VCS Defence

snapdragon855

Do I need to find full details of all the previous court cases that are mentioned in the WS? And how do I go about this if so?

Or is it fine just to quote them as they are at the moment?

Umkomaas

Do I need to find full details of all the previous court cases that are mentioned in the WS?

If you're quoting them as supporting your position, then of course you must at least have read them through and have a very basic appreciation of them. So should your Judge ask, 'How does A v B (1894) impinge on your case, and which aspect of the overall judgment are you relying on?', a 'cough, cough, errrm, hmmmm, not sure', won't be the answer he is looking for!

Of course, it's unlikely to be that intense a question, but you should at least have a read of what's available on the internet. Use Google, also check out the Parking Prankster's repositories of case transcripts (not every transcript you're seeking will be there).

http://www.parking-prankster.com/case-law.html

http://www.parking-prankster.com/more-case-law.html

1505grandad

A few observations.

I believe that the paras should be numbered sequentially and not include sub para numbers.

Para 2 - "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."

Cannot see that there is more than one assertion or a menu choice in your para 2.



Para 2.1 - "There is no assumption in law that the registered keeper is also the driver of the vehicle." - you are the keeper - the lease co. is the RK.


Para 3 seems rather long and complicated - maybe more paras.

Just checking - para 3 - "associated with parking within development." Is this the correct wording?

also - "registration **********, of which the Defendant is the registered keeper" - not RK

Para 21 - also states RK

snapdragon855

Thank you for the updates, I am making the changes suggested above and brushing up on the case law mentioned by Umkomaas. Feeling positive after reading most of the transcripts!

With regards to having sub para numbers, I find it helps me stick to the same overall point so I am clear about the point being made. Or can anyone else confirm that this is not good practice and they should be numbered sequentially?

1505grandad wrote: »

Para 2 - "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."

Cannot see that there is more than one assertion or a menu choice in your para 2.

I think the "menu of choices" is highlighting the vagueness of their claim?

KeithP

snapdragon855 wrote: »

I think the "menu of choices" is highlighting the vagueness of their claim?

No, by saying 'menu of choices', you are suggesting that there is a list (menu) of things to choose between.

There is only one item on that 'list', therefore there cannot be any 'choice' between the item(s) on that list.

Coupon-mad

The 'menu of choices' phrase is used by us in response to POC that say ''the Defendant was the driver and/or the registered keeper''.

Your version doesn't list a list of choices, so the phrase doesn't quite fit.

KeithP beat me to it!

With regards to having sub para numbers, I find it helps me stick to the same overall point so I am clear about the point being made. Or can anyone else confirm that this is not good practice and they should be numbered sequentially?

Sequential numbering is easier to follow, for the reader.

Nothing to stop you having sub-headings such as 'inadequate signage' and 'no keeper liability under the POFA 2012' then carry on with completely sequential numbers as you go. It might read more clearly and be easier in court to refer to something you said, rather than ''in my point 5.1.1., I said''!

snapdragon855

KeithP wrote: »

No, by saying 'menu of choices', you are suggesting that there is a list (menu) of things to choose between.

There is only one item on that 'list', therefore there cannot be any 'choice' between the item(s) on that list.

I used this in my defence. How can I reword it to make it accurate in the WS? Or should it just be omitted?

Eg. is this better;
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,[STRIKE] and is simply offering a menu of choices[/STRIKE]. 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.

Le_Kirk

You cannot add new points or change other points in a defence that has already been submitted. The witness statement (WS) is your opportunity to tell the story of what happened on the day or subsequently. A good WS will start with "This is my WS in support of my defence already submitted......." There is no need to reiterate your defence in the WS.

snapdragon855

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 COURT DATE 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.
Any paragraph numbers mentioned henceforth relate to the witness statement filed to the Court by the claimant’s paralegal representative, XXXX.

1. On DATE a Parking Charge Notice / Notice To Driver was received alleging a contravention of certain terms of contract taking place on DATE. The ‘Notice To Driver’ was issued 42 days after the event. .

DRIVER NOT IDENTIFIED

4. The Claimant has not identified the driver of the vehicle. The parking event was so long ago that the Defendant cannot remember who was driving and the Claimant is unable to provide any evidence of who the driver was.

5. The vehicle has multiple drivers as indicated by a Motor Proposal Confirmation in exhibit XXX. There is no assumption in law that the lessee/hirer is also the driver of the vehicle. The Defendant has no obligation to prove they were the driver; the onus of proof is on the Claimant.

The vital matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:
“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."
POPLA ANNUAL REPORT 2015 (Exhibit XX)

8. The Claimant relies on Excel Parking Services Ltd v Nick Jennings (2017) as persuasive authority in regards to Law of Agency (Paragraph 40). The surprising findings in this small claims court case - that family members were acting as agents of the registered keeper - has since been refuted in a number of cases.

9. The Defence wishes to rely on Excel Parking Services Limited v Anthony Smith (2017) [C0DP9C4E/ M17X062], in which Excel Parking wished to rely on Law of Agency to pursue the keeper, Mr. Smith, even though his granddaughter was found to be driving at the time. In his judgement, the Honourable Judge Smith found, on the question of law of agency:
“In my judgment the claimant in the action, Excel Parking Services Limited, who bear the burden of proof, have not satisfied me on the balance of probabilities either, firstly, that the contract was made on behalf of Mr Smith, secondly, that it was in the scope of his granddaughter’s actual or implied authority to do so, or thirdly, that she intended to act on his behalf. It seems to me that quite the contrary is the case, that somebody parking a car in a car park would expect themselves to be liable for any parking charges. For example, if the person parked the car and went to the machine to pay, the normal assumption would be that they would be paying with their own money and would not be looking for reimbursement from the keeper of the vehicle. That would be a parking contract. I can see no reason why a different analysis should apply if somebody does not pay at all or pays but overstays the period for which they are paying.” (section 13 of judgement)

10. The case referred to in the Claimants witness statement, the case of Jennings, was held in February of 2017. The case of Smith was held in June of the same year. It is most likely that Claimants representative was aware of the subsequent refutal to accept an agency liability as drawn from Circuit Judge Smith in his judgement.

11. The Defence wishes to rely on Vehicle Control Services vs Sarah Quayle (2017) [C1DP0H0J], a striking similar case to this one in which the claimant again wished to rely on Law of Agency in their pursuit to find keeper liability. The registered keeper persisted they were not the driver of the vehicle during the alleged contravention, a number of people were insured to drive the vehicle. In their judgement, Deputy District Judge Gourley stated the following:
“It strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time. I disagree. I disagree particularly in light of the evidence that has been produced by Miss Quayle showing that there are two other people who are on the contract of insurance for this car. She is not the owner of the car albeit she is the registered keeper. The owner of the car is her partner, Mr Green, who also appears on the contract of insurance as one of the named drivers. She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.’’ (section 6 and 7 of judgement)

UNCLEAR SIGNAGE

12. 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.

13. 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 59 the Claimant provides false information that their production of 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 the 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 having “failed to purchase a parking tariff”.

14. The facts are that the vehicle, registration XXXXXXX, of which the Defendant is the lessee/hirer, 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.

15. 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.

LANDOWNER / RIGHT TO ISSUE PROCEEDINGS

16. 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.

17. 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 an expired contract with a leaseholder, Excel Parking Services Limited fixed for a period of 60 months from 15th January 2010, which would have expired in 2015.

18. In Paragraph 11, 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 8; 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.

19. Paragraphs 60 falsely refers to the contract between the Claimant and the landowner. There is no such contract included and it could not be included as the Claimant only had a contract with Excel Parking Services Limited, described in paragraph 8 as a lawful occupant, not the landowner.

20. Paragraph 33 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.

21. Paragraph 50 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

FALSE CLAIMS

22. Paragraph 52 is denied. The claimants evidence claims no pay and display ticket was purchased and has submitted exhibit XXX. The PDT data submitted by the claimant is questionable. It appears to be a simple spreadsheet with random registrations which could easily have been manipulated.

23. 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).

24. I wish to bring attention to the court that Vehicle Control Services is a subsidiary of Excel Parking Services Ltd, with both companies addressed at 2 Europa Court, Sheffield and Simon Renshaw-Smith acting as director.

ABUSE OF PROCESS

25. 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.

26. 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.

27. 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...’

28. 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.''

29. 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.

30. 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.

31. 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.

32. 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.

33. Paragraph 29 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.

34. Paragraph 30 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 lessee/hirer only, not the Driver.

35. 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:


Think that has covered everything. Thank you to everyone who has contributed so far! Any final thoughts or comments are welcome :beer:

PS. Ignore the numbering errors, will correct them later. I have removed the repeated defence statements from the WS to keep things simple.

snapdragon855

Good Morning all,

Will a skeleton argument be necessary in addition to the above witness statement?

Also am I right in thinking that my costs schedule is given to the court on the day of the hearing?