VCS Vs Defendant- Albert Street car park

Umkomaas

In what way?

You will need to argue this point with a Judge. You will need to read, understand and be able to articulate the defence point. Me telling you in the space of a couple of sentences will not help you when the Judge asks you the same question you've just asked me. So read it here:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

I'm not pretending this is easy reading, so you may have to go through it a few times. But you will need to do it.

onlyfoolsandparking

Madaschi wrote: »

Thanks. Where did it happen? How did you find the landowner?
Can you please tell more details how this NTK is not PoFA compliant?

Thank you

Doesn't really matter where it happened, majority of private car parks operate in the same way (Clue: a scammer is there) but if you want to know it was the Peel centre, Stockport.


I found the Landowner by using Google its quite handy sometimes.


You need to read POFA 2012 in more detail, then you will discover as I did (eventually) why your NTK is not compliant, again Google comes in handy for this.


Its been pointed out to you by one the experienced regulars that YOU need to put some leg work in on discovering the why's and where's of YOUR parking situation, its really the only way.

Coupon-mad

and Excel logo on tariff and t&c board but with small letters right underneath that contract is between driver and VCS.

But Excel appeared on the PDT slips the machine produced.

The POFA wording error is the same as seen in all VCS threads, covered loads of times.

Madaschi

Guys, thanks for leading me in the right direction. Here is what I have found so far in PCN NTK issued to me as a keeper (not sure if these make any argument - forgive me my ignorance if does not):

1. Issued by VCS where Excel appeared at the entry as a named company that managed and controlled that private car park. Also, Excel logo appeared on issued car parking tickets and to avoid from being accused of predatory practice Excel should be issuing NTK, where it should name VCS as a creditor. VCS, until proven, does not have any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for a breach in its own name.

2. Contravention reason: 101) PARKED without payment of the parking tariff for the vehicle registration mark of the vehicle on site.
The car could not be parked at this site within the provided timeframe of 22 minutes, as the time from entering that car park to:
a) finding a suitable location,
b) to park the car,
c) to let the children from the car,
d) to go to the nearest PDT machine
e) to pay for the car park, providing there is no queue
f) to read t&c beforehand to actually decide if a driver wanted to leave the car over there,

and if disagreed with t&c,

g) to go back to the car,
h) to get children to the car,
i) to find the exit (there appeared to be two exits but actually one was in use)
and
j) to leave the car park
requires more time than 22 minutes.
The grace period of 10 minutes provided within t&c at the site should be applicable only at the end of the parking period that drivers paid for. This measure was introduced by the government to prevent fines for being just a few minutes late back to the vehicle – be it in a paid or free parking space.

Link to the site picture is here:

There is no mention of the grace period at the site (blank field).

3. Payment is now required in the sum of £100.00 within 28 days of the issue date of this notice, i.e. no later than 15/05/2018. According to Schedule 4 PoFA 2012
paragraph 5.1)a) VCS did not prove that it has the right to enforce against a driver, like Excel, the only company name that appeared at the entry to the car park therefore only Excel can exercise that right.
6.1b) (The second condition is that the creditor or a person acting for or on behalf of the creditor) has given notice to keeper in accordance with paragraph 9, wherein c) it says: describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose. VCS failed to describe parking charges due from the driver on the assumption that keeper was the driver at the time of alleged "contravention".
7. VCS states that they "...may pursue you (the Keeper) on the assumption you were the driver.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

Based on this I may assume and, as a result of my assumption, report to respective authorities that VCS was responsible for 9/11 (exaggerating now ofc).

Now in regards to the t&c at the site: hxxp://i66.tinypic.com/2lb16y0.jpg

1. Large Excel logo in the top right corner but "By parking on this private car park you are entering into a contract with Vehicle Control Services Ltd (...)".

When challenged that in keepers appeal, their response was that "Excel Parking Services operate the car park and Vehicle Control Services enforce parking on the site".

2.Park correctly and only between the lines of single marked bay. (No lines to mark the bays were there as most of this car park was a gravel - pics available)
3.A valid pay and display ticket is described as PDT EXCEL ONLY and full reg number required.
4. The site may be monitored by CCTV/ANPR (...) , which in fact was constantly monitored.
5. If there is a breach of these Terms and Conditions Vehicle Control Services Ltd and/or its agents may request the registered keeper's from the DVLA to trace the driver responsible for the breach.
6. Vehicles are left on this car park at the driver's/keeper's risk and Excel Parking Services Ltd and/ot its agents or servants will not be liable for any loss (...)

Here is the pic: hxxp://i64.tinypic.com/20rn4w1.jpg

To me these are confusing to say the least...

I have also received response to my SAR request from Excel's Debt and Litigation Manager. I have asked for:
- ALL photos of vehicle MF17FNR taken
- all letters/emails sent and received, including any appeal earlier
- a complete PDT machines record from that day, of payments made, including VRNs.
- all data held on me, and a full copy of the PCN, NTK
- Albert Street car park address, layout with a position of all PDT machines, a full image copy of all written signs, including entry signage and displayed terms and conditions

and received all but third and fifth point with exception to picture of entry board.

Please advice me on this. I have until 1600 tomorrow to send my defence.

Thanks

KeithP

Madaschi wrote: »

I have until 1600 tomorrow to send my defence.

Please post your draft Defence for critique when you are ready.

You are very close to the wire and may not have left enough time for any comment.

All that detail about POFA compliance comes at witness statement stage. At Defence time it is enough to assert that the PCN did not comply with POFA - if that's what you believe. The evidence about how it doesn't comply comes later.

Madaschi

Here is my defence draft:


IN THE COUNTY COURT

CLAIM No: xxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxx (Defendant)

________________________________________
DEFENCE STATEMENT

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

2. It is admitted that the Defendant is the registered keeper of the vehicle in question.

3. The Defendant has no liability as he is the Keeper of the vehicle, and the Vehicle Control Services Ltd has failed to comply with the strict provisions of PoFA 2012 Section 4 to hold anyone other than the driver liable for the charges.

3(a) The driver has not been evidenced on any occasion.

3(b) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability in the POPLA Annual Report 2015: "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort".

4. Due to the sparseness of the Particulars of Claim, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass, as the vehicle in question has never been parked at the car park.

5. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether expressed, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance, after consideration.

6. The Claimant does not provide any proof if it was contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the car park was managed and controlled by the different company. Accordingly, it is denied that the Claimant has the authority to bring this claim as no proof of this has been delivered.

7. It is denied that entering the car park creates automatic acceptance of the terms and conditions after the allocated time limit of 10 minutes, as every person has different reading speed and reasoning capabilities, therefore sufficient time should be allowed to enter the car park, find available bay, go to the nearest PDT machine, read terms and conditions, if agreed then pay and if disagreed, then sufficient time to leave the car park should be available.

8. Should the claimant provide evidence to substantiate their claim then the signage at the entrance to the car park and in and around the car park must have been not clear, insufficient and/or confusing to the vehicle driver. Sign at the entrance to the car park says that this is a 24 hour Pay Car Park, not pay and display, and it contains a lot of information, which can easily distract drivers from the key information, including that Excel Parking Services Ltd managed and controlled that car park, not the Claimant, Vehicle Control Services Ltd. According to Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011), the key information that needs to be conveyed to the drivers is that it is a pay and display car park, not the consequences of failing to comply. Deputy District Judge also said that defendant (the driver in that case) had to be able to see the offer so that he can choose whether or not to accept it, and thereby enter in to a contractual relationship. Therefore, 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. It is, therefore, denied that the Claimant's signage at the entry and in and around that site is capable of creating a legally binding contract.

9. Alternatively, even if there was a contract, the provision requiring payment £185 is an unenforceable penalty clause consisting of company costs. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover as it is a cost to the business, therefore, can not be reclaimed twice.

10. Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

11. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

12. This charge represents a breach of the well-known and well-established principle that "a grantor shall not derogate from his grant". This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

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

I believe the facts contained in this Defence are true.

Name
Signature
Date

Madaschi

KeithP wrote: »

Please post your draft Defence for critique when you are ready.

You are very close to the wire and may not have left enough time for any comment.

All that detail about POFA compliance comes at witness statement stage. At Defence time it is enough to assert that the PCN did not comply with POFA - if that's what you believe. The evidence about how it doesn't comply comes later.

Much appreciated. Draft posted. Will await your critique.

I was going through the reply I have received by an email today. I have sent it to VCS email address, but funny enough response came from Excel. Data Protection breach? Is it worth to approach DVLA with a question who asked for the Keepers details? Should I make a counterclaim?

Another thing is that their debt recovery attempt, that incurred further charges added to the value of the PCN, has been cancelled by them, so logically there should be no further charges as no debt recovery took place. Is that correct?



Thank you

Coupon-mad

http://tinypic.com/view.php?pic=2lb16y0&s=9#.XIbiLSj7TIU

http://tinypic.com/view.php?pic=20rn4w1&s=9#.XIbieyj7TIU

Those signs look exactly like those used in the Excel v Cutts case:

https://irp-cdn.multiscreensite.com/aaf9e928/files/uploaded/DVLA-BPA-Cutts12June2012_v2_mf.pdf

Madaschi

Thank you very much, Changes are in red. Does it sound right?

Thank you

Coupon-mad

I didn't see anything clearly saying how there is confusion regarding who is offering any purported contract?

I'd remove this:

A grace period of 10 minutes applies only after the end of parking time paid for.