URGENT fighting County Court Claim for PCN

adambuzz14

Communications with VCS

61 - Once the NTK arrived, I immediately sent a response asking for evidence of the contravention and who the driver (which I have included in my bundle). This was dated 21st Dec 2017 and posted the day after. At no point did anyone from VCS answer this request.

62 - Also pointed out in my defence was that at no point did I receive a letter before court from VCS. Despite them providing copies of various letters as evidence along with their witness statement, VCS have failed to provide a copy of a letter before court, which I can only take as them corroborating my claim that one was never sent. Surely if they included all the other letters, why would they omit this one?

63 - Whist it’s not something I can prove in a court of law, a quick internet search would back up suggestion about the way VCS ignore and lie about communication they claim to have sent or claim they haven’t received.

VCS Witness Statement

64 - There are various issues and inaccuracies with the VCS witness statement. Their Witness statement is clearly a template. I have viewed near enough the exact same witness stamen a number of times online, with only minimal changes that are specific to my case. Below I address or reply to points raised in the VCS witness statement. I have referenced which VCS paragraph I am addressing in bold. E.g. VCS Paragraph 1.

65 – VCS Paragraph 1 If he/she has been working for VCS since November 2018, this is almost a year after the alleged contravention occurred. None of the info in the Witness Statement is in his/her own knowledge. What is their link to this case? They have no first-hand knowledge about the site, signs, or parking event. Surely this makes them an unreliable witness to this case as they are clearly just re hashing information given to them from others and using readymade templates from within their business. On top of this, 90% of the VCS witness statement is a generic template, with little genuine evidence referring to this case. Surely this could be seen as misleading a judge as it isn’t their knowledge to give.

66 - VCS Paragraph 5 The Code of practice, from the IPC who VCS are a member does not merely comprise of 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance to the IPC code of conduct has to be followed to obtain DVLA data.

67 - VCS Paragraph 7 This paragraph claims the defendant, myself, was identified as the registered keeper whilst the vehicle was in was in Woolpack lane parking spaces. If this was the case, it would be a serious breach POFA and IPC rules. On top of that it would mean a notice to was given at the time, something which VCS deny. More likely a poorly worded sentence due to this Witness Statement being a template and not being edited correctly to reflect this case.
68 - VCS Paragraph 8 Only minimal and poor signage was erected, leaving drivers unable to agree to terms and conditions.


69 - VCS Paragraph 9 VCS have produced a contract claiming to allow them to issue Parking Charge Notices for parking violations at Woolpack Lane Parking spaces since 1st April 2017. Can we ascertain why the library photos provided in their own evidence were all taken in 2014, three years before the contract started? VCS admit in their own witness statement that they are issuing Parking charge notices, despite claiming that the ‘This Is Not A Parking Charge Notice’ cards they are leaving on vehicles are not parking charge notices. Nowhere in the contract does it address the use of hybrid ‘This is not a parking charge notice’ cards being left on vehicles, does the landowner know VCS are using this potentially illegal method in to manage their parking spaces?
70 - VCS Paragraph 10 Here VCS are claiming when a vehicle is in breach of the terms and conditions, the motorist would be issued a PCN. Note the word motorist, rather than registered keeper. A motorist is the driver, and the reason this is important, is because once again, they are admitting to giving PCN’s to drivers meaning that leaving a ‘This is not a parking charge notice’ is in fact issuing PCN’s or NTD (notice to driver) at the time of the alleged contraventions.
71 - VCS Paragraph 12 VCS are again admitting their Parking Officers issue PCN’s to vehicles. More of their own evidence verifying the ‘This is not a Parking Charge Notice’ is in fact, and has always been a PCN / NTD.
72 - VCS Paragraph 14 Here VCS are stating signs are visible on entry to the car park. There isn’t a sign on the at all at the entry of the car park.

73 - VCS Paragraph 15 More evidence of a PCN being issued whilst the vehicle was in the parking area. There is irrefutable evidence in VCS’ own witness statement that the ‘This Is Not a parking charge Notice’ cards left on cars, are in fact PCN /NTD, clearly showing how they break POFA regulations and IPC code of conduct.
74 - VCS Paragraph 16 Again, inaccuracies from the VCS witness, as even their own photos and evidence show no signage at entrance of car park, yet another paragraph in their witness statement claiming there is.

75 - VCS Paragraph 18 and 19 More admissions that they issued a card notice to the driver on the day NTD, then pretended this is not a PCN after all to get the DVLA data early, in breach of POFA and IPC.
76 - VCS Paragraph 20 Thousands of other car parks don’t issue PCN’s in this way, and don’t flaunt POFA rules, So to say this is the only practical way is slightly farcical.

77 - VCS Paragraph 21 Again stating they fixed a card to the windscreen of the car. Thus, informing the driver, in other words, a notice to driver NTD or PCN.
78 - VCS Paragraph 22 Here VCS are implying the driver is the defendant, knowing full well the defendant is the registered keeper, which is totally against POFA regulations. The card is addressed to ‘The person in charge of the vehicle’, who at the time would have to be the driver. So, at no point was the card made out to the registered keeper as claimed by VCS.
79 - What’s more, after seeing evidence of these cards, it provides a unique reference number which ironically is the same reference number as the PCN / NTK that arrives later. Once you enter the reference number online, you see all the details of the alleged contravention, dates, time, location, images where applicable. So, whilst the delivery of this information might not be a classic PCN, once one has logged online with this card, the information presented is that of a PCN. If the card is just to inform a driver a contravention MAY have occurred, as VCS claim, then why is there an option, and encouragement to pay this fee immediately? Surely if this wasn’t a NTD, or PCN, there would be no need to offer payment details?
80 - VCS Paragraph 23 This is where the hybrid system is being used to really catch people out. The information detailed in this paragraph is the practice normally in place for Automatic number plate recognition (ANPR) car parks. Where a camera is located on entrance and or exit, the contravention wouldn’t normally have occurred until the driver is leaving the car park. DVLA will provide registered keeper details in these cases. But because, and it’s pretty clear above, that NTD and PCN’s are being issues at this location, VCS are not allowed to apply for registered keeper details until 28 days after the day after the driver has received the PCN.
81 - VCS Paragraph 24 and 25 There is no 'adjudicator' within this parking firm's 'Appeals Dept'. No such person, no such Dept, no such thing.
82 - VCS Paragraph 26 Similar to above, The IAS is made up of IPC members, so in no way is it independent. It’s basically Private Parking Companies deciding on appeals against themselves.
83 - VCS Paragraph 28 If final reminder really is a final reminder, why were VCS offering to accept far smaller amounts on two occasions via debt collection agents?
84 - VCS Paragraph 30 Thornton vs Shoe Lane Parking is irrelevant, merely showing that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later. Also addressed previously in witness statement.

85 - VCS Paragraph 32 Vine is misquoted/out of context. The court goes on to note that the signage was insufficient in the Vine case. It's fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the judgment from Roch LJ, where Miss Vine WON! Again, also addressed previously in this witness statement.

86 - VCS Paragraph 33 and 34 This is a template paragraph from VCS seen many times in their witness statements. VCS is NOT entitled to pursue the RK because VCS have never used the POFA on their Notice to Keepers (and it was sent too early, having got the DVLA data prematurely after the placing of what was clearly a 'notice to keeper' that they call a 'card').

87- VCS Paragraph 35 This is being quoted completely out of context by VCS. This is only one small paragraph from the POFA regulations, and whilst it is correct that nothing in the paragraph in question effects their right, the paragraph is very small section of the regulations, and there are a further 16 paragraphs that do affect their right. They have also conveniently missed the wording ruling out double recovery from the actual line they are quoting. More examples of them being selective and using POFA out of context to suite themselves.
88 - VCS Paragraph 36 Again the claimant claims signage is not only displayed, but ‘Prominently displayed and visible on entry.’ There is no signage what so ever at the entry.

89 - VCS Paragraph 37 The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turn over and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking, and chose to challenge based on the monetary value to the car park operator of over staying the allowed time. In my case, there were no clear signs for a driver to enter a contract with the VCS.
90 - VCS Paragraph 40 As we’ve already established, the use of a hybrid card of this type is clearly to flaunt POFA rules and the IPC code of practice, claiming ‘This is not a parking charge notice’ when by all accounts, it is.
91 - VCS Paragraph 41 The NTK was issued outside of POFA rules. Aside from POFA Regulations already being disregarded with the use of ‘This is not a parking charge notice’ PCN’s being left on vehicles, VCS has not issued the NTK with the correct POFA wording. POFA states;
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
Whereas VCS have used the wording:
28 days beginning with the day after the issue date of this notice
92 - Whilst this this is only a minor discrepancy, POFA is statute law and the wording and deadlines are set in stone. VCS' version misstates the date for keeper liability, misleading the recipient, failing to follow POFA rules thus leaving the NTK invalid.
93 - VCS Paragraph 42 Anyone who compares a VCS ‘This is not a parking charge notice’ to an official police or council penalty charge notice would beg to differ.


94 - VCS Paragraph 43 VCS’s own photos of the alleged contravention show how bad the signs were. The vehicle in question is on the opposite side of an unlit car park, during a winters evening. Even the sign in their own evidence appears about the size of a stamp and is no way disguisable as a sign, let alone one where terms and conditions of contract can be set out and accepted.
95 - VCS Paragraph 44 and 54 POC is just template wording VCS use on all cases of this nature.
96 - VCS Paragraph 46 As covered above, signage was on the opposite side of an unlit carpark, at night in the middle of December. Claimant claims signage is audited by IPC, but this is untrue. Please can client provide documentation or evidence of last signage audit carried out by IPC, as their signage clearly doesn’t meet the IPC code of practice.
97 - VCS Paragraph 47 and 48 No contract was entered and terms and conditions were not and could not be accepted. VCS are stating the defendant didn’t display a permit, when they know the defendant is the registered keeper. Liability cannot be transferred from driver to registered keeper as they have failed to follow POFA rules and IPC code of practice.
98 - VCS Paragraph 53 Can the Claimant explain why it is mentioned many times in their witness statement that the contract was first agreed in 2017, but all of the supporting photo evidence provided by VCS is dated 2014 and show the same signage in place some 3 years before the contract was first signed?
99 - VCS Paragraph 54 Already addressed numerous times, but signage is far from adequate. Signage doesn’t meet IPC code of practice. Sign described as being is close proximity is vehicle is actually the opposite side of the car park, and can’t even be identified clearly on claimants own photographic evidence. On the contrary, Defendant’s photo evidence shows the signage whilst parked at the entrance of the land, with headlights on.
100 - VCS Paragraph 55 Already addressed Vine V Waltham Forest
101 - VCS Paragraph 56 This is irrelevant as at the Woolpack Lane Parking spaces, there is no signage at entrance, so smaller signs cannot be used in conjunction to a main entrance sign.
102 - VCS Paragraph 57 More waffle from the VCS employee tasked to produce a Witness statement at a location they have little knowledge of. This is a totally hypothetical statement. Was this test ever carried out at this site? If so where are the findings? There’s no point in referencing a hypothetical test which they have not conducted.
103 - VCS Paragraph 59 I have already covered and distinguished the difference between this case and the Beavis case. Mr Beavis wasn’t challenging poor signage; he was challenging unfair penalties. This case is totally different.
104 - VCS Paragraph 61 and 62 Already covered why the ‘This is not a parking charge notice’ is a PCN or NTD. Also, POFA wasn’t followed when sending the NTK as I’ve already pointed out. POFA wording is absolute, you can’t quote it incorrectly then claim it has been followed.
105 - VCS Paragraph 63 Parking firms cannot add a made up 'debt recovery charge' to what is already a hugely inflated penalty, which the Beavis case found was almost all profit over and above the VERY minimal cost of sending some letters for a typical parking charge regime (including any 'debt collection' pre-action letters). In Beavis only £85 was allowed, and it was stated that a parking firm cannot seek damages - as there are none, it's almost entirely profit. Even if they put £60 on their signs, this bolt-on is made up out of thin air and is unrecoverable, pursuant to Beavis and the CPRs.
106 - As proven in my evidence bundle, the debt recovery company Debt Recovery Plus charge nothing to VCS, their cost is added on top of the recovery. They operate on a no recovery, no fee basis. This is a blatant attempt at double recovery for a fee that they have not had to pay out and It’s total breach of POFA regulations.
107 - VCS Paragraph 64 No debt recovery charges have been incurred by VCS.
108 - VCS Paragraph 68 As previously discussed, £60 debt recovery fee hasn’t been paid by VCS, so VCS are unable to attempt to claim it back. POFA stipulates that the maximum that can be claimed is the fee on the NTK. VCS state in their own words in paragraph 84 of their witness statement that they are attempting to claim damages and identifying them as debt recovery charges.
“damages will be sought and added to the value of the charge levied. The maximum amount awarded is £60.00 which is identified as debt recovery charges.”
109 - VCS Paragraph 70 No costs have occurred for debt recovery, as DRP operate on a ‘no recovery, no fee’ basis, meaning VCS are not out of pocket and are instead attempting double recovery. Which is against POFA.
110 - VCS Paragraph 71 The defendant disputes this. A copy of a letter replying to the NTK has been provided in the evidence bundle which was ignored by VCS.
111 - VCS Paragraph 72 and 74 More evidence to suggest the ‘This is not a parking charge notice’ is in fact a PCN or NTD
112 - VCS Paragraph 73 The NTK states just as little information, only stating Woolpack Parking spaces.
113 - VCS Paragraph 75 No LBC was received by the defendant. The claimant has provided copies of all correspondence as evidence, yet there isn’t a copy of an LBC in that evidence. So, if the defendant claims to have not received this document, and the claimant has failed to produce a copy despite them addressing it in their witness statement, that can only suggest the LBC doesn’t exist as was never sent. Surely the defendant wouldn’t miss that one important document out of their evidence when supplying all the rest?



114 - After the initial letter to VCS, the defendant didn’t wish to partake in a fixed appeal system that had no chance of success. On top of that once debt recovery letters started coming through the door from one company claiming to be different debt recovery companies, (despite have that same company number), the defendant saw this as an un-genuine attempt to mislead, a little like the Wonga pay day loans saga. It was better to challenge this in the county court with an impartial judge than so called independent adjudicators who are actually PPCs.
115 - VCS Paragraph 76 POFA has to be followed, VCS are incorrectly interpreting and flaunting POFA regulations.
117 - VCS Paragraph 78 as proven in this witness statement, so many areas of VCS’ claim are unlawful
118 - VCS Paragraph 81 VCS are claiming 'The defendant could not have been in any doubt, at worst, after the issue of the first PCN''. I’m not sure which document they are calling the first PCN, but this argument is shot down by their own evidence - Thornton v Shoe Lane that they adduced earlier, which established that ONLY terms known and agreed before the payment was made at the PDT machine are enforceable.
119 - VCS Paragraph 82 Again, this is untrue. In a permit holders car park, the decision making and facts in Beavis do not apply, and in fact this case supports the defence, based on the fact this sort of PCN is a punishment of a driver, and not an 'understandable ingredient of a scheme serving legitimate interests' and the Beavis case is fully distinguished.
120 - VCS Paragraph 84 Again, 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 POFA regulations / will of Parliament, at the sum on any Notice to Keeper, and not higher (and the Beavis case confirmed this by only allowing £85 in that case). Can we also ascertain why VCS are admitting to referring to damages as debt recovery charge in a case where no debt recovery has occurred?

The Court is invited to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

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

Signature of Defendant:
Name:
Date:

adambuzz14

Can anybody give my WS a read over? I need to submit it tomorrow. I originally uploaded it yesterday, hoping some of the more knowledgeable guys could give me some feedback, so i could hand deliver it last thing yesterday or today. I have since removed it and re uploaded to make some changes, but tomorrow is my last day, so i need to hand deliver/ email it tomorrow.
thanks again, hopefully on the home straight now.

KeithP

I have not studied your WS in great detail, but will just make one significant observation.

Your evidence needs to be indexed and you need to refer to each item of evidence by that index.

For example, perhaps paragraph 4 should have some words added such that it reads:

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, ***. See exhibit AB/001.

...where AB are your initials.

Similarly, choosing another random paragraph, para 30* needs text added to it pointing the reader, i.e. the Judge, exactly to the photo your are describing at each point.

And another example... para 39. you need to point to page nn of exhibit ABnnn which will be the printed eleven pages of POFA2012.

This needs adding throughout your Witness Statement.
It is not petty - you really need to make it easy for the judge to find exactly what you want him/her to find.


*I am referring to the second paragraph numbered 30 - there are actually two paragraphs numbered 30.

adambuzz14

thanks Kieth, yeah the evidence was something i was going to do last once i knew the WS content was OK and i didn't need to gather any more evidence. But thanks for pointing it out.

Coupon-mad

Love that long WS with a demolition of every argument they make!

#47 as a typo 'top' instead of 'to'.

Remove your questions (e.g. 49 and 50 have question marks). This should be a statement, not any questions. Just the story of what you know and the demolition of their template WS and evidence, in confident statements.

And Vine was argued better by Johnersh (a solicitor poster). You had this:

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.

VCS fully realise Miss Vine won her case and they probably MISQUOTE the case!

https://forums.moneysavingexpert.com/discussion/comment/73971817#Comment_73971817

Jomot

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.”

I've been reading lots of posts in anticipation of court papers landing on my mat, so apologies if I'm wrong here, but shouldn't this read "He makes it clear at many times in his report that liability rests with the DRIVER"

KeithP

Absolutely right Jomot. Well spotted.

Castle

A few more comments:-

31-VCS are actually a 100% owned subsidiary of Excel parking; so there are not sister companies; (which refer to companies owned by the same company/person).

69-The contract is apparently signed by GWP Ltd c/o FHP Ltd; however neither of these companies are listed at Companies House.

93-You should mention that the "NTD" also includes the "WARNING" message which mimics a council ticket.

Question to ask VCS:-Why is there no witness statement from the actual operative who took the photos and apparently identified the driver that night.

(Not relevant to your WS; but do you think that all those motorists who's cars are shown in the December 2014 photos were warned that their personal data would be released to a 3rd party).

KeithP

adambuzz14, you've been here long enough and have enough posts under your belt to no longer need to 'kill' links.

Try it, and if possible, just post live links from now on. Thanks.

adambuzz14

KeithP wrote: »

adambuzz14, you've been here long enough and have enough posts under your belt to no longer need to 'kill' links.

Try it, and if possible, just post live links from now on. Thanks.

i didnt realise. i will try again...

I've read somewhere that a judge told somebody off for not submitting a certificate of service with the WS, but I've not seen any mention of this in the guides, and the PPC didn't submit one?

can anyone advise on this? is it this document?
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688525/n215-eng.pdf

Thanks