Received a Letter Before Claim from Vehicle Control Services - help

Chucky1234

My paragraph 22 covers that, and I have also attached a copy of the findings in my evidence. Is that not sufficient?

Chucky1234

So I haven’t actually handed in my witness statement and evidence to the court yet, I am doing it on Monday which is the deadline.

I just wanted some advice on how it is best to hand it in to the court? I have read that it’s best to take a nice neat file direct to the court.

I was going to present my witness statement in a bundle with a spiral spine. Should I include my evidence in this bundle too or a separate bundle/folder for them? How about my defence, should I include that within the spiral or separate one?

I have read it is best to take 3 copies of each, however I am just unsure how best to lay it out.

Le_Kirk

Hand delivered is good, ring binder is also good (as it means you can shuffle the papers around more easily than spiral bound), no need to include your defence as the court should have that. Witness Statement which refers to evidence by some sort of reference code, such as Chcuky001/Chucky002 etc., with a contents page and the evidence similarly numbered. On the day you should take a copy for yourself (including the defence) and, since it has been reported in here that judges copies have been lost, a spare one for the judge. You can send the claimant's copy be e-mail, if their systems permit it, otherwise first class post with proof of posting,

Chucky1234

Hi all,

Court date is next Friday. I have just finished my skeleton argument. Feeling quite confident but I would be grateful if somebody could give it the quick once over.

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

Claim No. XXXXX

Between

Vehicle Control Services Limited (Claimant)

and

Mr XXXXXXX


SKELETON ARGUMENT ON BEHALF OF MR XXXXXX

PREAMBLE

1. This skeleton argument is to assist the Court in the above matter for the hearing dated 08/11/2019.


2. The Claimant’s witness will not attend the hearing, presenting a significant disadvantage for the Defendant.


3. The witness and the accompanying witness statement are not credible. It contains invalid, false and vexatious statements which can be shown in this skeleton argument. Moreover, it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.


4. The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that the Claimant behaved unreasonably.


5. The witness statement by Charlotte Trayers is contradictory, confusing and particularly troublesome as detailed below:

(a) The witness statement refers to the location being a pay and display development in para #6 and para #12. The location is actually a free park and ride service, which is confirmed by the Claimant’s own evidence. Para #84 expands on this and states that a valid pay and display ticket must be displayed which is a term set by the client.

(b) Para #5 refers to the Approved Operator Scheme and the Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks, which is only of relevance to BPA members. VCS Ltd are and were members of IPC at the material time.

(c) Para #84 and #86 avers that motorists should purchase and display a valid Pay and Display ticket and that these terms couldn’t be ‘briefer, simpler or more prominently proclaimed’. As previously mentioned, there is no ability to Pay and Display on this site and no evidence has been produced to confirm the Claimant’s statement. The evidence produced by the Claimant contradicts this and causes much confusion.


THE ISSUES

6. The Defendant has identified the following areas of dispute:

(a) The identity of the driver
(b) The presumption of the driver
(c) The burden of proof
(d) Keeper liability
(e) Railway Byelaws
(f) Prominence, illegible terms & confusing signage
(g) Penalty
(h) Conduct


SUBMISSIONS

7. The Defendant submits that there were four people insured to drive the vehicle on the material date, and it is impossible to remember who the driver of the vehicle on the material date was, some two years ago.


8. The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the material time that they were not from an authority such as the local council or the police.


9. It is submitted that the Defendant did not appeal the PCN and was under no obligation to do so as the keeper. The Defendant correctly assumed at the material time (and to-date) that the issue was of no relevance to them.


10. The Defendant submits that there are pictures showing a card attached to the windscreen of a vehicle bearing the same mark to which they are the registered keeper, but cannot adduce any further information.


11. The Defendant submits that they did not receive a card either at the material time or otherwise.


12. The Defendant submits that it would not be in the interest of Court time to rebuff each and every individual accusation by the Claimant that the Defendant was the driver.


GENERAL ARGUMENTS

13. As detailed in para #17 of the Claimant’s witness statement, the primary argument for issuing the claim against the defendant is predominantly based on a crucial but rebutted piece of information; the Defendant was the driver at the material time of the PCN.




14. The Claimant is seeking to rely on the Protection of Freedoms Act 2012 (POFA) to hold the keeper liable if the driver cannot be identified, but the Defendant will show why this land is relevant land as it is land under statutory control, which the act specifically excludes. This is evidenced under TH1.



15. The remainder of the points raised in the defence are particularly specific in application. The Defendant will show that the claimant failed to transfer liability from the driver to the keeper, was granted no locus standi for the land and signs can be evidenced as prohibitive, illegal and confusing.


16. Any single one of the above is fatal to the Claimant’s case.


DRIVER IDENTITY

17. The Defendant refutes the many allegations by the Claimant that they were the driver at the material time either directly or by presumption. The claimant has no evidence to the contrary and the accusations are merely ‘hear-say’ and conjecture; not a factual reciting of a witness who was present at the material time.


18. The Defendant has evidenced within their witness statement and confirmed by evidence marked TH5 that there were four people insured to drive the vehicle on the material date. All four people regularly used the vehicle and it would be reasonable to have no recollection who was the driver on the material date. It is reasonable to assume that the Defendant more likely than not was not the driver on the date in question.


THE PRESUMPTION OF THE DRIVER

19. It is clear in trite law that where there is no forensic and/or reliable evidence, that a registered keeper of a vehicle cannot be declared the driver at any given point in time.


20. The Defendant brings to the Court’s attention POPLA Lead adjudicator and Barrister Mr. Henry Greenslade’s statement regarding keeper liability in the POPLA Annual Report of 2016:

“there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

This is confirmed by TH6.


21. The Claimant had no entitlement to proceed on the presumption that the keeper is also the driver.


BURDEN OF PROOF

22. The witness appears to be attempting to reverse the burden of proof in para #33 by suggesting the Defendant needs to put forward their position or transfer liability.


23. Section 172 (2)(a) of the Road Traffic Act 1988 makes it clear that the registered keeper of a vehicle is required to furnish the police with the identity of the driver under statute:

‘(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police…”


24. There is no such statute requiring registered keeper to identify the driver of a parking charge on private land. In any event, the Defendant does not know the identity of the driver.


25. Mr Henry Greenslade comments on this particular issue in the 2015 POPLA Annual Report:

“… a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not itself mean that the receipient has accepted that they were the driver at the material time”


26. The Defendant has demonstated to the Court that the burden of proof for identifying the driver should not lay with the Defendant.


KEEPER LIABILITY

27. Liability can only be transferred lawfully by strictly following Schedule 4, Protection of Freedoms Act 2012 (Sch 4, POFA 2012) which was enacted into statute to prevent this very issue and ensure lawful transfer of liability for private landowners. The Claimant has stated throughout their witness statement that they are relying on this to hold the Defendant liable as registered keeper.


28. The Claimant is in great difficulty with this, as Sch 4, POFA 2012 applies only to relevant land. Relevant land is defined in the POFA and specifically excludes “land which the parking of a vehicle is subject to statutory control. In this case, the land is subject to Railway Byelaws so is under statutory control. POFA 2012 therefore does not apply to this land so the Claimant cannot hold the Defendant liable. This is evidenced in TH1.


29. I also refer to a report by the Department of Transport, where they clarify the question “On what type of land does Schedule 4 apply? Here, they clarify that Schedule 4 only applies to private land in England and Wales. Public highways are excluded as well as any other 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. Again, this is evidenced in TH4.



30. Furthermore, for POFA to apply, the Claimant must specify the period of parking to which the charge relates. The Claimant has failed to do that, so does not comply with POFA anyway. Refer to TH1 where this is again evidenced.
31. The Defendant has demonstrated to the court that VCS Ltd have failed to make the Defendant liable for any parking charges. There is no evidence as to who the driver was, and the Claimant is unable to make the Defendant liable for said parking charges.


RAILWAY BYELAWS

32. As mentioned in para #28 of this document, Railway Byelaws apply to this site. Therefore, any parking enforcement remains in the gift of the relevant authority to purse, by laying a case before the magistrates within 6 months of the parking event. Clearly, this has not been followed and the Claimant avers in para #40 of their witness statement that the terms and conditions of site can circumvent this. This is evidenced in TH2.


33. This leaves a driver confused as to what rules govern this land and leaves them at a significant disadvantage.


34. Any breach of the terms and conditions of the car park 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 2008, pursuant to RB2005. This is evidenced by TH3.


35. The Defendant has demonstrated to the court that the Claimant is not able to pursue parking charges through this court, and it must be pursued by the relevant authority through the magistrates.


PROMINENCE, ILLEGIBLE TERMS & CONFUSING SIGNAGE

36. The Defendant disputes the witness’ judgement that the signs, or more specifically the terms and conditions, were highly prominent. In general, prominence can be a subjective affair in which colours, fonts, height, size and ambient light all play a significant role in determining if a ‘something’ is prominent.


37. The Defendant refers the court to para #10 of the Defendant’s witness statement where it is mentioned there are two sets of conflicting signs on the site.


38. There is a prominent set of signage, displaying ‘Network West Midlands’ which offers free parking. There is also a second, much less prominent set of signage by VCS in a much smaller font, not visible to a driver of moving vehicle.


39. It is in the second set of signs where the supposed terms and conditions are displayed, specifically in the footer of the sign in miniscule small print which states the driver agrees to pay a parking charge of £100 if the parking conditions are not met.


40. This can hardly be classed as prominent, and it is made even more ambiguous as there are two sets of signs in operation on the site.


41. The signs mentioned above are all evidenced by TH7 – TH10.


42. The Defendant has demonstrated to the Court how the overall depiction of a sign being ‘prominent’ is significantly reduced by using a font of a small size which makes core terms illegible from a moving vehicle. Conflicting signage also causes misperception.


PENALTY

43. The charge is a penalty. This case can clearly be distinguished from ParkingEye vs Beavis [2005] UKSC 67 by reason that the Supreme Court heard that ParkingEye had complied with the ATA Code of Practise, the signs were unusually large and prominent, created an offer to park and that Mr. Beavis submitted a contract for parking was in place. This sign is evidenced TH11.


44. The judgement of ParkingEye v Beavis also makes clear that if a driver has not had ample opportunity to become acquainted with the contractual terms then the un-incurred costs of a private parking company is still considered a penalty or unfair consumer charge.


CONDUCT

45. The Defendant’s conduct and defence was entirely with merit.


46. Due to the ‘robot-issued’ nature of the claim particulars, the Defendant was unnecessarily disadvantaged in regard to the pertinent facts and information of the claim.


47. The Defendant had no choice but to serve a fully comprehensive and inclusive defence in response to the claim and therefore should be used in determining the facts.


48. The Defendant’s view is that the witness statement is merely a ‘copy and paste’ exercise by the Claimant by reason that several paragraphs and case laws mentioned are not related to this case and propagates irrelevant points.


49. The Claimant seeks to apportion liability to the Defendant for not replying to their letters or identifying the driver and suggests that this conduct caused the Claimant costs.


50. The Claimant’s accusation that the Defendant’s inactivity caused the litigation is outlandish. Even if the Defendant appealed the Notice to Keeper by reason that there was not the driver, the Claimant would still have incorrectly pursued the Defendant by intending to rely on the POFA, as this is the basis of the claim.


51. The Claimant, as their primary business, should’ve known the conditions attached to the POFA 2012 and that this site was not relevant land so the act didn’t apply, so should never have continued to pursue the keeper and it should never have got to this stage.

52. The Claimant’s actions have caused the Defendant a great deal of stress and has forced the Defendant to spend a lot of time defending this vexatious case.


53. It is of the Defendant’s opinion that the Claimant utilises the tactic of sending threats from debt collectors, followed by county court claims followed by extensive copied and pasted documents in attempt to scaremonger the innocent keeper of a vehicle into paying a charge which they are not liable for. Further, it is suggested that the Claimant knew this claim has no chance of success and that the claim was brought wholly without merit.


54. The Defendant has demonstrated to the court that the Claimant has been wholly unreasonable. It is also argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court.


Mr XXXXXXX



For and on behalf of the Defendant Mr XXXXXXXX
29/10/2019.

Coupon-mad

SKELETON ARGUMENT ON BEHALF OF MR XXXXXX

Mr XXXXXXX

For and on behalf of the Defendant Mr XXXXXXXX

What does this mean, a third party can't sign on behalf of the D.

Chucky1234

Coupon-mad wrote: »

What does this mean, a third party can't sign on behalf of the D.

Thanks, have amended this now. Does the rest look OK? Handing it in tomorrow ahead of my court date Friday.

Coupon-mad

That's a very long skeleton, so cut out repetition and waffle first.

Le_Kirk

A skeleton argument is supposed to be an Aide Memoire to assist you and the judge find a pathway through your case by pointing (using bullet points) at the relevant sections of your defence, WS and evidence. It is not supposed to be a reworking of those items.

clarkcj

I lost an N244 case arguing that private conditions shouldn't apply to due to byelaws and the court dismissed it due to the precedent set by the Taxi Vs First Greater Western - apparently it's still private land and the agents can do what they want! So be careful on that point!

nosferatu1001

Tey can still operate private parking, but they cannot offer contracts that contrqadict the byelaws - they cant override a criminal offence.
The main argument on byelaws is lack of "relevant land"