VCS Court Claim

wexpy

Hi All

Found a current thread with similar scenario of two claims. Have made some amendments based on Coupon Mad's positive feedback on the other thread's defence.

Thanks

DEFENCE

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

2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXX car park on XX/XX/XX.

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 coloured 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 Court is invited to take note that the Claimant has issued two claims, numbers XXXXXXXX and XXXXXXXX, against the Defendant at or around the same date, and with substantially identical particulars. It is submitted that this constitutes an abuse of process, making the Defendant potentially liable for two instances of issue fees, solicitor costs, and hearing fees, and runs contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and to apply appropriate sanctions against the Claimant.

3. The Defendant raised the issue of the two PCNs in a Subject Access request in the pre-action stage and pointed out that the events were duplicates as regards the facts, and that the PCNs must be dealt in the same claim. The Claimant has ignored this and issued two separate claims wasting the court's time and that of the Defendant.

4. 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.

5. 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.

6. 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.

6.1. The terms on the Claimant's signage are also displayed in such a manner which is difficult to be read from a vehicle entering the area, and also unexpected as it was acceptable to park on the site in the past. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6.2. The Claimant’s signage is unlit and therefore illegible in poor natural light in any event.

6.3. The facts are whilst using the car park situated at XXXX the driver incurred a "Parking Charge", the alleged offence was "Parked without displaying a valid permit". It is denied that any contract was agreed or offered in prominent large lettering which resulted in the Defendant believing the Car Park was Free to use which was the case in the recent past.

6.4. At best, parking without authorisation 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.

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

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

7.1. 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.

7.2. 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.

7.3 The Protection of Freedoms Act (POFA) 2012, Schedule 4, at Paragraph 9(2)(f) states that the notice to keeper (NTK) must “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given, the creditor will have the right to recover from the keeper”. The date on which the notice is “given” is defined as, “on the second working day after the day on which it is posted”, in POFA 2012 Paragraph 9(6). However, it is written in the NTK received by the Defendant “if, after the period of 28 days beginning with the day after the Issue Date of this notice” where “Issue Date” is defined in the NTK as the date “posted”, not “given”. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

7.4 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. The Particulars of Claim state that the Claimant is seeking recovery of interest. The date from which this is claimed, the total amount of interest claimed to the date of calculation and the daily rate at which interest accrues after that date are not specified. As such, the claim fails to comply with Civil Procedure Rule 16.4.

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.


(statement of truth and signature and date go here)

Coupon-mad

Seems to cover all the bases!

Repeat the words about wanting a Judge to consolidate the 2 claims in each of the two emails that you send to the CCBCAQ email, attaching each signed defence.

Then repeat it AGAIN and rinse & repeat at every stage (DQ onwards, every time you send anything) then when it is allocated to your local court, ask again in a letter to the local Judge to save the court's time in case they order two hearings.

At some point it should be picked up.

wexpy

Hi all. I have my court date in just over 3 weeks and so am belatedly starting my WS. Wanted to check...the WS is written as registered keeper? Almost all the ones I've read are as driver.

KeithP

The Defendant writes a Witness Statement.

The Defendant must decide whether they are going to defend the case as the driver or keeper. Obviously if the Defendant was not the driver, there is no choice.

What is your deadline for filing your Witness Statement and evidence?

wexpy

Hi Keith. Thanks for clarification. 10 October...so gotta get cracking. Been reading stuff for the last few days.

Paragraph 6.3 in my defence make me think a defence as driver is only choice, but would prefer to be registered keeper.


6.3. The facts are whilst using the car park situated at XXXX the driver incurred a "Parking Charge", the alleged offence was "Parked without displaying a valid permit". It is denied that any contract was agreed or offered in prominent large lettering which resulted in the Defendant believing the Car Park was Free to use which was the case in the recent past.

wexpy

Think it should have said Driver

Redx

yes

plus I suggest you read the comments in this thread https://forums.moneysavingexpert.com/discussion/5994014/letter-before-claim-vcs about a keeper led defence as opposed to a driver led defence , then decide which side of that fence you are sitting on

bearing in mind your reply to a judge or claimants rep if they ask in court who the driver was, or if they !!! are YOU the driver on the day in question

perjury under oath carries a greater punishment , so do not lie , even if you say "no comment" , which infers that the answer is yes

its one or the other , so weigh up the arguments like the poster in the thread I linked

wexpy

I have received VCS WS. To recap I am defending two separate claims in the same session as they relate to each other. VCS have made a few mistakes when referring to the claim ref numbers and number of warning signs does this matter?

Just going to read up on the case transcripts but they have mentioned Beavis, thornton vs shoe lane, vine vs waltham forest lbc re 'not seeing the signs', crutchley re adequacy of warning signs and chaplair ltd vs kumari re additional £60

wexpy

Hello Forum members

please find my first draft of WS.

Paras 1-11 are my own, the rest are copied and pasted from other WS as VCS WS made all the same points, even the same paragraphs.

I have until the 9th to get posted. If I have video of route into car park, how do I submit this in hard copy (usb drive?) to VCS.

In the County Court at xxxxxxxxxxxxxxxxxxx
Claim No. XXXXX
Between
Vehicle Control Services Ltd (Claimant)
and
XXXXX(Defendant)

WITNESS STATEMENT
I XXXXX will say as follows:
I am the Defendant and registered keeper of the vehicle in this case. I am unrepresented
with no legal background or training and have had no previous experience of county court
procedures. If I do not set out documents in the correct way, I trust the Court will excuse my
inexperience.

Attached to this statement is a paginated bundle of evidentiary documents marked Exhibit
ED1 to ED23 to which I will refer.

1. I deny that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Claimant asserts that my vehicle parked without displaying a valid permit.
3. Before I describe what happened on the day that my vehicle was parked at xxxxxx car park, Sheffield, Sx xxx I confirm that the essence of my defence to this claim is that:

a. I have not breached any terms and conditions of parking.
b. The claimants signage was wholly inadequate in size of notices, size of lettering, location and content and therefore incapable of forming a legally binding contract with the defendant.

4. On the afternoon of the 17 November 2018, at around 4.30pm I parked my vehicle in the above mentioned car park, with the belief that the car park was free to use. As an employee of the landowner, it was commonly held knowledge within members of our service that the car park could be used at weekends as this would not impact on employees of Red Tape Central c/o Sheffield City Council, as this was only open Monday - Friday and for who the car park was provided. I had previously parked my vehicle there on another occasion a few months before without incident. It was dark when I parked.

5. I left the car park through the only exit and did not notice any signs stating that a permit was required and that a fee of £100 was payable should a permit not be displayed. I left the vehicle in the car park overnight and returned to collect it the next morning at around 10am. This is when I noticed what the Claimant refers to as ‘Not a PCN’ warning card, and that I may have breached T+Cs in the use of the car park. It invited me to check details online, which I did not do, as was not familiar at all with the website mentioned nor the warning cards and that I only ‘may’ have breached T+Cs and not actually breached them.
6. Contrary to the Claimants assertion in paragraph 14 that 'warning signs are visible upon entry to the Car Park', there is no prominent signage directly facing drivers as they enter the car park. Rather the first sign faces sideways as you approach the car park and not easily seen as you navigate into the car park ensuring awareness of other possible drivers and pedestrians. See the Claimants evidence and well as exhibit ED1 which is the same sign in lighting similar to the material date.

7. A second sign is at the far end of the car park and it is possible for taller vehicles to partially obscure this sign, it is also unlit. See the Claimants evidence as well as exhibit ED2 which is the same sign in lighting similar to the material date and ED3, which shows a vehicle partially obscuring the sign. Whilst there is no vehicle obscuring the sign in the Claimant’s evidence photography, it is certainly possible, although I cannot remember if there was one on the material date.

8. A third sign faces into the car park on a low lying wall near the entrance/exit. It is also unlit and the claimants evidence also shows what the sign looks like in low light.

9. The Claimant mentions a 4th sign, but has not provided evidence of this and I have not seen it either.

10. Even if the court is minded to accept that a sign was visible, the wording on the sign
is prohibitive. The Claimants’ signs are in small print and the terms are illegible. Thus, no
contract was formed with me to pay any sum at all, since the signs have no legible ‘charge’
which could be visible on arrival. From the pictorial evidence in the Claimants’ submission, you can
see that the font type is incredibly small and would not be legible from the driver’s seat and
is therefore prohibitive.

11. The wording on the signs says 'Valid Permits Holders’. The sign wording (see Paragraph 41) then describes actions that valid permit holders must do in order to avoid a parking charge and the consequences of not displaying their permit. It does not say that a person will be subject to a charge if they do not have a permit. Therefore, there are no terms and conditions to understand and agree to. The signs are forbidding. In Pace v Lengyel, DJ Iyer explained that the parking firm’s contract required the defendant to do something that he could not do, not due to any act or omission, but a state of affairs the defendant had not control over. The contract was invalid under the doctrine of impossibility of performance. See ED7 and ED8.

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

12. Yousra Ibrahim, representing the Claimant, has been employed by the company since
July 2019. As the alleged contravention took place in November 2018, 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.

13. 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 so the case above has no relevance
on this case.

14. In Paragraph 32 of the Claimants Witness Statement, 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 landowners have of stopping the
unauthorised parking of cars in parking spaces or parking areas on their property.”

15. 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.

16. Claimant is a member of the International Parking Community (the IPC) and breached the trade body’s Code of Practice, specifically Part B, paragraphs 2.1 and 2.2.
Paragraph 2.1 “Where the basis of your parking charges is based in the law of contract it will
usually be by way of the driver of a vehicle agreeing to contractual terms identified by
signage in and around a controlled zone. It is therefore of fundamental importance that the
signage meets the minimum standards under The Code as this underpins the validity of any
such charge. Similarly, where charges are founded in the law of trespass and form liquidated
damages, these too must be communicated to drivers in the same way.”
Paragraph 2.2 “Signs must conform to the requirements as set out in a schedule 1 to the
Code.”

17. Paragraph 36 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;
a. 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.
b. There is no comparable legitimate interest or commercial justification for charging more
than the landowner could claim by way of restitutionary damages.

18. 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 Protections of Freedoms Act (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.

19. The Claimant is also intending to rely on Vehicle Control Services Limited v Crutchley (paragraph 53) which can be dismissed as it was a case based on “stopping on a roadway where stopping is prohibited”. There is no relevance to this case.

Abuse of Process

20. In addition to the 'parking charge', the Claimant has artificially inflated the value of the
Claim by adding costs of £60 which has not actually been incurred by the Claimant, and
which are artificially invented figures in an attempt to circumvent the Small Claims costs
rules using double recovery.

21. 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.”

22. 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.

23. 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.

24. 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.

25. 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.

26. 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. The Defendant refers to the following paragraphs given in the
judgement on the 4th of November 2015 in ParkingEye v Beavis:
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.''

27. Any purported 'legal costs' are also made up out of thin air. Given the fact that roboclaim 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.

28. 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.

29. 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 that their artificially inflated
claim, as pleaded, constitutes double recovery.

30. 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 firms 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 (Exhibit HC21). 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...''

31. 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 Exhibit HC22) 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.''

32. 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.

33. 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.


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: XXXXXX
Date: 19/09/2019

wexpy

Hello. I understand i have left this a bit late, but hope i can get a critique of points 1-11. I will add Beavis case law to points about inadequate font etc. And realise it would help to link to my evidence, so will have something up by tonight.