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Miss R versus VCS Ltd
JesterShoe
Posts: 67 Forumite
Hi all, this my our first post on the issue of Parking Charge Notices to bonafide residents of an apartment block.
The Facts:
2 CN's issued one at 19.00 and one at 08:30 next morning for failure to display a valid permit.
The car park is gated and residents need a key fob for entry and exit.
The parking bay's are Deeded to the apartments.
All the permits on site have an expiry date that has expired.
We are not the only people to receive Court papers.
VCS demanding excessive charges.
We are at the County Court stage already and we have submitted 2 x AoS.
We have also posted our SAR.
This is our Defence statement any pointers would be greatly appreciated.
Claim Number XXXXXXXXXX
Preliminary
1. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxxxx which is the subject of these proceedings. The vehicle is insured with [provider] with xxxxx named drivers permitted to use it.
3.1 It is admitted that on the evening of the xxxxxx and the morning of the xxxxxx the Defendant's vehicle was parked at xxxxxxxx.
3.2 The Defendant’s vehicle was parked in the allocated bay number xxx and has done since taking up residency of apartment xxxxxxxx. Up until the CN was issued on the date mentioned. No other car is entitled to park in the space as the space is owned (Deeded) by the Defendant’s Landlord.
3.3 Entry into the car parking area is by means of a key fob which opens a large electric gate; the key fob is only issued to residents. Any vehicles parked therein are therefore, de facto authorised to be there.
4. Misleading evidential photographs
4.1 The photograph of the Defendant’s car on the date claimed only shows the rear of the vehicle and not the front windscreen, how can it be determined that there was a Permit displayed.
4.2 The photographs also do not show which parking space the Defendant’s car is located.
5. Distinguished features
5.1 This case is distinguished from that of ParkingEye Ltd v Beavis [2015] UKSC 67 in that the alleged offense took place in a residential security fenced car park with allocated marked bays for each flat where as ParkingEye Ltd v Beavis was in on a retail park owned by British Airways Pension Fund. Additionally, unlike this alleged offense Beavis was in a time constrained environment.
5.2. Furthermore, in Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore mean that the issued Parking Charge Notice is either an unenforceable penalty (which a private company is unable to issue) or a speculative invoice.
5.3. One of the key points from the Beavis case was that the charge was necessary to deter overstaying - this is not applicable to this case. As the defendant was parking in their landlord’s Deeded space, it is then considered that there is no legitimate interest, the charge would therefore be as previously mentioned, an unenforceable penalty or speculative invoice.
Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of xxxxxxxx xxxxxx xxxxx, xxxxxxx, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or a specific display position of a valid parking permit.
6.1 The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenants Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
6.2 The costs are manifestly excessive and unconscionable considering the defendant lives at the address and pays rent on the property which includes the use of the allocated parking space. The bay in question is designated to only the Defendant's home.
6.3 The Defendant has never been issued with an in-date valid permit and was parked within the lines, and the lease does not state that the tenant needs a permit valid or expired.
7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in!Jopson v Homeguard Services Ltd!(2016) and of Sir Christopher Slade in!K-Sultana Saeed v Plustrade Ltd![2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
8. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, and being a private nuisance to residents.
8.1. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
Failure to set out clearly parking terms
9. By what legal definition does the Claimant refer to as a Valid Permit?
9.1 The signage specifies that a Valid Permit is displayed but does not address the issue of obtaining a Valid Permit.
10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
10.1 The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £185.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.
12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.
The Facts:
2 CN's issued one at 19.00 and one at 08:30 next morning for failure to display a valid permit.
The car park is gated and residents need a key fob for entry and exit.
The parking bay's are Deeded to the apartments.
All the permits on site have an expiry date that has expired.
We are not the only people to receive Court papers.
VCS demanding excessive charges.
We are at the County Court stage already and we have submitted 2 x AoS.
We have also posted our SAR.
This is our Defence statement any pointers would be greatly appreciated.
Claim Number XXXXXXXXXX
Preliminary
1. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxxxx which is the subject of these proceedings. The vehicle is insured with [provider] with xxxxx named drivers permitted to use it.
3.1 It is admitted that on the evening of the xxxxxx and the morning of the xxxxxx the Defendant's vehicle was parked at xxxxxxxx.
3.2 The Defendant’s vehicle was parked in the allocated bay number xxx and has done since taking up residency of apartment xxxxxxxx. Up until the CN was issued on the date mentioned. No other car is entitled to park in the space as the space is owned (Deeded) by the Defendant’s Landlord.
3.3 Entry into the car parking area is by means of a key fob which opens a large electric gate; the key fob is only issued to residents. Any vehicles parked therein are therefore, de facto authorised to be there.
4. Misleading evidential photographs
4.1 The photograph of the Defendant’s car on the date claimed only shows the rear of the vehicle and not the front windscreen, how can it be determined that there was a Permit displayed.
4.2 The photographs also do not show which parking space the Defendant’s car is located.
5. Distinguished features
5.1 This case is distinguished from that of ParkingEye Ltd v Beavis [2015] UKSC 67 in that the alleged offense took place in a residential security fenced car park with allocated marked bays for each flat where as ParkingEye Ltd v Beavis was in on a retail park owned by British Airways Pension Fund. Additionally, unlike this alleged offense Beavis was in a time constrained environment.
5.2. Furthermore, in Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore mean that the issued Parking Charge Notice is either an unenforceable penalty (which a private company is unable to issue) or a speculative invoice.
5.3. One of the key points from the Beavis case was that the charge was necessary to deter overstaying - this is not applicable to this case. As the defendant was parking in their landlord’s Deeded space, it is then considered that there is no legitimate interest, the charge would therefore be as previously mentioned, an unenforceable penalty or speculative invoice.
Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of xxxxxxxx xxxxxx xxxxx, xxxxxxx, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or a specific display position of a valid parking permit.
6.1 The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenants Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
6.2 The costs are manifestly excessive and unconscionable considering the defendant lives at the address and pays rent on the property which includes the use of the allocated parking space. The bay in question is designated to only the Defendant's home.
6.3 The Defendant has never been issued with an in-date valid permit and was parked within the lines, and the lease does not state that the tenant needs a permit valid or expired.
7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in!Jopson v Homeguard Services Ltd!(2016) and of Sir Christopher Slade in!K-Sultana Saeed v Plustrade Ltd![2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
8. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, and being a private nuisance to residents.
8.1. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
Failure to set out clearly parking terms
9. By what legal definition does the Claimant refer to as a Valid Permit?
9.1 The signage specifies that a Valid Permit is displayed but does not address the issue of obtaining a Valid Permit.
10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
10.1 The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £185.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.
12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.
Even Richard Turpin had the decency to wear a mask!
0
Comments
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Looks good so far, nice work.
Are you all submitting similar defences & lobbying the Managing Agent as a group of residents, to force the parking firm out and not have them replaced by any firm?
You do NOT need a PPC in a key fob car park, they are there just to penalise you all. Get angry, get together and FORCE the PPC out.
I wouldn't have this heading, as distinguishing a case from another case, is not the same as distinguished features (sound a little odd!):Distinguished features
And I didn't see the usual defence point about the PPC not owning the land, and not having a chain of authority from the actual landowner.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Good morning Sensei Coupon-mad you must never sleep!
Thank you for you pointers, and yes it has been mentioned that a Class action might be in order.
I will add the Chain of authority which is a very good point, I have also asked the building management company for a copy of their contact with the PPC but they say that they cannot or will not provide one.Even Richard Turpin had the decency to wear a mask!0 -
JesterShoe wrote: »
I will add the Chain of authority which is a very good point, I have also asked the building management company for a copy of their contact with the PPC but they say that they cannot or will not provide one.
I note you have mentioned other cases in your defence.
Has the PPC referenced these
Regarding the management company and their failing to provide a copy of the contract, alarm bells must start ringing for the residents as to what is in the contract. Maybe some remuneration for the company or a director. ???
Does the management company fully understand that you and the residents are at liberty to call them as a witness in court ??
Is this operated by ANPR cameras
As coupon-mad says, as it's a fob key entry system, there is no reason to employ a PPC apart from a money making exercise0 -
Excellent, now get your MP on board, PPCs have no place in residential cay parks.
The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.
Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.
Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..
All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.You never know how far you can go until you go too far.0 -
Hi, first of all, I must thank you, and all the other wonderful people on this site, for of your time and free assistance.
Yes the alarm bells are ringing, I have put the question to the management company "Are you, or your company receiving payment from VCS?"
I have had no reply to this yet but I'll let you know what they say.
I don't think they have ANPR cameras, but I will check.
I would also like to add this:
The Claimant needs to provide documented proof that they have the landlord’s permission to erect all parking signage on site. It is also required that due to the Claimants signage being classed as advertising it has the relevant Local Authority planning permissions. This evidence cannot be backdated as this would prejudice the Defendants defence.
Does it have any merit?Even Richard Turpin had the decency to wear a mask!0 -
I think you are on the money with the "A bill is currently before parliament" and they are trying to maximize profits before regulation.Even Richard Turpin had the decency to wear a mask!0
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... I have also asked the building management company for a copy of their contact with the PPC but they say that they cannot or will not provide one.
They certainly can, so they are refusing.
I think that you may have a right to know this, take the matter up with ARMA.
https://arma.org.uk/You never know how far you can go until you go too far.0 -
JesterShoe wrote: »Hi, first of all, I must thank you, and all the other wonderful people on this site, for of your time and free assistance.
Yes the alarm bells are ringing, I have put the question to the management company "Are you, or your company receiving payment from VCS?"
I have had no reply to this yet but I'll let you know what they say.
I don't think they have ANPR cameras, but I will check.
I would also like to add this:
The Claimant needs to provide documented proof that they have the landlord’s permission to erect all parking signage on site. It is also required that due to the Claimants signage being classed as advertising it has the relevant Local Authority planning permissions. This evidence cannot be backdated as this would prejudice the Defendants defence.
Does it have any merit?
There is some merit in permission and that should be included in the contract.
Assume you all pay a service charge covering external expenses such as electricity etc.
ANPR cameras use electricity which the residents are paying for.
If there is no ANPR, then whoever is issuing the tickets is either a non resident (the PPC) which in turn is a security risk as this PPC is an ex clamper and often issue claims they are not entitled to
Your management company should read this carefully ..
https://parking-prankster.blogspot.com/search?q=VCS
If a VCS warden does not have access via the fob-key, then it is possible that a resident is the traitor to whom VCS pay commission to0 -
I like your chain of thought
but I have just checked the ARMA website and I don't think the management company involved is a member. Even Richard Turpin had the decency to wear a mask!0 -
It is defiantly somebody on foot, with pocket full of, this is Not a Parking Charge Notice (Red & Black) and a digital camera.Even Richard Turpin had the decency to wear a mask!0
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