Help with defence please against VCS

Coupon-mad

Re the skeleton argument (apart from needing to add an extra observation if the signs DO say 'Excel') I suggest this instead (below).

Also append the pages from the IPC Code of Practice version that relates to the year of the parking event (BE CAREFUL - there are lot of versions!) where it talks about:

(a) clear signs, and
(b) current landowner authority being held, and
(c) the two allowed methods of ticketing (one ANPR by post and the other placing a PCN on the windscreen - nothing about the hybrid red card then!!).

You will also need to append a copy of the Judgments or Orders from Caernarfon (VCS) and Southampton (which led to BW Legal's failed application for Britannia Parking). Both are linked in post #14 of the Abuse of Process thread by beamerguy.

Also put in evidence the CPUTRS about 'misleading omissions':

http://www.legislation.gov.uk/uksi/2008/1277/regulation/6/made

You must also put in evidence: Sch 2 of the CRA 2015, with paras 6, 10 and 14 highlighted, as I did at Soton - please read CEC16's thread to understand the points.

I've covered the wording to match the exhibits, below:

Skeleton Argument of the Defendant

1. The Defence is repeated. The Defendant has been somewhat ambushed this month (November 2019) by a very thick pile of paperwork and photographs provided by the Claimant for the first time now.

2. Such evidence should have been supplied during the pre-action phase, under the pre-action protocol for debt claims. It was not, and the Claimant being a serial litigator has no justifiable excuse for filing a claim yet withholding information from the consumer, an inexperienced litigant in person, until the hearing is imminent.

3. 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 that were suddenly supplied by this Claimant.

4. At paras #5 and #6 of the defence, the lack of transparency and prominence of the Claimant's signs and the small font of the hidden terms was raised. The Claimant has provided photographs taken 3 years ago, which show no evidence of there being a sign at the entrance of the car park and the term mentioning the parking charge itself (and especially the vague added 'costs', which in themselves are objectionable as double recovery - see #7 below) is in the smallest font and cannot possibly be described as prominent.

5. Whilst the Claimant wishes to rely on Thornton vs Shoe Lane Parking [1971] 2 QB 163. That case is fully distinguished, as it related to a car park with a barrier on entry and clear and brief terms. In this case, there is no barrier and no clear and prominent parking charge terms, so the only relevance Thornton has on this case is to support my defence, in that a driver cannot be bound by hidden terms that they had no fair opportunity to learn about at the material time of using the site.

6. In Paragraph 28 of the Claimant's Witness Statement (which is heavy on their usual template legal argument and very sparse on actual witness facts) the Claimant refers to ‘Vine v Waltham Forest’. The Court of Appeal on this case ruled in favour of the Defendant on the basis that a person cannot be presumed bound by terms and conditions on signage that they have not seen. It would appear that the Claimant is attempting to wrongfully mislead the court by mis-quoting Roch L.J. out of context where he mentioned the Respondent's case. This was not the decision. Lord Justice Roch was simply reading one side of the argument. Roch L.J. found in favour of the motorist in this case and again, the only relevance Vine has on this case is to support my defence, in that a driver cannot be bound by hidden terms that they had no fair opportunity to learn about at the material time of using the site.

7. Para 9 of the Defence dealt with the fact that to add £60 to a parking charge 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.

7.1. 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.

7.2. 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.

8. 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.''

8.1. 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.

9. 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 (and it can be taken with a pinch of salt that a clause purporting to allow the adding 'debt' costs was recently shoe-horned into the self-serving IPC CoP) the sum cannot stand.

9.1. In the instant case, the 'debt recovery/damages' term is so vaguely buried in the sign's wordy small print - if they are specified there at all - 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 - exhibit xx).

9.1.1. 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: ''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.

9.1.2. 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.

10. At paras 7 and 8.2. 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, one that might allow VCS to issue fake 'not a PCN' red cards, which is a hybrid model that is now banned by the DVLA due to misleading consumers.

10.1. The contract supplied with the Claimant's witness statement is from 31st December 2007 and was for a fixed period of 12 months and although the contract does state it is a rolling contract, there is no proof that this is still on-going. 2007 as 12 years ago, well before the Protection of Freedoms Act 2012 was enacted regarding parking on private land. Further, in 2007 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.

10.2. The IPC CoP (exhibit xx) has been breached in regard to the requirements for:
(a) clear signs,
(b) current and valid landowner contracts, and
(c) the mandatory rules setting out the only two allowable methods to issue PCNs. VCS' own introduction of the 'hybrid red card - this is NOT a PCN' idea was reportedly banned by the DVLA in 2019 but VCS will know more about that because they were one of the few firms using the misleading practice and failed to convince the DVLA that they could continue with it. The Claimant is put to strict proof of their communications with the DVLA regarding the dates and reasons for this disallowed practice.

11. It is averred that the above practice (lack of a real PCN - or is it a PCN, how can a consumer tell, as it mimics one? - and then serving a premature Notice to Keeper) constitutes a 'misleading omission' as set out in the Consumer Protection from Unfair Trading Regulations 2008 ('the CPUTRs' - exhibit xx).

11.1. Misleading Omissions render a business practice to be deemed unfair and potentially the term and charge relying upon it can be struck out as having misled the consumer and thus, it becomes unrecoverable:

''Misleading omissions 6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or
(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(2) The matters referred to in paragraph (1) are—
(a) all the features and circumstances of the commercial practice;
(b) the limitations of the medium used to communicate the commercial practice (including limitations of space or time); and
(c) where the medium used to communicate the commercial practice imposes limitations of space or time, any measures taken by the trader to make the information available to consumers by other means.
(3) In paragraph (1) 'material information' means—
(a)the information which the average consumer needs, according to the context, to take an informed transactional decision;''

Question - which VCS car park is this? Several of them are tainted by having Excel parking signage, not VCS. Check their photos to see if Excel is on the signs/logo, and tell us which car park please?

And is the landowner contract REALLY from 2007, and does it therefore talk about clamping?

beverleyt

Thank you so much for that. I can’t see Excel written anywhere in the signs. The contract states that the agreement is made on 6th Dec 2007 and that it will roll over each year but of course there is no proof that it has. Yes, looking at it more carefully it does mention clamping!

It is Garforth Main Street Customers Car Park. Am I right that this needs to be sent to the court and VCS no later than the day before the court date?

I also included schedule 4 from POFA in my WS

Coupon-mad

Am I right that this needs to be sent to the court and VCS no later than the day before the court date?

As you have already filed & served a WS, then the answer to this specific question about skeleton arguments (and costs schedules) is yes - but earlier is BETTER.

beverleyt

So it’s the hearing today at 11am and to say I’m nervous is an understatement. What sort of things should I be asking? What will I get asked?

Redx

Read court reports and replies in other completed and close to completion threads on here , plenty of suggestions and a court hearing video , found this one for example

https://forums.moneysavingexpert.com/discussion/comment/76522354#Comment_76522354

Post 43

The queen record AOBTD will find them

Another four

https://forums.moneysavingexpert.com/discussion/5980681/uk-car-park-management-court-claim

https://forums.moneysavingexpert.com/discussion/5875659/told-not-to-worry-about-payment-and-enjoy-the-day-by-the-staff

https://forums.moneysavingexpert.com/discussion/comment/76467282#Comment_76467282

https://forums.moneysavingexpert.com/discussion/comment/76447933#Comment_76447933

Posts 135 and 136

Do not accept any papers from the opposition , none at all , leave them , do not accept anything

beamerguy

beverleyt wrote: »

So it’s the hearing today at 11am and to say I’m nervous is an understatement. What sort of things should I be asking? What will I get asked?

Good luck today

beverleyt

I’m in the waiting room and the solicitor has asked if I’ll settle for £125. Of course I said no thank you!

beamerguy

beverleyt wrote: »

I’m in the waiting room and the solicitor has asked if I’ll settle for £125. Of course I said no thank you!

Hope you have YOUR cost schedule ready

beverleyt

I have yes

beverleyt

I won!! On the basis that the contract was from 2007 and talked about you needing a permit which isn’t the case in that car park anymore! Was awarded my travel and loss of earnings for half a day at £35. Thank you so much for help everyone!