Received a Letter Before Claim from Vehicle Control Services - help

Chucky1234

Hi guys. I know nobody has to help me and you do it out of the goodness of your hearts, but I am getting incredibly worried now. I go on holiday Friday so need to get my witness statement and evidence into the court by Friday. I have drafted my witness statement and made the amendments suggested previously to me. However, I need to add in parts which relate to their witness statement now I have received it. Please could somebody take a look for me and advise me?

Chucky1234

Bump. Please could anybody help?

Coupon-mad

I would be extremely grateful if one of you clever bunch could rip their witness statement and evidence to pieces for me, because to be honest I don't know where to start.

You need to start it off by copying one done before.

To find one like yours, search the forum for a surname of a case cited by VCS. All will be revealed. All seen and ripped apart before.

nosferatu1001

Indeed, and you really should be fairly competenet with searching now - this forum is an *enormous* resource and youre wasting it if you dont get out and find stuff for yourself.

Chucky1234

Thank you to the two people above who gave me the kick up the behind I needed. I have now re-drafted my witness statement and I think it should be good to go, subject to me referencing my evidence. Please could somebody take a look at it when they have a minute?

Chucky1234

PART 1

In the County Court at Dudley, Dudley Courthouse, The Inhedge, Dudley, West Midlands, DY1 1RY

Claim No. XXXXXXX

Between

Vehicle Control Services Limited (Claimant)

and

XXXXXXXXX (Defendant)


WITNESS STATEMENT

I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, will say as follows:


I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked TH1 to which I will refer.


1. The Claimant asserts that the Defendant entered into a contract with it, that the Defendant breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. It claims that the Defendant parked beyond the bay markings at Centro Sandwell and Dudley Station Main Park and Ride Car Park (“the car park”) on 22 November 2017, some 22 months ago.


2. Before I describe my version of events, I confirm that the essence of my defence to this claim is that:

a. The location the alleged contravention occurred is subject to statutory control and the parking charge is statute barred. The car park is covered by Railway Byelaws (RB2005) therefore any parking enforcement remains in the gift of the relevant authority to lay before magistrates within six months of the parking offence. Due to these facts, this case is now statute barred.

b. The driver of the vehicle on the date in question has not been identified, and the Defendant is merely the registered keeper. Liability cannot be transferred to the registered keeper in this case. As this is not ‘relevant land’, in relation to schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”), this means the Defendant, as the registered keeper, cannot be pursued for the alleged debt of the driver of the vehicle, for which no evidence has been produced to identify. The alleged contravention was now 22 months ago and at the time there were 4 persons insured to drive the vehicle.

c. Unclear signage and contractual terms. There are two signs on entry to the car park. A large sign which displays prominently ‘Network West Midlands’ and offers parking for rail users, and a considerately smaller, less prominent sign which is unreadable to a driver of a moving vehicle which displays Vehicle Control Services Limited (“VCS”).





Railway Byelaws, Protection of Freedoms Act 2012 and lack of keeper liability


3. The location of the alleged contravention was “Sandwell and Dudley Park and Ride car park” which is land under statutory control and therefore does not meet the definition of ‘relevant land’ set out in Schedule 4 of the Protection of Freedoms Act 2012 (‘the POFA’). I have attached a copy of said legislation and highlighted the relevant parts.


4. Further to 3., the current national Railway Byelaws (‘RB2005’) apply to this land. As a result, any parking enforcement remains in the gift of the relevant authority to pursue, by laying a case before magistrates within six months of a parking event. We are now 22 months on, and no case has been put before the magistrates, nor has the Defendant received any correspondence from the authority. I have attached a sign on display at the car park confirming the site is operating under RB2005 and I have also attached a copy of stated Byelaws.


5. Due to the above, the POFA does not apply to this case so there is no keeper liability in this case. The Claimant can claim against the driver only, which it has not done so and has instead pursued the Defendant as the keeper. In order for POFA to apply, it must be on relevant land. Relevant land in this case is defined in the POFA and specifically excludes “land which the parking of a vehicle is subject to statutory control”. The land in question is subject to Railway Byelaws, therefore it is subject to statutory control.


6. I also attach a report from the Department of Transport. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''


7. Furthermore, any breach of the terms and conditions (which is denied) would have to be pursued by ‘West Midlands Combined Authority’ (WMCA) and not by this Claimant, and it would have to be before magistrates prior to April 2018, pursuant to RB2005. This claim fails ab initio.


8. The driver of the vehicle has not been identified. I can confirm there were 4 people insured to drive the vehicle that day, and that nobody can remember driving the vehicle on that day in question – due to it being back in November 2017. On the balance of probabilities, it is unlikely that the Defendant was the driver of the vehicle on the day in question. There has been no proof provided by the Claimant to identify the driver and there is no obligation on myself, as the registered keeper to identify the driver. I have attached a copy of the insurance policy covering the date in question showing that there were 4 people insured to drive the vehicle. There can be no reasonable presumption that the keeper of a vehicle is the driver, and I have attached an extract of a report by Henry Greenslade, namely the POPLA annual report 2015, which he explains. POPLA is “Parking on Private Land Appeals” and Henry Greenslade was the lead adjudicator.



9. The Defendant has received numerous threatening letters from the Claimant where they are stating they have the right to recover the alleged debt from me, as the registered keeper if they I do not provide them with the details of the driver. This is untrue, as shown above. It is not unreasonable to assume that a company such as VCS would be aware of this fact and have instead attempted to bully the Defendant into paying this alleged debt. I have attached a copy of the Notice To Keeper sent to me and highlighted where they state I am liable as the keeper.


Unclear signage


10. I have since visited the site as a result of this claim and can confirm there are two sets of contradicting signage operating in the car park. The first is a prominent sign on the entrance to the car park displaying ‘Network West Midlands’ which appears to be offering parking for users of the train station. The second, which are much less prominent, are signs from VCS in a much smaller font, not visible to the driver of a vehicle with presumed terms and conditions. I have attached a copy of the two signs along with a copy of the terms and conditions displayed on small signs around the car park.


11. There appears to be a miniscule, small print paragraph at the bottom of the terms and conditions which state the driver agrees to pay a ‘Parking Charge’ of £100 if the terms and conditions are not met. It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers. This is contrary to the findings of the Supreme Court in ParkingEye Ltd vs Beavis [2015] which the Claimant mentioned in correspondence to me. I have attached a copy of the sign in this case for reference.

Chucky1234

Costs on the claim - disproportionate and disingenuous

12. 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.


13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.


14. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.



15. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.


16. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.


17. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

http://www.bailii.org/uk/cases/UKSC/2015/67.html

at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

18. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.




19. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.


20. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.


21. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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 nor with reference to the judgment in ParkingEye 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...''


22. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:


''Upon it being recorded that Distract Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''


23. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.





24. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

Chucky1234

Distinguishing cases mentioned by the Claimants witness statement and addressing individual points made.

25. Charlotte Trayers, representing the Claimant, has been employed by the company since July 2019. As the alleged contravention took place in November 2017, none of the statements provided in her witness statement can be of her own knowledge. She is not aware of the alleged offence, the location, the signage or the facts in this case.


26. Further to above, the claimant has stated in their witness statement that the location is a Pay and Display development, and that a Pay and Display system operates there. This is untrue, and I would refer the court to the Claimant’s evidence relating to the signage, specifically where it states;

“This free car park is provided for rail users only.”


27. The Claimant wishes to rely on Thornton vs Shoe Lane Parking [1971] 2 QB 163 to attempt to try and prove individuals may enter into contracts with a sign. That case is fully distinguished from this case in question as that relates to a car park with a barrier on entry. The sign is clearly visible to motorists entering the car park and they are able to read the sign and decide whether they want to enter the car park while they take a ticket and wait for the barrier to open. In this case, there is no barrier, and there is a large sign with states “this free car park is provided to rail users only”. The case above has no relevance on this case.


28. in Paragraph 31, the Claimant refers to ‘Vine v Waltham Forest’. The Court of Appeal on this case ruled in favour of the Defendant on the basis that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen.

It would appear that the Claimant is attempting to wrongfully persuade the court by mis-quoting Roch L.J. The full quote is this;

“Alternatively, and this is the ground principally urged upon us by Mr. Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.”

As you can see, Lord Justice Roch was simply reading one side of the argument. Roch L.J. found in favour of the motorist in this case. Therefore this case can be immediately dismissed as it has no bearing on this case in question.


29. Paragraph 32 states the Claimant is intending to rely on the POFA to hold the keeper liable if they cannot identify the driver. I have addressed this in paragraph 5, briefly this isn’t relevant land so POFA is not relevant, meaning the Defendant cannot be held liable as registered keeper.




30. Paragraph 35 states the Claimant is intending to rely on the ParkingEye v Beavis case. This case can be fully distinguished from my case due to the following facts;

(i) The land, as mentioned previously, is covered by byelaws
(ii) The driver has not been identified
(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.
(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.


31. The Claimant wishes to rely on Jones and Tighilt (on behalf of National Taxi Association) v First Greater Western Ltd.

This case appears to clarify that a private landowner can exercise rights and have a permit scheme for taxis. VCS are not a private landowner, nor are they operating a permit scheme, nor is the Defendant a taxi, so no comparisons can be made from this case and it should be distinguished immediately.


32. This Claimant is trying to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, it related to breaching a contract by stopping. At appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Railway carpark case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015).


33. Paragraph’s 84 and 86 of the Claimant’s witness statement appears make reference to terms and conditions in relation to a Pay and Display ticket. The whole paragraph is bogus and does not relate at all to this case. I would suggest that the Claimant operates a policy of cutting and pasting their witness statements en masse, and may have forgotten to remove this paragraph.


34. The claimant is intending to rely on Chaplair v Kumari to attempt to justify an unknown £60 “debt recovery charge”. This case is distinguished from the case above by the following facts; the Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms, whereas parking charges are capped by the POFA/the will of Parliament at the sum on any Notice to Keeper, and not higher, and the Beavis case confirmed this by only allowing £85 and no bolt on 'damages' or imaginary debt collector costs.



The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature of Defendant:

Name: XXXXXXX
Date: XX/XX/XXXX

Chucky1234

Going to be handing this into the court tomorrow - does anybody have any last minute feedback for me? I am pretty happy with it

beamerguy

POST #34.

You must make a lot more of the £60 scam

READ THIS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

In particular you will see in post # 105

VCS .... ABUSE OF PROCESS

CLAIM FROM VCS IS STRUCK OUT

Caernarfon Court
District Judge Jones-Evans
Case number FTQZ4W28
4TH SEPTEMBER 2019

They are quoting meaningless cases but the above is factual about ABUSE OF PROCESS