County court business centre VCS.

machang

Hi Money saving experts,

Thank you for reading and any input in advance.



They’re claiming £160 plus £25 costs relating to me parking in a car of a lovely apartment building complex.

After looking at the defence of other defences using the search “vehicle control services” I have come up with the following defence. I know it’s in it’s early stages and pretty feeble but if anyone could offer search words or options it would be much appreciated. My head hurts after being at work since early this morning. I have until Monday to prepare a proper defence and mail it off.

Thanks


Defence:

1. It is admitted that the Defendant was the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) 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 firm. 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.


3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

4. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.


Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

Redx

edit post #1 and remove any idea of who did what on the day, otherwise your posts here could prove costly as they may end up in evidence

think about it

and where is the forbidding signage section ? seeing as there was no parking contract on offer to non-permit holders, so trespassing

see this thread linked from the newbies thread post #2 for help

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

KeithP

What is the Issue Date on your Claim Form?

You won't be 'mailing off' your Defence - but you know that from your run in with PCM last year..

machang

Issue date 31st December 2018

KeithP

machang wrote: »

Issue date 31st December 2018

With a Claim Issue Date of 31st December, you had until Monday 21st January to do the Acknowledgement of Service.

Did you do that AoS before then?
Please confirm.

If you have not yet done the AoS then do it NOW - if MCOL will still allow it.
To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.



If you did, then you have until 4pm on Monday 4th February 2019 to file your Defence.

That's just a week away. Not very long now, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

machang

Sorry Keith, yes I did acknowledge it today. So I will be burning the midnight oil.

I will re-read the forbidding signage post and update.

Thanks

KeithP

machang wrote: »

Sorry Keith, yes I did acknowledge it today.

Hmmm...

Let's hope MCOL accepts it. If so, you are very lucky.

The Claimant has had since last Monday to seek a Judgment against you.

Timing is critical.

Why aren't you learning from your court experiences?

machang

Moved house, sold the car and the mail went to my old house. The occupants of it didn’t let me have it until Thursday. That and my lack of organisational skills. Lots of excuses but mostly I’m a bit of an idiot.

1. It is admitted that the Defendant was the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) 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 firm. 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.


3. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

4. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

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

6. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on a public road, not on any yellow lines nor causing an obstruction.

6.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, 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.

6.2 . 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.

7. 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.

8.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.

9. 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. The signage is attached to a gate and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

9.1. Vehicle registration XXXX has not entered past the gate and therefore is not entered into a contract with Vehicle Control Services.

9.2. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available; there is no licence to park.

9.3 best, 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.

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

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

10.1 It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') 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.

10.2 It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 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.

11. 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.

12. In summary, it is the Defendant's position that the claim 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.


(statement of truth and signature and date go here)

Redx

a few days late there , so keep checking to see if its been accepted


as for post #1 , more editing required

machang

Thanks Red X. I will post tomorrow tomorrow and email it off straight away.

Coupon-mad

9.3 best, parking without authorisation

Have you cropped off the word 'At'?

Your defence looks good, albeit I skim-read it, as long as this was about a windscreen 'myparkingcharge.co.uk' notice saying 'THIS IS NOT A PARKING CHARGE NOTICE'. Even though it clearly acts like one! VCS play fast & loose with the POFA, IMHO.