VCS Defence draft

0range

Hi everyone,

Any advice would be greatly received.

The defendant has been reading as much as they can over the last day or so, since returning on the 4th July from holiday (the CC Claim forms were found in the mail box on returning home that day) as you can imagine it's a little concerning - ensuring all legal deadlines have been met in time, having only just discovered the CC Claim and 2 weeks after the issue date.

Claim forms are dated 20th June, and the defendant has submitted an acknowledgement of claim - without filling in the 'start defense' bit
(submitted 04/07, and received by them 05/07 as it was after 4 when it was subbed on MC online)
Is this the correct approach and does this mean that the 'start defense' section needs to be filled and submitted by 23rd July?

A SAR has been emailed to VCS today, but know this won't be read till tomorrow (mon)

There is mention on the NEWBIE thread about ‘also sending an to email to Gladstones or BW Legal or directly to whoever the PPC is, if they are not using a solicitor asking for the claim to be put on hold.’ Where would this information be found?

A bit about the claim...
It's from 2015 when a resident’s vehicle was parked in a visitor spot (each dwelling gets a parking bay and a visitor pass, and residents have long been using the visitor spots for parking in throughout the 7+ years the defendant has lived there.
The vehicle displayed a visitor permit, but apparently its expired at midnight, the PCN was issued not even 15 minutes after this expiration. Several other residents were hit that night with PCNs also, despite if they were parked in their own spot or a visitor spot - including one who has informed the defendant they have had their PCN cancelled, and is willing to write a witness statement in support.
The management company of the dwelling (which is made up of residents and headed by a formed resident) and who employ VCS have been contacted, and will be looking it to it further to see if there is anything they can do. Although it doesn't sound doubtful.
Is there anything else that needs to be done as a matter of urgency apart from the submitting of a defense?

Many thanks in advance
Extemely Anxious 0range

KeithP

With a Claim Issue Date of 20th June, and having done the Acknowledgement of Service in a timely manner (you had until Tuesday 9th July to do the AoS), you have until 4pm on Wednesday 24th July 2019 to file your Defence.

That's over two weeks away. Loads of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

beamerguy

Orange ...... I am saying this all the time now ...

Has VCS added a fake £60 to their claim ???

If so it is ABUSE OF PROCESS and you should read this
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Something to tell your fellow residents about the bad conduct of VCS

This not just being said on this forum, two judges very recently dismissed cases for the same thing .... ABUSE OF PROCESS

Your job is to get the judge understanding this, you can quote the judges saying it is ABUSE OF PROCESS
If this happens in your case it will all be over in a blink of an eye

Quentin

0range wrote: »

There is mention on the NEWBIE thread about ‘also sending an to email to Gladstones or BW Legal or directly to whoever the PPC is, if they are not using a solicitor asking for the claim to be put on hold.’ Where would this information be found? ....

Too late for that now

(That advice is in regards to when you are at the LBC stage)

See #2 in the newbies FAQ thread near the top of the forum

That post shows you how a claim progresses right through from the LBC to the hearing.

Coupon-mad

If you have two claim forms, search the forum for:

Two claims? Abuse of process

...as you will want them to be consolidated.

0range

Hi BEAMERGUY,

I'm guessing so as the parking charge noted as £100 on the signs, but only the amount claimed is noted on the claim form, no breakdown apart from added court fee.

But on that basis this will definitely be going into the defence then.

Thank you for this, reading shall be done

0range

Hi Coupon-mad,

Just the one claim form, but a request for any outstanding was made in the SAR - although it's doubt that will arrive in time, going by reading other threads.

Can I also just say that you guys on here are just amazing, all this information is absolutely outstanding.:T:T:T

Coupon-mad

It's from 2015 when a resident’s vehicle was parked in a visitor spot (each dwelling gets a parking bay and a visitor pass, and residents have long been using the visitor spots for parking in throughout the 7+ years the defendant has lived there.

The vehicle displayed a visitor permit, but apparently its expired at midnight, the PCN was issued not even 15 minutes after this expiration. Several other residents were hit that night with PCNs also, despite if they were parked in their own spot or a visitor spot - including one who has informed the defendant they have had their PCN cancelled, and is willing to write a witness statement in support.

The management company of the dwelling (which is made up of residents and headed by a formed resident) and who employ VCS have been contacted, and will be looking it to it further to see if there is anything they can do.

Add the above facts to bargepole's residential example defence (NEWBIES thread) and add the standard words about no landowner authority / no proprietary interest, then finish the defence with the longer paragraph ending I wrote and posted in beamerguy's ABUSE OF PROCESS thread. NUMBER all my template paragraphs...

0range

Ok so VCS have replied to the SAR asking for either the Charge Notice number or the vehicle reg. Should this be given to them?

Quentin

Yes. No downside to you

0range

The Defendant has put together a draft defence. Any advice?


Unsure Coupon-mad if/where these first 3 paragraphs should be added. At the beginning after 1.?

The Defendant is aware that at the time in question there were numerous residents that had received PCNs just after midnight. If the defendant recalls correctly the PCN was issued within 13 minutes of the expiration of the permit. One of the other residents who received a PCN was a neighbour, who informed the defendant she had her parking notice cancelled as a result of informing VCS that she was a resident. (This resident is happy to supply a witness statement)

The Defendant approached ‘X’, the estate Director and Property Manager, whom herself owns a property in the same block as the defendant. ‘X’ used to park in the visitors spots, when she resided in the building, and told the defendant that when she took over managing the complex in 2016 (this was only 9 months after the PCN) she agreed that a 2 week grace period was implemented with VCS to cover the matter of expiring permits so this sort of incident was prevented.

This is not the first time the defendant has been targeted by VCS, ‘this is not a parking charge’ card was placed on the defendant windscreen while they were parked in a visitor bay with a valid permit clearly displayed. Serial number on card is xxxxxx dated xxxxxxxx. The defendant again informed the Property Manager who wrote back ‘Please send me the PCN number and registration number. I wasn't aware they were issuing tickets for people using Visitors spaces.’






IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)



DEFENCE

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

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on XX/XX/XXXX. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Does state date, location and not having a valid permit on show, but not time elapsed after alleged expiration of permit. Should this be added and the bits that are mentioned erased?

3. The Particulars refer to the material location as ‘XXXXX XXXXXXX '. The Defendant has, since XX/XX/XXXX resided with their partner XXXXXX XXXXXXX who has held legal title under the terms of a lease, to Flat No. XXX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The car parking area contains allocated parking spaces demised to some residents, and visitor parking spaces to be used by residents who do not have an allocated space or visitors. Of which the residents have been using since the defendant began living at the property in XXXX. Including XXXXX XXXXXXXX - the Director and Property Manager of XXXXXXXXXX Entry to the parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.Does there need to be mention of how parking is accessed? This was from the template, and not the how parking is accessed - it's open entrance[/COLOR]

5. Under the terms of the Defendant's partner XXXXXXXXXXX’s lease, only this reference is made about the conditions of parking vehicles in spaces.
5.1. At XX schedule para.XX, not to keep place or permit to be kept or placed in or upon the parking space or spaces any commercial vehicle any caravan boat trailer house on wheels or any other apparatus capable of being towed.
5.2. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract. Should this be removed or replaced? Sign says ‘Parking for valid parking permits only – park within allocated bays. If a valid permit/ticket is required, the permit/ticket must be clearly displayed (with all details clearly visible) inside the front of the windscreen of the vehicle at all times)
Is this any use for this paragraph or should it be erased?
Because it states IF a valid permit/ticket is required – can this be used to highlighting that in view of the lease not containing the need for a permit, there is therefore no permit or ticket required?

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.
Again should this be altered since ‘authorised’ was from the template, not sure if it fits here?

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property ( owned by defendants partner), or his/her use or enjoyment of that land/property.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

13. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
13.1. (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
13.2. (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.

13.3. - 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.

13.4.- 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.

13.5. - 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.

13.6. - 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.

13.7. - 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.

13.8. - 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:
13.9.''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...''

13.10. - 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.

13.11. - 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.

13.12. - 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 recover.


Statement of Truth:

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


Name

Signature


Date