VCS Berkley Centre Sheffield - didn't overstay

Katie-Kat-Kins

RobinofLoxley wrote: »

Here are some pics from the Berkley Centre.

The entrance sign and the internal signs are all in the style of Excel, blue and yellow with a large Excel logo prominent. The internal signage (square ones) have hidden away in a tiny font wording that says VCS (the creditor) enforce the parking. The long tall entrance sign doesn't mention VCS and only states 'Excel Parking Services manage and control this car park'

The ticket machines again has large Excel logos but have the words 'This car park is controlled and managed by Vehicle Control Services' tucked away in a small font.

Totally contradictory and ambiguous signage. Which company is the driver supposedly entering into a contract with Excel or VCS?

http://www.imgurupload.com/images/2019/08/13/Berkley-Pct-4a.jpg

http://www.imgurupload.com/images/2019/08/13/Berkley-Pct-1a.jpg

http://www.imgurupload.com/images/2019/08/13/Berkley-Pct-3a.jpg

http://www.imgurupload.com/images/2019/08/13/Berkley-Pct-2a.jpg

Thanks Robin you're a star!

The_Deep

Totally contradictory and ambiguous signage.

In that case they are Friar Tucked, read this

https://en.wikipedia.org/wiki/Contra_proferentem

Katie-Kat-Kins

Redx wrote: »

I thought it was obvious

she linked a post that was a defence already written and expected yours to look very similar, with a few tweaks

clearly what she saw after comparing the two was that yours was nothing like the one she linked , hence her comment and she even gave you a direct link which is very rare for her to do, usually she makes people work for the reward

had you done what she said, if she was happy with the result, she would have said its good to go, or she would have suggested changes to be made

she has assisted in hundreds or thousands of court case threads over a decade on here and won one in court yesterday (the stubborn goat thread) which almost won the defendant about £1500 and isnt finished yet (that defendant also won due to her due diligence - have you read it yet ?)

my point ? only a fool would ignore her valuable (and free) advice

so if she doesnt say its good to go, its not good to go and needs work, especially when she was handing you the basis for a defence on a plate, with a link (rare as hens teeth)


its very frustrating when you tell people to turn left and they either carry straight on or worse they turn right

I haven't ignored Coupon-mad. She suggested I search for posts about another car park and use their wording. I did and I posted an updated version of my defence using wording taken from one of those threads. She said that I hadn't used the one she was expecting and posted a link, I thanked her for that but haven't had chance to go through the link and make further changes as it was getting late.

Katie-Kat-Kins

The_Deep wrote: »

Totally contradictory and ambiguous signage.

In that case they are Friar Tucked, read this

https://en.wikipedia.org/wiki/Contra_proferentem

Lets hope so!

Katie-Kat-Kins

Ok, I found the bit you meant Coupon Mad about the previous cases and have added that in, hopefully that is clear enough. New version below.




1. I, xxxxxxx, the Defendant in this matter was at all material times the registered keeper of vehicle xxxxxxxx


2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


3. The Particulars of Claim lack specificity and are embarrassing in their lack of particularity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve and Amended Defence should the Claimant add to or expand their Particulars at a later stage or these proceedings and/or to limit the Claimant only to the unevidenced allegations within the Particulars.


4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.


5. Further and in the alternative, 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.


a. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. VCS were not a party to such a contract, and therefore cannot sue on it.


b. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.


c. In any case, the defendant has honest belief that the signage at the car park was in the name of Excel Parking Ltd (‘Excel’), not VCS. VCS therefore has no rights to bring a claim. Previous cases of this nature which have been discontinued by VCS are:


VCS v Zozulya A8QZ6666


VCS v Ms M. 3QZ53955


VCS v Ms O C8DP9D8C.





6. The Claimant is alleging that the driver formed a contract with them by reading the terms and conditions on the sign and accepting them by remaining on site (as opposed to rejecting them and leaving). This is called acceptance by performance. However, the defendant/third party could only form a contract with Excel Parking LTD, not the claimant, by virtue of the signs being in the name of Excel. This is further confirmed by the by Excel Parking logo on the Pay and display ticket. The Claimant is clearly a stranger to any contract and has no legal capacity to issue a claim


7. Should the court be minded to consider that:


i) a binding contract may exist between VCS and the driver, and that


ii) liability was transferred to the Defendant under the provision of the Schedule 4 of the protection of Freedom Act 2012 ‘(the POFA’),


then it is denied that a breach of the Terms and Conditions occurred for the reasons set out in the balance of this Defence.


8. 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 parking charge notices, and to pursue payment by means of litigation.


9. 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.


10. The driver has not been evidenced on any occasion.


11. 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.


12. Parliament has provided that where a driver owes a parking charge, the person to whom is is owed can claim it from the registered keeper, if the person to whom the charge is owed complies with the relevant requirements, namely POFA 2012. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of POFA. By not serving a notice containing statutory text within the required time period, the Claimant is unable to hold the Defendant liable under the strict 'keeper liability' provisions. The Defendant thereby requests that the claim be struck out forthwith as the particulars do not disclose a valid cause of action.


13. 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.


14. Further or in the alternative the Defendant denies any abuse of the parking facilities or in fact any breach.


15. The Claimant’s notice to keeper states that the Defendant’s vehicle left the car park 74 minutes after entering. The signage also did not make it sufficiently clear that the time commenced upon entering the car park and stopped running upon exiting the car park rather than including only the time that the vehicle was parked.


16. The Defendant will say that time is required upon arrival to enable the driver to locate a free space, manoeuvre into a space, exit their vehicle and study the signs, whilst doing so they must also take into account both vehicle and pedestrian traffic within the car park. Further the Defendant will say that upon return to the vehicle time is required to enter their vehicle, manoeuvre out of the space and exit the car park taking into account other traffic within the car park.


17. The Defendant avers that 14 minutes is insufficient to allow for this purpose and that the time spent parked in a parking space did not exceed the 1 hour free which was offered on the signs.


18. A mandatory grace or transaction period is required by the International Parking Community (IPC) Code of Practice, which states a "sufficient amount of time to park and read any signs" must be provided.


19. A mandatory final grace period after expiry of allowed parking time is also stated in the IPC Code of Practice (CoP), in addition to the observation/transaction period on arrival. The final grace period is required to be at least 10 minutes in its own right, and enforcement cannot be undertaken within that time allowed to leave a site.


20. Signage in place was not prevalent and not brought to the attention of motorists sufficiently as to comply with the code or practice of the Claimant's accredited trade association.


21. The Defendant questions the validity of signage throughout the car park under the Code of Practice (CoP) set out by the IPC.


a) 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”


22. Not only does the signage fail to identify Vehicle Control Services Limited (company number 02498820) as the creditor, it instead names “Excel Parking Services Ltd”(Company number 02878122). 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. 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”.


23. The Defendant contends that the signage in the car park 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.


24. The Defendant questions whether 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.


25. Specifically the Defendant questions whether the Claimant has locus standi to bring this claim as a sign at the entrance to the Berkeley Centre car park stated that “Excel Parking Services Ltd manage and control this car park”, this sign also contained information about the consequences of drivers non-compliance. Clearly, Excel Parking Service Ltd was a landholder of Berkeley Centre car park, not the Claimant, Vehicle Control Services Ltd.


26. According to Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011), the key information that needs to be conveyed to the drivers is that it is a pay and display car park, not the consequences of failing to comply. Any contract, in a private car park, can only be formed by signage, and it is therefore clear that if there was any contract, it would have been between Excel and the motorist.


27. The Claimant has brought a claim for £160 as the principal sum, although the amount stated on their Notice to Keeper is £100. Section 4(5) of Schedule 4 of POFA mandates that the maximum sum which can be recovered is the amount specified in the Notice to Keeper, in this case £100. It is denied that the Claimant has any entitlement to the additional sum, or to any interest thereon. This gross inflation of the amount is an abuse of process and is not supported by the decision in Parking Eye v Beavis [2015] UKSC 67 (the Beavis case).


28. The claim includes an additional unparticularised amount of £60. The Defendant submits that the additional and unexplained “contractual costs” are 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:


a) CPR 44.3(2) states: “Where the amount of costs is to be assessed on the standard basis, the court will: (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.”


b) 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.


c) The 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.


d) Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking companies process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut and paste claims. The court is invited to note that no named solicitor have signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.


e) 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.


f) 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.


g) 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 Parking Eye 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...''


29. 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.


30. 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.


31. 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.


32. For all of the reasons above the Defendant asks that the learned judge utilise the discretionary powers of case management and strike out this claim as vexatious and frivolous.





STATEMENT OF TRUTH

Redx

You cannot start a paragraph stating it is ordered, that is like telling a judge what to do, irrespective of the previous paragraph wording, clearly you have not understood that point

You do not want to alienate the judge, yet you persist in not adding 3 words you have been told to add to that paragraph opening section on numerous occasions

As I basic, blinkers on due to intransigence

Coupon-mad

I tend to think it is OK as it is clearly quoting from a decision and is preceded by the words ''and here the Defendant quotes the learned judges in the previously cited cases:''

Katie-Kat-Kins

I can't add it is stated to a quote, as it isn't part of the quote. I have stated that it is a quote within the numbered paragraph that it is part of then put the quote on a new line which is the correct way to show a quote. On my word version the quote is also shown in italics and with an indent as is correct for a quote from a judgment. It will be quite clear to the judge that I am quoting from another case and not trying to make my own order.


I don't know why you are getting so insistent about this, the defence Coupon-Mad linked to above doesn't say "It is stated" but you don't seem to have an issue with that.

Katie-Kat-Kins

Coupon-mad wrote: »

I tend to think it is OK as it is clearly quoting from a decision and is preceded by the words ''and here the Defendant quotes the learned judges in the previously cited cases:''

Thank you Coupon-Mad, is the rest of the defence ok? I'm going nuts re-reading it all!

Coupon-mad

This is further confirmed by the by Excel Parking logo on the Pay and display ticket.

Not sure you have mentioned higher up in the facts that the driver did pay & display, so was there a paid ticket as it says here?

Apart from clarifying the facts, that defence looks log but strong and I'd be happy with it.