VCS parking in restricted area & claim from from CCBC

upstanding

Ok, will take a look and see how and where to amend - this did seem to be a fairly standard bit of the template that has been included in many other defences.

upstanding

Thanks CM this was exactly what I had recalled reading only hadn't been able to locate it again but thanks to you I just have:

"His arguments were that as the sign stated no parking at any time, there was no offer of parking, and therefore there could be no contract". So again it is just knowing if this point needs enhancing and where to put it in the defence - ? instead of Paragraph 5 or in addition to.
I have tried along the way to stick to terminology and facts that I can't be tripped up on - I have to say last para 11 quoting various other cases like Beavis etc etc goes a little over my head .

I'd really like to get it submitted by the end of the weekend as it due in early next week but don't want to be rushing it right at the 11th hour and then miss off something glaringly important.

upstanding

Perhaps I should add somewhere:
Given that the car was parked on public road, no permission or contract was necessary, a ticket did not need to be purchased and neither VCS or Excel had any due restriction outside of the car park. The plans I have purchased from Land Registry confirm ownership of the road and that is neither VCS or Excel.

Coupon-mad

Yes, but adding:

...The plans I have purchased from Land Registry confirm ownership of the road and that is neither VCS or Excel. The road is subject to Local Authority enforcement and it is illegal for a company or individual to issue non statutory parking charges on such land.

Or something like that.

BTW, Johnersh is a solicitor so if he says something from our well-thought out but admittedly, cobbled together(!) templates is hogwash, I would tend to believe him.

Read his answer to you - he has suggested some wording about 'consideration' that you can use.

Le_Kirk

Johnersh wrote: »

Para 5 refers:
Can we stop this nonsense now. it is carried through from a template that needs pruning.

A pleading that the defendant is the keeper and/or the driver is NOT a "menu of choices" but a perfectly legitimate way to present a claim - known as pleading in the alternative. In short "if not this, that...."

Wow, that was written by Bargepole and I thought he was a legally beagley type person! The point does go on to mention civil procedure rule 16.4 which, when I looked it up, seems to be about interest, although it also states the particulars of claim must contain a concise statement of facts. Confused.com? I am now! Maybe ALL (17 of them) of the standard defences pointed at in the NEWBIE thread need to be reviewed.

upstanding

Have made the following changes and amended para 5 and hope that I have quoted that in a correct fashion.
In para 7 I have stated about No parking sign therefore no contract (I feel I need to acknowledge this sign as they will surely pull it out of bag) but should I be combining 6 & 7 together maybe - I'm getting a little muddled here and then is para 8 still required?? Thanks to everyone in advance for their continued advice



revised DRAFT – VCS (XX/XX/2015)

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was on xx/xx/2015 parked on a public road leading to xxxxx. This does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012.

3. The Defendants vehicle was not parked at the location claimed by the Claimant, and therefore the Claimant has no cause of action. Furthermore, where the Defendant’s vehicle was parked is public land, over which the Claimant is unable to demonstrate any standing. Evidence of this will be provided in due course.

4. The place of the alleged transgression is given as "restricted area in a privately owned car park at xxx "which contains several registered parcels of land as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.

5. The Particulars of Claim state that the Defendant xxx was the registered keeper and/or the driver of the vehicle xxx;
The fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the Protection Of Freedoms Act and there is no alternative rule of Law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver. If your presumption of keeper liability is based entirely upon Elliott v Loake, unless you have evidence of who the driver was on that specific date, then no such presumption can be made. You have shown no evidence that I was the driver.

6. The terms on the Claimant's signage are also displayed in a font, which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily, notwithstanding that it is obscured by overgrowth at the entrance of XXX. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, failing to set out the terms in a sufficiently clear manner for any person reading them.

7. A sign stated no parking at any time, therefore there was no offer of parking, and as such there could be no “contract". The plans I have purchased from Land Registry confirm ownership of the road and that is neither VCS or Excel. The road is subject to Local Authority enforcement and it is illegal for a company or individual to issue non statutory parking charges on such land.

8. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. VCS were not a party to such a contract, and therefore cannot sue on it.

9. It is denied that the Claimant served the required documents with statutory wording as prescribed under the Protection of Freedoms Act and as such, there can be no keeper liability in any event. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver and as such, the Defendant believes that his personal details, have in this instance, been obtained unlawfully by the Claimant.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the Landowner and/or Agent, to issue parking charge notices, and to pursue payment by means of litigation.

11. The claimant failed to include a copy of their written contract as Practice Direction 16 7.5. No indication is given as to the Claimants contractual authority to operate at xxxx as required by the Claimants Trade Association's Code of Practice A 7.1 which states that If you do not own the land on which you are carrying out parking management, you must have written authorisation from the Landowner and/or their appointed Agent. The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all aspects of car park management for the site that you are responsible for. In particular, it must say that the Landowner and/or their appointed agent requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.

12. Costs on the claim - disproportionate and disingenuous
Civil Procedure Rule 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 or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

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:
The DJ stated:-

''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 Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to.

13. I refer to the Doctrine of de minimis and would question as to why, if such a transgression had occurred as claimed by VCS, did VCS wait for FOUR years before deciding to follow through with their threats to commence court proceedings in respect of what they state is an ‘outstanding balance’?

I believe the facts contained in this Defence are true.

[Deleted User]

If your presumption of keeper liability is based entirely upon Elliott v Loake, unless you have evidence of who the driver was on that specific date, then no such presumption can be made. You have shown no evidence that I was the driver.

5. Is better. But don't give C the theoretical argument if they've not pleaded it (yet). Also keep it formal (third person).

5. The Particulars of Claim state that the Defendant xxx was the registered keeper and/or the driver of the vehicle xxx;
The fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the Protection Of Freedoms Act. In the alternative, the claimant is put to proof as to the identity of the driver.

For some reason not all the paragraphs have numbers. They should as it's much easier to say in court "may I direct you, sir, to para x of the defence which deals with that issue"

This isn't helpful it shows you're irritated, but it isn't a defence. Keep it simple & adopt the moral high ground:

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.

First, there is no obligation for a solicitor to sign the statement of truth - a company officer can or an employee of a solicitors firm (CPR rule 2: interpretation).

In respect of bolt on costs, the issues are:
1. Breach of the indemnity principle (claiming damages for costs not incurred). Lots of points on this. Most debt collectors work on a no win/no fee basis. C should be put to proof that any costs have been incurred (at all), other than court fees.
2. Advancing a claim for notional unspecified costs is in effect a claim for liquidated damages - there is nothing in the contract (if the judge does find it to be one) that specifies such costs, as it could have done.

My comparative example is usually a credit card contract as they have clearly defined sums for specified breaches - £12 for statutory notices sent to you etc. You agree those in advance in the t&C's even though it doesn't cost that in their postage! In contrast no such agreement here.

Again I have concerns with paras such as the following which risk polarising a DJ and add nothing. If C's case is a nonsense the court will make an order of its own, it doesn't need you to tell it to.

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.

Trust me. The court is aware of its powers. You assume C is vexatious, but the court hasn't made that determination in YOUR case, which is what we're concerned with. What rule has been broken? Relief from sanctions is a specific application made when a party is in default. I don't believe anyone is here. This is misconceived/confused as a paragraph.

The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to.

*The court will not strike out without a hearing. It MAY ask for it to be re-pleaded. I wouldn't ask.

*The court has no costs schedule it almost certainly won't order carte blanche indemnity costs at this stage.

*The court will likely need to hear the claimant on the costs argument before it decides the merits, much less determine unreasonable conduct.

Present your good arguments clearly. Can the righteous stuff. It's shorthand here, but NEVER refer to a district judge as "the DJ" s/he ain't Nick Grimshaw or Annie Mac

AND finally. Where parliament permits C to bring a claim within 6 yrs there's no point asking a DJ to disapply the law in your case, just cause its 4 yrs on.

upstanding

Thank you - so I will go ahead and amend para 5 again. I have to admit from para 12 onwards that was as a suggestion of other poster and I have seen it used in other defences but and as I said earlier I was trying to adhere to language that I could understand and interpret so as not to get entangled in legal jargon - guess what i should be looking at is striking out all of 12 and put in lay language the facts that you raised about bolt on cases/unjustified add ons.
will update again shortly

[Deleted User]

When it comes to it, this is a chat round a table. You won't be expected to use jargon. Please don't ever try argue a point you don't understand.

I have no input on the templates (although one is mine, I believe) but I stand firm in the commitment that no-one ever gains from merely laying into the other side. Hence my suggestion to prune it.

There's more than one way to approach it, so as I always say, read lots then make your case as you see fit.

upstanding

another bash at it:Re-revised DRAFT – VCS (XX/XX/2015)

HAVE AMENDED PARA 5 AND HAVE STRUCK OUT ALL OF PARA 12 - REWRITTEN IN SIMPLE TERMS IN REGARDS UNSPECIFIC OR INFLATED COSTS AND ATTEMPTED TO USE YOUR EXAMPLE JOHNERSH (HOPE YOU DON'T MIND) - HOPING THAT I HAVE WORDED IT TO MAKE SENSE. LASTLY REWORDED PARA 13 REGARDING DOCTRINE OF DE MINIMIS - IS THIS OK TO BE LEFT IN?



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

2. The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was on xx/xx/2015 parked on a public road leading to xxxxx. This does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012.

3. The Defendants vehicle was not parked at the location claimed by the Claimant, and therefore the Claimant has no cause of action. Furthermore, where the Defendant’s vehicle was parked is public land, over which the Claimant is unable to demonstrate any standing. Evidence of this will be provided in due course.

4. The place of the alleged transgression is given as "restricted area in a privately owned car park at xxx "which contains several registered parcels of land as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.

5. The Particulars of Claim state that the Defendant xxx was the registered keeper and/or the driver of the vehicle xxx;
The fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the Protection Of Freedoms Act. In the alternative, the claimant is put to proof as to the identify of the driver.

6. The terms on the Claimant's signage are also displayed in a font, which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily, notwithstanding that it is obscured by overgrowth at the entrance of XXX. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, failing to set out the terms in a sufficiently clear manner for any person reading them.

7. A sign stated no parking at any time, there was no offer of parking, and therefore there could be no “contract". The plans I have purchased from Land Registry confirm ownership of the road and that is neither VCS or Excel. The road is subject to Local Authority enforcement and it is illegal for a company or individual to issue non statutory parking charges on such land.

8. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. VCS were not a party to such a contract, and therefore cannot sue on it.

9. It is denied that the Claimant served the required documents with statutory wording as prescribed under the Protection of Freedoms Act and as such, there can be no keeper liability in any event. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver and as such, the Defendant believes that his personal details, have in this instance, been obtained unlawfully by the Claimant.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the Landowner and/or Agent, to issue parking charge notices, and to pursue payment by means of litigation.

11. The claimant failed to include a copy of their written contract as Practice Direction 16 7.5. No indication is given as to the Claimants contractual authority to operate at xxxx as required by the Claimants Trade Association's Code of Practice A 7.1 which states that If you do not own the land on which you are carrying out parking management, you must have written authorisation from the Landowner and/or their appointed Agent. The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all aspects of car park management for the site that you are responsible for. In particular, it must say that the Landowner and/or their appointed agent requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
12. In respect of the unspecified costs that have been added onto the original Parking Charge Notice of £100, the Claimant should be put to proof that any costs have been incurred (at all), other than court fees. There are no Terms and Conditions advising that an additional £60 will be incurred for what the Claimant refers to as the ‘outstanding balance’. Example of which would be a default charge of £12 for missed payment on a credit card; this being clearly highlighted within the Terms and Conditions which one is aware of when agreeing a contract with Credit Card Company. In contrast there is no such agreement here.

13. I refer to the Doctrine of de minimis and would suggest that the Claimant be put to proof that this alleged transgression is of significant bearing for the Court to deem it worthy of judicial scrutiny.



I believe the facts contained in this Defence are true.