County Court claim advice!

Redx

you wont be writing any defence , you already submitted the defence, and I assume you are at your local court stage where VCS sent their WS and exhibits and you must do the same

IMHO you are at the same point , your WS and EXHIBITS as directed on your court hearing date form by the due date listed on that form ( 01 July 2019)

if in doubt of the timeline , read the BARGEPOLE advice that tells you what happens and when

Gizmo2

Sorry, yes I mean witness statement. I'm trying to cut and paste info from other ones i've read including part about 'abuse of process' etc etc in the vain attempt that it may get struck out but i'm not very fast or good at this sort of thing and using word etc and worried about getting it done and in time for someone to read and edit for me.

Gizmo2

Hi all,



If I post what i've have so far would somebody please advice me on what else to add?
So, far i'm just cutting and pasting from other witness statements.



and please be kind to me, i'm not very good at this and so it's taking me a while to get my head into gear plus tired with baby so don't have much time either.



TIA

Coupon-mad

Of course, we will help you.

Don't be shy, show us what you have.

Gizmo2

Hi Thanks.


I'm having trouble posting it as its so long. Someone helped me last night so it's better at least.


Any advice on how to upload it? I copied it to notepad then tried to paste half at a time but no luck.

Gizmo2

IN THE COUNTY COURT AT SHEFFIELD CLAIM NO.xxxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LIMITED
(Claimant)
V


xxxxxxxxxxxxx (Defendant)
_________________________________

WITNESS STATEMENT
_________________________________

I am xxxxxxof, xxxxxxxxxxand I am the Defendant in this matter. The claim is denied in its entirety.


This is my Witness Statement in support of my defence and counterclaim already filed.


I am the registered keeper of vehicle xxxxxxxx


I am not liable to the Claimant for the sum claimed, or any amount at all. Any alleged breach of contract was between the unnamed driver and the Claimant.


The Claimant states that my vehicle attracted a “charge notice” for being parked for longer than the times allowed by their signage. I will show the reasons why they cannot enforce this charge against me as keeper including, but not only, their failure to abide by the Protection of Freedoms Act 2012.


The Claimant then sent me a Notice to Keeper, NTK (Exhibit 1, Page 2) followed by a number of reminder letters. I also received several letters from debt collectors acting for the Claimant. All of these letters were ignored.


The Claimant may suggest that by failing to correspond with them prior to the issue of a claim, I was acting unreasonably. The reasons for not replying sooner are as follows:


Publicity surrounding the conduct of private parking companies led me to believe that the notice and the subsequent correspondence was no more than a scam designed to intimidate them into paying a large sum of money when there had been no breach of the terms of parking.


The NTK did not show any photographic evidence of my vehicle actually parked.


The NTK was not compliant with the Protection of Freedoms Act 2012 as detailed in paragraph 9 of this Witness Statement.


The Claimant is an International Parking Community (IPC) Accredited Operator Scheme (AOS) member so any appeal to the Claimant and subsequently the “Independent” Appeals Service would have been futile. The IPC only reports on the number of appeals made and the number of those that are then abandoned, These figures seem to show an average of 80% 'appeal win rate' in favour of operators compared to around 50% of appeals to POPLA, the appeals service provided by British Parking Association (BPA) members. It should also be noted that the IPC reports are nowhere near as verbose as those of their competitor member organisation the BPA who publishes the appeal data for each member as well as the number of appeals declined, upheld or not contested.

Recent research has also discovered the conflicts of interest between the International Parking Community trade body and the so-called Independent Appeals Service (IAS) which was exposed by MPs in the second reading of the Private Parking (Code of Practice) Bill, legislation that had unanimous cross-party support in order to stamp out rogue 'tickets' such as this one. MPs also repeatedly described private parking companies as “cowboys” and some of their behaviour as “an outrageous scam” (Hansard 2nd February 2018).


The Claimant’s appeal process was described by Stephen Doughty MP in parliamentary debate as “run by a team of minimum wage office workers with no legal knowledge or experience whatsoever, who are given 6 minutes to read an appeal, and 12 minutes to reply. Most of these replies are obviously cut and pasted from existing templated replies (sometimes referring to issues which are not part of the motorists appeal), with a few lines added in to make it look specific to your claim” (Hansard 19th July 2018).


My understanding is that the Claimant has no interest in engaging with individuals who respond to a Letter Before Claim and make the minimum effort to respond before issuing a claim should the charge not be paid.

The Claimant is in breach of the pre-action protocol which requires them to provide further notice following a Letter Before Claim before actually issuing a claim.


The Claimant is unable to enforce the charges they allege apply, for reasons including, but not limited to, their own failure to abide by the Protection of Freedoms Act (the POFA) 2012 Schedule 4 - (Exhibit 1, Notice to Keeper, page 2) - not abiding by the statutory timescales and prescribed wording not present on their NTK.


The POFA is legislation introduced by the government to provide a mechanism for a parking firm, provided it fully complies with the strict terms of the statute, to acquire the right to recover debt from the keeper of the vehicle if the identity of the driver is unknown. It was the intention of the government intention that this would be the only lawful means that parking charges could be recovered from the keeper.


Parking operators may follow either Paragraph 8 or Paragraph 9 of the POFA in order to transfer liability. Each has its own strict conditions and timescales.


In circumstances where no Notice to Driver is affixed to the vehicle, the parking operator must follow Paragraph 9 of the POFA which allows them to contact the DVLA to obtain keeper details.


paragraph (9)(2)(f) of the POFA states:

“The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given”.

Note the word “must” which signifies a mandatory requirement. The NTK issued by the Claimant - (Exhibit 1, Page 2, Notice to Keeper) - states a different timeline entirely:

“If after a period of 28 days beginning with the day after the issue date of this notice…”

Therefore, the Claimant's NTK attempts to claim 'keeper liability' several days before the POFA allows, and thus fails to comply with the statutory wording.


The Claimant states that nothing in Paragraph 4(6) of the POFA affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges, but they fail to mention Paragraph 4 (2) which states:


“The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and
(b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.”


Paragraph 6 goes on to state that:

“1) The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
has given a notice to keeper in accordance with paragraph 9.


(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.”

As the Claimant has failed to abide by the requirements of paragraphs 9, then they fail to abide by paragraph 6 and consequently paragraph 4 so they have no alternative remedy against me, the keeper.

Given that all applicable statutory conditions have not been met, the Claimant cannot recover any charges from the keeper under the POFA. And given that I cannot be presumed to be the driver there is no cause of action against me.

It is my understanding that if any part of the Claimant’s claim shall fail then the claim should be dismissed in its entirety. Barrister and parking law expert Henry Greenslade was the Parking on Private Land Appeals (POPLA) Lead Adjudicator from 2012 to 2015 he states “If these timescales are not complied with then keeper liability does not generally pass under Schedule 4.” (Exhibit 1, Page 6, Service of Notices)


The POFA also states that the only sum a registered keeper can be pursued for (if Schedule 4 is fully complied with, which it was not) is the sum on the NTK. The Claimant cannot add additional arbitrary sums when pursuing the keeper.

I, the registered keeper, am under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The Claimant has shown no evidence that I was the driver on the date in question.


Mr Greenslade’s wording from the POPLA Annual Report 2015 - (Exhibit 1, Page 8, Keeper Liability):


However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.

I refer to the binding case of Excel Parking Services v Smith M17X062 (appeal) Stockport, 08/06/2017
 an appeal ruling which established that outside of the POFA, the only alternative course of action against a defendant is if the keeper is a company entity and the driver an employee engaged on company business (as was the situation in the case of Combined Parking Services v AJH films). I dispute the Claimant’s assertion that this case is distinguished when it is clearly not (Exhibit 2, Transcript).


I also refer to the persuasive case of Excel v Lamoureux, C3DP56Q5 at Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. (Exhibit 3, Transcript).


In the similarly persuasive case of VCS vs Quayle C1DP010H, in front of DDJ Gourley at Liverpool on 4th May 2017; the claim was dismissed on the grounds that keeper liability did not apply as the Claimant was not compliant with POFA and they offered no evidence of who was driving (Exhibit 4, Transcript).


The Defendant refers to Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. In this case the Keeper elected to offer no evidence, and put the claimant to strict proof that he was the driver. This of course was an impossibility for the claimant. The Judge made it clear that without proof of driver, and without invoking Keeper Liability, there was no claim against the Keeper.


The Claimant states that they intend to rely on the case of Vine v Waltham Forest LBC [2002], which is strange because it is a binding judgment from the Court of Appeal which supports the Defendant’s case not theirs. (Exhibit 5, Transcript).


This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.


So, for this appeal, I put the Claimant to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, the Defendant requires the Claimant to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up as included in the Claimant’s Witness Statement. The Defendant submits that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


Failure to set out clear parking terms, ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.


The Claimant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a private land car park of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights to park, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.


It is the Defendant’s belief that the parking signage in this matter was, without prejudice to the primary defence, inadequate.


The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory.


The IPC code states that entrance signs should be visible to drivers on their way into a controlled area. The Claimant has not provided any photographic proof of their entrance sign, only an example graphic.


The IPC code also states that the main signs should:


“Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA, or, that they may be requested immediately such that a notice may be served on the keeper by post;”

There is no such wording on the signs at this location as shown, only a vague warning that keeper details may be requested from the DVLA (Exhibit 1, Page 3).


Regarding purported 'legal costs' of £60, I refer to Ladak v DRC Locums UKEAT/0488/13/LA which states that the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated clerical staff. Not only are such costs not permitted under CPR 27.14 but the Defendant believes that the Claimant has not incurred any case-specific legal costs, because no solicitor is likely to have supervised this current batch of cut & paste claims at all.


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 being a maximum of £100 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'.


It is an abuse of process for the Claimant to issue a knowingly inflated claim that it is not entitled to recover. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot. Claims such as this have recently been struck out by County Courts for reasons of: ''Substantial charge additional to the parking charge. Additional charge not recoverable under the POFA, Pre-action Protocol and CPRs...abuse of process.''


Debt collection agencies act on a no-win-no-fee basis for parking operators, so even if letters were sent by any third party, no costs have been incurred, in truth. Nor can a parking operator add any 'damages' to the PCN sum, not even if their member-biased Trade Body pretends they can in a Code of Practice, and not even if a further sum is mentioned on signage, because this would exceed the maximum parking charge, in a flagrant attempt at double recovery. Both law and case law regarding parking on private land, dictates that any additional charge for damages/indemnity costs (howsoever described) is not recoverable under the POFA Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67.


It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this industry's repeated abuse of consumers' rights and remedies.


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 sitting at Southampton 10th June 2019

''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...''


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.


The Claimant’s Witness Statement is signed by Ambreen Arshad who, states that they have been an employee of Vehicle Control Services since January 2019, some 8 months after the parking event. I therefore question the accuracy of the Claimant’s Witness Statement as this individual is unlikely to be familiar with the details of this location and case.


Statement of Truth
I believe the contents of this witness statement are true to the best of my knowledge

Signed:
Dated:
Defendant

Gizmo2

Finally i did it!

KeithP

This is my Witness Statement in support of my defence and counterclaim already filed.

You haven't mentioned a counterclaim before.

Have you filed a counterclaim?

Gizmo2

Oops no I haven't.

Coupon-mad

Can't see many facts about the case in that WS? Nothing tells me what it's about and I didn't see any challenge about the signage.

IMHO it's drowning too heavily in POFA wording, with too much repetition at the mo. The WS jumps about then back again to POFA stuff. Try to group the POFA points together.

Remove this:

It should also be noted that the IPC reports are nowhere near as verbose as those of their competitor member organisation the BPA who publishes the appeal data for each member as well as the number of appeals declined, upheld or not contested.

Also remove the first quote from Henry Greenslade as I can't see how a quote about timescales helps, if you are not saying the NTK arrived after day 56.

Excel v Smith is not 'binding'. Appeal cases are no binding. What you mean is, the case is PERSUASIVE on the lower courts in cases with similar facts.

And why do so many posters keep quoting the DJ Taylor decision that they CANNOT provide evidence for, yet not mention the DJ Grand (IOW) earlier judgment that they CAN? Mention them both like in the example 'disproportionate costs' wording I write to end defences with (I know this isn't a defence) and adduce in evidence, the DJ Grand judgment that I linked there for people to use.

I wrote the wording and linked the IOW decision so people would use it and stop focussing on the DJ Taylor (Southampton) one alone.