early morning ticket

Coupon-mad

If it was an ANPR PCN by post only, then I agree with the OP, that this 'witness' has simply copied and pasted badly from another case (one about a red card).

I hope the Judge takes a VERY dim view of all of it when you run through the errors and omissions and the really long and pointless quoting of the POFA that they DID NOT COMPLY WITH...

nosferatu1001

You can work out the likelihood of there having been an atetndant, simply by looking at the pics
Static high up cam? ANPR only, no red card is likely.

skaart

Serious question: by hiring someone so new to witness this case, could they be hoping to maintain plausible deniability if it gets asked why they have brought a case that they knew had no right to be taken to court?

Coupon-mad

That is true of every PPC court case and it's why most of them use third party legal reps. Their claims are always shaky but the legal rep can't be questioned.

skaart

Here’s my skelly, would appreciate any feedback. I know it’s long - too fleshy for a skeleton? Do I need to pare it down?

A few points.
I might lose the opening of 7 & 7.1 ? - They don’t seem to be relying on AJH films anyway.
I might change the tone of 11.3 and a couple of other places - don’t want to come across as snarky.
Haven't included Henry Greenslade yet, honestly with all this I'm not sure how necessary it is? But can add it if necessary.
I still don’t know if I’ve quite nailed the flaws in the contractual evidence.
I really enjoyed writing 11.2.
Actually, I enjoyed all of the skeleton wiring stage much more than I expected. I feel much more confident now.


=========
IN THE COUNTY COURT


CLAIM No:XXXXXXXXXX

BETWEEN:

Vehicle Control Services Ltd (Claimant)

-and-

XXXXXXXXXX (Defendant)


SKELETON ARGUMENT

Additional Appended Evidence,

EX12 ParkingEye Ltd v Beavis [2015]
EX13 Excel Vs Smith
EX14 FTQZ4W28 (Vehicle Control Services Ltd v Davies)
EX15 Consumer Rights Act 2015


The Defence is repeated.

2. This skeleton argument covers the Consumer law applicable and other regulatory and legal arguments that apply in addition to the Defendant's own witness statement, and is supplied to assist the court and the parties to narrow the issues. It is also a response to the case law exhibits, photographic and documentary evidence (or lack thereof) that were supplied by the Claimant since the submission of the witness statement.

NO CONTRACT WITH CLAIMANT

3. In order to bring this claim it must be proven that the claimant and the driver of the vehicle were legally engaged in a contract laid out in the terms and conditions of the signage. In paragraph 9 of the Defence, that is denied.

3.1 Paragraph 7 of the Claimant’s witness statement maintains “The claimant manages the parking scheme”. This is in direct contradiction to the claimant's own evidence showing signs in place in Feb 2017 which state “This car park is managed by Excel Parking services”

3.2 At paragraph #7.2, it was raised that the claimant has no right to bring this claim, since the contract made by the sign was with Excel Parking, and not VCS. None of the images presented by the claimant prove otherwise; indeed all show clearly the logo of Excel Parking Services Ltd. The only mention of Vehicle Control Services is an “artwork” with no date or proof as to when it was erected, presumably replacing the previous sign in the name of Excel Parking Services, but with no mention of date. The understanding that the contact was made with Excel and not the Claimant is further evidenced in EX1 showing a parking voucher from the day before the alleged contravention clearly bearing the logo of Excel, not that of the claimant.

3.3 One of the images in EX2 in the evidence pack shows a previous instance of the Albert Street signage proving that at one point in recent history that the wording of the main sign read “you are entering into a contract with Excel Parking Services Ltd”. Therefore the Claimant’s assertion in their Witness Statement para 9 that it was the entity contracted to enforce the terms and conditions on the property for the entire 10 year duration of the contract with the leaseholder is demonstrably untrue.

3.4 The claimant is therefore put to strict proof that on the 19th of February 2017 that the information board was that shown by their artwork and no that which is evidenced in the photograph in EX2 which clearly states that “you are entering into a contract with Excel Parking Services Ltd”.

4. At para 10 of the Defence, the Claimant was put to strict proof that it has (or had at the time of the parking event) a contract with the landowner - and specifically, that it had the necessary authorisation to issue Parking charge notices and to pursue them by means of litigation.

4.1. The contract supplied with the Claimant's witness statement is from 15th January 2010 and was for a fixed period of 60 months and although the contract does state it is a rolling contract, there is no proof that this is still on-going. 2010 as 9 years ago, well before the Protection of Freedoms Act 2012 was enacted regarding parking on private land. Further, in 2010 VCS were not in the International Parking Community Trade Body because it did not exist until 2013. The contract from 2007 dates from a time when VCS were clampers operating under excuse of the tort of trespass (like in Vine) and cannot possibly be the current one relating to contract law and paying regard to all the requirements of the POFA and the IPC Code of Practice (the IPC CoP) insofar as ticketing is concerned.

DRIVER BOUGHT A TICKET ANYWAY

5. If the court is minded to find that a contract did in fact exist between the driver and the Claimant, or indeed with any other party (such as Excel Parking Services Limited) then EX1 will show that no such breach of contract took place. £12.50 was paid into an onsite machine at 20:16 on the 18th February 2017, and a ticket was issued with the correct registration number of LC61WLG with an expiry time and date of 20:16, 19th February 2017. The claimant submits that PDT logs enclosed within FJ3 confirm no such ticket was purchased, but the claimant failed to append them with their evidence, and only the cover page was sent.

BAD SIGNAGE
6. At paragraph #7 of the defence, the lack of transparency and prominence of the Claimant's signs and the small font of the terms was raised. The Claimant has provided photographs from the period in question; Indeed the writing is so small as to be illegible, further backing up the assertion that the font is too small to read. This is further compounded by the fact that as can be seen in the Claimant’s ANPR photos, the car park was in natural darkness at the time, being around 6am on a February morning.

POFA- NON COMPLIANT NTK - SO CAN’T CHASE KEEPER

7 Even if the court were minded to decide that a contract did exist between the claimant and the keeper, and that the conditions of that contract were met, then only one option remains for the Claimant to legally pursue the keeper of the vehicle, since the only other available option, that of recourse to the general law of agency was shown to be invalid in June 2017 in Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062) (EX13) . This is a ruling which, being one involving its sister company; no doubt the Claimant is aware of.

7.1 Therefore, as Judge Smith said in their ruling at that above case, the correct remedy for the Claimant is to turn to the provisions of Schedule 4 of the Protection of Freedoms Act 2012. (POFA) in order to transfer liability to the keeper. The Claimant’s wordy assertions that the strict conditions of this legislation were met are untrue.

7.2 POFA Para 5 only confers the right to claim unpaid charges from the keeper if it has the right to enforce against the driver of the vehicle. As previously explained in Para 3 of this document; the claimant has no such right.

7.3 The Claimant has helpfully laid out the requirements laid out in Para 9 of Schedule 4 of POFA, and in Para 45 of their WS states that “The sixth requirement is that the Notice to Keeper must warn the keeper, that after a period of 28 days beginning with the day after that on which the Notice is given the amount of unpaid Parking Charges have not been paid in full and the creditor does not know both the name and address of the current driver then the creditor will have the right to recover from the keeper so much of that amount as remains unpaid.” in fact the wording in the Claimant’s NTK warns that this notice period is “28 days after the issue of this notice”. The claimant's NTK fails to allow for the 2 working days assumed to exist between the issue and the service of the notice as laid out in POFA Para 9, (6). It is therefore once again asserted that the Notice to Keeper is not Compliant with the POFA legislation and that the Claimant has no right to transfer any liability to the keeper.



ALSO £60 EXCESSIVE CHARGE

8. Para 19 of the Defence dealt with the fact that to add any charge over and above that requested in a compliant ‘Notice to keeper’ is a disingenuous attempt at double recovery because it is trying to cover the 'costs of the operation' twice. The time and minimal costs of sending debt recovery letters must already be part and parcel of the actual 'parking charge', or that sum itself would fail, due to not matching the justification set out in the ParkingEye Ltd v Beavis [2015] UKSC 67 case. There is now further evidence to confirm this argument.

8.1. Since the Defence was signed, VCS have been back to court with an application following the striking out of their £160 claims in Caernarfon, and BW Legal have tried and failed with a similar N244 application and hearing, opposing the striking out of multiple a £160 parking charge claims in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire, where the 'test application' claims (F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another) and many others that had been stayed, remained fully struck out.

8.2. It was successfully argued that
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

AND VCS KNEW THIS….

9. Similarly - and involving this Claimant - in the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans had 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 in 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.''

9.1. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that ''the extra £60 cannot possibly be recoverable''. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

10. The instant case from VCS is the same disingenuous £160 sum, with the double recovery attempt falling foul of the POFA Schedule 4, paras 4(5) and 4(6) and the Beavis case, where the paragraphs mentioned at Southampton (repeated above) remove any possibility that a parking firm's operational costs are 'additional' costs or loss with this business model. Even if they are stated on the signs, the sum cannot stand.

10.1. In the instant case, the 'debt recovery/damages' term is so vaguely buried in the sign's wordy small print that it is impossible to describe those terms as prominent and transparent, as the CRA 2015 requires. A term or consumer notice that falls at the hurdle of the 'grey list' paras 6, 10 and 14 is unrecoverable (CRA 2015 Schedule 2 - EX15).

10.1.1. In case the Claimant tries to hide behind the 'core exemption' for price terms, in fact, NO consumer notices (and 'non-prominent' price related vague or hidden terms) are covered by the core exemption. The CMA Official Government Guidance says (EX14): ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that scant regard is paid to consumer law.

10.1.2. In case the Claimant tries to protest that the various consumer laws were not raised earlier, under para 71 of the CRA 2015 it clearly sets out 'supplementary provisions' that impose a duty upon the court to consider the CRA and the Schedule 2 'grey list' regarding the fairness of consumer terms and notices, whether or not a Defendant has raised the matter before, or indeed at all.

UNRELIABLE WITNESS.
11. Given that they have only acted as a paralegal at VCS since August of 2019, it is questionable how much detail of the case the Witness can reliably testify to, particularly in regards to the signage, their positioning, or their exact wording at the time of the alleged contravention, since they can have had no personal experience of this.

11.1 In Para 11 of their witness statement they testify that “the signs throughout the development clearly advise anyone parking within the development that they were entering into a contract with the claimant”. The witness was neither employed by the Clamant at this time nor is able to see from the images presented in evidence that this is true.

11.2 Paragraphs 17, 18 & 19 refer to a card affixed to a windscreen by a parking attendant, where in fact the alleged contravention was observed via a camera using ANPR. These paragraphs do not seem to be relevant to the instant case, and appear to be a leftover from copy and pasting the Witness Statement from another, entirely different case. If the witness insists that there was a red card affixed to the windscreen in the instant case, then the Witness Statement spends the next 18 paragraphs citing the wrong paragraph from POFA, and should have been quoting from paragraph 7 instead.

11.3 Paragraphs 36 through 54 are a peculiarly long paraphrase of the POFA, the purpose of which, other than to unnecessarily protract the already substanceless witness statement , only serve to ultimately support the defendant and contradict the Claimant’s typo-ridden assertion in Para 54 that "The Claimant submits that at all materials [sic] they have compiled [sic] with the requirements and conditions of the Protection of Freedoms Act 2012.”.





Statement of Truth:

I believe that the facts stated in this Defence are true.


Name


Signature


Date

Coupon-mad

The claimant's NTK fails to allow for the 2 working days (plus a weekend, if applicable before deemed delivery) [STRIKE]assumed to exist[/STRIKE] between the issue and the service of the notice as laid out in POFA Para 9, and thus the Claimant was unlawfully claiming that the Keeper is liable, prematurely. The POFA 2012 wording is mandatory and set within statute law, and this Claimant has had seven years to adapt to it.

1505grandad

Just a thought - is the Statement of Truth correct/needed?

nosferatu1001

No need for a SoT here.

skaart

Since I am appending additional evidence with my Skeleton, should I post these to VCS as well ahead of court date?

I'm struggling to find a copy of the transcript or judgment of VCS vs MRS A C6DP7P37; does anyone have a link, please?

Thanks.

Fruitcake

skaart wrote: »

Since I am appending additional evidence with my Skeleton, should I post these to VCS as well ahead of court date?

I'm struggling to find a copy of the transcript or judgment of VCS vs MRS A C6DP7P37; does anyone have a link, please?

Thanks.

Does the bargepole guide to court answer your first question?