VCS Vs Defendant- Albert Street car park

Madaschi

This is the final version, I can think of. Please provide your critique asap as I need to send it before 1600 today. Most kindly thank you.


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 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 parking charge notices and to pursue payment by means of litigation.

4. The Defendant has no liability as he is the Keeper of the vehicle, and 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.

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

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".

5. 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.

6. 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.

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.

Any contract, in a private car park, can only be formed by signage, and it is therefore clear that if there was any contract, it would have been between Excel and the motorist.

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

bargepole

This Defence does not contain any facts about the parking event. That is the first thing that Judges look for.

Paras. 4 and 5 talk about no keeper liability, but it's only worth going down that route if the Defendant can show he was not the driver at the material time.

Otherwise the Judge can simply ask "Were you driving?", or make a finding of fact, on balance of probabilities, that you were.

So you either need to say you were driving, and ditch paras. 4 and 5 altogether, or else state where you were when the car was parked.

Madaschi

bargepole wrote: »

Paras. 4 and 5 talk about no keeper liability, but it's only worth going down that route if the Defendant can show he was not the driver at the material time.

Otherwise the Judge can simply ask "Were you driving?", or make a finding of fact, on balance of probabilities, that you were.

So you either need to say you were driving, and ditch paras. 4 and 5 altogether, or else state where you were when the car was parked.

What benefit is to admit driving (even if I do not remember, who was driving at that time as we had guests from the continent, and I was at work 45 miles away from early morning)? Looking at the times of alleged contravention I doubt if parking actually took place.

bargepole

Madaschi wrote: »

What benefit is to admit driving (even if I do not remember, who was driving at that time as we had guests from the continent, and I was at work 45 miles away from early morning)? Looking at the times of alleged contravention I doubt if parking actually took place.

If you weren't driving, then say so, and state that you were 45 miles away at the time.

This means that they have to rely on keeper liability, which they can't do, so paras. 4 and 5 then become relevant.

Madaschi

bargepole, on the day of the alleged contravention the Defendant was working early morning shift in Banbury and did not return to Birmingham until evening. Should I add how the Keeper travelled there and back? Can I put it as 4(c)?

bargepole

Madaschi wrote: »

bargepole, on the day of the alleged contravention the Defendant was working early morning shift in Banbury and did not return to Birmingham until evening. Should I add how the Keeper travelled there and back? Can I put it as 4(c)?

No. Get rid of sub-paragraphs with a, b, c etc. and just number the paragraphs sequentially.

And state the facts about what the keeper was doing first, then say why the keeper can't be held liable under POFA.

And stop trying to send me PMs, my Inbox is permanently full for a reason - the reason being that if I accepted PMs, I'd be spending 24/7 answering forum queries, and never get any work done.

Madaschi

bargepole wrote: »

No. Get rid of sub-paragraphs with a, b, c etc. and just number the paragraphs sequentially.

And state the facts about what the keeper was doing first, then say why the keeper can't be held liable under POFA.

Done.

bargepole wrote: »

And stop trying to send me PMs, my Inbox is permanently full for a reason - the reason being that if I accepted PMs, I'd be spending 24/7 answering forum queries, and never get any work done.

That's what I thought. Do not blame you

Here is another version of my defence:

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. It is denied that the Defendant was a driver of the vehicle in question. On the day of the alleged contravention the Defendant was working early morning shift in Banbury and did not return to Birmingham until evening.

4. 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 parking charge notices and to pursue payment by means of litigation.

5. The Defendant has no liability as he is the Keeper of the vehicle, and 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.

6. The driver has not been evidenced on any occasion.

7. 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".

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

Any contract, in a private car park, can only be formed by signage, and it is therefore clear that if there was any contract, it would have been between Excel and the motorist.

13. Terms and Conditions display by the ticket machine was with a large logo of Excel Parking Services Ltd.

14. Terms and Conditions display 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;

15. Terms and Conditions display contained information that the only valid Pay and Display tickets were with Excel logo;

16. Terms and Conditions display contained information that in case of breaching those terms and conditions, Vehicle Control Services would collect the registered keeper's details data from DVLA;

17. Terms and Conditions display contained information that 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.

18. 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.

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

20. 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

Have I got it right now?

Snakes_Belly

This is pretty much the same as I received although Zenith tried to make out that the debt had actually been assigned to them.

I notice that the amount suddenly jumps up to £160.00 when the debt collector's become involved. This is because £60.00 is added on for their fee. This fee assumes that the debt is collected. They work on a no collection no fee basis so as they have not collected the debt there should be no fee of £60.00 added to the claim. On the L.B.C, there is a specific reference to an amount of £60.00 for debt collection in the text. This is abuse of process.

http://tinypic.com/view.php?pic=9k0bc8&s=9#.XIegPSL7QnQ

Madaschi

Snakes_Belly wrote: »

This is pretty much the same as I received although Zenith tried to make out that the debt had actually been assigned to them.

I notice that the amount suddenly jumps up to £160.00 when the debt collector's become involved. This is because £60.00 is added on for their fee. This fee assumes that the debt is collected. They work on a no collection no fee basis so as they have not collected the debt there should be no fee of £60.00 added to the claim. On the L.B.C, there is a specific reference to an amount of £60.00 for debt collection in the text. This is abuse of process.

http://tinypic.com/view.php?pic=9k0bc8&s=9#.XIegPSL7QnQ

Thanks. It is what I thought. Should I say this in my defence?

In their response to my SAR request, they have included a pic of what has been put on me into DRP database. It says over there, that VCS (Client) has cancelled that. So I believe, no debt recovery money should be put in the total.

Snakes_Belly

In order to justify the £60.00 that Excel have added on they will cite Chaplair V Kumari. This case relates to money that had actually been paid and a signed contract.