AOS from VCS - Help needed for defence

Karlossus

Hi, Just done my acknowledgement of service online today for a claim being made by VCS (issue date 11/2/19 - I left it to last minute due to being on holiday) against me for parking on an 'access road' (access for what I am not sure) whilst out eating a curry with my blue badge holder wife.

Just checking my defences are correct...

1. It was a hybrid ticket that states 'This is not a Parking Charge Notice'.
2. NTD received after 17 days (I had admitted I was the driver on their appeals form before reading the advice on here - I honestly thought I would be OK as it was a blue badge case) - Is this in line with POFA or not? I can't tell.
3. Poorly lit area (at 11.05pm) with no clear signage saying you are entering a no parking zone. It was very dark and wet that night (as evidenced in their photos).and there was nowhere else to park/parking inadequate/inaccessible.
4. Inadequate signage or road markings within the zone (Beavis case?)
5. Double claiming i.e. adding 60 pouinds on for debt recovery but being unable to provide proof of this specific cost when asked by me in my DSAR.
6. Claimant not having sufficient proprietary interest in the land.

If this is all correct then I'll proceed with the template for unclear signage (main defence here) and post my defence shortly. Feel free to ask any questions as I'm new to this...

Le_Kirk

If you go to NEWBIE post # 2, you will find this: -

A 2018 defence re VCS and a 'THIS IS NOT A PARKING CHARGE' which they then call a parking charge later:

https://forums.moneysavingexpert.com/discussion/comment/74816302#Comment_74816302

KeithP

With a Claim Issue Date of 11th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 18th March 2019 to file your Defence.

That's two weeks away. Loads of time to produce a good 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.

Redx

I fail to see how any passenger being a BB holder can be relevant in this case ?

the driver parked on a private roadway and was ticketed, so any defence needs to address the correct issues like poor or inadequate or forbidding signage , no landowner authority etc

POFA is not relevant either because the OP outed the driver at the appeal stage, POFA does NOT apply to drivers

1 and 2 are not relevant , but the rest are the basics of the defence, plus anything else that is relevant , like the IPC CoP for example

Karlossus

Redx wrote: »

1 and 2 are not relevant , but the rest are the basics of the defence, plus anything else that is relevant , like the IPC CoP for example

Thanks for the replies. The first reply stated that point 1 is very relevant though?
Also, I have had a slight twist in proceedings. I have just been to the site of my 'discretion' and all signs have been removed and people are parking there without fear of charge now. How might this affect my defence?

It is apparently no longer an access road?

Redx

point 1) is negated by the fact that an NTK was sent and the driver replied to appeal it , meaning that the invoice in dispute is the NTK, not the MPC notice , plus by appealing as driver it negated the keeper aspect and therefore POFA as well


as for the fact that it is different now, its what its like on the day of the incident that counts , not a subsequent change

Karlossus

Thanks Redx. So do I still have a defence?

Coupon-mad

Just copy the one pointed out to you in the first reply you got, and add some bits about the fact the signs have now been removed, so it suggests there is, or was, no authority to ticket there and the Claimant is put to proof to explain this lack of landowner authority and why their signs were removed suddenly.

Also add that there was a Blue Badge displayed and the driver was following the usual rules that allow Blue Badge holders to park at most roadway kerbsides.

Redx

EVERYBODY has a defence, legal arguments why they may not be liable, no question about it , so you shouldnt have to ask !!

its all in the words being used, the queries , the statements, the putting them to strict proof that they have a valid legal claim for an invoice against the defendant in the dock

Karlossus

Hi my defence is below. It needs to be sent tomorrow so any feedback would be really appreciated. Point 6 I am unsure is worded correctly as I admitted I was the driver by mistakenly going through their appeals process so I received a Notice to Driver not NTK. Should I omit point 6.1?

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on the so-named Access Road, not on any clear yellow lines nor causing an obstruction. The small, inadequate, and poorly lit sign does state 24 hour access required but the road was not being blocked in any way. It was also a very dark and rainy night, with no lighting provided, visible on the photographic evidence supplied by this claimant, (the parking charge is clearly timed at 11.05pm) making the signs difficult to notice.

2.1 Further to the above the defendant’s wife was present and is a blue badge holder and so was parking in line with normal behaviour; by parking in a kerbside, non obstructing position in close proximity to the venue for access. There was no other available parking access available to the venue. The venue is next door to a taxi firm and any close-by parking was taken up by taxis. It was also a location which had, on previous visits, no restrictions on parking. There was no clear signage to indicate that parking rules had changed.

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, nor caused any blockage to the access road whether express, implied, or by conduct.

4. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them if indeed they were noticed. The signage is attached to an un-illuminated fence on a boundary and reads in small lettering 'By entering this private land you are entering into a contract with Vehicle Control Services'.

5. 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. Not only is this a nonsense, but 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.

5.1 County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.
6.3 Importantly, it has also since become apparent to the defendant that all the signs on the site have now been removed, thus casting further doubt on the Claimants legal right to issue Charge Notices to drivers parked in the so-named Access Road. Vehicles are now parking in the same location neither with threat of penalty nor causing an obstruction.

7. 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 Driver, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given (a DSAR was asked for by the defendant outlining any additional costs but none were shown), and which appears to be an attempt at double recovery.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


(statement of truth and signature and date go here)

KeithP

Karlossus wrote: »

Hi my defence is below. It needs to be sent tomorrow...

What has happened in the last two weeks?

You post up a draft Defence on a Sunday morning expecting volunteers to rush to help you?

It may surprise you to know that maybe the few people who are prepared to comment on a Defence may have better things to do at a weekend.

If we had seen it a week ago, or even a few days ago, you may well have had several comments by now.

Let's hope someone has some free time tomorrow to help.

Good luck.