Claim Form - VCS

Coupon-mad

http://tinypic.com/usermedia.php?uo=jJm7XUcEEIzaojaxD8%2Fw3oh4l5k2TGxc#.XLkLL-hKjIU

http://tinypic.com/usermedia.php?uo=jJm7XUcEEIwSBQEb7swpBoh4l5k2TGxc#.XLkLVOhKjIU

As you are relying on it being too dark to see any signs or PDT machines (am I right, no payment was made?) then do not have stuff talking about what the 'large signs' actually say!

5. Further, 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 entering the car park in a vehicle. The large signs leading to the car park merely state an “all day” rate of £4.50. Due to the ambiguity of the term “all day” it would be reasonable to assume charges apply during day-time hours and not after 9pm.

Fluffernutter

As far as I know, the road leading to the car park has adequate lighting and this is where the large sign is (shown here from the pavement with ambiguous wording and small text not visible from a car) http:// tinypic.com/m/kd4f91/4

I haven't yet had any proof from VCS that there was adequate lighting within the car park on the night, but it seems the ambiguous wording and T&Cs would be a stronger point based on the previous case that won.

Coupon-mad

http://tinypic.com/usermedia.php?uo=jJm7XUcEEIyQvJCWPeOchIh4l5k2TGxc#.XMBTLehKjIU

That's an Excel sign! You've not even mentioned that in your defence!

You need to read Albert Street Birmingham defence threads to see how people word this point (I know yours is Smyth Street).

Also Google Albert Street Birmingham Parking Prankster Excel

and Smyth Street Parking Prankster Excel

http://parking-prankster.blogspot.com/2017/06/vehicle-control-services-have-no-right.html

Read all the results you find, not just that one I've linked to give you a heads up.

Fluffernutter

That's an Excel sign! You've not even mentioned that in your defence!

Oh no! I questioned this early on at appeal stage but thought I was barking up the wrong tree! I've added it in now

Updated defence below:

________________________________________
DEFENCE
________________________________________

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


1. The facts are that the vehicle, registration xxxxxxxx, of which the Defendant is the registered keeper, was photographed by ANPR entering and exiting SMYTH STREET CAR PARK in Wakefield during night-time hours on xx/xx/xxxx.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s);. 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.

3. The Parking Charge Notice states the reason for the charge as being “Contravention: 101) PARKED WITHOUT PAYMENT OF THE PARKING TARIFF FOR THE VEHICLE REGISTRATION MARK OF THE VEHICLE ON SITE The Maximum period allowed at this site is [blank] minutes”.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. The terms and conditions shown on the signage within the car park do not state that a PCN will be issued for failure to purchase a ticket; this information is only present in the general section of the signage which is not part of the ‘terms and conditions’ and therefore not legally binding. This was demonstrated in a case between BW Legal (acting on behalf of VCS) and a defendant ‘S’ which was presented in Court in July 2018 (Detailed here: https:// perincuriam.com/vehicle-control-services-b-w-legal/ ). The Judge in this case ruled in favour of the Defendant and dismissed the case on the grounds the Defendant had not breached the terms and conditions. It should be noted that the case mentioned here occurred in the same car park, with identical signage as that described in this Defence.

6. The signs leading to and within the car park have the Excel Parking logo, whereas the claim has been brought by Vehicle Control Services Ltd. The defendant could therefore only form a contract with Excel Parking LTD, not the claimant, by virtue of the signs being in the name of Excel. This is further confirmed by the email correspondence being from Excel Parking.

7. The connection between VCS and Excel was queried at initial appeal stage. It states in the response to a Subject Access Request that the Defendant was advised that “VCS and EPS are same company”, however there was no explanation or proof provided of this contractual relationship.

8. The Defendant has requested proof from VCS of their contract with the landowner that authorises the issuing of penalty notices for vehicles parked on their car park/land. This information has not been provided; therefore it is presumed that the Claimant is a stranger to any contract and has no legal capacity to issue a claim.

9. Further, it is denied that the car park signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person entering the car park in a vehicle. The large signs leading to the car park merely state an “all day” rate of £4.50. Due to the ambiguity of the term “all day” it would be reasonable to assume charges apply during day-time hours and not after 9pm.

10. In relation to point 9 above, Section 69 of the Consumer Rights Act 2015 states “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”. In this case the term “all day” should be taken to mean “during day-time hours”.

11. The large signs at the entrances to the car park have small print stating “This is a 24 hour pay and display car park”; however this is disguised within a coloured strip and displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the signage is capable of creating a legally binding contract.

12. VCS are members of the International Parking Community (IPC). It states in the IPC code of Practice (Appendix 12) the following: “14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.” As outlined in paragraph 9 above, it is determined that VCS are using misleading tactics by disguising significant information within a coloured band and very small text, therefore making it illegible from a vehicle.

13. The ANPR photos included with the NTK do not show the vehicle, they only show the number plate and a partial reflection of the headlights. This demonstrates the very poor lighting conditions on the night the contravention is said to have occurred.

14. The Defendant requested proof of adequate signage and lighting from the Claimant on multiple occasions, showing the visibility and legibility of signs during night-time hours. The photographs provided by the Claimant were in broad daylight and, ironically, show that signage was not visible from several parts of the car park. The photographs also show the signage within the car park entrance stating “This is a 24 hour pay & display car park" to be fully obstructed by a parked car. Additional signs in the entrance were shown to be partially obstructed by a car, and obscured under a tree such that the wording is difficult to read. There do not appear to be any terms and conditions signs within the car park entrance, only at the pay machine.

15. As stated in paragraph 7 of this defence, the Claimant has thus far failed to provide proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

16. The Protection of Freedoms Act 2012, Schedule 4, 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 (plus £25 for Court fees), for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

17. 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Maybe change this bit to:

7. The connection between VCS and Excel was queried at initial appeal stage. It states in the response to a Subject Access Request that the Defendant was advised that ''VCS and EPS are same company'', however this is untrue. Whilst both are owned by Simon Renshaw-Smith, these two Limited companies are completely separate legal entities. The sign offers a licence for all day parking from Excel Parking Services Ltd (company number 02878122) therefore it is trite law that this Claimant, Vehicle Control Services Ltd (company number 02498820) is a stranger to the matter and has no cause of action.

Fluffernutter

Ok I've submitted the defence and I'll keep you posted on any updates.
Thanks for all the help on this by the way; this forum and everyone who inputs on it are really appreciated

Madaschi

Hi, I am not sure what more seasoned members of this forum would say, but I would consider a complaint to DVLA and ICO about your personal data handling by Excel and VCS. VCS AND Excel should not share your personal data as only ONE company is responsible for its handling. They are two different companies owned by the same person, as you have noticed already, and it does NOT make them a group of companies, as they claim. Also double check terms and conditions of that car park and compare it with their privacy policies beforehand. You will probably find some inconsistencies, as I did in my case, which could be used when making complaint. Predatory practices, which I strongly believe are taking place, are also mentioned in IPC CoP.

Fluffernutter

Thanks Madaschi, I'll definitely look into this!

Just a quick question about the directions questionnaire if anyone knows - it says I have to send the form to CCBC, and a copy to "all other parties". I'm assuming this is just VCS as the claimant and not Excel?

Also do I send it to the VCS address from my appeal rejection (Central Payment Office, P.O. Box 4777, Sheffield. S9 9DJ) or their address from their website (2 Europa Court, Sheffield, S9 1XE) ?

I'm going away this Friday until end of the month so I don't want to risk sending it to the wrong place then missing the deadline...

Coupon-mad

You send it to the address for service shown on the N1 claim form. To VCS.

Or you can email it to VCS.

You can also email it to the CCBCAQ email address (like the defence).

Fluffernutter

ANOTHER ONE BITES THE DUST... (kinda...)

I had my court date today, the Judge ruled in my favour based on ambiguous signage (which I thought was my weakest argument!). It felt like a bit of a hollow victory though as they refused to allow my costs for both time putting together all my paperwork AND lost wages/holiday. The Judge said they don't usually give costs for litigant in person for small claims, then was just about to allow the day's wages and the woman from VCS perked up to say it didn't apply to paid holiday.
I wish I'd been a bit quicker to question it because it shouldn't matter whether it's paid/unpaid in my opinion, was she right in saying this? The Judge just agreed and awarded me travel costs only...

Anyway, more of a detailed run-down below:

I arrived a court about an hour before my time so I could sit and go through my notes. The receptionist pointed out the VCS representative in case I wanted to talk, but I steered clear and waited to be called.

We were called in and the Judge introduced herself (I can't recall her name but I'll update once I get her details). The VCS rep was asked to speak first and she pretty much just read from the witness statement that was prepared by someone else. She then read the list of sign locations around the car park and read out part of the signage that had terms & conditions (this is the signage they were relying on for the case). She read a paragraph about the ANPR and ticket machine log - stating that my car reg plate wasn't on the log therefore a ticket wasn't bought on the night.

The Judge passed it over to me to give my defence. I started by clarifying I was defending as the registered keeper, not the driver as the VCS rep kept implying.
I listed my main three defence points: 1) Abuse of process 2) No contract existed 3) Poor and ambiguous signage.
I started with the signage as this is what VCS said they were relying on for their case. I stated that the T&Cs on the main sign didn't include any mention of a PCN, and that the only mention of a PCN or of VCS were in the general parts of the sign, not in the T&Cs box. I directed the Judge to a previous case at the same car park (here https /perincuriam.com/vehicle-control-services-b-w-legal/ if anyone's interested!) which I included in my evidence. She was quick to say that she was deciding on this case, not on a previous one, which I said was understandable and it was merely there as an example of the poor signage.

Ironically, the T&Cs are so small on the sign that the Judge was unable to read them on the photos (even the slightly zoomed-in one in my evidence). She said if she can't read them she can't make a judgement on them, I said something along the lines of "I would apologise but they're not my signs!" and I also pointed out that these were the photos VCS were relying on to prove the signs were large, prominent and legible.

I moved onto the large entrance sign which says ""All day parking £4.50" and only states that it's 24hr pay and display within a coloured strip in tiny font. I quoted the IPC code of practice which states "You must not use predatory or misleading tactics to lure drivers into incurring parking charges." and I argued that this is considered misleading. I also said the wording "All day" was ambiguous and used the example of how I "work all day" but I don't work for 24hrs. I quoted the Consumer Rights Act Section 69 which states that “If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”.

I did a bit about Beavis and said that VCS were relying on that case, but the signage at Smyth Street is sparse and unclear, unlike the Beavis example in my witness bundle.

I then went into the whole VCS/Excel issue and said that in responses to the various appeals, VCS had told me that they and Excel were the same company, which is untrue. I noted that all the signs are in the name of Excel, therefore any motorist using the car park would be entering into a contract with Excel, not with VCS. I referred back to the main signage which has wording to say that you're entering into a contract with VCS (the only mention of them on any signage) but again this was not within the T&Cs section.

I moved onto what was meant to be my first point of abuse of process. I explained the initial PCN was for £100 and that the additional £60 + vague fees were an attempt at double recovery and the fees are not recoverable under POFA or as a result of the Beavis case. I directed the Judge to the recent court cases what have been thrown out, a couple of which I attached as evidence. I again stated these were merely used as examples, but they demonstrate that VCS are attempting to circumvent the Supreme Court decision made in the Beavis case.

The Judge gave me a moment while I was frantically double checking everything in my notes, when I looked up she was just sat smiling at me so I said that was everything haha!

She then gave the VCS rep chance to respond, the only thing she questioned was why a ticket wasn't purchased. I was careful with my wording but said that the main entrance sign states "All day parking £4.50" which, if I were driving, I would interpret as being daytime hours, not late night when my car was parked there.

The Judge asked about signage again, she brought up the site plan presented by VCS and we talked through where the signage was, how big, wording at certain locations etc. She then asked me which route the car took into the car park. Obviously I wouldn't know as I was not the driver....... but I speculated that, with it being a one-way system a car would approach from this or that direction etc. I pointed out that the first and most prominent sign a driver would see is the "All day parking £4.50" sign with the hidden small print.

Luckily the Judge made her decision then and there, but she dragged it out enough to make me think I'd lost! Ultimately it came down to the misleading sign which suggests daytime parking. She repeated the consumer rights wording and said that on seeing this first sign, any reasonable person would continue on that basis and park without searching out further signs.

Now to the costs. I began with time for litigant in person but she stopped me and said they don't usually award that for small claims. I then requested a day's wages for attending court. She asked if I needed to take a full day, to which I responded and said I'd considered just a half day but I found it too stressful so wanted the morning to prepare, which she agreed with and started working out how much based on my hourly rate etc. This is when the VCS rep chimed in and asked me whether it was paid or unpaid holiday. I said it will have been from my annual leave allowance so she said it didn't apply to paid holiday. To which the Judge said something like "Yes I think that's correct". She asked if I had travel expenses for the day, to which I said yes but I'd missed them off my schedule of costs. She asked if I wanted to pursue travel expenses or leave it, to which I said I might as well! So she awarded me £10 to be paid within 14 days.

I'm really annoyed about the costs as I'm sure that's not right, but I'm settling for the moral victory for now!

Thanks everyone for their hard work on this forum. I'd almost definitely be nearly £200 worse off if it wasn't for your great advice

Now I need a well-earned G&T!