Defence assistance

Lop5

Thanks fisherjim.
Here is the dead link to the redacted witness statement pdf from the claimant. I haven't included all of the evidence they submitted as it was just the images of my car parked on the day and all of the subsequent correspondence they sent to me. Any input in regards to what my strongest defence could be would be greatly appreciated.
Also, in my witness statement do I respond to whats been written in their witness statement?

hxxps://www.
dropbox.com/s/fh07kbkdcj5cwre/CVS%20WS-edited-edited.pdf?dl=0

[Deleted User]

Ta-daah! As if by magic....

https://www.dropbox.com/s/fh07kbkdcj5cwre/CVS%20WS-edited-edited.pdf?dl=0 .

Coupon-mad

https://www.dropbox.com/s/fh07kbkdcj5cwre/CVS%20WS-edited-edited.pdf?dl=0

#1 If he/she has only been working for them for two months then none of the info in the WS is in his/her own knowledge, and he/she knows nothing about the site, signs, or parking event, you could argue.

#5 - the CoP does not merely comprise 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance was required to obtain DVLA data.

#6 Why do they talk about it being a PERMIT development? You say P&D?

#7 Were you identified as the driver on the day? They say so.

#9 Is the authority only from a Managing agent, not a landowner? What actual evidence have they shown, to prove the contract is still 'live' as they claim?

#15 Are they saying there are only FOUR signs in the development?

#18 and #19 are admissions that they issued a card notice to the driver on the day (a NOTICE TO DRIVER, then!), then pretended this is not a PCN after all, and got the DVLA data early, in breach of either para 8 or 9 of the POFA.

#21 There is no 'adjudicator' within any parking firm's 'Appeals Dept'. No such person, no such Dept, no such thing. This is all rubbish, designed to make it look like an appeal is considered fairly. NEVER.

#22 Same re the IAS - it's considered a kangaroo court, be in no doubt.

#30 Thornton is irrelevant, merely showing that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later.

#32 Vine is misquoted/out of context. Read para 11 of the judgment. The court goes on to note that the signage was insufficient in vine. It's fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the ratio of the judgment from Roch LJ, where Miss Vine WON!

#33 You did NOT fail to act, you appealed. This is a template paragraph from them. And VCS is NOT entitled to pursue the RK because VCS have never used the POFA on their Notice to Keepers (and it was sent too early, having got the DVLA data prematurely after the placing of what was clearly a 'notice to keeper' that they call a 'card').

#35 The Beavis case is not relevant to support a penalty charge in a pay & display car park. In fact you can use it in your own favour, as the Beavis judgment was clear that each case is fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. the penalty rule remains 'engaged' and there is no saving grace of a 'legitimate interest' in pursuing a paying driver who appealed and proved they paid, and the ticketer could see they had (the PDT was on the dash all along).

#48 Again they cannot rely upon Beavis, as this is a completely different regime where they KNOW no money was owed, so did the ticketer, and he/they were simply trying to extort £100 from a driver to punish them for the ticket being blown the wrong way up, which could be have been caused by the weather through the vents after leaving the car (or the ticketer blowing through the vents, as clamper firms used to - and VCS are ex clampers) unbeknown to the driver, who displayed it properly at the time of parking.

#50 Wow, the £100 is NOT the 'consideration'! hahahahaha!!! Paralegal indeed.

#52 As already said, this is misleading and clearly IS a 'NOTICE TO DRIVER', and thus VCS should not have been able to obtain DVLA data until day 29, as per para 8 of the POFA.

#55 You can rebut how unclear and horribly wordy the signs were and that you only agreed to pay the tariff, not any £100 penalty as some jumped up punishment, contrary to the doctrine contained within Lord Dunedin's four tests for a penalty.

#56 Neither (1), (2) nor (3) are affected by your conduct. None of those points are any commercial justification for punishing paying drivers for VCS' own flimsy ticket being easy to blow over upside down.

#57 Again, ONLY FOUR parking signs? That is not many!

#59 Parking firms cannot add a made up 'debt recovery charge' to what is already a hugely inflated penalty, which the Beavis case found was almost all profit over and above the VERY minimal cost of sending some letters for a typical parking charge regime (including any 'debt collection' pre-action letters). In Beavis only £85 was allowed, and it was stated that a parking firm cannot seek damages - as there are none, it's almost entirely profit. Even if they put £60 on their signs, this bolt-on is made up out of thin air and is unrecoverable, pursuant to Beavis and the CPRs.

#63 They say the D ''could not have been in any doubt, at worst, after the issue of the first PCN''! Not sure which document they are calling the first PCN, but this argument is shot down by their own evidence - Thornton v Shoe Lane that they adduced earlier - which established that ONLY terms known and agreed before the payment was made at the PDT machine are enforceable. So, they have shot themselves in the foot by even saying that.

#64 Again, this is untrue. In a PDT car park, the decision making and facts in Beavis do not apply, and in fact this case supports the defence, based on the fact this sort of ticket is a punishment of a paying driver, and not an 'understandable ingredient of of a scheme serving legitimate interests' and the Beavis case is fully distinguished.

#66 Again, the Beavis case established that a parking firm CANNOT seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms. Whereas parking charges are capped by the POFA/the will of Parliament, at the sum on any Notice to Keeper, and not higher (and the Beavis case confirmed this by only allowing £85 in that case).

[Deleted User]

The statement is misleading as to the law. Vine v Waltham simply doesn't say that.

Compare the paragraphs below. Roche LJ references the arguments put to him, before passing judgment as to what the position is in law.

They cite from the wrong paragraph. The fact is, it's not an objective test. They need to show the signs are good enough.

Para 11 ... this is the ground principally urged upon us by Mr Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.

Para 19 ...To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning

[Deleted User]

Notwithstanding the above, the signage that they have is reasonably good and, unlike lots of template statements it has a decent stab at cross referencing earlier points made on the appeal.

Coupon-mad

What do you think of the paralegal calling the £100 the 'consideration'?!

[Deleted User]

What do you think of the paralegal calling the £100 the 'consideration'?!

Well that's nonsense. The consideration for parking is the P&D ticket fee. The charge levied by the PCN is clearly a penalty for breach of contract and their own sign refers to it as such.

Thus the penalty rule is engaged and it is subject to a test of reasonableness/proportionality.

Coupon-mad

Yes, exactly. I think the OP will understand 'consideration' better than that witness!

Lop5

Thank you for taking the time to go through the WS and picking it apart bit by bit. Your comments are going to help me immensely as I was already starting to lose a little bit of fight after receiving their WS. Shall I incorporate it all into my WS or would it be better in my skeleton argument?


#6 Why do they talk about it being a PERMIT development? You say P&D?

The signs say 'valid permit and valid pay & display ticket holders' so it must be both?

#7 Were you identified as the driver on the day? They say so.

No I stupidly identified myself as the driver when I appealed 2 days later.

#9 Is the authority only from a Managing agent, not a landowner? What actual evidence have they shown, to prove the contract is still 'live' as they claim?

The contract they have provided stipulates the authority is from the 'lawful occupier'. The only evidence they have provided is the contract to supply a parking control service for 12 months from 2017. No other evidence to stipulate the contract is still live.

#15 Are they saying there are only FOUR signs in the development?

Yes only four signs in a 16 space car park. Are there any stipulations as to how many signs must be displayed in relation to the size of a car park?

#18 and #19 are admissions that they issued a card notice to the driver on the day (a NOTICE TO DRIVER, then!), then pretended this is not a PCN after all, and got the DVLA data early, in breach of either para 8 or 9 of the POFA.

Can I still claim breach of POFA even though I appealed and probably provided them with all the info they needed without having to apply to DVLA?

#63 Not sure which document they are calling the first PCN,

After reviewing emails sent by Excel Parking (couldn't even be bothered to make sure they were using the right company name) in relation to my appeal, they refer to a CN issued on the date of parking which evidences this further. This was before they'd even informed me of their appeal decision.

Coupon-mad

only four signs in a 16 space car park. Are there any stipulations as to how many signs must be displayed in relation to the size of a car park?

No. That's quite a small car park though.

After reviewing emails sent by Excel Parking (couldn't even be bothered to make sure they were using the right company name) in relation to my appeal, they refer to a CN issued on the date of parking which evidences this further. This was before they'd even informed me of their appeal decision.

Even though you admitted being the driver, I would point to the misleading information in terms of emails from VCS (I assume) a completely different firm.

And in terms of claiming that a notice to driver is not a notice to driver, when the POFA is clear that the intention of Parliament was clarity = either a windscreen PCN and 28 days to appeal, or a postal PCN, not a hybrid mix.

Some of those points, in fact most of what I picked out, is for your skeleton argument. Their witness paralegal cannot even defence 'consideration' properly. It is NOT the £100, by any stretch.