VCS - County Court Claim

lloydie.t

It is gettng close to the 30 day deadline and I have not completed the defence. I have suffered an injury in the last few days which is preventing me getting the defence together. Is there anyway the deadline can be extended because of illness?

nosferatu1001

No. None.

33 days from date of issue.

Is there anyone who can type for you, if thats the issue?

lloydie.t

I can type. but wanted to go to site to check evidence is correct and get the lay of the land.

Quentin

If you don't get your defence in before 4.00 pm on Monday and the claimant is on the ball they can ask for judgement against you from then on!

Le_Kirk

Defence come first, Witness Statement and EVIDENCE comes later after submission of DQ. Just get your defence in and don't miss the deadline.

KeithP

A reminder...

...you have until 4pm on Monday 29th July 2019 to file your Defence.

You have known that target date for over four weeks.

There is a limit to how much this forum can do to help you.

nosferatu1001

Lloydie - yo uhave until Monday,s o show your defence today or youre not going to get any chance for people to look at it.

I am away this weeken so no chance of me looking at anything.

lloydie.t

OK will try my best. Will have something ready by 7 pm.

lloydie.t

The first draft.

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The particulars of claim are for breach of contract for breaching the terms and conditions set on private land, in breach of ‘advertised’ terms and conditions.


At all material times the defendant was only the registered keeper in this matter.


If a PCN ticket was issued, the defendant has never seen or received the original copy of the PCN ticket.


The registered keeper questioned of the legality (authenticity) of the notice(s) sent via the post as they had not parked there and was unaware anyone else did.


We believe, the claimant failed to comply with the requirements of the Schedule 4 of The Protection of Freedoms Act 2012 to be able to hold the keeper liable.


The claim includes an additional unexplained amount of £60. We believe, the keeper cannot be held liable for more than the original NTK, POFA 4 (5).


The conditions imposed could not possibly be meet by the defendant as the terms would not have been presented to the defendant at the time the vehicle was parked and would have been read until after the claimant has said the conditions apply, a time previous to the agreement of the alleged contract.


Furthermore, whoever would have parked at this location, could test the legality of the terms and conditions due to the signage not being clearly advertised in appropriate locations, contrary to the claimant’s assertions that they are displayed clearly at the entrance and other prominent locations.


As an aside, we would like to bring it to your attention that our request for Subject Access Request (Data Protection Act 2018 / General Data Protection Regulations (GDPR)) has not been honoured and this has prejudiced your ability to form a full defence. The Claimant appears to be able to get the required information for themselves but not provide it to the defendant.

lloydie.t

Please have a look at my defence


THE DEFENCE :-


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all

2. At all material times the defendant was only the registered keeper in this matter and not the driver.

3. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

a. The driver has not been evidenced on any occasion.
b. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

4. The Particulars of Claim state that the Defendant was the registered keeper and/or driver vehicle of the vehicle; These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such,

a. The Claim fails to comply with Civil Procedure Rule 16.4
b. The Claim fails to comply Civil Practice Direction 16, paras. 7.3 to 7.5.

5. The claim includes an additional unexplained amount of £60. We believe, the keeper cannot be held liable for more than the original NTK, POFA 4 (5). I bring to your attention Claim number is F0DP201T District Judge Taylor, Southampton Court, 10th June 2019


6. The registered keeper questioned of the legality (authenticity) of the notice(s) sent via the post at the time of the contravention and subsequently.


7. The £100 amount demanded is a penalty and not a Genuine Pre-estimate of loss. The parking charge does not represent a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Parking charges cannot include business costs which would occur whether or not the alleged contravention took place. The amount claimed is excessive and is being enforced as a penalty for allegedly parking. As VCS are alleging a “failure to comply” yet cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which renders this charge unenforceable.


8. It is denied that the Claimant entered into a contract with the Defendant. As upheld by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.


9. VCS are not the owners of this land and as such they cannot form a contract with the driver, I wish VCS to provide me with a full un-redacted copy of their contract with the landowner which allows them to form such a contract that was formed on or before date of alleged contravention. A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives VCS the legal standing to neither levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case no 1SE09849 16.5.2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, VCS have breached the BPA Code of Practice section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable.

10. The Driver does not accept Claimant is entitled to relief in the sum claimed. The Driver was given a parking permit by a resident of the adjacent building to park in Preachers Lane and the Driver had accepted that the parking permit was valid and correct based on advice from the resident about the usage of the parking permit. No other information or advice about the usage of the parking permit was provided on the signs.


11. No request was made on the Notice to Keeper (NTK) to identify the provider of the parking permit. We do not believe that provider (the resident) of the parking permit has been approached to identify the Driver or remedy the alleged misuse of the parking permit.


12. Upon entering the site from the Preachers Lane, the referenced entrance signage is not clearly visible (at the time of contravention) because one being partially covered by foliage and positioned lowly and the other not facing the direction flow of traffic and placed high as to be not visible from the driving position. The only sign that is adjacent to where the alleged contravention took place is mounted in a position so high that it is not within the normal eyeline of a person and would breach the specific requirement of the BPA Code of Practice paragraph B(18.3) that the driver be given the chance to read them at the time of parking or leaving their vehicle. In either direction of leaving the area there are no other signs that are positioned significantly to draw attention. At the time of contravention there are no signs in any of the parking bays, on roadside lamps or posts.


13. The conditions imposed could not possibly be meet by the defendant as the terms would not have been presented to the defendant at the time the vehicle was parked and would have not have been read until after the claimant has said the conditions apply, a time previous to the agreement of the alleged contract.


As an aside, we would like to bring it to your attention that our request for Subject Access Request (Data Protection Act 2018 / General Data Protection Regulations (GDPR)) that was sent on the 2nd July 2019 has not been honoured and this has prejudiced the ability to form a full defence. The Claimant appears to be able to get the required information for themselves but not provide it to the defendant.