Served with Court claim by VCS

Coupon-mad

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 correspondence to the old address , and only sent a letter to me more than 3 months after the incident.

VCS haven't followed the POFA anyway, as we know from umpteen zillion threads re VCS.

The POFA is not just about the date of a NTK. It's also about:

- the words on that NTK
- adequate notice of the parking charge (signs)
- a 'relevant obligation' or 'relevant contract'

mooney89

HI there,


The DVLA have just cofirmed over the phone that my V5C address was NOT updated to my currect address at the time of the parking incident. Does this render this aspect of my defence totally void? Annoyingly I'm assuming so.


Thanks,

mooney89

Hi all,
please see my witness statement, pasted below. It's not as logical or as organised as I would have liked it to be, but it was my best attempt under busy circumstances. I would very much appreciate any criticism or comments about what else if anything I could include to support my defence.

WITNESS STATEMENT

Introduction




I am Mr **************, the Defendant in this matter. I will say as follows:


Before I describe what happened on the day the car (registration ******) to which I was the registered keeper was parked in ******car park, I confirm that the essence of my defence to this claim is that:


) A 'charge notice' ('CN') was not affixed to the car registration ******at the time of the alleged contravention, and therefore the driver was not served with a document that created any liability for any charge whatsoever. Accordingly, it is denied any contravention of terms occurred, and it is denied that the driver was properly informed of any parking charge, either by adequate signage of by a CN. Additionally, the Notice to Driver Document attached to the car failed to comply with requirements set out in relevant legislation, and therefore fail to create any liability for any charge whatsoever. The Claimant is put to strict proof.


The Notice to Keeper was sent to the Defendant’s previous address, despite the Defendant being able to prove that on the day of the alleged contravention a valid driving licence with a different address had already been issued by the DVLA. Therefore, by failing to give notice of a parking charge to the Defendant’s actual address until over 2 months had passed, the Claimant has failed to comply with the requirements of relevant legislation to serve notice to the keeper of the vehicle, and has therefore failed to establish keeper liability, or create any liability for any charge whatsoever. The Claimant is put to strict proof to the contrary.
The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle, indicating that the Claimant has failed to identify a Cause of Action or specify how terms were breached, contrary to Civil Procedure Rules and Civil Practice Direction. Therefore keeper liability cannot be established.
Furthermore, and regardless of any judgement on a), b) or c), it is denied that the claimant's signage is sufficiently clear enough to bind any reasonable person reading them, relying on the precedents set in ParkingEye v Beavis [2015]

Background and events

• At approximately ******on the ****** the car to which I was the registered keeper at that time was parked at ******car park in Sheffield to shop at the stores which this car park serves. Myself and several other individuals were insured to drive this car at that time (Exhibit MR1) and I cannot confirm or deny whom the driver may have been, given this was over a year ago. I do however recall that I was a present in the car at this time.
• The car park was extremely busy at the time, and I recall that the car had circled the entire car park several times before a space to park could be found. The only signage visible from the viewpoint of a moving or parked car is that at the entrance to the car park (Exhibit MR2), which makes no mention of the requirement to ‘Park only between the lines of a single marked bay’, a stipulation which is not mentioned on said entrance signage, and which is relied upon for the claim by the Claimant in paragraph 62 of their Witness Statement. It is accepted by the Defendant that these words appear on signage placed very high and way above head height on lampposts around the car park, but the small size of this lettering and the inaccessible positioning of it in relation to the viewpoint of a parked or moving car is so unreasonably difficult to read that no reasonable person could be bound into a contract by them. In addition, the signage nearest to the place where the car was parked was bent and buckled, rendering it even more unreasonable to expect any person to be able to read the small print (Exhibit MR3).
• Further, the Claimant is an accredited member of both the British Parking Association (BPA) and the International Parking Community (IPC), and claims to adhere to their codes of conduct, which state that ‘’Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.’’ (Exhibit MR4; IPC code of Practice, paragraph 2.1, page 9)
• Accordingly, ‘’The size of text on a sign will be determined by a number of factors such as the position of it, to whom it is aimed and the information that it needs to convey. Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.’’ (Exhibit MR4 IPC code of practice, page 9)
• Furthermore BPA’s code of conduct states that ‘’Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.’’ (Exhibit MR5 BPA Code of Practice paragraph 18.2 page 11)
• BPA’s code of practice includes an appendix B which clearly instructs its members that in cases where the ‘’Parking area [is] entered immediately by turning off a 30 mph road’’, making the ‘’typical approach speed’’ 15 miles per hour, the minimum capital height for group I letters on an entrance sign should be 60mm. In the case of the ******care park, the requirements of the Claimants’ own accrediting bodies have not been met (Exhibit MR5, page 29), and so by measurement against the standards to which the Claimant claims to uphold, it is contented that a parking contract was never established.
• Further, 5.2. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' No such indication of the Claimant’s stipulation about parking only between the lines of marked bays was made on any signage that could be read by a reasonable person. (Exhibit MR6)

• The Claimant in their witness statement relies on the authority of The Supreme Court in ParkingEye v Beavis [2015] UKSC 67 when they state that ‘in cases such as this, a contract exists between the Motorist and the Operator, whereby the Motorist is granted a contractual license to park their car in the Car Park on the terms of the notice posted at the sire, which are accepted by entering and leaving the vehicle at the site’’ (Claimant’s witness statement, paragraph 35). However, due to the inadequacy of the Claimant’s signage by the standards of Parking organizations of which it is an accredited member, ParkingEye v Beavis does not apply and is not relevant here, and is differentiated from this case. (Exhibit MR7 page 40 and 41).
• The photographic evidence submitted in Exhibit 8 clearly demonstrates that in relation to the above paragraphs 3 – 9, the Claimant has failed to meet the standards of signage set out in both accredited trade association bodies, and has failed to meet the bar set by Denning LJ in J Spurling Ltd v Bradshaw [1956], and further has failed to establish any similarity or reliance on ParkingEye v Beavis [2015], and therefore the Defendant denies that it was even possible under these circumstances for the Defendant to enter into a contract with the Claimant,.
• The car to which was parked next to a row of parked cars on an unmarked area of the carpark which was clearly not obstructing other cars, parked or moving, entrance or exits, pedestrians or walkways (Exhibit MR8). Having returned to the car at approximately 15:10, a Notice to Driver Document was attached to the windscreen (Exhibit MR9)
• The Defendant would also like to bring to the attention of the court that shortly before the incident in question the Defendant had moved addresses, from a rental property - ******The Defendant had previously informed the DVLA of this change of address, so that their details relating to car in question could be updated. By the day of the incident, the Defendant’s new address had been registered by the DVLA, which had issued the defendant with a new driving licence that demonstrates this clearly (Exhibit MR10) Despite this being the current address of the Defendant at the time of the incident, I was not informed at all about this alleged parking charge notice until I received a letter dated 22nd March 2018 and later 6th April 2018 (Exhibit MR11 )informing me of a parking charge notice for £160. The Defendant contends that this failure to deliver a notice to keeper within the 14 day time frame confirmed in the Claimant’s witness statement (paragraph 41) fails to meet the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (Exhibit MR12) a failure which leads the Defendant to contend that no keeper liability for any charge was ever created. Therefore contrary to the Claimant’s statements in their witness statement, no right to pursue the Defendant as the Registered Keeper has been established. The Claimant is put to strict proof to the contrary.
• Further, Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated in an annual report of the Independent Appeals Service for Parking Charge Notices Issues on Private Land, that ‘’ 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. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’ (Exhibit MR13)
• I was later sent a series of letters from Vehicle Control Services Limited (VCS) and a series of Debt Recovery Companies working on behalf of VCS. These letters are evidenced in Exhibit MR14The letters claim costs for an unpaid parking charge of varying amounts including at different times £60, 100, £160, and a number of other discounted amounts (Exhibit MR14
  
  

• 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 Statement are true.
  
  Signature of Defendant:

Coupon-mad

mooney89 wrote: »

HI there,


The DVLA have just cofirmed over the phone that my V5C address was NOT updated to my currect address at the time of the parking incident. Does this render this aspect of my defence totally void? Annoyingly I'm assuming so.

No, but I already told you that the fact VCS didn't comply with the POFA isn't due to writing to an old address. I already told you to steer well away from the address issue:

VCS haven't followed the POFA anyway, as we know from umpteen zillion threads re VCS.

The POFA is not just about the date of a NTK. It's also about:

- the words on that NTK
- adequate notice of the parking charge (signs)
- a 'relevant obligation' or 'relevant contract'

mooney89

I've already sent off my witness statement as eth deadline was looming. Please could you help me as to whether I can include any of those arguments about VCS not having followed POFA rules, when I've not specifically mentioned them in the witness statement? I.E:


- the words on that NTK
- adequate notice of the parking charge (signs)
- a 'relevant obligation' or 'relevant contract'

Coupon-mad

Yes you can do a Skeleton Argument about the legal stuff and any case law you want to rely on.

Obviously the way to understand Schedule 4 is simply to read it, it's easy to read, and it's linked in the NEWBIES thread first post 'for those who want to dig deeper'.

mooney89

Thanks for that. I assure you I have read it quite a bit, however I had been put of by how thoroughly VCS seemed to have argued in their WS that they had followed it to the letter. To the best of my knowledge it seemed like they had followed it properly, but I'll comb through their WS again with the POFA in hand and do my best to pick out discrepancies.

Coupon-mad

It's been done loads of times in VCS threads - you do not have to work this out from scratch!

You already know the PCN wasn't a PCN, according to VCS, yet clearly it was! therefore they got your data prematurely then used the wrong 28 day period.

Please do not post that you can't see the difference between their words and 9(2)f of Schedule 4!

As well as there being no adequate notice of the parking charge on signs, and no relevant obligation or relevant contract...

Although this person reported that they lost their case (bad Judge, probs - just bad luck on the day, most likely), here is a case where at WS stage the OP pulled apart the VCS template WS drivel:

https://forums.moneysavingexpert.com/discussion/comment/75581072#Comment_75581072

...and you need to understand Rights of Audience which is also explained there, ready for if Mr Wilkes or another self employed 'legal rep' rocks up on the day.

mooney89

I can't seem to find any evidence that VCS failed to comply with the requirement to transfer liability to the keeper and begin to recover the alleged charge. They sent an initial 'notice to keeper' / 'parking charge notice' on the 7th day after the incident, and then a 'parking charge notice' 'final reminder' on the 29th day after the incident. Any suggestions as to whether I can claim they've not followed POFA in that respect?

mooney89

also, what do you mean by 'they used the wrong 28 day period? Apologies If I'm coming across thick, but the language both of POFA and the Claimant's WS is pretty baffling for lay defendants like myself.