URGENT fighting County Court Claim for PCN

Coupon-mad

Yes you just state what you just said!

Apparently at least one Judge has held recently that the 'not a PCN' red card clearly IS a 'notice to driver' never mind what the PPC or IPC or DVLA say about it.

They don't care and will argue the moon is made of cheese. You can still argue it is not!

You can be confident that a Judge will listen to your POV and make his/her own mind up.

Here is your link for others to look at in the morning I hope:

https://www.dropbox.com/s/bzsqj4c44swez13/WS%20personal%20details%20removed.pdf?dl=0

I looked at it just now.

It's almost all the same as all the other VCS ones you care to read (please do - it helps you and us!).

I noticed that the contract started in April 2017 but all they have as evidence of the 'contractual terms' are some unreadable images of an illegible sign that was in a wall there in 2014 (three years before the contract...)?!

And the images show there was no entrance sign at all next to the dragon picture which is the only prominent thing on that wall!

And loads of their own images show entire corner areas of bays/walls with NO signs at all.

And I can see the PCN says the contravention was in December at 8.30pm at night - and it would have been PITCH BLACK then. The car park has no lighting by the looks of it.

Have they shown any evidence of how the signs might have looked in the dark in 2017? NO! Only one, picked out with a camera flash pointed directly at it! No lighting.

Nice!

The 28 day period is wrongly stated at the bottom of that PCN (please just see other VCS threads or look at the POFA yourself to play 'spot the difference' in the stated 28 day period, as we are a tiny bit bored by now, of repeatedly pointing out how this doesn't match 9(2)f of the POFA...). This only matters if you never said who was driving.

Meanwhile here is a summary of what I spotted earlier this month about a very similar WS! Look at the wording - carbon copy WS are used:

https://forums.moneysavingexpert.com/discussion/comment/75657555#Comment_75657555

adambuzz14

Cheers for your reply coupon-mad.

yeah, the points you've covered are pretty much exactly what i have bullet pointed yesterday to go in my WS. When their WS came yesterday, i sat and read every VCS WS i could, and i totally agree, they are clearly using the same template with just the defendants defence changed to suit, and even then, they are still using a lot of cut and pasting.

I actually have my own images of the car park at night, so signage is the main part of my argument.

One last question before i draft my WS, do i address points raised in their WS, or should my WS just be my version of events rather than a come back to theirs? I feel there are points i need to cover or disprove from what they have submitted, but i don't know whether i should reference points from their WS into my WS like they have done with my defence?

Thanks Again

adambuzz14

Coupon-mad wrote: »

Yes you just state what you just said!

The 28 day period is wrongly stated at the bottom of that PCN (please just see other VCS threads or look at the POFA yourself to play 'spot the difference' in the stated 28 day period, as we are a tiny bit bored by now, of repeatedly pointing out how this doesn't match 9(2)f of the POFA...). This only matters if you never said who was driving.

NTK = 28 days beginning with the day after the issue date of this notice
POFA = 28 days beginning with the day after that on which the notice is given

is that the difference? day after issue date vs day after that on which the notice is given? Does a judge really discredit the whole NTK based on that difference or is there arsey ones that see it as implying the same thing?

Coupon-mad

adambuzz14 wrote: »

NTK = 28 days beginning with the day after the issue date of this notice
POFA = 28 days beginning with the day after that on which the notice is given

is that the difference?

Yes!

day after issue date vs day after that on which the notice is given? Does a judge really discredit the whole NTK based on that difference or is there arsey ones that see it as implying the same thing?

Both - depends on the Judge. But the POFA is statute law and the wording and deadlines are set in stone, and VCS' version misstates the date for keeper liability, misleading the recipient.

Read Henry Greenslade's words in the POPLA Annual Report 2015 about 'UNDERSTANDING KEEPER LIABILITY' and adduce them in evidence too. He says that the keeper has no obligation to name the driver and that a parking firm can NEVER presume a keeper was the driver, and that if the POFA is not followed then liability does not pass to the keeper.

He is a barrister and THE parking law expert, having been Lead Adjudicator with POPLA (private land appeals) and PATAS (Council PCNs) so he knows about statute law and contract law as they relate to parking in E&W, from every lawful aspect.

One last question before i draft my WS, do i address points raised in their WS, or should my WS just be my version of events rather than a come back to theirs?

I urge you to seize the chance to address the flaws in their WS and evidence too.

adambuzz14

Why would they want to reference a case that points out "Litigants in person are not a special category and should not be treated as such in relation to the application of the Civil Procedure Rules"

Coupon-mad

To try to frighten Defendants, if the Defendant has missed a deadline for their WS, or trod on a crack in the pavement.

It's all about frighteners, to make you think you are hugely exposed for costs (you are not).

adambuzz14

I'm trying to post my witness statement, but its over 13,000 characters over the allowed limit. is there anyway around this?

Redx

split it over more than one post, yes its that simple

adambuzz14

Redx wrote: »

split it over more than one post, yes its that simple

ha ha, yes, i missed the obvious
:rotfl:

adambuzz14

In the County Court at ***

Claim No: ***

Between

VEHICLE CONTROL SERVICES LIMITED (Claimant)

and

***(Defendant)


WITNESS STATEMENT



I, ***, of ***, will say as follows:

Introduction
1 - I am the Defendant in this matter and the registered keeper of the vehicle in question, a Silver *** reg ***. I will be defending this claim as keeper of the vehicle only. Myself and my partner have access and are insured on this vehicle, and I have let close friends drive third party on their own insurance. (insurance certificate included in evidence bundle)

2 - The contents of this witness statement are based on my own experiences and matters witnessed, and within my knowledge, all true.

3 - Along with this statement is a bundle of documents to which I will refer.
This Witness statement is prepared for the hearing at *** court, *** May 2019 in support of my own defence against the claimant.

Background
4 - *** 2017 - A ‘This is not a Parking Charge Notice’ card was attached to the windscreen of a *** *** which I am the registered keeper, at *** Parking Spaces, ***

5 - *** 2017 - VCS limited sent a Parking Charge Notice / Notice to keeper Letter addressed to myself as the registered Keeper.

6 - *** - I replied to VCS Limited’s letter asking for details of location and evidence of contravention and to give me proof that I was driving the vehicle and liable for their invoice

7 - *** 2018 - Letter from Debt recovery Plus asking I pay £160 or they would recommend court action

8 - *** 2018 Second letter from Debt Recovery Plus still asking for £160 or they would recommend court action.

9 - *** 2018 – Third Letter from Debt Recovery Plus with a settlement of £136 stating if I didn’t pay, they would recommend court action.

10 - *** 2018 – Letter from Zenith Collections (DRP posing as somebody else) offering a reduced settlement of £79.99 to avoid court action.

11- ***r 2018 – County Court Claim form arrived.

Points of contention

Signage
12 - Having been to the site following the start of court proceedings, the first thing that is evident to anybody is the lack of clear signage. The *** parking spaces, consists of 25 parking spaces and only 3 warning signs, around 6-foot-high, none of which are at the entrance. This leaves plenty of areas and ‘corners’ where signage cannot be seen at all. This is evidenced in the Claimants own evidence and the plan they submitted.

13 - The parking spaces have absolutely no lighting, so whilst the claimant has included ‘library’ images from 2014 of the signage in broad daylight, this is a very different story at 20.30 during December.

14 - My own submitted photos were taken at 22.00 during October, one of which is facing the entrance of the parking spaces, as a driver would be, with headlights on, and even then, you can see that the signage isn’t obvious.

15 - I include other photos to show the general appearance and view of the car park, giving an idea of the same view the driver would have had when leaving the car at the time of the alleged contravention.

16 - As you can see, the general state of the parking area is quite run down, with graffiti on walls, boarded up windows and repaired fencing. Basically, lots of little objects of similar shape and size on and around the walls.

17 - Not until you know that the signage exists, and you get right underneath it, is it even readable. This isn’t just down to the lighting, but also the size of the signage being around the size of a piece of A4 paper. Even in VCS’ evidence, the parking attendant has had to get right in front of the sign, utilising their flash to get a photo of it.

18 - The claimant claims this signage is audited and approved by the IPC, yet have provided no evidence to support this? Can the Claimant provide evidence of the most recent signage audit? On top of this, whilst the IPC give signage guidelines, this is unregulated with no mention in their code of practice of signage auditing.

19 - The claimant is relying on the signage at the site to establish a contract with the driver. In order to create a contract, the signage must comply with, amongst other things, IPC Code of Practice (to which the claimant is signed).

20 - On the day of the alleged contravention the signage at the site fell woefully short of the standards required in:
PART B - 2. Signs -2.2; “Signs must conform to the requirements as set out in a schedule 1 to the Code.”

21 - Part E Schedule 1 – Signage.
I won’t go through the whole section, as the code of practice is included, but Points of note here are; “Signs should, where practicable, be placed at the entrance to a site”. In this case there is no signage at the entrance. Can the Claimant confirm they have written agreement from the IPC that they did not require entrance signage or that it could be omitted?

22- IPC also cover text size “The size of text on a sign will be determined by a number of factors such as the position of it and whom it is aimed and the information it needs to convey”. So, in this case, if they chose not to have entrance signage, then the signage on the back wall (which is the only signage) would need to be sized adequately that a driver entering from the road would be able to see, read and agree to this. And in this car parking area, this clearly isn’t the case.

23 – IPC code of practice also states that the signage MUST “Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA;” Looking at the copies of the signage the claimant has supplied, whilst they do state they may request details of the vehicle’s Registered Keeper from the DVLA, the fail to include the time period of 28 days, which is not only against IPC Code of practice but also against POFA regulations .

24- All the signage is on the back wall, so if the driver had missed it on entry, (as is likely at night in an unlit car park as illustrated in my photo), there would be no guarantee the driver would see it when leaving the parked vehicle. From the evidence supplied to myself, my vehicle was in on the complete opposite side of the car park to any signage.

25 - For reference between my own photos and the claimant’s photos, my vehicle would have been in the space containing the road cone.


26 - The claimant notes and points out in his photos that that my vehicle was parked with a sign directly behind it. As stated above, this sign is around the size of a piece of A4 paper and is on the opposite side of the car park. And whilst with the benefit of hindsight and referencing the stock images the claimant has provided from 2014, this can be identified as a private parking sign, I think its pretty clear from the claimants own photo, that nobody could realistically identify that this postage stamp sized object in a photo, is a sign, or a poster, or one of the many delightful pieces of graffiti or repairs scattered around the areas walls.

27 - The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and accessible, thus the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

28 - VCS are citing Thornton v Shoe Lane in the context that the contract is formed at the point of entry to the car park. The car park in the Shoe Lane case is a barrier car park with an entry lane and with a sign which would be quite visible on entry. In the Shoe Lane case Thornton would also have to stop at the barrier to take a ticket, which stated that the terms and conditions were clearly stated on sign in the car park. The motorist, in this case was claiming injury in the car park, so this case really can’t be used in compassion due to significant differences.

29 - The Claimant also references Vine V Waltham Forest, but does the claimant realise that this case was won by Ms Vine at appeal? I feel if anything, Ms Vines case strengthens my case more than harms it. Whilst this case was centred on the act of clamping a vehicle, and whether by reading the signs, the owner consented to her car being clamped, the judge at retrial felt that although Ms Vine had seen the signage, he concluded that just seeing a sign didn’t necessarily give her the opportunity to read and understand the sign. In my case, I am claiming the signage at *** Parking Spaces is so poor, no driver can see, read or understand the signage and enter into a contract.

30 - Beavis signage is distinguished in this case. In the Beavis case, judgment found that signage was sufficient way to form a contract, and there could be no doubt of the £85 charge. But that is isn’t the debate here. Whilst in the Beavis case, the signage was unusually clear for a PPC, so Mr Beavis could enter contract with the PPC, in my case, the signage is far from clear, obvious and readable, and in no way adequate for a driver to agree the terms and conditions of a contract. (Beavis signage included in evidence bundle for comparison)

30 - Also included are images from Google maps of the parking space entrance from the road, from two angles, over 3 time periods, May 2016, Sep 2017 and Aug 2018 to show that the signage has always been this poor and there can’t be any claims that it has ever been better than I have stated. This also shows how a driver from the road would see this, and the clear lack of signage.
31 - The Claimant, Vehicle Control Services Ltd are a sister company to Excel Parking Services Ltd, who ironically have a pay and display car park a matter of meters on the same road. This carpark shows a complete contrast to the **** Parking Spaces, having very large and lit signs throughout including at the entrance. (Images included in evidence bundle)

32 - It would make one wonder why would one carpark seemingly comply to the IPC Code of Practice and another not. The two carparks are are even managed by the same attendant’s (the VCS van can be seen in the google image)

This Is Not A Parking Charge Notice

33 - Vehicle Control Services are Known to flaunt POFA Regulations and IPC code of practice by issuing “This is not a parking charge notice” Stickers onto car windows.

34 - Without going over old ground, POFA Regulations, and IPC code of practice state that if issuing a PCN to the vehicle at the time of the contravention, (this will double up as a Notice to Driver (NTD)) then the PPC would have to wait 28 days under POFA Regulations before they can request Registered Keeper details from the DVLA.

35 - VCS try to get out of this by claiming the PCN or NTD they have left on the vehicle, isn’t a PCN, to completely bypass any legal duration or time period required under POFA Regulation and gain the registered keeper details immediately.

36 - There are many points in POFA regulations, IPC wording and even the Claimants own witness statement, that back up and imply that the “This Is Not A Parking Charge Notice” does serve the purpose of a PCN, and many judges at county court level have also found this to be the case.

37 - The original notice adhered to the windscreen of the vehicle is dated that of the recorded contravention and also states a serial number pertaining to that contravention. It cannot be denied that, even though the 'ticket' adhered to the windscreen is stated not to be a Parking Charge Notice, the myparkingcharge website, to which the driver is directed, clearly states 'To access the recorded contravention details, please enter the following information from the Notification received', thus indeed stating that it is a notification that was adhered to the windscreen.

38 - Furthermore, by entering the serial number and registration details on the afore mentioned website, the applicant, in this case the driver, is presented with all the details of the contraventions and invited to pay a charge. This then can only amount to the driver being issued a parking charge notice, by definition.


39 - While the notice in itself does not conform to the regulations regarding a Notice to Driver, in accordance with POFA schedule 4 paragraph 7, the invitation to log on to the website (myparkingcharge), must mean that it is indeed a NTD, since it is the person in charge of the vehicle, therefore the driver and not necessarily the Registered Keeper, that is being authorised and invited to log on, in order to gain details of the contravention in question and even pay the parking charge accordingly.

40 - It is therefore undeniable that a notice to driver has been issued in this case, as it is the driver who is invited to log on to myparkingcharge and pay the invoice for the contravention stated. If that is to be countered then, by default, there has been no parking charge issued on the date recorded that the driver can be held accountable for or expected to pay since it would then have to be logically argued that no notice had been given. If there was no parking charge notice of a contravention issued then firstly the very invitation to log on to a website to view a recorded contravention would be illogical, and/or the view is being taken, in this instance, that the registered keeper is undoubtedly the driver, counter what IPC code of practice clearly state

'You must not imply that the registered keeper can be held responsible for the parking charge under the Protection of Freedoms Act unless the relevant time limits within the Act have been met.'

41 - As demonstrated by this argument it is clear that such regulations are not being adhered to, nor the POFA being met.

42 - Moreover, this windscreen notification, if viewed as being a PCN, which by the definition above it must be, fails to conform to either the POFA or IPC code of practice. Should it be that the argument is put forth that by not conforming or adhering to the POFA or IPC requirements that the NTD is in fact not a NTD based on the fact that it does not conform to those standards, then I would like to draw your attention to the 'PCN Ref No' (Parking Charge Reference Number) as detailed on the subsequently issued Notice to Keeper. The serial number that appears on the windscreen notice is the same as that detailed as the PCN on the NTK.

43 - Thus, by definition, the serial number on the windscreen notice is in fact the PCN Ref No, which must therefore mean that they are one and the same and as a result the Ref No. and the serial number, being one and the same, must both refer to the parking charge. The result of which is that the windscreen notice must indeed be a reference to a parking charge. And, therefore as a notice must, by definition, be a parking charge notice.





44 - While it is understood that it is not mandatory for private parking firms to issue tickets using the POFA it is a requirement that the POFA act be followed in order to invoke keeper liability. It can only logically follow that as the POFA Act of 2012 is not being followed then the act of not following the Act would result in keeper liability being unable to be sought. If VCS assert, they are not issuing this ticket as per the POFA then there are no grounds for recovering the parking charge from the keeper, since there is no keeper liability.

45 - Clearly a Notice left on the windscreen for the driver which allows them to pay or appeal, is a Notice to Driver.

Notice to keeper and not conforming to the Protection of Freedoms Act 2012 (POFA)

46 - The PCN /NTK document received with an issue date of 18th December 2017 has failed to follow POFA regulations, which is statute in law and there for doesn’t follow the IPC code of practice which heavily relies of POFA. Therefor the PPC doesn’t legally have the right to transfer liability for the contravention from the driver to the registered keeper.

47 - VCS are attempting top recover more that the initial involve price, also as double recovery for costs they didn’t incur. This is forbidden in POFA regulations
POFA SCHEDULE 4, paragraph 4 -5
“The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper”

48 – POFA Regulations stipulate that the NTK should specify the period of parking to which the notice relates. I have only been given a time of contravention, and no period of parking, again another reason a none POFA compliant NTK has been issued;
POFA SCHEDULE 4, paragraph 9 -2: The notice must—
“(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”

49 – Following from that, if no period of parking was determined, how can VCS or the issuing officer be sure that a sufficient grace period was given as is a requirement in part B, paragraph 15 of the IPC code of practice?

50 – Can VCS be asked to provide evidence proves how long the vehicle was in situ and how long of a grace period was allowed before issuing of the ‘This is not a parking Charge notice’?






51 – More of the wording on the NTK is not POFA compliant. On the NTK received by the defendant, it states “28 days beginning with the day after the issue date of this notice”, Whilst POFA states “28 days beginning the day after the notice was given”. To break this down, the differences here are “day after the issue date of this notice” Vs “day after the notice was given”. Whist this may same like a small discrepancy. POFA is statute in law, and so must be followed by the word, otherwise it is deceiving and giving out in correct information to the registered keeper.
“POFA SCHEDULE 4, paragraph 9 -2 (f)
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver”

52 - I refer to the case of Excel Parking Services v Smith (appeal) Stockport, (included in evidence bundle) In which it was found that a person is not liable in law for the actions of somebody when they have allowed somebody else to use their property. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.

53 - Excel and BW Legal tried to convince the court that this was not the case. Although they succeeded at first, their scheme came unstuck when the motorist appealed. Their greed cost Excel two lots of advocate fees and resulted in a persuasive appeal decision which can now be used against them.

54 – I must also draw attention to VCS v Quayle 2017, where the judge concluded that VCS had not, on the balance of probabilities provided any evidence to prove Miss Quayle was the driver of the vehicle. On top of that, because they had not followed POFA, the judge stated VCS had no right to transfer liability to the registered keeper.

55 – The Judgement stated, “She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”


56 – Henry Greenslade is the Lead Adjudicator for POPLA (Parking on Private Land Appeals) who are the independent appeals process for BPA registered PPC’s. And whilst I was unable to appeal through POPLA (as VCS are not BPA registered), being a barrister himself, Henry Greenslade is considered the parking law expert amongst many.

57 – In his 2015 POPLA annual report, Henry Greenslade wrote about various topics in the Private Parking industry, one of which was Keeper Liability. (This section of his report is included in my evidence bundle). He makes it clear at many times in his report that liability rests with the keeper, it can’t automatically be placed upon the keeper, and the none compliance with POFA means the keeper can’t be held liable at all. He is quoted as writing “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.”

58 - All of the inaccuracies listed above, and further throughout this witness statement mean by law, the issuing of the NTK fails POFA regulations and thus can’t be used to transfer liability to the registered keeper.

Double recovery and price increase

59 - Vehicle Control Serviced Limited have added an extra £60 onto this County Court claim, that wasn’t part of the original invoice amount. In my case, VCS have used Debt Recovery Plus and Zenith collections (another trading name for debt recovery plus) to try and recover payment. Debt recovery Plus don’t charge their client for their services, they operate on a strictly ‘no collection, no fee basis’, and instead add their fee, £60 onto the amount they are trying to recover, rather than charging their client. (DRP terms included in evidence bundle)

60 - As Debt recovery plus were unsuccessful in recovering any payment from myself, £60 was never claimed but was never required to be paid by VCS. When the case was passed back to VCS as a failed recovery, there was no debt recovery cost to be paid by VCS, but instead VCS have added this amount of £60 onto their court claim, and are claiming it as cost for debt recovery. This is classed as Double recovery which is strictly forbidden under POFA regulations. On top of that, POFA Regulations (POFA SCHEDULE 4, paragraph 4) limits the amount that can be recovered to the sum stated at the NTK stage, and no more.