VCS court date

nosferatu1001

Woah - you havent yet filed YOUR WS and evidence?
I presume that means you are in breach of the court order?!

Coupon-mad

As I keep saying on every VCS thread...simply search for one of those case law surnames. This is so simple to do and is how the forum works best.

No need to act as if this is new. We've seen this and demolished that WS before, lots of times, and a search finds loads of ammo for you to copy.

You are now late but obviously you file & serve your WS and evidence and Costs Schedule, by Friday morning at the latest, regardless - and no, you do not apologise of the lateness and draw attention to it.

Just read other VCS threads. You were surely expecting that WS and that case law.

BUT - can you help by replying with the VCS v Ward transcript here please?

https://forums.moneysavingexpert.com/discussion/6052323/transcript-for-vcs-v-ward

ehupduck

I sent in a defence months ago, also the small claims direction questionnaire. I didn't realise that I had to send a witness statement in before VCS filed the £25 trial fee.....which they have only just done. No matter. I will work on the witness statement today and post later for comment. Thank you everyone!

nosferatu1001

Huh?
Only if the court ORdered that you had to send in your WS AND your evidence. What did the Court Order you to do? No paraphrasing, PRECISE words.

ehupduck

i'm at work and the court letter is at home so can't give exact details until later today.
Will get back to you :

In the meantime: •

I am xxx of xxx, the Defendant in this matter. 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.

I will say as follows:
• I was the registered keeper of a xxx Registration xxx.
• The vehicle attracted a Parking Charge Notice (PCN) whilst off- loading to a charity shop, at a free car park at the Tanyard Shopping Centre, Rotherham on the xxx 2016.
• The driver was not parked but merely unloading goods to the Barnado’s charity shop, located just behind the parking space. The goods were heavy bags, so the driver had to go back and forth a couple of times to take all the donated goods in. In all, they were there for less than 10 minutes.
• Section 13.4 of the BPA’s Code of Practice requires that an operator must allow a motorist a “reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action” and that the period allowed “should be a minimum of 10 minutes. Also, on entering a site, a user must be allowed a reasonable time to park their vehicle, read and understand the terms of the site and, where relevant, make payment. I suggest that is incumbent upon the claimant to prove that the vehicle was actually unloading for longer than the 10 minute leeway.
• I received through the post a Notice to Keeper (NTK) from Vehicle Control Services (VCS) dated xxx 2016 (Exhibit RE1), demanding payment from the driver of £100 within 28 days for parking ‘not wholly within the markings of a designated bay’.
• As I was not the driver of the vehicle in question on the material date I chose not to respond.
• The PCN also invited me to name the driver. I refused to do this on the basis that there is no requirement in law for me to do so. This was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. Quote:
“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”.

• I was not the only person insured to drive the car on the material date..
• It is my understanding that the Claimant has two ways in law in which they can hold somebody liable for unpaid parking charges; either by identifying and pursuing the driver, or by transferring liability to the keeper by following the strict requirements of POFA 2012.
• In this Witness Statement I will show that the Claimant has not been able to transfer liability to the Defendant.
• No Registered Keeper Liability
• I was not the driver on the material date and the Claimant has no evidence to prove who was driving the vehicle.
• The Claimant relies on the Protection of Freedoms Act 2012 (PoFA), Schedule 4, Para 4 subsection (4) (Exhibit RE2) to transfer the liability to the Registered Keeper (the Defendant).
• In order to enforce keeper liability the Notice to Keeper (Exhibit RE1) must have the correct 28 day period stated in the notice. “The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given” However the notice to keeper in this instance was received just 6 days after the PCN, thus not adhering to the 28 day period stated within the PoFA schedule, hence unable to enforce keeper liability.
• It is my position that since a defective notice to keeper has been issued, that does not comply fully with the Protection of Freedoms Act 2012, then the claimant is unable to rely on keeper liability to enforce its claim and since I was not the driver there is no liability on my part.
• At trial, based on previous cases reported, the Claimant may decide to try a very loose interpretation of the law of agency, however this has been decided against this Claimant's owner in court before and the authority for this is the Higher level, persuasive Appeal case of Excel Parking Services Ltd v Smith (Exhibit RE3) which VCS will be familiar with, given the fact that it was a parking case with similar facts, involving VCS' sister company.
• The Defendant avers that the Claimant hasn’t complied with the strict requirements of POFA and is unable to prove on the balance of probabilities that I was the driver.
• No Contract
• The Claimant avers that a contract existed with the driver by Terms and Conditions advertised on signage at the site.
• It is my opinion that the signage at the site on the material date was not sufficiently clear to form a contract. It did not mention loading or unloading.
• The Claimant is a member of the International Parking Committee (IPC) and as such is bound to comply with the IPC Accredited Code of Practice.
• Part E of the IPC Accredited Code of Practice states ‘Signs should, where practicable, be placed at the entrance to a site.’ If there were signs at the entrance, they were too high and small to be read from a car window.
• Signage at the entrance to the car park has been improved since the material date to now include bigger and better entrance signage. This shows that the signage has been improved as the original signage (on the material date) was inadequate.
• The Claimant has included a plan of the car park in their witness statement (TH1). This plan is not dated and represents the current signage locations, not the locations on the material date.
. Deputy District Judge in the Judgment in Excel Parking Services v Cutts (2011) said that defendant (the driver in that case) had to be able to see the offer so that he can choose whether or not to accept it, and thereby enter in to a contractual relationship. Therefore, 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. It is, therefore, denied that the Claimant's signage at the entry and in and around that site was capable of creating a legally binding contract.

. Alternatively, even if there was a contract, the provision requiring payment £185 is an unenforceable penalty clause consisting of company costs. It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover as it is a cost to the business, therefore, cannot be reclaimed twice.

Further and alternatively, the provision requiring payment of £185.00 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

• The Claimant Witness Statement
• The Claimant states) that ‘In accordance with their contract appointing the Claimant, the Claimant was entitled to pursue any unpaid parking charges (including suing for their recovery in the companies own name. As this is a free car park, there are no parking charge to pursue. Also, I contest the fact that the vehicle was ‘parked’ at all.
• The Claimant cites Thornton v Shoe Lane Parking 1971 2 QB 163 (at 26). It is contended that Thornton v Shoe Lane Parking 1971 is not relevant as this case only shows that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later. There was no ticket to buy.
• The Claimant cites Vine v Waltham Forest LBC 2002 (at 28). This case has been misquoted and is out of context. In this case the court goes on to note that the signage was insufficient and that the case was fact specific. It was judged that in that situation Ms Vine could not have read and understood the terms.
• The Claimant cites Parking Eye v Beavis 2015 (at 33). Again, this case is distinguished from the facts in the Beavis case. It is contended that the Beavis case supports the defence based on the fact this sort of ticket is a punishment of a paying driver, and not an 'understandable ingredient of a scheme serving legitimate interests'. In addition the maximum amount permitted in the Beavis case was £85, which was deemed to be reasonable, whereas the amount claimed in this case is more than double that at £185.00.
• The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.
• Conclusion
• For all of the above reasons I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth
I believe that the facts stated in this Witness Statement are true.
Signature
Date

All comments gratefully accepted...

nosferatu1001

Before dealing with that, answer the question as its quite unusual to exchange WS prior to the heqring fee being paid.

ehupduck

Hi Nosferatu

I submitted a defence ( see my post from June ) within the prescribed time. I then got a notice of allocation on 18 July (court date 24th Oct) stating that the Claimant should pay the court fee before the 26th Sept. I heard nothing more until. 21st Sept when I received a 'pack' from VCS containing, covering letter, a copy of my defence, a copy of VCS witness statement and evidence bundle. Finally a two sheet letter which on first examination I thought was from the court but it isn't...it's from VCS stating lots of court procedure ( bag searches etc and that, " It is essential that you provide the Court and your opponent with written statements of evidence which both you and your witnesses will give no less than 14 days before the hearing. If you fail to do so your evidence may not be allowed or the claim may be adjourned at you expense."

Initilaly I thought that letter was from the court but on closer inspection it is from VCS.

I confirm that I have had nothing from the court since the allocation

beamerguy

Odd ? Of course there is security but why mention it ? Unless they think you are a danger ?

They are a danger to themselves, signing a statement of truth about the fake £60 add-on against POFA2012.

Highly possible another court spanking is on it's way.
Trouble VCS has right now, is not knowing if a court is going to spank them

Redx

Phone the court asap and find out where your court order is , ask them to email a copy of it to you straightaway

ehupduck

Phoned the court (knew less about what was going than me!!) Asked for the court order....
They said that nothing had gone out to me since the Notice of allocation and there was nothing in the file to send. Just send WS by next Wednesday and turn up .

Could someone please check my WS and tell me if it makes sense (or not). Tried to keep it reasonably brief. These poor judges must be board to tears of reading the same defence doc all the time. If they just legislated properly against these Parking companies, they wouldn't have to sit at so many hearings!