VCS Defence

Coupon-mad

They should have supplied it already but do your defence anyway and you will be saying as well, that the Claimant has failed to provide the vital evidence needed under the per-action protocol for dent claims, including withholding pictures of the signage terms that form the purported contract, and withholding the machine records from that day, despite being sent a Subject Access Request and the latter being personal data that must be disclosed.

All of this faffing by them, adds to your defence.

snapdragon855

Thanks CM
Have now added it as section 4.4.
Going by other threads - did you mean pre-action (vs per-action) and debt (vs dent)?

snapdragon855

Think the defence is ready to submit. Just a couple of final points:

snapdragon855 wrote: »

4.2. In any case the signage at the car park was in the name of Excel Parking, 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.

Should I use the term "discontinued" or something else?

snapdragon855 wrote: »

4.3. The International Parking Community Accredited Operator Scheme Code Of Practice v6 April 2017 (of which the claimant is a member) states: Drivers should be allowed a sufficient amount of time to park and read any signs (this is more specifically given as 10 minutes according to British Parking Association code of practice) so they may make an informed decision as to whether or not to remain on the site. Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired.
The contravention reason is given as a stay of 79 minutes on the land operated by the Claimant. The Defendant is led to believe a Pay and Display Ticket (PDT) was purchased for period of 1 hour, the vehicle was only actually parked for the permitted 1 hour, and the driver relied upon the time on the PDT from the machine. The minutes before and after paid for time are accounted for by the time taken by the driver to find a space, park, read a sign, go and queue at a machine to pay, then at the end, the 10 minute grace period applies to allow a motorist to leave without incurring a PCN, and thus there was no contravention.

Should it state 1 hour, or make it a little more vague as there's a possibility of no PDT records being kept by the PPC (as they were not provided in the SAR and the carpark has been demolished)?

snapdragon855

Directions Questionnaire arrived today, have filled it out as according to the stickies.
Nearest court is ****. Any reason not to choose this one?*** and ******* are two alternatives that are also nearby...

Also will the Court forward a copy of the DQ to the Claimant or will we HAVE TO forward them a copy?

KeithP

snapdragon855 wrote: »

Directions Questionnaire arrived today, have filled it out as according to the stickies.
Nearest court is Birmingham Civil and Family Justice Centre. Any reason not to choose this one? Dudley and Walsall are two alternatives that are also nearby...

Also will the Court forward a copy of the DQ to the Claimant or will we HAVE TO forward them a copy?

Send you completed DQ to the CCBC using the same manner and email address that you sent your Defence.
Refresh your memory by re-reading post #2 above.

You must send a copy to the Claimant - address on your Claim Form.

snapdragon855

The fun begins.

Have just received the Claimants witness statement

Will begin drafting mine now, court papers advise WS to be sent 14 days prior to court date of 24th Oct.

I have redacted reg and claim numbers from the document but please let me know if there is anything else that I should remove from the shared link.

Fosh

I'm not an expert, but I'd focus on their paragraph 50 whilst in court. The photos clearly show Excel, not VCS.



Looks like a typical dog excrement WS where they contradict themselves.

nosferatu1001

Yep, assuming you havent already done so, you ll be majoring on the complete screw up that is VCS legal entity taking you to corut over a Excel offered contract.

snapdragon855

I'm struggling to find a previous post/thread about altered PDT records, in order to discredit their PDT logs as the Vehicle Registration in question is not on there. Can anyone help?

snapdragon855

Good Evening all. It's been a long day looking through various Witness Statements to help me draft my own, my brain is completely frazzled! Please provide some feedback on the following Witness Statement. Thank you!

IN THE COUNTY COURT

CLAIM No: XXXXX

BETWEEN:

VEHICLE CONTROL SERVICES LIMITED (Claimant)

-and-

MR XXXXXXXXX (Defendant)

________________________________________
WITNESS STATEMENT
________________________________________

I, NAME, of ADDRESS, will say as follows:
I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked XX1 to which I will refer.
I make this Witness Statement in readiness for the hearing scheduled for ** October 2019 in support of my defence.
The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my knowledge, they are true to the best of my information and belief.

1. The vehicle, registration XXXXX, of which I was the lessee/hirer from XXXXXX, was parked at Albert Street Car Park, and had a valid pay and display ticket to be parked on that land.

2. The Particulars of Claim does not state whether they believe the Defendant was 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.
2.1. The Claimant has not identified the driver of the vehicle. The parking event was so long ago nobody can remember who was driving and the Claimant is unable to provide any evidence of who the driver was. The vehicle has multiple drivers as indicated by a Motor Proposal Confirmation in exhibit XXX. There is no assumption in law that the registered keeper is also the driver of the vehicle.
2.2 The Defendant is named as the lessee/hirer by LEASE COMPANY, however this does not mean the Claimant can assume the lessee/hirer was the driver at the time of the incident. The Claimant has incorrectly assumed this and sent a Notice To Driver to the Defendant. The Claimant is put to strict proof that the Defendant is the driver. If they fail to establish this, then it stands that a valid Notice To Hirer (with accompanying documents required by law to transfer liability from the lease/hire firm) has not been served and the Claimant has failed to identify a Cause of Action.
2.3 The vehicle has multiple drivers and VCS has failed to comply with the Protection of Freedoms Act (POFA) 2012 Schedule 4, para 14 and thus failed to transfer liability to the lessee (the Defendant) in law. Given that the car is leased with more than one driver, the Claimant cannot assume nor tip the balance of probabilities, that the lessee was necessarily the driver on a single occasion at an unremarkable site. Thus, the Claimant has failed to establish a Cause of Action and liability against the Defendant.

3. The claimant's signage was not in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. It does not indicate time spent looking for a parking space, or the time spent in a queue to leave the carpark. The allegation appears to be based on images recorded by the Claimant’s ANPR cameras at the entrance and exit to the Albert Street Pay and Display Car Park, that the Claimant was managing based on the contract with their client, Excel Parking Services Limited (Exhibit XXX of the Claimant Witness Statement). In paragraph 21 and paragraph 59 of the Claimant Witness Statement the Claimant provides a false information that their production in exhibit XXX is evidence of the date, time and location that the Defendant parked their vehicle in contravention of the Terms and Conditions associated with parking within development. This is merely an image of the vehicle in transit, entering and leaving the car park in question, and is not evidence of the Defendant “failed to purchase a parking tariff”. The facts are that the vehicle, registration **********, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by the Claimant, to enter and to exit above car park within short period of time. It does not prove that the driver has parked the vehicle in question.

4. 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.

5. The Claimant failed to provide the vital evidence needed under the pre-action protocol for debt claims, including withholding pictures of the signage terms that form the purported contract, and withholding the machine records from that day, despite being sent a Subject Access Request and the latter being personal data that must be disclosed. This is evidenced in emails in Exhibit XXX.

6. 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. The Claimant has failed to provide this with its Witness Statement. Instead they have produced a contract with a leaseholder, Excel Parking Services Limited fixed for a period of 60 months from 15th January 2010, which should have expired in 2015. No evidence of that being granted by the landowner to Excel is provided.

7. Paragraph 7 of the Claimant’s Witness Statement the Claimant falsely claims that it was entitled to contract with the drivers on behalf of the owners of the development in accordance with their appointments. There is no evidence of such appointments included. Excel Parking Services Limited is not an owner of this site. As admitted by the Claimant in paragraph 9 and 48 of Witness Statement of the Claimant the site was leased to Excel, however there is no evidence of any contract between Excel Parking Services Limited and the landowner included that would suggest that Excel has been given any right to manage the site and to appoint any other companies to manage and enforce parking on the site.

8. Paragraphs 11 and 60 of the Claimant’s Witness Statement in reply to the Defence the Claimant falsely refers to the contract between the Claimant and the landowner within exhibit XXX. There is no such contract included and it could not be included as the Claimant had a contract with Excel Parking Services Limited, described in paragraph 8 of the Witness Statement as a lawful occupant, not the landowner.

9. Paragraph 33 of the Claimant’s Witness Statement is denied, as the Claimant failed to provide any evidence, that the vehicle in question was parked on site and as a result did not take up space in a parking bay, thus ParkingEye Ltd v Beavis [2015] UKSC 67 is distinguished, due to completely different facts.

10. Paragraph 50 of the Claimant’s Witness Statement is denied. The signage at the car park was in the name of Excel Parking, not VCS. VCS therefore has no rights to bring a claim. Previous cases of this nature which have been discontinued/dismissed are:
Discontinued
VCS v Zozulya A8QZ6666
VCS v Ms M 3QZ53955
VCS v Ms O C8DP9D8C
VCS v Mr H C2DP0H7C
VCS v Mr W C1DP3H5V
Dismissed
VCS v Ms A C6DP7P37

11. Paragraph 52 of the Claimant’s Witness Statement is denied. The claimants evidence claims no pay and display ticket was purchased and has submitted exhibit XXX. I have every reason to believe the driver purchased a PDT, and that the PDT data submitted by the claimant is unreliable. It appears to be a simple spreadsheet with random registrations which could easily have been manipulated.
Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as ‘evidence’. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excels appeal (ref: Excel v Ambler, case no. E1DP2061).

12. The Parking Charge Notice issued by the Claimant to the Defendant clearly states the value of £100. There is no explanation in the particulars for the additional £60. These sums have been held to be unrecoverable (ParkingEye v Beavis [2015] UKSC 67). It is an abuse of process for the Claimant to issue knowingly inflated claims.

13. In Case number F0DP163T on 11/07/19, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

14. In Case F0DP201T on 10/06/19, District Judge Taylor 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. The Order was identical in striking out all such claims without a hearing. The Judge stated: ‘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...’

15. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

16. The claimant is intending to rely on Chaplair v Kumari to attempt to justify an unknown £60 “debt recovery charge”. This case is distinguished from the case above by the following facts; 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 and no bolt on 'damages' or imaginary debt collector costs.

17. The Claimant failed to include in its Witness Statement mentioned in an extract from the eyeTRAFFIC system showing data of the vehicle registrations entered for all tickets purchased on the day of alleged “contravention” thus they failed to prove that no payment for the vehicle in question was ever made.

18. The Claimant has been Accredited Member of International Parking Community (IPC) and agreed to abide by their Accredited Operator Code of Practice and is responsible to be fully appraised with the Code.

19. In the IPC Accredited Operator Scheme Code of Practice (AOS CoP), part B, paragraph 15. Grace Periods states that (15.1) Drivers should be allowed a sufficient time to park and read any signs so they make an informed decision as to whether or not to remain on the site and (15.2) Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired. The Claimant failed to follow that Code of Practice as their Terms and Conditions state “After a vehicle has entered the car park a maximum period of 10 minutes is allowed to purchase a valid Pay & Display ticket or make payment by phone. Instructions are detailed on the Pay & Display machines. Any vehicle /driver remaining on this private land 10 minutes after entry is subject to and agrees in full to the Terms & Conditions”. 10 minutes of “grace period” is not sufficient to make an informed decision as to whether or not to remain on site, taking into consideration a rather complicated layout of the site, level of difficulty in finding sufficient parking bay and speed restriction. No time to read any sign to make an informed decision is being given to motorists. There was also no grace period to leave the site included in Terms & Conditions.

20. Reference to Thornton v Shoe Lane Parking 1971 2 QB 163 is refuted as the car park in that case was a barrier car park where the driver would stop and take a ticket from an automatic ticket machine for a barrier to be raised. Albert Street Pay & Display Car Park did not have any barriers in operation at the entrance. It was held that an automatic ticket machine was an offer, rather than an invitation to treat. Lord Denning MR held that: “the offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise.” The only similarity could be the offer that was contained within notice at the entrance.

21. Reference to the Claimant wishing to rely on the precedent set under Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 is refuted as it does not apply to this case. Driver was known in that case in contrary to this case, where the Defendant is proved to be the registered keeper only, not the Driver.

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.


I believe that the facts stated in this Witness Statement are true.


Signature of Defendant:


Name:
Date: