HELP - Court letter Received from VCS - Advice needed

Nsmila07

Hi all

This is my final Witness statement - Any feedback would be very much appreciated

In the matter of

 

 (Claimant)

v

******** (defendant)

 

Claim no:

Evidence

EB01 – Insurance Certificate

EB02 – POPLA Annual Report 2015

EB03 – Railway Byelaws

EB04 – POFA

EB05 - ParkingEye Ltd v Beavis [2015] Case

EB06 - Department for Transport's 2012 Guidance and explanatory notes about the POFA

EB07 - Vine v Waltham Forest Case

EB08 – Costs Schedule

 

Witness statement of Mr*******, defendant

I, ************** am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.


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

2. 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.

3. I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver.

 

4. At the time of the incident, the insurance covered more than one family member, EB01 who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

5. There was no requirement upon me as keeper to respond to what appeared to be junk mail, and in any event was not a matter where a registered keeper could be in any way legally liable. No adverse inference can be drawn from my lawful decision to ignore the colourful letter, impersonating a parking ticket yet with no basis in law.

6. Since during lockdown, I have offered a drop hands offer to the claimant with no response.

7. A note was affixed on the vehicle with a bold message bearing ‘This is NOT a parking charge notice’. Subsequently after 7 days from the convention a notice to keeper letter was sent to the registered keeper: myself, claiming liability for the charge notice that was affixed on the vehicle.

8. 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 Charge Notice 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.

9. I would like to draw attention to EB02, 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.

10. 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. The owner of VCS and its sister parking company, Excel, is already well aware from a persuasive June 2017 case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062, heard on appeal after the county court Judge fell into error regarding the question of keeper liability, that the Senior Circuit Judge held when upholding the appeal, that their incorrect citation of CPS Ltd v AJH Films Ltd was 'improper'.

11. 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.

12. Ultimately POFA 2012 states that if a charge notice was given, the NTK should be given on days 29-57 after the convention. I’d like to reiterate and emphasise how the claimant didn’t bother following POFA 2012 guidelines yet they rely upon this same act to hold me as the keeper liable for this charge. As said above it is also debated whether a charge notice was handed to the driver since the note clearly stated ‘this is NOT a parking charge notice’.

13. I would also like to highlight Abuse of Process as the claimant has inflated costs considerably which seems to be an attempt of double recovery. The cases that highlights this is claim number: F0DP201T – District Judge Taylor ; where the respected judge said:

"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 not with reference to the judgement in parking eye 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 "

Another case which highlights this abuse of process is Claim No: F0DP163T – District Judge Grand.

14. In ‘Vine v Waltham Forest’ case – EB07. 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 in daylight or good street lighting at least; the claimant does show pictures of the car park in their exhibits with source of light being the photographers camera flash and an adjacent petrol station forecourt. However with it being dark and the signs being very small it seems impossible to have seen them or even the writing printed on them without means of a flash light or street lighting.

15. Points 3 to 5.5 of my defence refers to the Railway Byelaws – EB03

16. Points 10 to 12 of my defence refers to the Department for Transport's 2012 Guidance and explanatory notes about the POFA- EB06

17. Point 14 and 20 of my defence refers to ParkingEye Ltd v Beavis [2015] UKSC 67 - EB05. 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. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

18.  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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:

19. Point 22 of my defence refer to POFA. EB04. The Protection of Freedoms Act 2012, Schedule 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 their artificially inflated claim, as pleaded, constitutes double recovery.

The Court is invited to dismiss the claim and to award my costs (EB08) 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.

Signed xxxxxxxxxxxxxxxx

Dated xxxxxxxxxxx

Nsmila07

Also, I have spoke with the courts and VCS haven't sent anything - they haven't received anything since filing the claim.

nosferatu1001

They wont do - the first they'll get is the Cs bundle (WS, evidence) 

Nsmila07

Is the witness statement ok?

Coupon-mad

You don't need to append the Beavis case:

EB05 - ParkingEye Ltd v Beavis [2015] Case

I'd attach this instead (collation of all recent strike outs including VCS and the Southampton approved judgment).

...and if this is about a 'red card' case, I'd expect to see the transcript posted by @adambuzz14 (Excel, or was it VCS, v Burzynski) which more than covers what you need to say about why you are not liable in law, if it's TRUE you were not driving.

Nsmila07

Hello Everyone,
So my hearing was meant to of been Thursday, I waited and waited and received no call. I then received a letter on Friday of a notice of discontinue..... so im assuming its done and dusted - is there anything I need to do?

Castle

Nsmila07 said:

Hello Everyone,
So my hearing was meant to of been Thursday, I waited and waited and received no call. I then received a letter on Friday of a notice of discontinue..... so im assuming its done and dusted - is there anything I need to do?

Who sent the letter; VCS or the court?

Le_Kirk

Nsmila07 said:

Hello Everyone,
So my hearing was meant to of have been Thursday, I waited and waited and received no call. I then received a letter on Friday of a notice of discontinue..... so im assuming its done and dusted - is there anything I need to do?

Looks like a WIN but as @Castle says from whom did you receive the letter?

nosferatu1001

It will be from VCS - the court dont send anything usually - so check that the court has also received a copy. 
Do you have unreasonable behaviour costs you want to apply for? As the hearing is already paid for you can ask that the hearing is converted to a summary costs hearing.

Coupon-mad

I think they meant it was last Thursday.  I suspect the court got the NoD sooner than the OP did.

WELL DONE - YOU WON! 
ANOTHER VCS ONE BITES THE DUST!