Defence to VCS - please help and advice/proof read

jonesthebones

Hi,
I have added to my WS.
I am going to post the text on here in case of any amendments people want to make, but also included a link so you can reference to the exhibits if you want to.
https://www.dropbox.com/s/nxtc0c78yo2mvox/Official%20Witness%20Statement.pdf?dl=0
Here goes...




In the County Court at Derby, Derby Combined Court Centre, Morledge, Derby, DE1 2XE
Claim No. XXXXXXX

Between

Vehicle Control Services (Claimant)

and

XXXXXXXX(Defendant)


WITNESS STATEMENT


I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, 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 HC1 to HC22 to which I will refer.

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

2. The Claimant asserts that my vehicle parked in a restricted/prohibited area.

3. Before I describe what happened on the day that my vehicle was parked in the Siddals Road Public Car Park (“the Car Park”), I confirm that the essence of my defence to this claim is that:
a. Neither the Defendant nor the driver breached the terms and conditions of parking.
b. My vehicle was not parked in any reasonably visible restricted/prohibited areas.
c. The location appears to be set up to catch out motorists, given that it is divided between two companies that are both owned by Simon Renshaw-Smith; the first company being the Claimant 'VCS' and the other being Excel Parking Services Ltd ('Excel').

Background

4. On the morning of the 12th of December 2018, the driver drove into the entrance of the Car Park in question. They instinctively turned right straight away, following the rules of the one-way sign (Exhibit HC1 and HC2) on the wall in front of them, and parked into the first available space.
5. They then looked for the nearest ‘Pay and Display’ machine (Exhibit HC3), and purchased a ticket for £3.50 which meant the vehicle could remain parked for 12 hours within the Car Park, specifically between the hours of 08:56AM and 20:56PM (Exhibit HC4), and they displayed this ticket in the windscreen (Exhibit HC5).

6. They returned to the vehicle at around 15:00pm after a long day and found a red/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'(Exhibit HC6 and HC7). They opened the document and were directed to a website ‘https://www.myparkingcharge.co.uk’ where they found photographs of the vehicle from the Claimant, and an explanation that the contravention was for parking in a restricted/prohibited area (Exhibit HC8).

7. Despite having a valid parking ticket displayed, they re-checked the various signage displayed in all areas of the Car Park. Under closer inspection, it became apparent that signage for 2 different companies were present within the Car Park. These 2 companies being Excel Parking Services Ltd (the company of which the driver purchased the parking ticket) and Vehicle Control Services Ltd (the Claimant).

Unclear Signage


8. At the entrance of the Car Park, there is a one-way sign requiring drivers to turn right, then there is a wall opposite the first spaces, and next to it a Pay and Display machine which produced a valid ticket authorising a parking licence from Excel. This machine and the one-way sign, as well as a private land sign from Excel and a private land sign from the Claimant, are all on the same wall (Exhibit HC9).

9. There are two sets of contradicting signage operating in the car park, first is a prominent sign on the entrance to the car park displaying ‘£3.50 ALL DAY PARKING’ with an arrow left. When you turn left, you are met by 3 other large signs belonging to Excel. The second set, which are much less prominent, are signs from the Claimant with a much smaller font, not visible to the driver of a vehicle with presumed terms and conditions. None of the signs stipulated that a particular area is designated for one company or the other.

10. The Defendant opposes the statement made by the Claimant in paragraph 42 of their Witness Statement that ‘it is of no relevance to this matter which company manages the adjacent site.’. The defendant believes it is of the utmost relevance. The location is either deliberately or negligently set up by two sister companies, to create a 'concealed pitfall or trap' for drivers who park in, what appears to be, an ordinary parking bay in the Siddals Road Car Park. Unbeknownst to them, if they turn right (as instructed), they are crossing an invisible boundary into what is actually a different Car Park.
11. In Exhibit CT1 of the Claimants’ Witness Statement, an overhead of the Car Park can be seen. On this document, there is a red line portraying the ‘boundaries’ between the two car parks. These proposed boundaries cannot be seen at the actual location. There are no clear demarcations - whether that be in the form of coloured lines, poles, fences or walls - between the areas at all. Thus, allowing one of Mr Renshaw-Smith's two companies to set out to penalise honest paying drivers who inadvertently pay the other sister company at the adjacent machine.

12. A driver cannot clearly distinguish which bays are for which customers. Therefore, it has to be assumed that any bay within the Siddals Road Car Park can be used.

13. The details of the contravention assert that my vehicle was parked in the Bounce Revolution Car Park. However, the Defendant has the reasonable belief that the Claimant did not have the authority on the material date, to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

14. The Defendant would like to refer to paragraph 59 and 81 of the Claimants Witness Statement, in which they assume that the Defendant or driver is using the defence that they‘ “did not see and read the signage” in an attempt to absolve liability’. In addition, the Claimant again submits that their signage is clearly distinguishable from the Excel signage displayed not 5 metres away.

15. The Defendant believes that this untrue and refers the court to review Exhibits HC10 to HC17. These are multiple screenshots of 2 separate Derby Telegraph reports made by journalist Chris Harper, and some of the comments under them by the public. In these exhibits you can see statements from the Defendant, 3 other victims of the entrapment set out by this disingenuous firm, and the thoughts of the public regarding the misleading signage at the site in question.

16. Upon recent visitation to the site, it appears that Mr Simon Renshaw-Smiths’ other company ‘Excel’ now retains all jurisdiction to patrol the Car Park on its own. All signage that belonged to the Claimant (Exhibit HC18) has now been removed, and new signs from Excel in place (Exhibit HC19 and Exhibit HC20).

Part one

jonesthebones

part 2
Costs on the claim – disproportionate and disingenuous

17. 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.

18. 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.”


19. 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.


20. 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.


21. 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.


22. 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.


23. 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.''


24. 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.


25. 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.


26. 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.


27. 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...''


28. 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.''


29. 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.


30. 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.

jonesthebones

[part 3
Distinguishing cases mentioned by the Claimants witness statement and addressing individual points made.

31. Charlotte Trayers, representing the Claimant, has been employed by the company since July 2019. As the alleged contravention took place in December 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.

30. 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.


32. 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.”


33. 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.


34. Paragraph 33 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.


35. 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. The driver has not been identified.
b. 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.
c. There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages.


36. 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

Coupon-mad

Very good. My only niggle is saying things like this, if you were the driver:

Neither the Defendant nor the driver

If you were, in fact in your case I would admit to being the driver and drop POFA stuff, because your main defence needs you to tell the judge what the signage was like. And that is a powerful defence stance.

I would add, inspired partly by Castle's info above:

3. d. The alleged principal, Inspire Bounce Fitness Ltd was wound up on 20th February 2019 and has now been liquidated. Looking at the filed statement of affairs they never owned any land, so they are/were not the landowner (Companies' House record, Exhibit XXX) and thus there is a complete lack of any supporting landowner authority or commercial justification in evidence. This 'legitimate interest' was held by the Supreme Court to have (unusually for a private parking charge) disengaged the penalty rule in the well known case of ParkingEye v Beavis [2015] UKSC 67 which is fully distinguished in all facts. By contrast, in the instant case, this charge remains unrecoverable and unconscionable.

And 34 needs a tweak, if you were not the driver and want to keep POFA stuff in:

34. Paragraph 33 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 [STRIKE]isn’t[/STRIKE] is not 'relevant land' as per the [STRIKE]so[/STRIKE] POFA definition [STRIKE]is not relevant,[/STRIKE] meaning the Defendant cannot be held liable as registered keeper under any applicable statute. Further, the law of agency does not apply, due to a finding of fact that the owner of VCS (and its sister parking company, Excel) has been well aware of for over two years, following the persuasive appeal case in June 2017 at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062). Correcting the County Court's error regarding the question of keeper liability, the Senior Circuit Judge held that the weak citation of CPS Ltd v AJH Films Ltd to support a meritless but constantly regurgitated argument by Simon Renshaw-Smith's parking companies about the law of agency, was 'improper' (Exhibit XXX).
.

*Have you? What do you mean, para 5(?) in this WS is about something else.

And where you firstly refer to the POFA (in full) in 27, put the acronym you intend to later use, in brackets like this: ''the Protection of Freedoms Act 2012 (the POFA)''

jonesthebones

Thank you coupon mad.
Firstly I wasn't sure whether to say if I was driving or not as my defence left it open, but I agree that it would make more sense to admit it now so I will change all that today.
Also I expected there might be one or two mistakes, I had been doing this for about 9 hours at this point so thanks again for pointing those out as well. I shall take your advice on board and amend today
Much appreciated

Le_Kirk

You have a hyperlink in the middle of your WS. Are you expecting the court to follow that link and print it in it's entirety? I would just use the title of the link - presumably the Parking Eye v Beavis - and then as you have done, print the relevant extracts that support your case.

jonesthebones

noted Le Kirk, will sort that soon.
thanks!

AllCingEye

I have noted from the WS that VCS sent in my case that the signage (printed very nicely on A4 for me to see clearly) states 'Customer parking only whilst on the premises' yet less than half way further down the same sign it states 'Charges Apply 24 Hours Per Day' How can both be binding if the business is not open 24 hours?

jonesthebones

To anyone who is more familiar with government documents, would you be able to have a quick scan through the statement of affairs for the business and point out to me what it should say if Bounce Rev was the landowner???
Just so, if questions arise, I at least (semi) know what i'm talking about haha
https://beta.companieshouse.gov.uk/company/11377932/filing-history

U414830

Please post the link so people don't have to scroll through to find it, just makes it easier.