county court bussiness centre/VCS

Mat1983

Hello all,
So I have tried to do as much reading as possible to prepare my defence but still feel unsure. I have tried to look at similar cases to mine but have been unsuccessful. I have done as Coupen-mad suggested and amended the VCS 'not a CN' defiance example? Any input or advice would be gratefully accepted.
Many thanks all.






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, appears from the sparse evidence supplied by this Claimant, to be parked on the material date in a disabled space without clearly displaying a disabled persons badge, was in fact broken down awaiting recovery, nor causing an obstruction.

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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 signage is attached to a gate and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

5.1. Vehicle registration XXXX has not entered past the gate and therefore is not entered into a contract with Vehicle Control Services.

5.2. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available; there is no license to park.

5.3. At best, parking without authorization could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

5.4. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. 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.

Coupon-mad

You would obviously be removing the stuff about the gate...

And you need a section explaining this:

car broke down on a main road. I managed to push it into the xxxx in xxxx didn’t realise at the time I had pushed it into a disabled spot I was on my own and it’s an SUV so wasn’t easy. and explained to the receptionist my situation, her reply was its monitored by a private company that occasionally pop round.
I left a note on my windscreen saying, broke down pick up is at 19:00 with contact details, this was done at 16:55.

Mat1983

Coupon-mad wrote: »

You would obviously be removing the stuff about the gate...

And you need a section explaining this:

can i replace 5.1 with this.


“
car broke down on a main road. I managed to push it into the xxxx in xxxx didn’t realise at the time I had pushed it into a disabled spot I was on my own and it’s an SUV so wasn’t easy. and explained to the receptionist my situation, her reply was its monitored by a private company that occasionally pop round.
I left a note on my windscreen saying, broke down pick up is at 19:00 with contact details, this was done at 16:55.

Coupon-mad

Remove all the stuff about the gate.

Do not add sentences that use the first person, you know that from the example defences! I only copied your words for speed; I wanted you to convert it to 'defence-speak', not me.

It makes no sense to make the above 5.1 when #5 is talking about signage.

You should have no 5.1 or 5.2 and no final sentence in #5 about gates.

5.3 is useful. You will need to shake up the numbering a bit, maybe remove all the 'point' numbers and just renumber normally.

Mat1983

coupon-mad, thank you in advance for helping me with this.
done as you have said, is number 7 worded correctly also is there anything eles i need/could add to help my 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, appears from the sparse evidence supplied by this Claimant, to be parked on the material date in a disabled space without clearly displaying a disabled persons badge, was in fact broken down awaiting recovery, nor causing an obstruction.

3 It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

4 Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

5 The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

6 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


7. The defendant’s vehicle broke down on a main road, the defendant then proceeded to push the broken down vehicle off the main road into the xxxx in xxxx on xxxx at xxxx. However the defendant did not realize at the time that they had pushed the broken down vehicle into a disabled parking bay. The defendant left a note a windscreen with contact details and time of recovery being xxxx.

8. 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.

9. At best, parking without authorization could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

10. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorization from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

12. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

13. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

14. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

15. 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.

KeithP

I would suggest that point 7 could be better worded as something like:

7. The defendant’s vehicle broke down on a main road, the driver then proceeded to push the broken down vehicle off the main road into the xxxx in xxxx on xxxx at xxxx. However the driver did not realize at the time that they had pushed the broken down vehicle into a disabled parking bay. The driver left a note a windscreen with contact details and time of recovery being xxxx.

Can you spot the subtle difference?

Mat1983

keithP,
yes i have spotted what you have done, defendant/driver.
thank you very much keithP, now follow your previuos post in regards to sending this off. From your experiance do all of these cases go to small claims or do some get thrown out.