VCS court date

KeithP

Look again at your Notice of Allocation.

Is there not a paragraph something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Might be on the back.

1505grandad

For a start can you number the paras for ease of reference when commentating.

ehupduck

Yes the Notice of Allocation does contain the same wording as on the VCS document. I'm happy that I am within time and everything is in the correct order. All I need to do now is get the WS finished and filed.
As an aside.... I am just looking at the letters I received from the various Debt recovery people. The amounts claimed are all over the place: initially £160.00, then reduced to £136.00, back to £160.00, an 'offer' of 79.99, back to £160.00 and then up to £213.25 (including interest).

On VCS WS it states " The Claimant submits that the Debt recovery charge included within the claim does not exceed £60 and therefore is in accordance with the IPC code of practice" If this is the case, then how do they justify the many variations in charges" that they have attempted to extort previously.

nosferatu1001

You also need to - MUST - include your evidence. This isnt just a WS exchange, this is you needing to provide documents to back up your assertions made in teh defence.

ehupduck

1505grandad

Thank you - will tidy that up when I finalise the WS

ehupduck

Nosferatu
I have pics of the original signage, the original PCN ( which they are saying was not a PCN but mearly a 'warning card' and that I had misinterpreted the circumstances of the claim). Letter from DVLA stating when VCS asked for information, all other communication from VCS and their debt collectors.

I will include the relevant parts of PoFA and the various parts of the cases that were referred to ( if I can find them on here!) Anything else I should be looking for?

ehupduck

VCS quoted Vine v Waltham Forrest . Am I right in thinking that the initial case was appealed and eventually won by Vine?

ehupduck

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.
1) I was the registered keeper of a xxx Registration xxx.
2) The vehicle attracted a Parking Charge Notice (PCN) (E1) whilst off- loading to a charity shop, at a free car park at the Tanyard Shopping Centre, Rotherham on the xxx 2016.
3) 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 less than 10 minutes.
4) 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.
5) The photos provided by the claimant were all taken within 40 seconds of each other, except for the one with the PCN on the windscreen, which was taken just over 2 minutes after. Would it be cynical of me to suggest that during that period, the driver returned to the car to take more bags into the shop? (E2 a & b)
6) I received through the post a Notice to Keeper (NTK) from Vehicle Control Services (VCS) dated xxx 2016 (E3), demanding payment from the driver of £100 within 28 days for parking ‘not wholly within the markings of a designated bay’.
7) As I was not the driver of the vehicle in question on the material date I chose not to respond.
8) 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”.

9) I was not the only person insured to drive the car on the material date and it is incumbent upon the Claimant to prove who was driving.
10) 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.
11) In this Witness Statement I will show that the Claimant has not been able to transfer liability to the Defendant, that no contract existed and that the Claimant has no Locus Standi to pursue motorists in their own right.
12) No Registered Keeper Liability
13) I was not the driver on the material date and the Claimant has no evidence to prove who was driving the vehicle.
14) The Claimant relies on the Protection of Freedoms Act 2012 (PoFA), Schedule 4, Para 4 subsection to transfer the liability to the Registered Keeper (the Defendant).
15) In order to enforce keeper liability the Notice to Keeper (E3) 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. (E4) Letter from DVLA stating that information requested on 29th Dec 2016
16) 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.
17) 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 (E5 section 13 of the transcript) which VCS will be familiar with, given the fact that it was a parking case with similar facts, involving VCS' sister company.
18) 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.
19) No Contract
20) The Claimant avers that a contract existed with the driver by Terms and Conditions advertised on signage at the site.
21) 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.(E6)
22) 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. The Claimant kindly provided photos of the signage on the site. (E7) There is not a photo of the entrance to the car park at the material time.
23) 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.
24) Signage at the entrance to the car park look like it has been improved since the material date to now include large, lower, entrance sign(E8)
25) The Defendant believes that the signage has been improved as the original signage (on the material date) was inadequate.
26) The Claimant Witness Statement
27) The Claimant states) that ‘In accordance with their contract appointing the Claimant,(E9) “the Claimant was entitled to pursue any unpaid parking charges (including suing for their recovery in the company’s own name)”. As this is a free car park, there are no parking charges to pursue. Also, I contest the fact that the vehicle was ‘parked’ at all.
28) 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. This is irrelevant, as this was a free car park, there was no ticket to buy.
29) The Claimant cites Vine v Waltham Forest LBC 2002. 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.
30) The Claimant cites Parking Eye v Beavis 2015. 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.
31) 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.
32) Conclusion
33) 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

1505grandad

Para 13 - can you actually state that if the Judge asks if you were the driver bearing in mind your post #1 states:-

"..?..?.......in a free car park attached to about a dozen shops including charity shops where we take our 'clear outs'.

Para 22 - "International Parking Committee" - should be Community

No Abuse of Process paras

No doubt the experts will comment on content in due course

beamerguy

ehupduck

You have included a lot but will a judge read it all and just skim read it ????

Your main points must be that you were doing your job and as such you are being restricted

Then, you now have the most important point and that is VCS are scamming you by trying to extort an extra £60 from you in clear breach of POFA2012.

Therefore your highlight is this. No thinking on your behalf, coupon-mad has done it all for you so ensure you add her very fully inclusive text about ABUSE OF PROCESS

ABUSE OF PROCESS
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

SEE POST #14 and copy it word for word

A good salesman sells his product on benefits and you are asking a judge to make a decision on so many things .......
ABUSE OF PROCESS is a killer and VCS cannot answer because it's a scam add-on