Served with Court claim by VCS

mooney89

Hi all,


My case has been allocated to small claims for the 7th May, Defences have been exchanged, and the claimant VCS has sent both me and the court their witness statement and evidence. I have a week in which to do the same, and would like some advice on witness statements and evidence.



I've included a first draft of my WS below - I've found it difficult to know what to include as there are so many variant examples depending on the nature of the claim. I'll be including some of bargepole an others' advice about legal precedents, case law and evidence of this, but would appreciate some general advice on

- glaring errors in terms of evidence that I need to include
- formatting
- any claims I have made that would need to be evidenced
- any statements in the claimant's witness statement (attached in photos) that should be attacked at this stage




The nature of my defence is summarised at the beginning, following advice I've seen from loadsofchildren.


Thanks in advance for any help you can offer.

mooney89

frustratingly my camera is broken, meaning I have to summarise the important parts of the claimant's witness statement as follows. I'll miss out anything that seems obviously mundane.


6. Claimant states there are 'restricted areas of the car park that vehicles are not allowed to park in. It is this condition that is material to this case.' - Part of my defence claims that their definition of what is and isn't a restricted space is by no means clear.



7. 'Whilst the vehcile was parked within the development the dfendant was confirmed as the driver of the vehicle bearing the registration ******. The said vehcile was parked within the development in breach of the advertised terms and conditions to which the Defendant has failed to settle any outstanding liability.' I don't see how they can claim this, other than relying on the POFA 2012 legislation - some advice would be appreciated here, as its one of the legs of my defence, though I realise likely to be rejected.



Title and interest.



8. 'Following their appointment the claimant erected warning notices throughout the development making it clear that anyone parking...did so in accordance with [t and cs]. - part of my defence rests on unclear signage


9. ... 'The claimant is contracted to undertake parking management activities and issue pARKING chARGE Notices where vehciles are idenfieid on the development in breach of the advertised Terms and Conditions.' - I have the original document that was attached to the windscreen, and it states clearly 'this is not a parking charge notice'.



11. ...'The signs throughout the development clearly advise anyone parking within the development that they wre entering into a contract with the cLAIMANT. th claimant was entitled to contract with drivers on behalf of the owners of the development in accordance with their appointments. ' - as above, clear signage argument.



Breach of the Terms and conditions


13. Claimant lists documents enclosed in evidence:

- a contract
- photos of the car park ( I have photos of my own showing the signage in very small type, well above head height, and bent and buckled nearerst to where my car was parked
signage artwork
overhead photo of the carpark


14. ...'The warning signs are visable upon entry to the car park and throughout the location.' - my defence rests on challenging this I suppose. it goes on to specify the signage size:

- 1 entrance board (750mm x 1500mm)
- 17 information boards (1220mm x 605mm)



15. claimant lays out consequences of failing to meet these T and C, none of which seems challengable or relevant.

16. another reference to the vehicle having been 'recorded parked in a restricted / prohibited area thus resulting in a PCN being issued.'



Liability of the defendant to the claimant



17 and 18: details about the 'card' affixed to the windscreen 'informing that they may have breached the Trems and Conditions of parking', and giving instructions for how to view the alleged breach online.

20 - 25 -all regarding appeals process, which I took no part in.

27. 'at all material times the claimant has complied with the debt pre-action protocol and served a letter before claim on 27th August 2018.



Authorities:


29: Thornton v shoe lane parking 1971 2 QB 163 - settles that individuals may enter into contract with a sign and reference


31 - reliance on Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 where Roch L.J. makes judgement about the need for onjective judgement regarding whether a person voluntarily assumes a risk or conests to tresspass.



32. sched. 4 POFA 2012 - claimant can hold keeper liable in event driver cant be identifed - I'm guessing this renders that aspect of my defence invalid.



34. 'The signage is prominently displayted and visab;e on entry to the site. it is submitted that the claimant has donw what is reasonable to draw attention to the existence of the contractual terms and therefore has given sufficient notice of them. '


35 - relienace on parkingeye Vs beavis [2015] uksc 67 - establishing that in 'cases such as this' a contract exists by virtue of having entered and left the site.



The Defendeant's Defence


36. 'Paragraph 2 of the defence is not denied. The claimant would like to clarify that a Charge notice was NOT affixed to the windscreen of the Defendant's vehicle.' - is this a significant admission?


37. 'The claimaints eveidence contained within exhibit YC2 - notices and evidence shows that a 'warning card' was affxed to the Defendant's windscreen.



The parargaphs that follow are statements regarding VCS having acted appropriately regarding postal notices etc and the POFA legislation.



61. 'paragraph 2.1 of the defence is denied. the site overhead supplied within exhibit YC1 - site information shows that there are 18 signsi nplace for the attention of the motorst including 1 entrance board which is located at the entrance point of the car park. Thus the claimant would argue that the driver had sufficient notice of the warning notices designated throughout the car park.'


62. 'paragraph 3 of the defence is dendied. The terms and conditions of the car park explicitly state 'Park only between the lines of a single marked bay.'



65. paragraph 3 in respect of the particulars of the claim is denied. The defenant has ample notice of the parking charge by way of the parking charge notice, final reminder and letter before claim. The correspondances contained sufficient information in respect of the contravention.



66 - 67 - claimants defence of their correct wording in POC


69. 'paragraph 4 of the defence is denied. the claimant's signs are compliant with the IPC Code of Practice. Further, the signs are audited and approaved by the IPC. '


70 'clear comprehensible manner' of signage


71 'prominently displayed and visable on entry'


72 - 78- paragraphs 5 and 6, 7, 7.1, 7.2 of defence denied

mooney89

My defence, for reference;


The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is denied that a 'charge notice' ('CN') was affixed to the car registration *****of which the
Defendant was at the time of the alleged contravention the registered keeper - on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a coloured envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. the piece of paper attached to the said car did in this case bear the same exact legend. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted (thereby also failing to meet the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (hereafter POFA) that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.
2.1. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. Furthermore, photographs supplied by the Claimant clearly demonstrate that the car appears to have been penalised for parking in a particular bay that was not marked as 'no parking', nor a 'restricted area' at all. The area of the car park in which the car was parked has no yellow lines or hatching, did not obstruct access to or route via pedestrian walkway, exit or entrance, and did not obstruct or in any way hinder vehicular exit or entry, and is not obstructing other cars in any way. in point of fact it appears from the photographs supplied by the Claimant that the space on which the car was parked appears be a bay that could be used, as other drivers have been seen to do at that site before. Furthermore there were cars
parked in a row on to which the car in question joined, none of which had been issued with any form of parking contravention notice at any point throughout the duration of the period of parking in question. It seems the Claimant leaves this bay unmarked, to use it to entrap drivers, contrary to the doctrine of good faith and open dealing.


3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.



4. Furthermore, 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 damaged and signage which attempts to set out in detail the contract is attached to lampposts set at well above head height in very small print, and is not sufficiently clear enough to read from any angle, by any reasonable person's standards. Furthermore, the only sign that is visible by any reasonable person's standards is located at head height on the left of the entrance to the car park, and this signage fails to give any significant detail on the terms of the contract specified in unclear signage elsewhere.


5. Furthermore, the Notice to Driver document attached to the car at the time of the alleged parking
contravention fails to comply with a host of requirements made clear Schedule 4 para. 7 (a;c;d;e;f) of the POFA 2012. Therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

6. Furthermore, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.


6.1. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.



7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not a ' parking charge notice', and to pursue payment by means of litigation.



7.1. It is suggested that this novel twist (unsupported by the schedule 4 of the POFA 2012) of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

7.2. Signage at the car park specified in the particulars of claim states that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA. The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.


8. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.



9. In summary, it is the Defendant's position that the claim is discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.



The Defendant believes that the facts stated in this case are true.

The_Deep

I received your PM. I really do not see how I can add to the advice you have already received. You appear to be on track to confound the scammers.

mooney89

Coupon-mad, I'd very much appreciate your help with the new developments in my case against VCS, if you're able to give it ! best wishes,

Coupon-mad wrote: »

It's not the legislative process we are pointing you to read/watch. It's really the strength of opinion and the words of the MPs when discussing the scam and how damning they are about the entire industry.

That's got to be useful for you to know, in case your MP is useless and just to give you confidence that you are fighting a scam and you have the moral high ground.

Re your defence, it looks almost there, but I would change this to a 'coloured envelope' as some people have reported it was in a red one:

and remove the word 'clearly' when talking about the scumbags' unclear signs:


And add in a section that explains the facts - that the car appears to have been penalised for parking in a particular bay that was not marked as 'no parking' at all (no yellow lines/no signs) and the car was not obstructing other cars. It appeared to be a bay that could be used, as other drivers have been seen to do at that site before, and it seems the Claimant leaves this bay unmarked, to use it to entrap drivers, contrary to the doctrine of good faith and open dealing.

AND THIS IS NOT THE STATEMENT OF TRUTH YOU SEE ON DEFENCES, WHERE DID YOU GET THIS FROM?


SHOULD BE




YOU NEED TO EMAIL THAT SIGNED DEFENCE TONIGHT. HEADED - URGENT DEFENCE RE CLAIM XXXXXXX

Then, you will have to ring the CCBC in the morning and point them to your email and make sure they update MCOL on the spot, while you wait on the phone, to stop the Claimant beating you to it. Do not forget. You CANNOT ASSUME they will pick up your defence in time.

Coupon-mad

mooney89 wrote: »

frustratingly my camera is broken, meaning I have to summarise the important parts of the claimant's witness statement as follows. I'll miss out anything that seems obviously mundane.


6. Claimant states there are 'restricted areas of the car park that vehicles are not allowed to park in. It is this condition that is material to this case.' - Part of my defence claims that their definition of what is and isn't a restricted space is by no means clear.



7. 'Whilst the vehcile was parked within the development the dfendant was confirmed as the driver of the vehicle bearing the registration ******. The said vehcile was parked within the development in breach of the advertised terms and conditions to which the Defendant has failed to settle any outstanding liability.' I don't see how they can claim this, other than relying on the POFA 2012 legislation - some advice would be appreciated here, as its one of the legs of my defence, though I realise likely to be rejected.



Title and interest.



8. 'Following their appointment the claimant erected warning notices throughout the development making it clear that anyone parking...did so in accordance with [t and cs]. - part of my defence rests on unclear signage


9. ... 'The claimant is contracted to undertake parking management activities and issue pARKING chARGE Notices where vehciles are idenfieid on the development in breach of the advertised Terms and Conditions.' - I have the original document that was attached to the windscreen, and it states clearly 'this is not a parking charge notice'.



11. ...'The signs throughout the development clearly advise anyone parking within the development that they wre entering into a contract with the cLAIMANT. th claimant was entitled to contract with drivers on behalf of the owners of the development in accordance with their appointments. ' - as above, clear signage argument.



Breach of the Terms and conditions


13. Claimant lists documents enclosed in evidence:

- a contract
- photos of the car park ( I have photos of my own showing the signage in very small type, well above head height, and bent and buckled nearerst to where my car was parked
signage artwork
overhead photo of the carpark


14. ...'The warning signs are visable upon entry to the car park and throughout the location.' - my defence rests on challenging this I suppose. it goes on to specify the signage size:

- 1 entrance board (750mm x 1500mm)
- 17 information boards (1220mm x 605mm)



15. claimant lays out consequences of failing to meet these T and C, none of which seems challengable or relevant.

16. another reference to the vehicle having been 'recorded parked in a restricted / prohibited area thus resulting in a PCN being issued.'



Liability of the defendant to the claimant



17 and 18: details about the 'card' affixed to the windscreen 'informing that they may have breached the Trems and Conditions of parking', and giving instructions for how to view the alleged breach online.

20 - 25 -all regarding appeals process, which I took no part in.

27. 'at all material times the claimant has complied with the debt pre-action protocol and served a letter before claim on 27th August 2018.



Authorities:


29: Thornton v shoe lane parking 1971 2 QB 163 - settles that individuals may enter into contract with a sign and reference


31 - reliance on Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 where Roch L.J. makes judgement about the need for onjective judgement regarding whether a person voluntarily assumes a risk or conests to tresspass.



32. sched. 4 POFA 2012 - claimant can hold keeper liable in event driver cant be identifed - I'm guessing this renders that aspect of my defence invalid.



34. 'The signage is prominently displayted and visab;e on entry to the site. it is submitted that the claimant has donw what is reasonable to draw attention to the existence of the contractual terms and therefore has given sufficient notice of them. '


35 - relienace on parkingeye Vs beavis [2015] uksc 67 - establishing that in 'cases such as this' a contract exists by virtue of having entered and left the site.



The Defendeant's Defence


36. 'Paragraph 2 of the defence is not denied. The claimant would like to clarify that a Charge notice was NOT affixed to the windscreen of the Defendant's vehicle.' - is this a significant admission?


37. 'The claimaints eveidence contained within exhibit YC2 - notices and evidence shows that a 'warning card' was affxed to the Defendant's windscreen.



The parargaphs that follow are statements regarding VCS having acted appropriately regarding postal notices etc and the POFA legislation.



61. 'paragraph 2.1 of the defence is denied. the site overhead supplied within exhibit YC1 - site information shows that there are 18 signsi nplace for the attention of the motorst including 1 entrance board which is located at the entrance point of the car park. Thus the claimant would argue that the driver had sufficient notice of the warning notices designated throughout the car park.'


62. 'paragraph 3 of the defence is dendied. The terms and conditions of the car park explicitly state 'Park only between the lines of a single marked bay.'



65. paragraph 3 in respect of the particulars of the claim is denied. The defenant has ample notice of the parking charge by way of the parking charge notice, final reminder and letter before claim. The correspondances contained sufficient information in respect of the contravention.



66 - 67 - claimants defence of their correct wording in POC


69. 'paragraph 4 of the defence is denied. the claimant's signs are compliant with the IPC Code of Practice. Further, the signs are audited and approaved by the IPC. '


70 'clear comprehensible manner' of signage


71 'prominently displayed and visable on entry'


72 - 78- paragraphs 5 and 6, 7, 7.1, 7.2 of defence denied

We all need to have a look at this one to assist.

When do you have to get your WS and evidence in by?

What are you fielding as evidence yourself?

I suggest you now search the forum for VCS Wilkes and learn about how to challenge the Rights of Audience of the fresh-faced 'rep' VCS like to send, who has no RoA and can't speak for VCS if you challenge his presence well with the usual articles & case law.

mooney89

Hi coupon_mad thanks so much for getting back to me. Im afraid with the deadline for the WS submission looming (hearing is 7th May) i had to submit my WS and evidence to VCS and court.
My defence rests on inadaquate signage , differntiating from the beavis case, and VCS not having followed POFA, principallt becsuse despite my driving liscence having been issued to my current address on the same day the parking took place ( i had recently moved house and updated my dvla records, and my licence clearly show that issue date), vcs sent all first correspondance to the old address , and only sent a letter to me more than 3 months after the incident. Ive evidenced relevant case law following advice on the newbie thread, along with bpa and ipc codes of practice, and my own photographs and correspondance. My witness statement is probably not as well organised or logical as i would like, but ive done my best with the time i had working around being a full time teacher! Ill post my WS and list of exhibits after the weekend. Any and all advice as to what i csn still do in terms of skeleton arguments and anything else i can prepare to argue my case, along with any other general advice, would be great. Thanks in advance!

Le_Kirk

mooney89 wrote: »

principallt becsuse despite my driving liscence having been issued to my current address on the same day the parking took place ( i had recently moved house and updated my dvla records, and my licence clearly show that issue date), vcs sent all first correspondance to the old address

I know it is a bit down the line but you are talking about driving licence whereas it is your V5C (log book) that determines to where they send the PCN. I assume (and hope) that you have also updated the DVLA with your new address as registered keeper via your V5C.

Coupon-mad

Ill post my WS and list of exhibits after the weekend. Any and all advice as to what i can still do in terms of skeleton arguments and anything else i can prepare to argue my case, along with any other general advice, would be great.

Great, let's see what you have sent.

mooney89

Thanks for that. Unfortunatley ive not thought thay through- ive just submitted a copy of my drivers licence aa evidence. Can i still bring along my v5c paperwork to the hearing or will it not be accepted? I certainly did update my v5c, but until ive checked i cant be sure. Do you have any idea where i stand if the v5c was changed after the date of the incident? Or if the paperwork was sent off before, but it waa in the process when the incident took place?