NTK for PCN - Access Road at Retail Park in Pontefract.

Coupon-mad

A VCS no-stopping case is harder to defend than a bog standard car park one, due to VCS v Ward and as we keep on saying again and again on these VCS threads, a defence must counter Ward, with equal standing appeal decisions in Jopson and Ransomes.

Search the forum please! You CANNOT get away with a generic appeal.

Your job is to show why VCS v Ward does not apply. It's a truly ludicrous, horrible and BAD decision by a Judge who was led up the garden path and around the corner by VCS' rep in the absence of the Defendant at appeal stage.

2_Foot_of_Head

Hi Coupon-Mad,

I've spent the last two and a half hours searching the forum for VCS v Ward but all I keep returning are posts where this case has been mentioned (20 in total) - I cannot find the actual case.

I've been back to RichieBoy 56's post on 12.05.19, which contains a link to a Witness Statement from VCS (which the thread goes on to intimate contains details of the VCS v Ward case). However, the link only takes me to an error message.

“
I submitted my Witness Statement to the Court and VCS last Wednesday. On Friday, the last date for submissions, I received the attached Supplementary Witness Statement from VCS.

https://postimg.cc/gallery/zdu5upsq/

I feel like I have been ambushed. Are they allowed to submit supplementary Witness Statement at the last minute. It doesn't give me any time to consider a response.

Your suggestions on necessary action and comments on the content of the Supplementary WS would be appreciated.

I'm beginning to wish that I'd just paid up now!
Originally posted by RichieBoy56
”

Any pointers would be greatly appreciated, as I'm at the stage where I can't see what I'm doing wrong.

Le_Kirk

You need to ask Auntie Google about VCS v Ward, there are loads of items returned.

2_Foot_of_Head

Thank-you Le_Kirk.

2_Foot_of_Head

Ok, apologies if it seems as though I've wasted anyone's time but I got a little bogged down yesterday and I was getting desperate. However, I'm through that now and I've been back out looking for reasons why VCS v Ward does not apply in my case - hopefully, the following may show some differences.


The case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, concerned a no stopping site in Wakefield.
The site consists of private land through which the owner’s road attaches to various retail and business operations. The principal aim of the owner and our client is to ensure the free flow of traffic along the roadways to avoid congestion, and therefore any problems for the connected businesses.
Like any car park, any user of the site is presented with entrance signs, and repeater signs throughout the site. The difference of course is that, unlike a car park, any user is not permitted to stop on the roadways, though this does not apply once a user enters a retail or business unit.
This case is persuasive as a County Court decision on appeal, and more helpfully, takes us through the application of the Supreme Court’s decision in ParkingEye v Beavis (2015), as well as an appeal decision with very similar facts to our case of VCS v Crutchley (2017).
Contractual licence – we successfully argued against the District Judge’s finding that “a driver cannot unwittingly enter into the contract”, with one argument being that a shopper enters into a contract when buying a packet of sweets. HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represents an offer of a contractual licence, which is accepted when the user drives onto the private land.

He quoted Lord Neuberger in Beavis:
“Mr Beavis had a contractual licence to park his car in the retail park on the terms of the notice posted at the entrance, which he accepted by entering the site”. This was subsequently accepted by HHJ Wood QC in Crutchley: “it is unnecessary to consider the principles of offer/acceptance/consideration… because this is a case, as in Beavis, of a contractual license with terms and conditions attached.”
Whilst Crutchley did not consider the elements of a contract, HHJ Saffman went on to say “it seems to me to be equally clear that there is consideration. The consideration is the license to use these private roads, in the same way as the consideration in Beavis was the licence to park the car.”

(1) There is one entrance sign and three repeater signs.
(2) The entrance sign is approximately 25 metres immediately after an exit from a dual lane roundabout. The speed limit is 40 M.P.H. in this area and the road is subject to high volumes of traffic at peak times. The entrance sign is mounted on a lamp post immediately at the top of three steps which provide pedestrian access to a McDonalds restaurant. In addition, there are four trees on a grassed area adjacent to a causeway, which can obscure a drivers line of sight to the entrance sign when the driver is negotiating the roundabout. Finally, there is a pedestrian island at the exit of the roundabout onto the roadway in question which also detracts a drivers eyes from the entrance sign.
(3) The most prominent features of the entrance are a no stopping symbol, the text "RESTRICTED ZONE" and "No Stopping". The only text stating that the land is private is at the bottom of the sign and is of a size that could not be read by the driver of a passing vehicle. The sign also states "Strictly no stopping or waiting on double yellow lines or roadways at any time" - however, there are no double yellow lines on the roadway.
(4) The three repeater signs are confusing by virtue of the fact that they include a "no waiting" symbol, as opposed to the "no stopping" symbol on the entrance sign. As said earlier, there are no road markings to supplement the "no stopping" symbol on the entrance sign, so it could be argued that the "no waiting" symbols on the repeater signs introduce an easement of the "no stopping" instruction. Two of the three repeater signs are partially obscured by trees, which would make reading them from a passing vehicle impracticable - therefore, the only way to read the text on the sign (and therefore enter into a contract) would be to stop for a period of time.

2_Foot_of_Head

Images of two of the three repeater signs that are partially obscured by trees.

https://imgur.com/okdBcIw

https://imgur.com/jXFEvL6

2_Foot_of_Head

I have now amended my Defence, to try and counter the VCS v Ward case (see point 6) and points 8 and 9 have been replaced with Coupon-Mads Abuse of Process.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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 XXXX, of which the Defendant is the registered keeper, had stopped on the material date on Racecourse Retail Park Access Road, Phase 1, Pontefract, WF8 4PR

3. The Particulars of Claim state that the Defendant XXXXX; was the registered keeper and/or the driver of the vehicle XXXXX;. 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.

4. 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, whether express, implied, or by conduct.

5. 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. The following two types of signs are in use; (I) Entrance sign - on which a "No Stopping" symbol is used, (ii) Repeater signs - on which the "No Waiting" symbol is used. The Department for Transport "Know Your Traffic Signs" publication states that "drivers may stop to pick up or set down passengers" where waiting restrictions are in force, yet the Claimant avers that the Defendant is in breach of the advertised terms and conditions; namely stopping in a zone where stopping is prohibited - this is not the case, due to the fact that the repeater signs display "No Waiting" symbols. In addition, there are no markings on the carriageway to indicate that restrictions are in force, eg. yellow or red lines.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, is in such a position that anyone attempting to read the tiny font would be unable to do so easily, and is, with respect to two of the three repeater signs, partially obscured by trees. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. There has been no "grace period" applied to allow the Defendant to read the Claimant's signage. For these reasons, the case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, should not have a bearing in this instance. This is because with respect to VCS v Ward, HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represented an offer of a contractual licence, which was accepted when the user drove onto the private land. In this instance, the text is too small to alert the user to the fact that they are entering private land, and is therefore, not capable of creating a legally binding contract.

7. The Claimant is put to strict proof that it has sufficient prorpietary 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.

8. Costs on the claim - disproportionate and disingenuous.
CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

9. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

10. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

11. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

12. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

13. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

14. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, 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. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both 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 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.

16. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

17. 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 the facts contained in this Defence are true.

Name
Signature
Date

KeithP

Why does the paragraph numbering stop at 8?

Every paragraph needs to be sequentially numbered.

2_Foot_of_Head

Now edited

Thanks KeithP

2_Foot_of_Head

Hi everybody,

Just to let you know my case was dismissed today, as, in the Judge's opinion, the signage was not clear enough. I will provide more details once I can get on my PC but for the moment, thanks to everyone n the site, for the advice I have been given and for the advice contained in all the other posts.