VCS court date

ehupduck

Thanks for your coments Grandad, I will adjust were sugested

Beamerguy, yes, thank you for the link to abuse of process. will definately include :-)

ehupduck

my WS is now 5 pages long...is this too much? I haven't posted it yet as I don't want to clog up the thread too much.

I have added coupon-mad's Abuse of Process (full section) and referenced the two judgement photos as exhibits.

Should I drop the 'no contract' ref signage bit , just to keep it from rambling on too long. I need the judge to pick up on two main points so do I concentrate on Abuse of Process and Keeper liability?

Advice please …

nosferatu1001

Abuse of process you dont concentrate on, because its not a defence to teh underlying charge and not a winner by itself. It is at the end, for a reason.

How can the pure TEXT be 5 pages long? Youre not writing concisely if you are at that length.

Coupon-mad

I have added coupon-mad's Abuse of Process (full section) and referenced the two judgement photos as exhibits.

You do realise that is NOT a defence point? Why do people think this is a defence to the PCN, of course it's not, think about what it is saying.

It is merely damage limitation against the fake £60 costs. NOT THE PCN ITSELF.

It needs to be in but is not a 'defence' against the PCN, of course.

You could even put that bit on a supplementary signed sheet about costs, to separate it.

Should I drop the 'no contract' ref signage bit

What, drop your main defence? The entire argument is about whether a contract was formed by signage! You need the defence points you had at the start, and the photos and case law that show no contract was capable of being formed.

And if this is VCS you need to wait to see theirs first and demolish it like you see on all the other VCS threads...by searching for a case law surname they quote.

All will be revealed by LOADS of other threads where people have attacked VCS Witness statements, because they use a template and they are all the same.

ehupduck

Ok, I'm going to post the WS in it's entirety so that you can demolish it.
I have used all the various forum posts that you and others have sugested. Let me know if you think that the Abuse of process should be put in as a supplement and I will take it out of the main body of text and reference it through a short and to the point paragraph.

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 donated 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 twice 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.
No Registered Keeper Liability
12) I was not the driver on the material date and the Claimant has no evidence to prove who was driving the vehicle.
13) 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).
14) 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
15) 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.
16) 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.
17) 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
18) The Claimant avers that a contract existed with the driver by Terms and Conditions advertised on signage at the site.
19) 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)
20) The Claimant is a member of the International Parking Community (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.
21) 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.
22) 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)
23) The Defendant believes that the signage has been improved as the original signage (on the material date) was inadequate.
The Claimant Witness Statement
24) 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.
25) 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.
26) 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.
Abuse of Process - Costs on the claim - disproportionate and disingenuous

27) 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.

28) 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.

29) 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.

30) 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.

31) 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.

32) 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:

Ref: http://www.bailii.org/uk/cases/UKSC/2015/67.html
“
33) at para 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...''

at para 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.''

at para 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.''
”
34) 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.

35) 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.

36) 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 their artificially inflated claim, as pleaded, constitutes double recovery.
37) 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) (E10) has struck out several parking firm 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. 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...''

38) 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) (E11)on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District 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.''

39) 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.

40) 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.

41) The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

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

Signature

Date

beamerguy

Within your abuse of process, it is worth reminding the judge that the ruling in the ParkingEye v Beavis by the Supreme court, clearly said

198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''

ehupduck

Final comments please people?

I need to be taking this to the court tomorrow or Wednesday at the latest.

ehupduck

Well, this is it. Court this afternoon so I will let you know how I get on.
Kept skeleton argument brief and to the point, got all my Exhibits marked up and easily accessable. Not much more I can do...…..

Oh! as you all probably know....the VCS WS is ridiculous...77 paragraphs, duplications, incorrect quotes, irrelevant references - even misquoted a paragraph on their own sign of which a picture accompanies!! Do they not read it? Clearly not! It's a real mess to be honest and I feel that I should win solely based on their inability to produce a relevant document.
Hey ho....lets see what happens....

Ralph-y

Good luck.........


Ralph:cool:

beamerguy

Good luck today