Witness Statement Advice Please! VCS

Coupon-mad

The statement needs paragraph numbers, and I would split those large paragraphs up into more bite-size groups of sentences, and number them all.

You should refer to Henry Greenslade's words about Understanding Keeper liability, especially in the bit where you say:

However the response I received was insufficient and clarified that they were not only unwilling to provide further information they would not accept an appeal without myself naming the driver or accepting liability for the driver.

That begs for you to then quote Henry about how a keeper has NO obligation to name a driver!

And re this bit, don't call it a 20 minute grace period, split it by saying:

The ANPR photographs of my vehicle were taken upon entry at 10:42 and exit at 13:04. If the maximum parking period permitted is 120 minutes I would not find it unreasonable to say that a [STRIKE]20 minute[/STRIKE] grace period should also have additionally been taken into account, for a reasonable period of on-parking activity/driving within the site, before and after parking time.

Then find the IPC CoP on grace periods, and also add this published opinion even though it's from the rival Trade Body, the BPA:

https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

Ignore the blue 'featured' banner headline. You want the article underneath.

Also, you need to wait till the last day, in case VCS' WS & evidence arrives, and then pick holes in it like you see in all the other VCS Witness Statements here, it's been done a LOT and the WS will be fairly templatey, so you need to be informed by reading other VCS WS threads.

Such as this one:

https://forums.moneysavingexpert.com/discussion/comment/75657555#Comment_75657555

Christie2692

Thank you so much CM. I have shaped up my witness statement and feel it may be nearly ready to go. I'm going to compile a binder with index page, the WS and evidence mentioned, along with copies of the letters sent / received so far. Anything I may have missed?

We're in an awkward situation as we are out of the country for the next three weeks and only return 5 days before the court date . So I'm having to submit the WS early and very likely before I see VCS draft...

Am I right in thinking I would be able to address their WS in a skeleton argument? and email this to court (and VCS) 24 hours before the hearing along with a costs schedule ? I've drafted some points together in preperation for a SA working from what they have claimed in other threads, but this would give me time to draft it properly once we're back and should have their full WS to work through.

Coupon-mad

Anything I may have missed?

Taking a wage slip with you, and proof of service of your WS/evidence in case they lie, like their rep allegedly did, this week:

https://forums.moneysavingexpert.com/discussion/comment/75837547#Comment_75837547

Am I right in thinking I would be able to address their WS in a skeleton argument? and email this to court (and VCS) 24 hours before the hearing along with a costs schedule ?

Yes.

Enjoy your holiday!

Christie2692

Hi Again, I'm back from holiday and D-Day is looming. I'm sorry for the incredible rush however I have spent most of the day composing a Skeleton Argument (I believe needs submitting to court tomorrow 24 hr before the case?) If anybody could take a quick look and give any pointers I would be eternally grateful! I'm afraid I only have a paper copy of VCS WS and don't have the time to scan but I'm hoping you can pick up the gist from my skeleton. Many Thanks in advance

THE ISSUES
1. The Defendant has identified the following areas of dispute: Credibility of the Claimant's Witness Statement, Irrelevant Evidence, Keeper liability, Breach of IPC and BPA codes of practice, Authorities Prominence & clarity of illegible terms, Conduct
GENERAL ARGUMENTS
2. The Claimant's case appears to be based merely on the fact that I was the registered keeper at the material time, of a vehicle parked somewhere. Their evidence shows merely a 'stock' example of the sign they say was used in the car park they refer to. Along with images which were taken from the car park 6 years prior to the alleged contravention, images which fail to display clear and prominent terms such that a driver would be 'bound to' have learned of the alleged contract.
3. As outlined in Paras # of this Skeleton argument. The claimant failed to use their right to transfer liability from the driver to the keeper under the Protection of Freedoms Act 2014, and the Claimant has no ground to pursue the Defendant outside of the POFAt.
4.The Claimant’s witness statement is not credible. It contains invalid evidence, along with false and vexatious statements which can be shown in this skeleton argument Paras --.
CREDIBILITY OF THE CLAIMANTS WITNESS STATEMENT (WS)
5 The witness, Thanvirul Hoque has only been working for Vehicle Control Services Ltd since November 2018. The alleged event occurred 7 months prior to this date. The terms and conditions of this car park have been updated since the event in November 2018, please see attached news story (EX ) for evidence. On this basis I question the credibility of the witnesses knowledge about the site, signs, terms and conditions or parking event.
6 Para. #5 of the WS 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 British Parking Association members. VCS Ltd are a member of the Independent Parking Community making this statement false.
7 Para #17 states that the said vehicle was recorded parked for longer than the maximum period. This is an untrue statement and contradictory to para #12 in which it is stated the ANPR cameras record the vehicle in motion upon exit and entry to the site.
8 Para #18 states that ‘the defendant parked their vehicle in contravention.’ This is a false statement as the Claimant has failed to provide any evidence that the Defendant was the driver of the vehicle at the time in question and there is no presumption in law that the Keeper is the Driver of the Vehicle.
9 Para #19 states that an operator will usually send out a PCN within 14 days of the contravention. The PCN was sent to myself 19 days after the alleged contravention occurred making this statement unnecessary and irrelevant to the Claimants case. This timescale is quoted to mislead the court as this is the timescale set out by the Protection of Freedoms Act 2014 in order to pursue a Registered Keeper of a vehicle.
10 Para #21 I have outlined in my Witness Statement that I was clearly advised that I would be unable to raise an appeal without either admitting responsibility for the incident or identifying the driver, which I was not in a position to do nor was I lawfully required to do. Merely further outlining the appeals process in paras #21-24 adds no relevance to this claim.
11 The witness falsely claims in para #41 that I had not communicated with the Claimant since the initial appeal. Evidence of the numerous letters sent to VCS were enclosed within my court bundle.
12 In para #44 The Claimant falsely states that multiple correspondences were sent to myself, containing the facts and circumstances of the contravention and that consequently the Defendant had the opportunity to examine all material information around the contravention. This claim is false as evidenced by the copy letters provided in both mine and the Claimants court bundles. I did not receive a copy of the Terms and Conditions from the Claimant, after multiple requests nor are these terms and conditions currently displayed at the site in question and available to view as evidenced by the attached newspaper article. (ex)
13 I wholeheartedly dispute the Claimants assertion in para #45 that there is no material difference between a vehicle parking and a vehicle being brought to a standstill at the site. As outlined in my witness statement the question is raised whether it is clear enough for a driver to understand whether entrance / exit time is included within the permitted free parking period by the terminology used on the signage and contract that was displayed at the time, or if indeed they could be led to believe the time stated is merely the period of time a vehicle is parked upon the premises.
KEEPER LIABILITY
14 Liability can only be transferred lawfully by strictly following Schedule 4, Protection of Freedoms Act 2012 (Ex1) which was enacted into statute to prevent this very issue and ensure lawful transfer of liability for private landowners. VCS Ltd chose not to utilise this statute and therefore attempts to transfer liability unlawfully. Mr Henry Greenslade comments on this within the 2015 POPLA Annual Report: “The only presumption that anyone else is liable for such a charge is under Schedule 4 of the Protection of Freedoms Act 2012”
15 The Claimant states in para #31 of their witness statement that ‘the Claimant may pursue the claim outside of POFA’; however there is no other legislation that can be used in this instance.
16 In support of this I would like to draw attention to Ex2, Henry Greenslade's words as Lead Adjudicator in the POPLA (Parking on Private Land Appeals) Annual Report 2015 'Understanding Keeper Liability', which make it clear that a keeper is not required to name the driver and that in the absence of evidence of that party, the only way for a parking firm to hold a keeper liable is by full compliance with the POFA.
Law of AGENCY ??
17 No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v Total Parking Solutions in September 2016, where POPLA Assessor Carly Law found:
“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”
18. In Excel v Ian Lamoureux, C3DP56Q5 at Skipton 8230; The Judge was critical of the claimants attempts to hold the keeper liable without being able to rely on PoFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated ‘I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012.
IRRELEVANT EVIDENCE
19. The photographs provided by the claimant are not only completely illegible but are also date stamped to the year 2010. There is no material evidence that these are the same signage and terms and conditions that were in place on the date of the alleged contravention and they are therefore irrelevant to this case.
20 As the photographer has not been able to take a single legible photograph of the signs in place, 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.
21 The contract provided by the Claimant terms and conditions relate to the 1st day of December 2010 for a fixed period of 36 months following this date and therefore is irrelevant to the alleged contravention dated
22 Even if the contract was of any relevance to the date outlined in this case, Vehicle Control Services have breached the enclosed terms and conditions of this contract. 3.13 The company will operate in accordance with the British Parking Associations Code of Practice’ The claimant is not an accredited member of the BPA. VCS Ltd are members of the IPC. Even if the claimant was a member however the Claimant was not operating in accordance with BPA or IPC Code of Practice and therefore are in breach of the contract. Para #18 of this skeleton argument particularises where the Claimant fails to operate in accordance.
BREACH OF CODES OF PRACTICE
23 In the Claimants witness statement para #37 it is stated that the claimant may pursue the Defendant outside of POFA. This is against the codes of practice of both the IPC and BPA as evidenced in my Witness statement (Ex4)
24 In contradiction to para #27 of the claimants WS. A contract to park by conduct cannot be formed unless there is a grace period to discover, read, understand and accept the contract. To do any of these is impossible if a motorist is not allowed to stop or wait, and this practice is in direct conflict with the IPC Code of Conduct’s “Grace Periods”: “15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site” (ex5)
Authorities
25 The Claimant sites Thornton V Shoe Lane Parking 1971 2QB163. I do not see this case as being relevant as it relates to a car park with a barrier. The sign which forms part of the contract is visible at the point of entry whilst the car is stationary whilst waiting for the barrier to open. The car park in question has no such barrier and if we are to accept the evidence of the signage provided by the claimant there is no possibility that these terms and conditions could be read and agreed to at the site entry point.
26 The Claimant refers to ‘Vine v Waltham Forest’. The Court of Appeal ruled that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. In this case, which was found in favour of the motorist, the signage was deemed insufficient because there was no sign directly adjacent to the Appellant’s parking bay and the only signage that was displayed could not have been seen from within the vehicle whilst parking. I would say this is relevant to the current case as the terms and conditions displayed by the Claimant could have only been seen / adhered to by the driver of the vehicle at the time in question.
27 The Claimant quotes paragraph 4 of the POFA however this is irrelevant and misleading to the case as it has been outlined multiple times that the Claimant has not with the POFA and therefore chose not to utilise this statue.
28 In para #31 The Claimant states that I had ‘failed to act upon’ each notice. This is not the case I have contacted the claimant multiple times asking for further information to be provided in regards to the claim so that I could review my position and act appropriately. The only option provided by the Claimant has been for myself to accept all liability and pay the charge or to name the driver of the vehicle on the day in question. As outlined in my witness statement this is not a lawful requirement therefore it is unreasonable to claim the defendant has ‘failed to act.’
29 In para #33 it is stated that the signage is prominently displayed and thus the Claimant has ‘done what is reasonable’ to draw attention to the existence of these terms. As pointed out in this Skeletons Para #12 the conditions on display have changed since the alleged contravention and therefore could not be viewed by myself. I would not have found it an unreasonable measure for the Claimant to provide me with a copy of the correct Terms & Conditions prior to this court case.
30 In para #34 The Claimant refers to ‘ParkingEye vs Beavis’. The Claimant's reliance upon the Beavis case is unfounded because the Supreme Court confirmed what was required 'in every case' is to establish firstly that a clear contract existed and was agreed (prominent signage) and that there was a legitimate interest in charging more than damages. Neither applies here; the signage evidence here is not only outdated it is nothing like the 'brief, clear' signs all around the car park in the Beavis case.
CONDUCT
31 Due to the ‘robot-issued’ nature of the claim particulars, I was unnecessarily disadvantaged in regards to the pertinent facts and information of the claim
32 I have had no choice but to serve a fully comprehensive and inclusive defence in response to the claim
33 My view is that the witness statement is merely a ‘copy and paste’ exercise by the Claimant by reason that several paragraphs are not related to this case paras #13, #15, #21, #22, #23, #24, #25, #26, #27, #30.
34. 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
35. The Claimant’s accusations that the Defendant’s inactivity caused litigation is outlandish. Even if the Defendant appealed the Notice to Keeper by reason that they were not the driver, the Claimant would still have incorrectly pursued the Defendant under ‘presumption of driver’ as this is the basis of the claim.
36. The Claimant by conduct failed to mitigate their costs as by serving a non-compliant Notice to Keeper. Serving a compliant notice would have allowed the Claimant to lawfully shift liability to the Defendant and avoid litigation
37 It can be evidenced to the Court that the Claimant failed Civil Practice Directions, By merely stating that they did not is not only a false and inaccurate statement it attempts to mislead the case entirely.
38 The Defendant has demonstrated to the Court that the Claimant has been 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.

Coupon-mad

In #3 you have a typo, 'POFAt'.

Breach of IPC and BPA codes of practice,

Can't be both. VCS are in the IPC.

Independent Parking Community

No - INTERNATIONAL Parking Community.

#9 has a typo, as the POFA was in 2012:

Protection of Freedoms Act 2014

If you are sending that to the court and claimant, make it in Times New Roman font size 12 and 1.5 line-spaced, to make it read legibly and to get onside with the Judge who won't want to plough through something hard to read.

Law of AGENCY ??

I would delete your current #17 which talks about an old POPLA appeal (irrelevant to a court case, really) and replace it with a citation of Excel v Smith and put that transcript in evidence as it's a higher level the Excel v Lamoureux as it was heard on appeal. See here in point #12 of this defence which deals with the improper citation of the law of agency:

https://forums.moneysavingexpert.com/discussion/comment/75941767#Comment_75941767

You need the Excel v Smith transcript if not already adduced with your WS.

You should also copy for your own crib sheet to discuss when it comes to the matter of costs, this part of that linked defence above, all the words shown there under:

Costs on the claim - disproportionate and disingenuous

The point being that if you feel you are losing, it's damage limitation to explain to a probably clueless Judge that the C has actually invented their added 'damages/costs' which are disallowed under the POFA and the Beavis case where just £85 was recoverable. And if you have a crib sheet to look at, it helps.

And re your own costs schedule, make it high, see here:

https://forums.moneysavingexpert.com/discussion/comment/75941271#Comment_75941271

https://forums.moneysavingexpert.com/discussion/6001157/ukcpm-gladstoned

Your last job at the end, if you win, is to TRY HARD to meet that high bar to persuade the Judge that your (high) costs in the hundreds (e.g. £19 per hour LiP rate from maybe 20 hours of prep and reading, plus your travel costs, loss of leave et al) should be awarded in full as exemplary damages (see the links).

Make sure you also email your skelly and costs schedule to the Claimant.

Christie2692

We won!! Although no costs awarded.

I'd just like to say a big thank you as we couldn't have done it without you. I wasnt present as was my husbands case so dont know the full details however I've asked him for some notes to help anyone in a similar situation:

* The case was won on signage. The 'evidence' that VCS had provided were photos dated 2010 and none of the signs were legible in the images!! Judge ruled he was not happy with the signs legibility and that was the winner. (I was surprised as didn't see this being the main argument thought the law and POFA would be stronger but just goes to show the importance of signage and the cockiness of these companies that they can provide such poor evidence, they were their own downfall in the end!)

* Judge not bothered about POFA, Mr Wilkes from VCS quoted: paragraph 4 (6) 'Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle's basic used this to say that POFA says he can pursue a keeper outside of POFA??? I know that cabt be right but think my husband was a little bamboozled at it and the judge bought it.

*judge not bothered about IPC code of conduct

* Judge not happy with citing of other cases said it was irrelevant to him as it's just the opinions of other judges

*husband said he found the experience pretty full on. Case took 1 and a half hours and was pretty hard to call throughout.. He was cross examined by Mr Wilkes who focused on pushing him to admit he was the driver or name who was driving, stood his ground but recommended people be prepared to be questioned that directly.

* no costs were awarded and judge didn't think VCS had acted intimidating or unfairly. Said we chose to defend in court so costs of coming to court were on us (my husband argued this profusely but said judge wouldn't budge.)

Happy to have won, little disappointed about costs for all the stress and heartache this has caused but at least I can sigh in relief now.

Thank you again everybody and good luck to anyone currently defending!

Coupon-mad

Said we chose to defend in court so costs of coming to court were on us

Never heard such utter rubbish from a Judge since the Beavis case!

Which Judge & Court?

* Judge not bothered about POFA, Mr Wilkes from VCS quoted: paragraph 4 (6) 'Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle's basic used this to say that POFA says he can pursue a keeper outside of POFA??? I know that cabt be right but think my husband was a little bamboozled at it and the judge bought it.

That's why I gave you Excel v Smith, to kill that lie. It was important to add it! And the Judge would have had to read it as it's an APPEAL case (that one was by a Senior Circuit Judge, higher than him) and persuasive to courts hearing VCS/Excel cases that also deal with the lie about law of agency. Judges can't entirely disregard an appeal case.

But hooray, you won anyway, well done to your OH. :T

ANOTHER ONE BITES THE DUST!