VCS Vs Defendant- Albert Street car park

Madaschi

Thank you Coupon-mad! It is removed.

Just to clarify, however, would it be worth to change it onto:

"A grace period of 10 minutes should be applied only after the end of parking time paid for, for the driver to have enough time to leave the site." ?

The difference between the sing at the entry and the information on t&c board?

Coupon-mad

No, as the driver didn't make a payment I wouldn't go there.

Got to be honest. IMHO you are going to struggle to persuade a Judge that over twenty minutes on site falls within grace periods. Most drivers would have paid & displayed well within that time.

Madaschi

OK, removed for good, thank you.

In all fairness, I can imagine that situation (with reference to other's experience): new car hence looking for suitable bay empty from both sides, small children in the car that responsible parent is not leaving alone in the car, walking to the nearest PDT machine where people appeared to have some time consuming issues, non-fluent-english reader reading t&c trying to understand, resigning from parking there, then back to the car, kids, finding way out, going wrong way, reversing then looking for exit again, finally leaving the site...

I have also corrected information in red. Could you have a look at this, please, for any more corrections?

Thank you

Coupon-mad

#8 is too long, break it up to isolate the point about Excel/VCS confusion.

#11 and #12 repeat themselves.

Please stop editing that older post. It's on a previous page as I view the forum and we are not able to look back, we have no time. Show us the latest draft, here in your next reply.

Madaschi

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.

9. Sign at the entrance to the Albert Street car park said 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. Sign at the entrance to the Albert Street car park said that this is a 24 hour Pay Car Park, not pay and display, and it contained a lot of information about the consequences of drivers non-compliance. 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.

10. 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.

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

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

Coupon-mad

DEFENCE STATEMENT

should be:

DEFENCE

...and why do you think #12 makes sense for this case? I don't.

Madaschi

I would change this as well:

10. Terms and Conditions display by the ticket machine was with a large logo of Excel Parking Services Ltd and contained information that by remaining at this car park for over 10 minutes driver was entering in to a contract with Vehicle Control Services Ltd, however, the only valid Pay and Display tickets were with Excel logo. In case of breaching those terms and conditions, Vehicle Control Services would collect the registered keeper's details data from DVLA. Excel Parking Services Ltd and/or its agents and servants did not accept any liability for loss of or any damage to the vehicles or personal possessions and vehicles are left and driver's/keeper's risk.

Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011) 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 was capable of creating a legally binding contract.

What do you think?

Madaschi

Coupon-mad wrote: »

should be:

...and why do you think #12 makes sense for this case? I don't.

Yes, you are right. Copy-paste mistake, sorry.:o

Madaschi

IN THE COUNTY COURT

CLAIM No: xxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxx (Defendant)

________________________________________
DEFENCE

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 driver entered that car park in different circumstances, 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.

9. Sign at the entrance to the Albert Street car park said that Excel Parking Services Ltd managed and controlled that car park, this is a 24 hour Pay Car Park, not pay and display, and it contained a lot of information about the consequences of drivers non-compliance. Clearly, Excel Parking Service Ltd was a landholder of Albert Street 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.

10. Terms and Conditions display by the ticket machine was with a large logo of Excel Parking Services Ltd.
a) It contained information that by remaining at this car park for over 10 minutes driver was entering in to a contract with Vehicle Control Services Ltd;
b) the only valid Pay and Display tickets were with Excel logo;
c) In case of breaching those terms and conditions, Vehicle Control Services would collect the registered keeper's details data from DVLA;
d) Excel Parking Services Ltd and/or its agents and servants did not accept any liability for loss of or any damage to the vehicles or personal possessions and vehicles are left and driver's/keeper's risk.

Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011) 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 was capable of creating a legally binding contract.

11. 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.

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

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


Changes in red. Thank you.

Madaschi

Does it look better now, Coupon-mad?