VCS court claim - defence

wwguilau

Hey guys,

I have been given two letters from Northampton County Court for a parking offence from VCS (the Sheffield one), for "charges" which occurred in April 2018.

One was for an "offence" at 8pm, and the other was for 9am the next day.

Stupidly the driver was throwing the letters away/ignoring, however I recently received two small claim court forms. I have filed the acknowledgement and so I have extended the time.

It was a "Valid Permit holders" carpark.

Please could somebody check my defence and see if its okay


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. No contract had been formed between the driver and Vehicle Control Solutions. The car park appears to have been signed "Valid Permit Holders", in which category the driver was not. Accordingly, no offer of parking was extended to the driver, so no such offer of parking could have been accepted by the driver, and if no parking was being offered, the PPC provided no consideration in exchange for the driver's promise to abide by the terms and conditions of parking (if the driver had indeed intended to give such a promise).
2.1. Private companies might only be entitled to invoice you for a loss of earnings where you have breached their civil contract. However no contact was formed between both parties. No earnings were lost as it was not a pay and display car park; no payment was extended to the driver. The car park was also empty and if the driver did not put the vehicle in the car park, it would have remained empty as the car park is used for office workers.
3. The vehicle was deemed “not fit” to be driven back to London and ended up having to be recovered back. The vehicle was put in the car park as it seemed the most sensible place to put it due to it being empty.
3.1. Moreover, the circumstances by which the driver ended up parking the vehicle in the car park suggests that the driver had no intention of parking at all, but was forced by the vehicle's breakdown to stop somewhere off the road, which indicates that the driver had no intention of entering into any kind of legal relationship with the PPC.
3.2. There are mitigating circumstances in which parking tickets are cancelled. For example, for Cheshire council, Mitigating Circumstance 7 is:
If motorist’s vehicle had broken down
If the motorist was unable to drive, since parking the vehicle.
4. At 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. 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. The same would apply in this instance.
5. It could be labelled “abuse of the court process” to raise separate court cases (along with twin sets of fees) for what is essentially the same matter, 13 hours apart.

KeithP

What are the Issue Dates on each of your Claim Forms?

wwguilau

1st of feb 2019

KeithP

wwguilau wrote: »

1st of feb 2019

With a Claim Issue Date of 1st February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 6th March 2019 to file your Defence.

That's over three weeks away. Loads of time to produce a perfect Defence, 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.

Coupon-mad

wwguilau wrote: »

1st of feb 2019

What, they issued TWO separate claims forms on the same day for pretty much the same alleged breach, across two days? I hope you've read lots of other threads and realised to cover this and to ask for the claims to be merged.

Search the forum for merged hearing and read other threads like yours. I see you mention it in defence but you will need to mention it at EVERY stage from now on, till a Judge notices:

5. It could be labelled “abuse of the court process” to raise separate court cases (along with twin sets of fees) for what is essentially the same matter, 13 hours apart.

You could mention it in the emails where you send your defence (send it twice, once for each claim in the subject line, so one is not missed by court staff).

Put in a request in the actual email, that the cases are put before a Judge NOW, to merge them.

I think your defence looks good but aren't you missing a few usual things? Looks short.

Bgsth

Hi I forgot my password. I did write this however I was told by VCS “The claimant is entitled to bring separate claims and it is within the claimants descretion”

Their witness statement relies on:

have received their witness statement

Their points are that a sign can be used to enter into a contract: Thornton vs shoe lane parking 1971

Vine vs Waltham Forest 2002 “once it is established sufficient and adequate warning notices were in place, a driver cannot say they did not see the notice”

Parking eye v beavis 2015 that a contract exists on the terms on the notice and by parking I accepted the notice

Vcs ltd vs nick idle and VCS ltd vs Damien Ward that a breach caused by unforeseen circumstances is not a defence

The_Deep

Have you read this?

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Nine out of ten of these so called breaches of contract are scams, so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Coupon-mad

Bgsth wrote: »

Hi I forgot my password. I did write this however I was told by VCS “The claimant is entitled to bring separate claims and it is within the claimants descretion”

They would say that, but you surely know already, from lots of other threads about two claims, and what you saw in the wording, that this is NOT TRUE.

You need to mention it again in the WS and in a covering letter asking for consolidation, until your Judge notices and consolidates the claims into one hearing.

Their witness statement relies on:

have received their witness statement

Their points are that a sign can be used to enter into a contract: Thornton vs shoe lane parking 1971

Vine vs Waltham Forest 2002 “once it is established sufficient and adequate warning notices were in place, a driver cannot say they did not see the notice”

Parking eye v beavis 2015 that a contract exists on the terms on the notice and by parking I accepted the notice

Vcs ltd vs nick idle and VCS ltd vs Damien Ward that a breach caused by unforeseen circumstances is not a defence

Same as all the other VCS WS.

Search the forum for the surnames, one by one, and see this template WS (exact same) has already been dealt with & demolished umpteen times over in other people's WS you can copy from.

wwguilau

I lost at court today unfortunately

The judge said I have no defence against it. He said a contract was formed (even though it was forbidding signlanguage). VCS submitted a contract with the leaseholder not landowner saying they can issue tickets, I told him that and he said

wwguilau

I lost at court today unfortunately

The judge said I have no defence against it. He said a contract was formed (even though it was forbidding signlanguage). VCS submitted a contract with the leaseholder not landowner saying they can issue tickets, I told him that and he said “They have submitted the contract” and said I was wrong in law. He said that I have no defence and that if my car broke down and I put it in his driveway it would be the same case.

I have another case for the same problem on the 28th, can somebody have a look at my defence.


1. In regards to para 30, the defendant argues that the signage in the car park is of a forbidding nature. The sign in this car park is not the same sign in the Thornton v Shoe lane car park. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]. In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

Also, in reference to Thornton v Shoe Lane Parking, Lord Denning pronounced effectively in favour of people who haven't had the terms of a contract adequately brought to their attention. The case was used to rule that a clause couldn’t be incorporated after a contract has been concluded, without reasonable notice before.

2. In regards to paragraph 31, the defendant disputes this. Two contraventions do not equate to two charges. “The claimant is entitled to charge for each instance of in which the defendant was observed parking without displaying a valid permit…”, The interpretation of this is that if the operator decided to come and observe the car being parked there each hour, then there would be multiple tickets. The claimant then says “The charge for breaching the terms and conditions is £100…”, however these ‘supposed’ terms and conditions were only ‘breached’ once, as the car did not move from the spot, meaning that two tickets should not have been issued. Even if two tickets were issued, two court cases should not have been as it is an abuse of court process. The case should have been merged.

3. In regards to paragraph 32, the claimant wishes to rely on Vine v Waltham Forest (Claimant incorrectly stated 2002, the case was actually in 2000), suggesting that not reading a sign will not stop a contract from occurring. In reality, the court of appeal judgment found exactly the opposite and that a contract may not be formed or even breached if for instance the signage was not sufficiently prominent as to be visible from the parking spot, the area is not clearly marked/signed with prominent terms, or there was a reason that the driver could not read the signage. The case was actually won by the motorist. The case is binding case law from the court of appeal and supports my argument, not the claimants.


4. In regards to para 33, the Claimant relies on Schedule 4 of the Protection of Freedoms Act (POFA), however schedule 4 also states:
“4 (5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The amount stated was £100, however the claimant has claimed for £160.

In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60 (Claim number is F0DP201T District Judge Taylor
Southampton Court, 10th June 2019).

"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 not with reference to the judgement 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"

Another case was also struck out for the same reason (Case # F0DP163T Judge was DJ Grand)

5. In regards to paragraph 35, the defendant refutes this. Referring to the photos of the site in YI1, you can see that there are no signs where the car was parked. None of the signs were within readable distance from where the car was parked. The only sign would be the entrance sign, however the car was placed there the night before when it was dark due to the vehicle breaking down. The site has no light sources and relies on light from nearby buildings. So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park.

6. In respect of para 36,39, 46-54, the defendant refutes the claim. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. The claimant has produced a “contract” with a lawful occupier, not a landowner which is NOT the same thing. No lease or contract has been submitted, only a self-written leaseholder witness statement declaring that they have a lease. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Please refer to E2QZ29WG VCS ltd vs Mr Jenkins, where the claim was dismissed for exactly the same reason.

District Judge Potts (“I am going to dismiss the claim. The, and the reason why I am dismissing it is the Claimant has failed to prove on the balance of probabilities that Wilson Farm Management Company Limited, care of FHP Oxford Street, Nottingham, were at all material times, which includes 9 January 2013 when the company purported to enter into a, a written agreement with Vehicle Control Services Limited, and 28 June 2018,which is the date when the Defendant parked his car, that they were the lawful occupier of the car park in question. While it is asserted in the agreement that they were the lawful occupier, there is no evidence before the Court to show that they were and therefore that they had properly authorised Vehicle Control Services Limited to manage the car park. That in itself is a fatal flaw to the claim.”)


7. In regards to paragraph 43 and 44 , the defendant refutes the matter that “A breach caused by unforeseen circumstances, certainly a breach that is not caused by the conduct or another is no defence” as this goes against directly against contract law and “frustration of contract”. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

8. In regards to paragraph 45, the whole paragraph is irrelevant. The signs were not seen, due to the fact that again the actual site does NOT have lighting sources, which is further backed up by evidence from the claimant. The vehicle was parked there the night before (F6QZ877E) The site has no light sources and relies on light from nearby buildings. So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it. The sign is very wordy and the size of the font varies throughout the sign. Secondly paragraph 44 the claimant claims “a breach caused by unforeseen circumstances is not a defence..”. With this mindset, the defendant assumes that even if the sign was seen and the number was called, VCS would still hold the driver liable for the charge.

Also, when a vehicle breaks down 200 miles from home, in the state the driver was probably in, you would not think to call a number on a sign. Instead you would be looking to call recovery companies to take the car back to London in order to resolve the problem, which is what was done.

9. In regards to paragraph 55, the defendant refutes this. The broken down vehicle was parked there the night before, which is what claim no. F6QZ877E is about. If the car had not re-entered the car park, then the terms and conditions were not breached twice. The vehicle had broken down the night before and remained in the car park until the morning. A ticket was issued at 8pm the night before and 9am in the morning - it IS an abuse of process as the particulars around the event have not changed, and if one case was to be lost, the other would too as nothing has changed from both claims. Both of the claims should have been merged into one case, as allocating two different hearings for the same matter is wasting the courts valuable time.

10. In regards to paragraph 59, I refer back to my point being that the vehicle was parked in the car park the night before, when it was dark (which is claim no. F6QZ877E). The signs were not seen, due to the fact that again the actual site does NOT have lighting sources, which is further backed up by evidence from the claimant. The vehicle was parked there the night before. The site has no light sources and relies on light from nearby buildings. So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, The sign is very wordy and the size of the font varies throughout the sign.

11. In regards to para 60, the defendant refers back to ““4 (5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The amount stated was £100, however the claimant has claimed for £160.

In a very recent case, District Judge Taylor, dismissed a case from BWLegal that included a false amount of £60 (Claim number is F0DP201T District Judge Taylor
Southampton Court, 10th June 2019).

"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 not with reference to the judgement 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"

Another case was also struck out for the same reason (Case # F0DP163T Judge was DJ Grand)”

The additional charge is not recoverable under POFA 2012.

The_Deep

IANAL but I am not a bloody fool either. IMO the judge is wrong in law. Also imo, if there was a contract it was frustrated by events. I should appeal.