VCS Defence draft

0range

Coupon-mad - I have copied and pasted in its entirety the abuse of process supplementary witness statement you suggested to go with my statement.

So for the pack I have

• Witness Statement
• exhibits/evidence as detailed
• the lease (do I need send a copy or am I ok just taking the original on the day?)
• Supplementary Witness Statement on Abuse of Process (Coupon-mads)
• Schedule of Costs
• copies of cases -

Link Parking Ltd v Parkinson [2016] C7GF50J7,
[*] Pace Recovery v Noor [2016] C6GF14F0 [2016]
[*]JOPSON-V-HOMEGUARD-2906J-Approved
[*]General Form of Judgement/order for the abuse of process case vs Mr Davies

(do I need to print and send these with the pack or just have copies on the day?)


I have downloaded the POFA and CMA unfair contracts guidance. Do I need to send these with my pack or is it considered that the Judge will not need them?
Is there anything I have missed or need to add?

0range

Hoping my partners General Form of Judgement/order comes though soon so I can reference this, but if it doesn't come in time to include in the documents. Is it worth taking worth taking to court?

0range

Thread bump

Coupon-mad

0range wrote: »

Hoping my partners General Form of Judgement/order comes though soon so I can reference this, but if it doesn't come in time to include in the documents. Is it worth taking worth taking to court?

Yes.

(do I need to print and send these with the pack or just have copies on the day?)

Yes you must file & serve all your evidence.

I have downloaded the POFA and CMA unfair contracts guidance. Do I need to send these with my pack or is it considered that the Judge will not need them?

You can just take 3 copies to hand out on the day as both are statute laws - make sure you are ready to say (if the C objects that this wasn't in your defence) that para 71 of the CRA says a court has a duty to consider the test of fairness in the CRA (i.e. the grey list and the rest of the Act) whether or not a consumer raises it in defence, witness statement or indeed, AT ALL!

Le_Kirk

You have to file and serve ALL evidence that you are going to rely on in court, so you cannot be accused of ambushing the claimant.

0range

Ok. Great thank you.

What do you reckon to my witness statement? Do I need to clarify a little more about the expired permits being only 23 mins past expiry, and why the new permit wasn't on display?

They were in our letter box, and we didn't realise, only found them when we saw the sea of tickets on the cars after being away from the property for the evening.

Any pointer on my Witness statement greatly appreciated

Le_Kirk

15.2. There is signage, however to states “IF” a permit is required.

This does not make sense, did you miss out a word or mistype something? Also, it just stops, without making a point.
Good to see you have the abuse of process section in there. Have you checked out the recently updated thread by beamerguy and the comment at post # 14 on that thread. Also read CEC16's thread.

0range

“
15.2. There is signage, however to states “IF” a permit is required.
”This does not make sense, did you miss out a word or mistype something? Also, it just stops, without making a point.

I might take that out as its mentioned in my defence, and not sure if its needed?
In the SAR they didn't send me any pictures of signage, but on current signage it states "IF a valid permit is require is should be displayed at all time" and I don't believe I need to display a valid permit as a resident and who also has permission by the Leaseholder.

Good to see you have the abuse of process section in there. Have you checked out the recently updated thread by beamerguy and the comment at post # 14 on that thread. Also read CEC16's thread.

Yep, I have copied and pasted Coupon-mads abuse of process supplementary witness statement and have gone through and documented all the supporting material Coupon-mad mentions.

0range

I've made some amendments to my Witness statement, here it is again.
Looking to deliver this to court tomorrow.

I know my 'exhibits' aren't currently properly ordered but they will be

In the XXXXXXXXXX
Claim No. XXXXXXXXXX
Between
Vehicle Control Services Limited (Claimant)
and
XXXXXXXXXXXXXX

---

Witness Statement for XXXXXXXXXXXXXXX

---

Enclosed herewith are key statements in support of my defence against the imposed parking notice charge dated 31.05.2015


Key points in defence


1. I am the Defendant and at the time of the claim, was the registered keep of the vehicle XXXXXX detailed in the Claimants particulars.

2. I deny that the Claimant is entitles to relief in the sum claimed, or at all.

3. The Claimant asserts that I was in breach of contract, breaching the terms and conditions set on private land, and is seeking payment of £185. Which I believe is an abuse of process.

4. I have been a resident at XXXXXXXXX since 2011, the site of said breach of contract and am authorised to park there.

Considerations for the repudiation of the Claim

5. I have been a resident for over 8 years, my partner XXXXXXXX is the Leaseholder to the property of XXXXXXXX. I have parked a vehicle, for which I have been the registered keeper, within the designated visitor parking bays at the development for this period, displaying a parking permit at all times.

6. The claimant - Vehicle Control Services, is under the employment of the development management company (XXXXXXXXXXXXX) made up of residents and Leaseholders to which my partner XXXXXXXXXXXX is one of the Directors, and the Leaseholder of property xxxxxxxwhere alleged breach occurred. We as residents, contribute to the claimant a yearly service charge for the services of management to the car parking areas, to which I believe I have rightful access to and permission to park a vehicle.

7. Detailed on the SAR (Exhibit A) and letters from various recovery agents (Exhibit it details the location as ‘xxxxxxxxxxx (xxxxxxxxxxxxxx)’. xxxxxxxxxxxxxxx are no longer and were not at the time, the property management company responsible for the development, nor are/were they the land owner at any time.

8. It is understood by XXXXXXXXXXX t - the property management company, that residents and visitors are allowed to use visitors spots to park in, on a first come first served basis, as long as they display the correct permit for this space. This practice has been going on for as long as I (since 2011) and my partner – XXXXXXXX the Leaseholder, have resided at the property. One of those residents who parked in the visitors spaces whilst residing at the development was in fact the very person responsible for the contract with Vehicle Control Services, the Director and Property Manager of XXXXXXXXXXX XXXXXXXXXXXXXXX.

9. During email conversations with the Property Manager XXXXXXX about this ‘Parking Charge Notice’ and a ‘This is not a parking charge’ card, a Vehicle Control Services officer left on my windscreen 20/03/2017 13.59PM, (which Vehicle Control Services clearly made in error as by their own photographic evidence obtained in the SAR (Exhibit A). It can be seen that my vehicle is parked in the correct bay with the correct permit). XXXXXX the Property Manager’s replies can be seen in Exhibit C where she writes:-

9.1. in the email dated 22 Mar 2017 14:58 ‘I wasn't aware that was an 'offence' and that's what I always did and never got a ticket.’

9.2. Then on 23 Mar 2017 13:43 ‘I wasn't aware they were issuing tickets for people using Visitors spaces.’

9.3. and on 19 November 2109 at 17:33 ‘In regards to the visitors spaces my understanding is that these are just on a first come first serve basis. Residents can use them if they are available and they display the correct permit.’

10. The claimant is seeking compensation for an alleged breach of their contractual obligations by displaying an expired parking permit attributed to my vehicle at the time – dated 31st May 2015 – whereby the permit was observed as being expired 23 minutes past midnight (midnight being the time of expiry).

11. There was no loss to the Claimant as they are paid a yearly fee by XXXXXXX and there was no loss to their clients XXXXXXXXXXXXX, nor to residents. No residents missed out on being able to park their vehicle in car park, as finding a spot in this zone is never an issue.

12. It was witnessed that the claimant had issued numerous ‘Parking Charge Notice’ penalties simultaneously to vehicles within the private parking zone at the time or immediately succeeding the expiration of the parking permits, including to my partner the Leaseholder of XXX, XXXXXXX. Yet on the ‘Parking Charge Notice’ (Exhibit A) attached to my vehicle, which was parked directly next to XXXXXXX vehicle, it details “all other vehicles had 2016 permits in”, which is not a truthful statement made and signed by the Patrol Officer, XXXXXXX, since XXXXXXX and other residents had also been issued ‘Parking Charge Notices’.


13. On Friday 15th November 2019, at The County Court in XXXXXXX Vehicle Control Services vs XXXXXXXXXX. The District Judge Jackson ruled against Vehicle Control Services and in the favour of XXXXXXXXXXXX - my partner and the Leaseholder of XXXXXXXXXX. The claim of charges were for a PCN issued at the same time, for the same reasons, in the same car park as the PCN issued to my vehicle, at my residence (Exhibit C provides prove of residence through council tax bills dating back to 2011)

14. As noted in my Defence, there is a large body of previously heard parking ticket cases which establishes facts and protects the rights enjoyed by tenants and leaseholder residents.
In Link Parking Ltd v Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Noor [2016] C6GF14F0 [2016] ruled that: “…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.''

15. As a resident I have a right to use and enjoyment of the development, and as such the claimant has interfered with this.

15.1. In the case Jopson v Homeguard [2016] B9GF0A9E, where the ParkingEye Ltd v Beavis [2015] UKSC 67 case was fully distinguished and it was held that a parking company could not override a resident's rights and easements just by putting some signs up and issuing unsolicited permits, as if display of same suddenly formed part of the estate residents' lawful obligations.

15.1.1. Yes there is signage, not visible to read in darkness – certainly not at 23 minutes past midnight, the time the ‘Parking Charge Notice’ was issued and as Vehicle Control Services did not provide a copy of the signage that was present at the time in my SAR I cannot expand further as its content. However a photo of the signage they sent with the SAR dated 20/03/2017 the signage states “If a valid permit/ticket is required, the permit/ticket must be clearly displayed” (exhibit E) . As I have permission to park within the development then I do not need permission from Vehicle Control Services, therefore no permit is needed rendering their signs not applicable.

16. In accordance with the property lease – there is no mention of the necessity for the tenant/leaseholder of the property to present a permit to park a vehicle in the designated parking zone, parking space belonging to the apartment, or visitor parking spaces, only at the Fourth Schedule (Regulations) Clause 23 para 23 “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.”

17. I wish to challenge the ‘Parking Charge Notice’ on the grounds of being a long term resident, to have it considered and to challenge the alleged unnecessary malicious attempts of the Claimant to penalise me relating to a parking permit that had expired by 23 minutes and had been promptly acted against with no ‘leniency period’.

18. The ‘leniency period’ being referred to here is as such. Owing to a plethora of complaints from long-standing residents concerning PCN’s issued for failure to display a valid parking permit for one reason or another – an arrangement has been agreed between the development resident company and the Parking Company to allow a 2 week leniency period allowing the resident to replace an expired parking permit with a valid permit. Emails between the Property Manager and the Claimant have been provided for me by XXXXXXX (Exhibit D) where the Property Manager references said leniency period.

18.1. In May 2016 XXXXXXXX in email to Vehicle Control Services “Quite a few people will be going on holiday during this time so I suggest a period of grace with issuing tickets.
I have advised the 7 tenants with missing permits to continue to display their 2015/16 permit until the new ones are issued.” This also shows the allowance of use of previous permits is taken as valid.

18.2. In May 2019 XXXXXXXXX has provided another email where she is again talks about the leniency period and outlines that residents should not be penalised. “Please can you ensure that a period of grace is given 7 days before and 7 days after the 29th May 2019. This should cover anyone who is on holiday during this period and either displays their new permit too early and does not get their permit in time for the new period. This is not why we have the parking regulations and this is a busy period for people going away as it is school holidays so quite common that people will display the permit upon receipt on the 25th May or not get it in time for having it there for the 30th May.”

18.3. Within these emails there is also evidence of a history of permits being delivered late to the Property Manager and in turn then to the residents. Which is another reason as to why the leniency period is in place, as residents are unable to change over their permits in time.

19. I wish to challenge the PCN, the additional interest and court fees that have been added to the cost of the original alleged penalty, due to the claimant showing an abuse of process. Please refer to my Supplementary Witness Statement, where I provide more detail, with recent cases such as

19.1. at para 10.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:” the claim is struck out and declared to be wholly without merit and an abuse of process.''

19.2. at para 10.3.2. in case F0DP201T at Southampton Court, 10th June 2019 District Judge Taylor 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 not with reference to the judgement in parking eye 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 "

20. In summary, I the Defendant believes that the Claimant has no right to enforce a PCN as no such permit requirements are detailed in the leasehold agreement, also that the Claimant demonstrates an abuse of process. The Judge is invited to strike out the Claim on these grounds. I the Defendant, would also like to claim expenses in defending this claim set out in the Schedule of Costs.


STATEMENT OF TRUTH

I believe the contents of this witness statement to be true



Date: XXXXXXXXX


Signed





XXXXXXXXX

KeithP

You have XXXXXXX'd out lots of info, but left your full name visible at the top. :eek: