VCS Berkley Centre Sheffield - didn't overstay

Katie-Kat-Kins

Particulars of Claim


The claim is for a breach of contract for breaching the terms and condition set on private land. The defendant's vehicle xxxxxx was identified in the Berkeley centre pay and displany on the xx/xx/xx in breach of the advertised terms and conditions; namely parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. At all material times the defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the defendant has failed to settle the outstanding liability. The claimant seeks the recovery of the parking charge notice, contractual costs and interest.

Katie-Kat-Kins

Going through that again I think I need to add more about the signs, it was not possible to read the terms and conditions prior to entering the car park and exiting your vehicle.

Le_Kirk

Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process

In order to show the judge that you are not issuing an order or instruction to the court you should modify the above to: -

Order was identical in striking out both claims without a hearing and here the defendant quotes from the referred case(s):
''IT IS ORDERED THAT The claim is struck out as an abuse of process

Regarding para 10, what are you going to say/produce if asked for evidence of your assertion?

Katie-Kat-Kins

I'll make that change regarding the quote - thanks


That's why I was asking about para 10, I was hoping someone might know where this information originally came from so that I can refer to it. If not I will either change it to something more like:


"The Defendant believes that the Claimant is a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. The Defendant believes the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, the Defendant requests the court strike out the claim."


or take it out all together depending upon the advice that I receive. I believe that I could justify the above just on the basis of internet searches as VCS are identified in a number of news reports and consumer forums, but tactically I don't want to dilute the force of stronger arguments by chucking in weak/unsupported ones.

Katie-Kat-Kins

Ok I have made some more changes based upon other defences posted on here, updated version below:

• The Defendant was at all material times the registered keeper of vehicle ……………… The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
• There will be no admissions as to who was driving and no assumptions can be drawn.
• The defendant has no liability as they are the Keeper of the vehicle, and the Claimant has failed to comply with the strict provisions of Protection of Freedoms Act 2012 (POFA) to hold anyone other than the driver liable for the charges.

• The driver has not been evidenced on any occasion.
• There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking company. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

• The Claimant’s Notice to Keeper was not compliant with Schedule 4 of POFA, and therefore the Claimant is not entitled to pursue the keeper. The notice to keeper was served outside of the 14 day time period set out within POFA and the driver has not been identified. The Defendant thereby requests that the claim be struck out forthwith as the particulars do not disclose a valid cause of action.
• The Particulars of Claim state that the Defendant was the registered keeper and/or driver vehicle 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,
  a. The Claim fails to comply with Civil Procedure Rule 16.4
  b. The Claim fails to comply with Practice Direction 16, paras. 7.3 to 7.5.
• Further or in the alternative the Defendant denies any abuse of the parking facilities or in fact any breach.
  
• The Defendant questions the validity of signage throughout the carpark under the Code of Practice (CoP) set out by the IPC.
  
  1. Referring to “any signs intended to form the basis of contract between the creditor and the driver”, the CoP states that:
     “Such sign must:

• Identify yourself as ‘the creditor’……….
  4) Have clear and intelligible wording and be designed such that it is clear to the reasonable driver of a vehicle that he is entering into a contract with the creditor or committing trespass as the case may be”
  Not only does the signage fail to identify VCS as the creditor, instead naming “Excel Parking Services Ltd” the Defendant contends that the signage does not make it clear that the driver is entering into a contract, or the basis of such a contract.

1. The CoP states
   “Where the basis of your parking charges is based in the law of contract which 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”.
   The Defendant contends that the signage in the carpark did not meet the minimum standards set out by the IPC and, therefore, undermines the validity of the charge. In particular the signs do not make it sufficiently clear that while there is a maximum stay of two hours a fee must be paid in advance for any stay in excess of one hour.

[*]The Defendant questions that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Vehicle Control Services Limited and that Vehicle Control Services Limited have the locus standi to bring this matter to court.
[*]Specifically the Defendant questions why the Claimant is not named on the signage at the entrance to the car park. The signage states that “Excel Parking Services Ltd control and manage this carpark”, on that basis the Defendant submits that the claim should be struck out on the basis that the Claimant does not have locus standi.
[*]The Defendant questions that the Claimant ever sought or was granted Planning Permission under the Town and Country Planning Act 2007 for installation of cameras and signage. Not only has the Claimant failed to show, evidence of planning permission, the Defendant has failed to identify any planning permission applications or grants after a reasonable search. The Defendant therefore rejects that there could be a valid contract formed between the Claimant and the Defendant.
[*]The claim includes an additional unparticularised amount of £60. The Defendant avers that the keeper cannot be held liable for more than the original amount claimed within the Notice to Keeper and deem the additional and unexplained “contractual costs” to be disproportionate and disingenuous. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable for the following reasons:

1. Whilst quantified legal costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
2. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.
3. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
4. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. In addition to the original PCN, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported added 'contractual costs' of £60. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
5. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member and serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member and serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing and here the Defendant quotes the learned judges in the previously cited cases:
   ''IT IS ORDERED THAT the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

[*]The Defendant believes that the Claimant is a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. The Defendant believes the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, the Defendant requests the court strike out the claim.
[*]In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.
[*]There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
[*]The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

STATEMENT OF TRUTH

Redx

I hope the paragraphs are numbered in the actual pdf draft ?

before IT IS ORDERED , write

The judges stated

Le_Kirk

Redx wrote: »

I hope the paragraphs are numbered in the actual pdf draft ?

before IT IS ORDERED , write

The judges stated

............ as pointed out in post # 34

Redx

Le_Kirk wrote: »

............ as pointed out in post # 34

clearly the OP is not reading and digesting all the replies then ? lol


despite them saying they would make the change in post #35 , just below your post

Coupon-mad

the particulars of claim do not mention Elliot v Loake

But their WS will, and Vine v Waltham Forest, etc. I really hope you have read lots of VCS claim threads and are expecting the template that they will field at WS stage, so we don't have to repeat ourselves when you receive yours, and you will be ready for how to counter it?

Search the forum & read lots of VCS witness statements, you'll see they match!

"The Defendant believes that the Claimant is a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. The Defendant believes the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, the Defendant requests the court strike out the claim."

or take it out all together

Take it out.

Near the start, you need to admit or deny all the statements they made in their POC:

The defendant's vehicle xxxxxx was identified in the Berkeley centre pay and display on the xx/xx/xx in breach of the advertised terms and conditions; namely parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site. At all material times the defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations.

I can't even tell from this draft defence what your position is, as regards the fundamental question of whether the driver did pay & display, and if not, why not, and why the D is not liable for a PCN.

So, make sure you deal with the POC by admitting or denying it.

Katie-Kat-Kins

I have changed the point about "the judges stated" it should be clear that this is a quote from the judgement in another case.


I have also said previously that the forum has messed up my formatting - so yes it will be numbered correctly when I send it off, it is just the forum changes all my numbers to bullet points.