URGENT fighting County Court Claim for PCN

Le_Kirk

Nice one! A great result.

adambuzz14

Awsome news... Sorry i couldn't just send you my WS over when you asked, i was away at the time, although i think as someone may have pointed out, it should have been in a post on here somewhere...

Have you got your own thread on here so i can read your story?

And thanks, i'll have a pint of John Smiths... :beer:

Coupon-mad

If you had a red card 'myparking charge' ('this is not a PCN') on your windscreen, I've now seen comms from VCS in another case, that shows that the practice has been discontinued.

Anyone fancy doing an FOI to the DVLA to find out if they banned it and what the comms or minutes of meeting discussions were about it?

Any actual ban would not be retrospective but would be useful evidence to smear the practice, when explaining to a Judge why it's not only dodgy but against the KADOE DVLA rules now, and breaches the POFA and the Consumer Rights Act 2015 re transparency of terms and open dealing with the public.

AllCingEye

Hi Coupon-mad

I'm interested here in what you say about VCS comms stating that their practice of the red 'my parking charge' card being discontinued.I'm in Court tomorrow with VCS for exactly that. If there's anything I can use when questioning their WS I'd be very grateful

Umkomaas

There is a final chapter to this case in the shape of a transcript of the judgment, which rather oddly was posted on another poster's thread. So for conclusion here it is:

Case No: E1QZ7X7C


IN THE COUNTY COURT AT DERBY

Derby Combined Court Centre Morledge Derby DE1 2XE

BEFORE:

DEPUTY DISTRICT JUDGE GRIFFITHS

BETWEEN: VEHICLE CONTROL SERVICES CLAIMANT
- and -
ADAM BURZYNSKI DEFENDANT

Legal Representation Mr McFarlan (Counsel) on behalf of the Claimant Mr Adam Burzynski (Defendant), Litigant in person

Other Parties Present and their status None known







Judgment

Judgment date: 31 May 2019 Transcribed from 13:23:44 until 13:45:48

Reporting Restrictions Applied: No

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.”

“This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.”

Number of folios in transcript 36 Number of words in transcript 2,532

Page 2 of 5

Deputy District Judge Griffiths:

1. This is a claim brought by Vehicle Control Services Limited against Mr Adam Burzynski concerning a claim for recovery of parking charges arising out of the parking of a vehicle owned by Mr Burzynski on 10 December 2017 at a location known at Woolpack Lane parking spaces, which is, I am told, located within the Lace Market in Nottingham.

2. I have heard submissions on the part of the Claimant presented by Mr McFarlan, and I have heard evidence and submissions from the Defendant, Mr Burzynski. I have also read a lengthy witness statement put forward on behalf of the Claimant by a person called Kangheri Hock, a paralegal employed directly by the Claimant which sets out the details of the Claimant’s processes and exhibits documents relating to those processes and also exhibits documents which are individually relevant to this particular event.

3. The vehicle in question was a Ford Fiesta, and it was alleged to have been unlawfully parked, or parked in contravention of the site regulations, at 20.31 hours, so half past 8 in the evening on 10 December 2017. The car park in question is a permit holder only car park. Permit holders are only permitted to park on displaying a valid permit at any particular time and it is alleged by the Claimant that the Defendant’s vehicle was parked without displaying a valid permit. The sum claimed is £160.

4. The Claimant’s evidence relating to this particular event shows that at the time of this occurrence one of the Claimant’s patrol officers issued a document which was wrapped up in a polythene bag and placed under the windscreen wiper of the vehicle, a document which said:

“Attention, document enclosed. This is not a parking charge notice but warns that a parking charge may be payable.”

5. It says:

“The car park operator has reason to believe that this vehicle is parked in contravention of the advertised terms and conditions. As a result a parking charge notice may be issued to the registered keeper through the post. You may view details of the recorded contravention and take the appropriate action by visiting the website address below.”

And directions were then given to a website.

6. Eight days later a document was sent to Mr Burzynski in his capacity as the registered keeper of the vehicle, a document which appears at page 40 of the Claimant’s bundle. The document was headed:

“Parking charge notice and notice to keeper.”

And therein was set out a summary of the alleged contravention and a warning that unless the sum of £100 was paid within 28 days then court action would follow. Alternatively, if Mr Burzynski were to allege that he was not the driver of the vehicle then he had to notify the Claimant of the full name of the driver and a current address
Page 3 of 5

for service within the same 28 day period. And if he failed to do that and failed to pay the parking charge then he would render himself liable for the charge. The amount of charge stated in that notice is £100.

7. Mr Burzynski challenges the Claimant’s claim on a number of grounds. He made some very lengthy submissions about the Claimant’s alleged failure to follow the correct process under the Protection of Freedoms Act 2012. In particular, he submits that the notice which was applied to the windscreen of the vehicle amounted, in effect, to a notice to the driver for the purposes of the Act because it refers to the Claimant’s website which itself sets out in the circumstances of the alleged infringement.

8. Mr Butzynski submits that the notice had all the hallmarks and requirements of a notice to driver as required by paragraph 7 of Schedule 4 of the Act, namely it must specify the vehicle, the land on which it was parked and the period of parking. It must specify the parking charges and explain why they are payable and must specify a period within which payment must be made. This information was available from the on-line link referred to in the notice. Under the provisions of paragraph 8(5) of schedule 4, the notice to keeper should not be issued by the car park operator for at least 28 days from the day after the date of service of the notice to driver. In this case, the issue date was only 8 days, the notice being issued on 18 December in relation to the contravention date on 10 December. Paragraph 4 of schedule 4 provides that a creditor can only recover unpaid parking charges if the conditions specified in paragraphs 5, 6, 11 and 12 are met. In this context the Defendant asserts that paragraph 6 has not been met because that paragraph requires that a notice to driver must have been given under paragraph 7 followed by a notice to keeper under paragraph 8. And Mr Burzynski asserts and submits that the notice to him as the keeper of the vehicle was therefore invalid and not in accordance with the provisions of paragraphs 4, 6 and 8.

9. He further submits that the signage in the car park was inadequate and not sufficiently prominent as to be reasonably noticeable by a user of the car park. The significance of the signage in general terms in this type of case is important because the fundamental basis of the car park operator’s claim is based upon a contract alleged to have come into being between the person parking and the car park operator, the terms of which are set out in notices displayed at the car park which are deemed to have come to the notice of the user of the car park.

10. But of course in order for those notices to be effective in conveying the terms and conditions of the car parking contract, the notices must be reasonably apparent to anybody using the car park. In this case Mr Burzynski submits that they were not. The Claimant produces as evidence of the signage a site plan which shows three warning signs on the rear wall of the car park, together with a number of photographs of those signs. Just pausing there, there is an internal discrepancy in the Claimant’s evidence on this point because the site plan at page 28 of the Claimant’s bundle shows the warning signs in different locations to the photographs.

11. The warning sign on the far right hand side of the site plan is not borne out by the photographs. There is no sign at that location, although there is one not far from there on the back wall of the car park as shown on pages 32 and 33 of the Claimant’s bundle. Going back to the site plan, the warning sign alleged to be exhibited on the far left of the rear wall again is not borne out by the photographs. There is one quite close to it but not in the same place, also on the back wall. The photographs themselves are dated February ‘14 and others in December ‘14 and Mr Burzynski submits that this cannot
Page 4 of 5

be conclusive evidence of the position of signage as at the date of this incident in December 2017.

12. He says that there was no lighting at the car park and bearing in mind that this incident occurred during the hours of darkness in December at about half past 8 in the evening, lighting would have been required to see these notices. He himself has produced photographs taken at night, albeit in October, but at a similar time of day and under the hours of darkness, which indeed show the car park as quite a dark place with no independent lighting. And he submits that the lack of clear signage, and in particular the failure to exhibit signage at the entrance to the car park not only breaches the Claimant’s own code of practice but also means that any user of the car park cannot reasonably be expected to see the signs.

13. The signs themselves are relatively small. I accept Mr Burzynski’s submission that they are somewhere between an A4 and an A3 size judging by the photographs which have been produced. All the signs on the photographs appear to be above head height. They are all on the back wall and in the context of this incident it is significant that the Defendant’s Ford Fiesta appears to have been parked at the front of the car park some distance away from the rear wall. In my estimate, doing the best I can, I would say the car was at least four or five car lengths away from the back wall, which was the location of the nearest sign.

14. Just pausing there, I have come to the conclusion that the Claimant’s claim fails on the question of signage. I am not at all satisfied that there was sufficient signage in this car park for any reasonable user of the car park to have seen the signage at the time and date in question, under the hours of darkness. I paid particular attention to the fact that there was no signage at all at the entrance. All the signage was at the rear of the car park so anybody coming into the car park and turning left and parking at the front of the car park would stand very little chance of actually seeing the warning signs, all of which were stuck at the back of the car park in shadow at this particular time.

15. They were above head height which made them all the more difficult to spot, especially from a vehicle, and were rather small in dimension. Mr Burzynski himself drew attention to the fact that the walls upon which these notices were posted are walls of buildings which have in part previously been demolished or in respect of which there are exposed openings, window openings, some of which have been boarded up, there are air vents and so forth, all of which give a patchwork quilt appearance to that back wall.

16. It is unfortunate that the three signs in question are of very similar dimensions to the blocked up windows which also are at a similar height to those signs, and even looking at the photographs one has to study them quite intently to realise that amongst that patchwork quilt of oblong and square shapes on that rear wall there are some warning signs, and that is when one is aware that there are warning signs supposedly present. When I was looking at these photographs originally, I had to look quite intently to see the warning signs. Further, one cannot be sure of the locations of the signs as at 10 December 2017 due to the contradictions between the Claimant’s site plan and photographs.

17. So, I am satisfied that there was a total inadequacy of warning signs in this car park. On that ground alone I find in favour of Mr Burzynski.

Page 5 of 5

18. However, I am also minded to uphold his submission in relation to the points that he raises about the significance of the document that was attached to the windscreen of the car in question. I think on balance I am persuaded that it was a notice to driver for the purposes of the Act because it was part and parcel of a process linked to the Claimant’s website which enabled the recipient of such a notice to be given full details of the alleged contravention in accordance with paragraph 7 of schedule 4.

19. This to my mind has all the hallmarks of a notice to driver. The effect of that is that the notice to keeper, which was subsequently issued eight days later, would have been invalid because it breached the provisions of paragraphs 6 and 8 of schedule 4 which requires that a notice to keeper cannot be issued until 28 days have elapsed from the date of the notice to driver. In my judgment, the fact that the Claimant’s document that was appended to the vehicle states that it is not a parking charge notice makes no difference in this regard. It has all the hallmarks of a notice to driver and indeed that, in reality, is what it was.

20. It was a notice given to the driver of the vehicle which contained or referred to all the details required of a notice to driver for the purposes of the Act, and I think merely stating that it is not intended to be such a notice has no legal effect. There were other challenges to the process by Mr Burzynski. He challenged the fact that the sum now claimed by the Claimant of £160 is excessive because the provisions of paragraph 8.2C and D coupled with 8.2F mean that the sum claimed by the Claimant has to be limited to the charge set out in the notice to keeper, which was £100. But in view of the fact that I have dismissed the claim for other reasons, that point becomes rather academic.

21. In Summary,

(a) The Claim is dismissed on the grounds that the Claimant’s signage was wholly inadequate no contract was formed between the parties on the basis of that signage.

(b) Although not necessary to decide the case, I uphold the Defendant’s submission that the Claimant failed to comply with the provisions of Schedule 4 of the Protection of Freedoms Act 2012 concerning the Notice to Driver and Notice to Keeper.


This Transcript has been approved by the Judge.

The Transcription Agency hereby certifies that the above is an accurate and complete recording of the proceedings or part thereof.

The Transcription Agency, 24-28 High Street, Hythe, Kent, CT21 5AT Tel: 01303 230038 Email: court@thetranscriptionagency.com

Well done Adam! :T

Coupon-mad

That is really useful!

Wonder if a link to an actual scan of that original judgment transcript can be provided by the OP here on this thread please, so in future, posters don't get told this is just hearsay on a forum?

Love how thorough this Judge has been, re signs and the POFA:

16. It is unfortunate that the three signs in question are of very similar dimensions to the blocked up windows which also are at a similar height to those signs, and even looking at the photographs one has to study them quite intently to realise that amongst that patchwork quilt of oblong and square shapes on that rear wall there are some warning signs, and that is when one is aware that there are warning signs supposedly present. When I was looking at these photographs originally, I had to look quite intently to see the warning signs.

Really good to have a judgment transcript debunking the red card VCS used.