66. 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.
67.The claimant CT1 bundle has shown pictures of the car park, with signs. However, these are images of the car park are 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.
68.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.
69. 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.
70. In regards to paragraph 47 the defendant refutes the matter that “A breach caused by unforeseen circumstances, certainly a breach that is not caused by the conduct or another is no defence” as this goes against directly against contract law and “frustration of contract”.
71.Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.
72. The claimant further relies on Davis contractors v Fareham, this was merely determined that in a particular case (shortage of skilled labour) the contract was still performable, and thus wasn't frustrated. It didn't attack the general principle of frustration: "The contract was not frustrated. The fact that a contract becomes more difficult to perform or not so profitable is not sufficient to amount to frustration. It was still possible to perform the contract."

73. However, in my case it wasn't possible to move the vehicle in time due to the breakdown, and thus the contract wasn't performable. If there was a contract, which is denied, it would have been to move the vehicle within the 10 minute grace period. This was not possible and thus the contract was frustrated.

74. However, the claimant cannot claim, that the contract was still possible to perform, by paying for more time means forming a NEW contract, as that is out with the concept of frustration and outside of what the Davies Contractors V Fareham case reveals.

75. 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.


76. 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.

77. 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.

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

Umkomaas

I've not read the detailed content, I don't have the luxury of time, nor attention span, to wade through almost 6,000 words that will, when presented, consume around 15 pages of A4.

But I'd ask yourself the question, will presenting all this verbiage to a very busy Judge who has probably allocated no more than a few minutes of court time to deal with a claim for ~ £200, help or hinder your case? Is it proportional?

Throwing the kitchen sink, with (what seems to my untrained legal eye) any and every court case under the sun with a loose link to a parking event, is, in my view, an overkill.

Does your husband have a full understanding of each of the cases he is referring to, such that should the Judge ask him to articulate the nuances of any of the cases and how it impacts his particular case, he will be comfortable in doing so? If it's being argued on paper, can it be argued orally in support?

In my view a WS should be a first-hand account of the incident with very relevant and apposite evidence with which the Claimant is comfortable to present in court, with a full control of their brief.

Others might have different views/add comments, so wait to see if there's any further posts, but do not miss the court deadline for your WS in waiting. The forum is extremely busy.

Suggii

Umkomaas, I can see what you mean.
Most of the cases are distinguishing the cases the claimant is relying on.

I'm really confused now and dont have much time on my side as I wanted to hand it in on friday to court as my husband wont be free next week at all. And of course will miss the 14 day deadline if handed nxt week.

If anyone can advise please as how to condense or what to omit would be of great assistance.

Regards

Coupon-mad

I know I rarely suggest it, and didn't earlier on this thread(!) but as this is so long maybe it does need splitting into two documents:

1. The witness statement (no case law) which tells the story of what happened, and also demolishes their witness statement and points out about the Excel signs and the Zozulya case, etc. to show there was no contract with VCS or that it was ambiguous/confusing at best, such that you could not have known about any contract with VCS.

2. A skeleton argument with all the case law. A Skelly is not mandatory but it can assist you and the court to see everything set out clearly, and at least the Judge can then read the Witness Statement and understand the story of what happened, without having to also plough through case law.

Then at the hearing, you can draw the Judge's attention to your case law by pointing to certain exhibits you filed & served with the skelly.

Sorry to go back on what I said but in this case you have soooo much to say, I now say, split it after all!

Don't forget a contents page to make the file clear, numbered pages, and a costs schedule.