PCN Abbey Walk Retail Park, Selby from VCS

Garyswork2

Wharfedale wrote: »

Hi
I recieved a PCN from VTC regarding an overstay at the above car park. This was issued on 29/1/2019, with the picture of entry and exit on 8/9/2018.Regards
Wharfedale

For what it's worth, we have very similar cases and timings.
An alleged overstay in the same ANPR car park, with VCS ignoring the maximum 14 day NTK period. I'm currently at Newbies post #2 having received my LOC.
See https://forums.moneysavingexpert.com/discussion/6024795/vcs-issued-pcn-after-25-days-i-told-them-where-to-stick-it-now-dcb-legal-have-sent-me-an-lbc#topofpage

Wharfedale

Today I have received a claim form from the County Court Business Centre. This details VCS' Particulars of Claim. I have 14 days from 28th July to lodge my disagreement - or 28 days if I send an acknowledgement. I will start to prepare my defence.

KeithP

What is the Issue Date on your Claim Form?

Wharfedale

Hi KeithP
Issue date is 23 July 2019, It says I have 14 days to reply, plus 5 days from date of issue to allow for postage.
Again the claimant is Simon Renshaw-Smith

Quentin

Post #2 in the newbies FAQ thread near the top of the forum covers Court claims right through to the hearing

Make it your Bible now till this is ended

Your first job is the AOS (all covered in that thread)

Once completed that buys you an extra 14 days to get your defence in ,(making the total 28 +5)

KeithP

Wharfedale wrote: »

Issue date is 23 July 2019.

With a Claim Issue Date of 23rd July, you have until Monday 12th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 27th August 2019 to file your Defence.

That's over four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Wharfedale

After some research, here is my draft defence for comments. I followed AoS, but the system seemed to crach, and now it doesn't seem to accept my claim reference or password when I try to log in. Still, without it I have until Monday to submit.


IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

XXXXXXXXXXXX)

-and-

YYYYYYYYYYYYY

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

2 At all material times the defendant was only the registered keeper in this matter, and has been since DATE. The vehicle is insured to be driven by 2 named drivers. Barrister and parking law expert Henry Greenslade was the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. No adverse inference can be drawn.

3 The time between the alleged contravention and the date of issue of the NTK is XXXX days. The Claimant is put to strict proof of the identity of the keeper at the time of the alleged incident otherwise PoFA 2012 applies, and the Claimant has 14 days to issue the NTK.

4 The Claimant failed to comply with the Protection of Freedom Act 2012, and has chosen to pursue the Registered Keeper. In rejecting the Defendant's appeal, the Claimant states that "as they have not cited PoFA 2012, and therefore the timespan between the alleged contravention and the date the NTK was issued does not nullify the PCN". The Claimant also "cites the case of Elliott v Loake 1982 relying on the presumption, on the balance of probability, that the apellant was the driver of the vehicle".
Elliott v Loake [1982] has no application whatsoever to this case. The Defendant, as the keeper, is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified. This Claimant cannot dispense with the statute and instead cite an older, irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver. The Claimant is put to strict proof of the identity of the keeper at the time of the alleged incident otherwise PoFA 2012 applies.

5 The Claimant shows ANPR images of vehicle AAAAAAA, claiming they are of images showing times of entering and leaving the previously stated car park. The Claimant is put to strict proof to provide calibration certificates for the ANPR camera that these images were taken from, detailing installation, servicing and calibration dates.

6 The Claimant issued a demand for payment on DATE stating an outstanding balance of £MONEY. These are made up of £YYY for the 'parking charge' and £ZZ for 'Debt collection costs'. The defendant submits that, as the PoFA 2012 limit is £100, then the costs on the claim are 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.
The Defendant claims this is an Abuse of Process, and cites the following:-

Claim number is F0DP201T District Judge Taylor
Southampton Court, 10th June 2019
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 not with reference to the judgement in parking eye 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 "

7 The claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authority from the landowner to pursue payment by litigation. The operator is again put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the land, then I require that they produce a non-redacted copy of their contract with the landowner.
These contract details should include any site agreements setting out details such as “genuine customer” definitions or site occupiers’ rights to cancel parking charges. The paperwork should include all enforcement dates, times and days, and should also detail the boundary of the site. This is key evidence in determining what this operator is authorised to do, and when and where they can do it.
If an agent is contracted to put some signs up and issue Parking Charge Notices, it cannot be assumed that there are authorised to make contracts with all or any category of visiting drivers and to enforce said charge in court in their own name; legal actions regarding land usage disputes generally are a matter for landowners.

Witness statements are not sound evidence of this contract. Such statements are typically pre-signed, generic documents, and often do not even identify the site rules. A witness statement might in some cases be accepted by POPLA but in this case I would suggest such a generic statement is unlikely to provide sufficient detail on the services provided by each party.

In addition, such generic statements typically fail to define vital information such as charging days and times, exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA Code of Practice) and basic but crucial information such as the site boundary and details of bays where enforcement applies, or indeed where it is waived. Such statements also tend to omit details such as which restrictions the landowner has authorised as chargeable, on what dates the parking contract runs between, and of course, who the signatories are. These signatories should provide appropriate de- tails, namely: name, job title, employing agency, and what authority they have from the landowner to sign binding legal agreements.

In summary therefore, where Paragraph 7 of the BPA Code of Practice defines the mandatory requirements, I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their ap- pointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement

8 Signage
There is no contract between VCS and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.

9 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.


The Defendant believes that the statement of facts are true

Signed

Date

Quentin

You can do an AOS by the old fashioned way through the post


Get a foc proof of posting from the post office when sending it

Wharfedale

Logging in again, the AoS was received, so have a further 14 days to submit defence.

KeithP

Wharfedale wrote: »

Logging in again, the AoS was received, so have a further 14 days to submit defence.

As I said earlier...

...you have until 4pm on Tuesday 27th August 2019 to file your Defence.