VCS Defence Advice

KeithP

Brooklyn_Bridge wrote: »

...and DQ request received today from the CCBC.

That seems amazingly quick.

Are you sure that is from the CCBC?

Brooklyn_Bridge

It came in a CCBC franked envelope and has a Northampton CCBC stamp on the documents inside so appears ok.

Deadline was 4pm Monday.
Letter arrived yesterday (Wednesday).

Redx

strange because usually they are behind the times by a few weeks but the claimants usually send their version out quite quickly in order to trick the defendant, its usually prefilled with their own preferences , not yours , so not blank

Brooklyn_Bridge

Just submitting my DQ. As there is no address for VCS on Form N149A do I just send it to their main office address with a covering letter?

KeithP

Return completed DQ to the CCBC using the same method and the same email address that you sent your Defence.

A copy should also be sent to the Claimant - address on your Claim Form.

Brooklyn_Bridge

Finally got my court date letter. End of November :-)

Coupon-mad

Right - and so you know the equally important date then. Show us your draft.

Brooklyn_Bridge

OK. Court date = 27th November and WS required 28 days before final hearing so I assume that to be Wed 30th October.

I've not received the claimant WS yet.

Here is my first draft and would appreciate any feedback. Thanks to @adambuzz14 for his transcript.

In the County Court at xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Claim No. XXXXXXX
Between
Vehicle Control Services (Claimant)
and
XXXXXXX (Defendant)

WITNESS STATEMENT

I, XXXXXXXX, of XXXXXXXX, will say as follows:
Introduction
1. 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.

2. Attached to this statement is a paginated bundle of evidentiary documents marked Exhibit xx01 to xxNN to which I will refer.

3. I will be defending this claim as keeper of the vehicle only. Myself and my partner have access and are insured on this vehicle, and I have let close friends drive third party on their own insurance (insurance certificate included in evidence bundle xxNN)

4. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief.

Background
5. 11th December 2018 - A Parking Charge Notice(PCN) from MyParkingCharge.co.uk was attached to the windscreen of a xxxxxxxxxxxxxx which I am the registered keeper, at road name, city

6. 20th December 2019 – PCN Notice To Keeper (NTK) for £100 received from VCS Limited addressed to myself as the registered Keeper.

7. 8th January 2019 - I appealed as keeper of the vehicle asking for details of location and evidence of contravention and to give me proof that I was driving the vehicle and liable for their invoice

8. 3rd February 2019 – I received a rejection of my appeal from VCS Limited

9. 2nd March 2019 – Demand for payment of £160 received from VCS Limited

10. 19th March 2019 – Final Demand for payment of £160 received from VCS Limited or they would recommend court action

11. 14th May 2019 – County Court Claim form received

12. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.

13. The claimant states my vehicle was parked in the car park on the date in question which isn’t in dispute but they have been pursuing me liable as the keeper and my defence to this claim is:


Keeper Liability
14. Vehicle Control Services are known to flaunt POFA Regulations and Independent Parking Committee (IPC) code of practice by issuing “This is not a parking charge notice” stickers onto car windows.

15. The Particulars of Claim (Exhibit xxNN) 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. which state:
a. 7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done. (Exhibit xxNN)


16. The original notice adhered to the windscreen of the vehicle is dated that of the recorded contravention and also states a serial number pertaining to that contravention. It cannot be denied that, even though the 'ticket' adhered to the windscreen is stated not to be a Parking Charge Notice, the myparkingcharge website, to which the driver is directed, clearly states 'To access the recorded contravention details, please enter the following information from the Notification received', thus indeed stating that it is a notification that was adhered to the windscreen.

17. Furthermore, by entering the serial number and registration details on the website, the applicant, in this case the driver, is presented with all the details of the contraventions and invited to pay a charge. This then can only amount to the driver being issued a parking charge notice, by definition.

18. While the notice in itself does not conform to the regulations regarding a Notice to Driver, in accordance with POFA schedule 4 paragraph 7, the invitation to log on to the website (myparkingcharge), must mean that it is indeed a NTD, since it is the person in charge of the vehicle, therefore the driver and not necessarily the Registered Keeper, that is being authorised and invited to log on, in order to gain details of the contravention in question and even pay the parking charge accordingly.

19. If the windscreen notification is declared by the claimant as not being a PCN and therefore not a NTD then why is the same number used on the Notice To Keeper and clearly referred to as a ‘PCN Ref No’ (Parking Charge Reference Number). The serial number that appears on the windscreen notice is the same as that detailed as the PCN on the NTK (see exhibits xxNN & xxNN).

20. While it is understood that it is not mandatory for private parking firms to issue tickets using the POFA it is a requirement that the POFA act be followed in order to invoke keeper liability. It can only logically follow that as the POFA Act of 2012 is not being followed then the act of not following the Act would result in keeper liability being unable to be sought. If the claimant asserts they are not issuing this ticket as per the POFA then there are no grounds for recovering the parking charge from the keeper, since there is no keeper liability.

21. In VCS v Quayle 2017, the judge concluded that VCS had not, on the balance of probabilities provided any evidence to prove Miss Quayle was the driver of the vehicle. On top of that, because they had not followed POFA, the judge stated VCS had no right to transfer liability to the registered keeper.

22. The Judgement stated, “She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”

23. The document attached to the vehicle (Exhibit xxNN) states ‘This Is Not A Parking Charge Notice’ however at Derby Combined Court on 31.5.19, in claim number E1QZ7X7C (Exhibit xxNN), District Judge Griffiths stated:
a. Par. 18 - I think on balance I am persuaded that it was a notice to driver for the purposes of the Act
b. Par. 19 - In my judgement, the fact that the Claimant’s document that was appended to the vehicle states that it is not a parking charge notice makes no difference in this regard. It has all the hallmarks of a notice to driver and indeed that, in reality, is what it was.
c. Par. 20 - It was a notice given to the driver of the vehicle which contained or referred to all the details required of a notice to driver for the purposes of the Act, and I think merely stating that it is not intended to be such a notice has no legal effect.

24. As this is a Notice To Driver (NTD) the claimant is required to comply with Schedule 4 of the Protection Of Freedoms Act (POFA) 2012 (Exhibit xxNN) as follows:

a. POFA Regulations and Independent Parking Committee (IPC) code of practice (Exhibit xxNN) state that if issuing a PCN to the vehicle at the time of the contravention, (this will double up as a NTD) then the PPC would have to wait 28 days under POFA Regulations before they can request Registered Keeper details from the DVLA.
b. Section 4(4) – Therefore the Notice To Keeper can only be exercised 28 days after the Notice To Driver was issued.
c. VCS try to get out of this by claiming the PCN or NTD they have left on the vehicle, isn’t a PCN, to completely bypass any legal duration or time period required under POFA Regulation and gain the registered keeper details immediately.

25. POFA Regulations stipulate that the NTK should specify the period of parking to which the notice relates. I have only been given a time of contravention (Exhibit xxNN) and no period of parking. POFA SCHEDULE 4 states:

a. Par. 9 -2: The notice must—
i. (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

26. The ‘Parking Charge Notice – Notice To Keeper’ was issued on the 18th December 2019 and received on the 20th December 2019. Only 7 days had elapsed and so the Notice To Keeper was premature (exhibit xxNN)

27. In the POPLA 2015 Annual Report (exhibit xxNN) Henry Greenslade (Lead Adjudicator in 2015 for POPLA - Parking on Private Land Appeals) made the following comments:

a. Service Of Notices - Where a parking charge notice is fixed to the vehicle or handed to the driver, a traditional ‘parking ticket’, then a notice to keeper issued following that, should arrive between the twenty eighth and the fifty sixth day after the parking event. If these timescales are not complied with then keeper liability does not generally pass under Schedule 4.
b. Who Is The Appellant? - As I will expand on in the next section, the only person liable for a parking charge is the driver of the vehicle at the time of the event unless specific provision to pass that liability has been fully complied with.
c. Keeper Liability - However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.

28. Therefore the Notice To Keeper has failed on the requirements of the POFA 2012 Schedule 4 and the IPC Code Of Practice clearly states:
Part C
1.1 - The Protection of Freedoms Act 2012 provides an ability for unpaid parking charges that have been imposed on relevant land within England and Wales to be recovered from the keeper of a vehicle providing that certain pre-conditions are met.
1.2 If you intend to be able to recover unpaid parking charges from the keeper of a vehicle you must request Keeper details in accordance with Schedule 4 of the Protection of Freedoms Act 2012.
1.3 You must not imply that the registered keeper can be held responsible for the parking charge under the Protection of Freedoms Act unless the relevant time limits within the Act have been met.


Unclear Signage
29. The car park has an ‘Entrance’ and an ‘Exit’. If you approach from xxxxx Street travelling from the SE or NW it is impossible to see the sign at the entrance to the car park which is located to the right of the entrance. Your full attention has to be given to the entrance as you are also crossing pedestrian pavement to gain access and as a result the sign is neither clear or legible (Exhibit xxNN)

30. The time of the offence was 7am on a December morning and the sign at the entrance to car park is unlit (Exhibit NCC???) so in addition to being impossible to see while driving even when stationery it cannot be seen.

31. The location where the vehicle was parked has no signs in the vicinity of the vehicle and the signs in the claimants statement are not distinguishable as parking enforcement signs (Exhibit NCC???).

32. The sign shown in the claimants appeal rejection show other signs on the wall to the rear of the car park (exhibit xxNN) making it impossible to distinguish other signs from the parking signs.

33. In the same photo the ‘Caf! Open Daily’ sign is clearly visible compared to the parking sign which cannot be distinguished in anyway.

34. A visit to the car park on the 6th August 2019 measured the distance from the vehicle to the nearest sign is 24 of my steps (approx. 19m). Given the size of the font on the signs they are impossible to identify what they are at that distance.

35. Parking Bays – During the same visit it was observed that bays have blue gym markings on some spaces and not on others (exhibit xxNN). Not only are these markings undistinguishable there is confusion due to some irregularity of their positioning.

36. The wording on the sign is prohibitive. The Claimants’ signs are in small print, the terms are illegible. Thus, no contract was formed 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’ CT1, you can see that the font type is incredibly small and would not be legible from the driver’s seat and is therefore prohibitive.

37. The example of the sign provided by the claimant (exhibit xxNN) isn’t even from the date of the claim. The one provided is from 8 months earlier and a different time of day so neither comparable conditions or lighting or evidence that is what the sign looked like on the day.

38. In their Code Of Practice the IPC state the following:

a. Text Size - Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.
b. Contract and illumination - If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.
The sign at the entrance meets neither of these requirements.

Frustration Of Contract
39. The xxxxxxxxxxx rely on the availability of permits in their public reception hall by way of a plastic container lying on the floor of the entrance. On the day in question there were no permits available and as such the driver of the vehicle would have been unable to display a permit.

40. The previous day xxxxxxxxxxxxxxxxxx had posted on the Facebook page stating they had also been issued a fake Parking Charge Notice (PCN) as none were available in the xxxxxxxxxxxxxxx (Exhibit NCC???)

41. The xxxxxxxxx replied (exhibit xxNN) stating ‘Apologise regarding this, usually we have permits stacked in the holder at the front for xxxxxxxxx to grab, but we must have been cleaned out on this occasions. Could you please private message us you PCN/VCS number on you ticket and we will get this cancelled for you, as it’s of no fault of your own.’


Costs on the claim – disproportionate and disingenuous
42. 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.

43. 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.”

44. 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.

45. 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.

46. 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.

47. 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.

48. 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:

a. Par. 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...''
b. Par 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.''
c. Par. 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.''

49. 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.
50. 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.

51. 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.

52. 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...''

53. 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.''

54. 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.

55. 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: XXXXXXX
Date: XX/XX/XXXX

Coupon-mad

Do not at any point, refer to the red card as a PCN, because it isn't one:

A Parking Charge Notice(PCN) from MyParkingCharge.co.uk

Mention that the DVLA have now - in 2019 - stopped VCS from using this non-POFA method of a confusing 'not a PCN' and that you wish to question the rep as to why VCS are still pursuing such cases when they know keepers cannot be held liable. Where there is ambiguity in a term, then the interpretation that most favours the consumer must prevail (Consumer Rights Act 2015) and a 'card' that mimics a 'PCN' yet confusingly tells a person it is not one - must be interpreted by the courts as not being a PCN, and therefore the keeper cannot be held liable in law.

1505grandad

para 4 - typo - "Where they are not within my own knowledge (there) are true to the best...." - Should be (they).



Para 53 - "''Upon it being recorded that (Distract) Judge Jones-Evans...." - wonder how that typo appeared if a c & p exercise - should be (District)