County Court claim VCS

SteveTa

Id be grateful for anymore feedback before she sends its. I have added detail in about the fluttering ticket but as she cannot remember what she put in the IAS appeal so I have erred on the side of caution. I would be most grateful for feedback on the paragraph about principle debt I have put in bold if people are limited on time. Thank you again for your help.

1. I confirm I purchased a ticket for £4 for the entire days parking in a car park in Darlington which I still hold a copy of and that ticket was placed on the dashboard of my car.

2. The ticket is flimsy and no means of affixing it in any particular manner were provided. A ticket was paid for and displayed. The ticket gave the Defendant a licence to park for the entire day, on 13/05/15, covering the time and date relating to the disputed charge. The ticket was displayed on the dashboard of the vehicle. The fact the ticket had no means of affixing it and was made of flimsy material it is not known whether the ticket remained the way up it was placed or was subject to a gust of wind from the weather or opening or closing of the door.

3. Consumer Rights Act (CRA) 2015 – Unfair Terms 9. If a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

4. The term, ‘’parked without clearly displaying a valid ticket or permit’ in particular the meaning of ‘clearly displayed’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

5. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:


‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

The car park in question has no signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket.

6. Locus Standi
I have received various correspondence from companies named BW Legal, Debt Recovery Plus Ltd, Zenith Collections and Vehicle Control Services. Vehicle Control Services Limited I am unclear in what capacity the claimant is claiming to be the creditor. It is not clear whether they are the land-holder/owner and, in the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its
The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to VEHICLE CONTROL SERVICES LIMITED. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

7. I would ask that the claim be dismissed on the following basis
Costs on the claim - disproportionate and disingenuous
- 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.

- 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. In fact it is averred that the Claimant has not paid or incurred such damages/costs 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. The claimants decision to take 4 years to instigate action and to attempt to claim interest based on that period would sure be unjustifiable any underlying legal action. It is also in my opinion misleading that the claimant is stating their (disputed) principle debt as £160 as a ‘baseline’ figure is misleading given that the only PCN that the defendant is familiar with (although from the claim it is unclear what the PCN is that the claimant references) states ‘Failure to make payment within 28 days of the notice issue date will result in the full charge of £100 being applied plus any additional costs incurred through debt recovery and/or court proceedings’. As it clearly states that any other costs would be applied. It is alleged therefore that the principle debt figure put forward to the court is false as the additional costs that they would attempt to claim would need to be referenced separately so as to be clear, concise and not to mislead.

- 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. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

- 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.

- 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.

- 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.

- 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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''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...''

- 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 mendacious in terms of the added costs alleged.

- 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.

- 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 Law

Coupon-mad

You need to break up those paragraphs into shorter ones by adding more numbers. You do realise the words from my template ending about fake added costs are all meant to have a number for each para?

Not only that but your earlier paras are far to long, a wall of words. Break them up.

You also need to change it throughout, to the third person, not 'I''.

KeithP

Do not rush this stage.

Another week to go before the Defence is due...

...you have until 4pm on Monday 22nd July 2019 to file your Defence.

SteveTa

Thank you again for your patience and assistance with it. It really is brilliant how much help you've provided and without it I think my mum would have thought she could just rely on the fact she was in the right and bought a ticket and they would go away. I have tried to break down the paragraphs into smaller ones although some are still probably too long. I have also added a couple of bits. I realised on my last post the bit in bold had not copied over in bold so hopefully it has now.

1. It is confirmed a ticket was purchased for £4 for the entire days parking in a car park in Darlington which is still retained and that ticket was placed on the dashboard of the car detailed on the particulars of claim.

2. The ticket is flimsy and no means of affixing it in any particular manner were provided. A ticket was paid for and displayed. The ticket gave the Defendant a licence to park for the entire day, on 13/05/15, covering the time and date relating to the disputed charge. The ticket was displayed on the dashboard of the vehicle.

3. The fact the ticket had no means of affixing it and was made of flimsy material it is not known whether the ticket remained the way up it was placed or was subject to a gust of wind from the weather or opening or closing of the door.

4. Consumer Rights Act (CRA) 2015 – Unfair Terms 9. If a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

5. The term, ‘’parked without clearly displaying a valid ticket or permit’ in particular the meaning of ‘clearly displayed’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect.

6. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

7. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: link removed

‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

The car park in question has no signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket.

8. Locus Standi
Various correspondence has been received from companies named BW Legal, Debt Recovery Plus Ltd, Zenith Collections and Vehicle Control Services. Vehicle Control Services Limited. It is unclear in what capacity the claimant is claiming to be the creditor. It is not clear whether they are the land-holder/owner and, in the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its

9. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park.

10. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to VEHICLE CONTROL SERVICES LIMITED.

11. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met.

12. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546).

13. Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

14. It is asked that the claim be dismissed on the following basis
Costs on the claim - disproportionate and disingenuous
- 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.


15. - 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. In fact it is averred that the Claimant has not paid or incurred such damages/costs 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. The claimants decision to take 4 years to instigate action and to attempt to claim interest based on that period would sure be unjustifiable. On the particulars of claim signed by the claimant it states a principle debt of £160. This is misleading given that the only PCN that the defendant is familiar with (although from the claim it is unclear what the PCN is that the claimant references) states ‘Failure to make payment within 28 days of the notice issue date will result in the full charge of £100 being applied plus any additional costs incurred through debt recovery and/or court proceedings’. As it clearly states that any other costs would be applied, It is appears therefore that the principle debt figure put forward to the court is false as the additional costs that they would attempt to claim would need to be referenced separately so as to be clear, concise and not to mislead.


16. - 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. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.


17. 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.


18. 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.


19. 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.


20. 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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''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...''

21. 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 mendacious in terms of the added costs alleged.

22. 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.

23. 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 Law.

24. Although due to the limited information provided in the particulars of the claim it is difficult to ascertain if it is the car park to which the claimant refers to but the below article shows that the claimant has previously used signage which has been found to be misleading;
Link removed as not allowed

No invitation to park on certain terms
26. The signage on this site is inadequate to form a contract. It is barely legible, making it
difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

27. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

Thanks again for all the help. And any feedback however harsh is welcomed.

Coupon-mad

I'd get rid of the addition in bold, as it adds nothing and talks about a PCN she is 'familiar with' Not good, as she should be saying she was NOT 'familiar' with any terms or contract, except the transaction itself, to pay a tariff at the machine, and she did that in good faith.

Remove this, as VCS are/were at the time, not in the BPA AOS:

It is not clear whether they are the land-holder/owner and, in the absence of written authority from the land-holder in accordance with the BPA Code of Practice Para 7.2, “If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”, has no legal capacity to bring the claim. If the display of signs was sufficient, the BPA would have had no need to include this condition in its

This place?

https://goo.gl/maps/fi6Mxvkqds5onej67

Here it is in June 2015, a month after this parking event. No entrance signs:

https://goo.gl/maps/Bbh6HPHknDQNWVhg7

And no signs at all with ANY terms, at the point of sale (PDT machine).

Here is the large sign on the wall, using the Google search you suggested:

https://www.thenorthernecho.co.uk/news/local/darlington/12969905.darlington-parking-row-as-former-magistrate-landed-with-ticket-over-misleading-signs/

And the ''50p per hour'' sign was still there on 25th May 2015 according to that article (it was since removed, as shown in the GSV June 2015 image). NO signs visible from the PDT Machines say anything about how to display/continuously display a ticket, and neither would she have read anything about £100 penalty, so she can't have agreed to that contract.

The Planning Permission expired in 2014 for this P&D Car Park:

https://publicaccess.darlington.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=LCG3V0FP01Y00

They then put in to extend the temporary planning permission (late!):

https://publicaccess.darlington.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=NOYOJHFP0FG00

Application Received Fri 22 May 2015
Application Validated Wed 19 Aug 2015

At the time of the PCN, they were operating illegally.

Nice point to bring in to the defence now. The links will be good evidence for WS stage!

SteveTa

Coupon-mad thank you so much for the work and research you have done. The info you have found is priceless. I have included all the info you have found and also made the deletions and amendments you suggested.

The defence now reads as follows:
1. It is confirmed a ticket was purchased for £4 for the entire days parking in a car park in Darlington which is still retained and that ticket was placed on the dashboard of the car detailed on the particulars of claim.

2. The ticket is flimsy and no means of affixing it in any particular manner were provided. A ticket was paid for and displayed. The ticket gave the Defendant a licence to park for the entire day, on 13/05/15, covering the time and date relating to the disputed charge. The ticket was displayed on the dashboard of the vehicle.!

3. The fact the ticket had no means of affixing it and was made of flimsy material it is not known whether the ticket remained the way up it was placed or was subject to a gust of wind from the weather or opening or closing of the door.!

4. Consumer Rights Act (CRA) 2015 – Unfair Terms 9. If a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.!

5. The term, ‘’parked without clearly displaying a valid ticket or permit’ in particular the meaning of ‘clearly displayed’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect.!

6. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.!

7. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: link removed

‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”!
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’!

The car park in question has no signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket.!

8. Locus Standi!
Various correspondence has been received from companies named BW Legal, Debt Recovery Plus Ltd, Zenith Collections and Vehicle Control Services. Vehicle Control Services Limited. It is unclear in what capacity the claimant is claiming to be the creditor.

9. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park.!

10. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to VEHICLE CONTROL SERVICES LIMITED.!

11. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met.!

12. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546).!

13. Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.!

14. It is asked that the claim be dismissed on the following basis!
Costs on the claim - disproportionate and disingenuous!
- 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.!


15. - 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. In fact it is averred that the Claimant has not paid or incurred such damages/costs 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.!


16. - 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. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.!


17. 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.!


18. 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.!


19. 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.!


20. 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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:!
''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...''!

21. 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 mendacious in terms of the added costs alleged.!

22. 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.!

23. 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 Law.!

24. Although due to the limited information provided in the particulars of the claim it is difficult to ascertain if it is the car park to which the claimant refers to but the below article shows that the claimant has previously used signage which has been found to be misleading;!
Link removed as not allowed

No invitation to park on certain terms!
26. The signage on the site was inadequate to form a contract. It was barely legible, making it!difficult to read. No signs were present at all with!any!terms, at the point of sale (PDT machine).! It is disputed that signage was present at the entrance. NO signs visible from the PDT Machines said anything about how to display/continuously display a ticket, or a £100 penalty, so there was no knowledge of those terms and therefore the defendant can't have agreed to that contract.

27. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which VCS is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”!

27. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:!
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’!

28.The Planning Permission expired in 2014 for the Pay & Display Car Park in question: An application was put in to extend the temporary planning permission on Fri 22 May 2015 which was not Validated until Wed 19 Aug 2015 therefore at the time of the PCN the car park was been operated illegally.

SteveTa

Sorry about the random exclamation marks I'll make sure they are deleted when she submits it.

Coupon-mad

I would add to this:

3. The fact the ticket had no means of affixing it and was made of flimsy material it is not known whether the ticket remained the way up it was placed or was subject to a gust of wind from the weather through the vents or [STRIKE]opening or closing of the door[/STRIKE] the Claimant's ticketer leaning across the car and dislodging it, as clamper firms used to do. This Claimant firm is run by Simon Renshaw-Smith, aka 'Captain Clampit', whose methods have been highly criticised in the Courts in many cases and the Defendant driver knows and can attest to the fact the car was parked with the ticket properly displayed, when it was left.

24. Although due to the limited information provided in the particulars of the claim it is difficult to ascertain if it is the car park to which the claimant refers to but the below article shows that the claimant has previously used signage which has been found to be misleading;
Link removed as not allowed

No links nor evidence goes with the defence. And this bit needs to be higher up, with the earlier point about signage.

And all of this too (below) needs to be well above the template points about costs, and the IPC is the International Parking Community (they changed their name years ago to try - and fail - to look legit, part of some sort of community, and 'international'!):

No invitation to park on certain terms

26. The signage on the site was inadequate to form a contract. It was barely legible, making it!difficult to read. No signs were present at all with!any!terms, at the point of sale (PDT machine). It is disputed that signage was present at the entrance. NO signs visible from the PDT Machines said anything about how to display/continuously display a ticket, or a £100 penalty, so there was no knowledge of those terms and therefore the defendant can't have agreed to that contract.

27. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which VCS is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

27. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
'…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

28.The Planning Permission expired in 2014 for the Pay & Display Car Park in question: An application was put in to extend the temporary planning permission on Fri 22 May 2015 which was not Validated until Wed 19 Aug 2015 therefore at the time of the PCN the car park was been operated illegally.

Cluster the signage/no agreed contract points together, higher up (above the costs stuff).

Put the stuff about the expired Planning permission higher, maybe #4 onwards and see how that flows.

SteveTa

Good evening, sorry for no replies for a long time but nothing to report until now where my mum has received the signed witness statements and exhibits provided by the parking firm. I'm really sorry but i've looked through and I cant see where my mum has received anything which directs what she needs to do now. We obviously have some exhibits we want to use in the defence but could someone please tell me when and how I serve them to the court.

They have provided crystal clear evidence that there was no signage at the entrance or pay machine. They have provided some poor quality photos of my mums dash board and a ticket which is upside down. As a reminder she paid for a valid ticket to cover her for the full day.

My mum served a defence very similar last draft above and the claimants witness statement tries to go through and argue against the points. Including saying that the car park having no planning permission at the time basically not been relevant. I have read that some where that my mum needs to serve her additional exhibits etc within 14 days which leaves next to no time. They served their statement 20 days before the hearing. Please could someone advise what steps I need to take urgently as Id hate to miss a deadline. My mum also received a letter offering her the chance to settle for £125 as per the other poster in relation to Bondgate car park. Sorry for poorly worded post but I'm very conscience of time now. Thanks

Coupon-mad

my mum has received the signed witness statements and exhibits provided by the parking firm. I'm really sorry but i've looked through and I cant see where my mum has received anything which directs what she needs to do now.

She has - it's in the letter telling her about the court date!!

We obviously have some exhibits we want to use in the defence but could someone please tell me when and how I serve them to the court. I have read that some where that my mum needs to serve her additional exhibits etc within 14 days which leaves next to no time. They served their statement 20 days before the hearing.

Yes, she needs a WS, here is a good example - below - which includes the latest tactic (new this week) about citing Schedule 2 of the CRA 2015 schedule 2 (the grey list of unfair terms) and putting that into evidence with 6, 10 and 14 highlighted - plus her other exhibits, photos and evidence relevant to her case:

https://forums.moneysavingexpert.com/discussion/comment/76495237#Comment_76495237

How to file & serve the WS is covered in every single thread about court. NOT BY EMAIL is the simple answer - save our typing fingers by reading any other case about witness statements and costs schedule (she needs one of those too, and it's in the link).

All of this is already in COURT PROCEDURES by bargepole (in the NEWBIES thread).

So stop and have a read of that and CEC16's thread first - no link to that one...go find it and read it. Then use the link I gave you above which will make a lot more sense after you read CEC16's court report.