Advice needed on Defence already submitted- going forward to contest VCS

gumgirl

Yes I intend to do my homework and the links are helpful!

Gina

gumgirl

Hi

I am writing my witness statement for court this weekend – the claimant is VCS- and I will post it on here soon – any comments gratefully received. My court date is Nov 28th, so I believe the documents need to be with the court and VCS for the 14th at the latest.

Below is my defence statement but I was advised on the forum don’t bother with points 6-9 in the witness statement as they are not worth pursuing. Though from what I have read on here since, the costs are still relevant to pursue in the WS?

I have VCS’s witness statement now, and they are focusing on demolishing my defence statement on three issues- their ANPR system not taking into account waiting times, inadequate signage, and my claim the charge levied is unfair.

Before I write the statement tomorrow, can anyone advise if my plan to address those three things they focus on PLUS the abuse of process argument which has been advised to me by forum members to use, is the way to go?

I also have found pictures of the inadequate signs at the time of the incident in the carpark which I thought I no longer had, and will take photos of current signage which I believe they have increased since that time. I have also searched the forum for other witness statements so I will take note of these.

I am also not sure if I can email the documents or need to post them to the court and VCS if anyone can help on that?

Many thanks for any help.

Gina


I, xxxxx am the defendant in this case. The
facts in this defence come from my personal knowledge. Where they
are not within my own knowledge there are true to the best of my
information and belief. I am not liable to the Claimant for the
sum claimed, or any amount at all. I assert that I am the
registered keeper of the vehicle in question in this case.
2. The claimant states that the defendant’s vehicle was captured
by the claimant’s ANPR system having parked in the car park for
longer than the maximum stay period permitted on 31.1. 2015.
However, the ANPR system does not take into account any waiting
times within the car park when the car is not parked.
3. UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
It was impossible to read the terms and conditions at the site
when stood directly under the sign as the font was too small. I
included pictures of the inadequate signing when I initially
appealed against the fine with the Independent Appeals Service
(IAS). This is a matter of record. Neither, in 2015, at the time
of the alleged offence, were there adequate numbers of signs in
each parking bay. I no longer have these photographs given the
time period that has elapsed before the claimant brought this
case against me to court. However, on June 29th, 2019, I visited
the same car park at Berkeley Precinct, Sheffield, and noted that
many of the parking bays now have individual signings, the other
larger signs displayed were now in bigger font, and, unlike at
the time of the alleged offence, the sign on entry to the carpark
was no longer obscured by a tree. Therefore, my belief is that
these changes by the claimant to make signage clearer are
evidence that the previous signage available at the time of my
alleged offence, has subsequently been deemed to be
inadequate/not fit for purpose.
4. In addition, the case Parking Eye vs Beavis [2015] addresses
the need for the signs to be clear of which VCS at the time of
the alleged offence, did not show the charges incurred for breach
in a sufficiently large font nor had they set out the terms and
conditions in a readable format without a step ladder and
magnifying glass, or at the very least, very strong reading
glasses which I did not possess. The font sizes on the VCS signs
were far too small packed with confusing patterns and symbols
around them. The sign was a mass of confusing and contradictory
words. The icon showing the PCN charges were hidden in the small
print. It was not prominent or obvious to see by a motorist
driving, even very slowly, past the sign. I submit that no
reasonable person would agree that their terms were brief, clear
and prominently proclaimed. Case law from Beavis would therefore
lead to the conclusion that a vital ingredient is that the
signage be ample, the charge clear. I am unable to have an
opinion on whether the CURRENT signage meet the requirements set
by the IPC, and are therefore deemed reasonable. But in 2015, I
submit that VCS’s did not comply.
5. A reasonable interpretation of Lord Denning’s 'red hand rule'
and the BPA and IPC Code of Practice, taking all information into
account, would require a parking charge and the terms to be
displayed far more transparently and in larger lettering, with
fewer words and more 'white space' as background contrast suited
to an outdoor sign than was the case at the time of the alleged
offence in 2015.
6. UNFAIR TERMS
The charge that was levied is an unfair term (and therefore not
binding) pursuant to the Unfair Terms in Consumer Contracts
Regulations 1999.
7. UNREASONABLE CHARGES
The charge that was levied is an unreasonable indemnity clause
F0QZ7J30
pursuant to section 4(1) of the Unfair Contract Terms Act 1977.
8. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park at the time of
the alleged offence was ‘free’. On the date of the claimed loss
it was only at approximately 10% capacity, as it was in the
evening, and there was no physical damage caused. There can have
been no loss arising from this incident. Neither can VCS lawfully
include their operational day-to-day running costs in any 'loss'
claimed. I contend there can be no loss shown whatsoever; no
pre-estimate (prior to starting to 'charge for breaches' at this
site) has been prepared or considered in advance. The charge that
was levied is punitive and therefore void (i.e. unenforceable)
against me. The initial charge is arbitrary and in no way
proportionate to any alleged breach of contract. Nor does it even
equate to local council charges for all day parking. This is all
the more so for the additional charges which the operator states
accrues after a time of non-payment. This would also apply to any
mentioned costs incurred through debt recovery unless it followed
a court order. I would question that if a charge can be
discounted by 40% by early payment that it is unreasonable to
begin with.
9. UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of
contract has been alleged for what was a free car park, it can
only remain a fact that this 'charge' is an attempt at extorting
an unlawful charge to impersonate a parking ticket. This is
similar to the decisions in several County Court cases such as
Excel Parking Services v Hetherington-Jakeman (2008), also
OBServices v Thurlow (review, February 2011), Parking Eye v Smith
(Manchester County Court December 2011) and UKCPS v Murphy (April
2012). The operator could state the letter as an invoice or
request for monies, but chooses to use the wording ‘PARKING
CHARGE NOTICE’ in an attempt to be deemed an official parking
fine similar to what the Police and Council Wardens issue.
10. I believe the facts stated in this Defence Statement are
true.

KeithP

gumgirl wrote: »

My court date is Nov 28th, so I believe the documents need to be with the court and VCS for the 14th at the latest.

You believe??

Is that what your Notice of Allocation told you or are you guessing?

You need to be certain of your target dates.

gumgirl

I’m certain. I did not realise ‘I believe’ would be taken ambiguously. Gina

Redx

see pages 3 and 4 of this thread for advice on how to present the bundles and who to etc , your bundle should contain the WS + Exhibits + Costs Schedule

https://forums.moneysavingexpert.com/discussion/5923179/residents-parking-ukcpm-claim-form&highlight=paginated+bundle&page=3


more advice here


https://forums.moneysavingexpert.com/showpost.php?p=76294296&postcount=17


plenty of other similar examples on the forum too

gumgirl

Thanks a lot, that is really helpful. Gina

RobinofLoxley

Yes points 6,7.8 & 9 are ancient (pre Beavis) and irrelevant, you should remove them.

2. Is also a non goer. I know this car park gets busy and sometimes there can be a wait for a space to become free but the clock starts ticking once a car has passed the ANPR cameras. They should allow grace periods of 10 mins on entry and exit so 20 mins is feasible but 40 mins is pushing it.

I don't know what the signs were like 5 years ago but you need to rubbish them. Last year they changed the terms to free for an hour then P & D for a second hour, still 2 hr maximum stay.The new signage (from Autumn 2018) is all in the name of Excel Parking, a sister company to VCS but a separate company entirely. Do the 2015 signs state if Excel or VCS manage the car park?

I presume they have included a contract with the landowner in their WS. You need to look at this closely to see if you can trash it.

You also need to demolish the extra £60 they have added onto the PCN as supposed debt recovery charges which they haven't incurred. This has been disallowed by many judges as can be found in the 'Abuse of process' thread.

Have VCS stated they are relying on POFA 2012?

Coupon-mad

Before I write the statement tomorrow, can anyone advise if my plan to address those three things they focus on PLUS the abuse of process argument which has been advised to me by forum members to use, is the way to go?

Yes. And search the forum for:

VCS Vine Roch

...you will find other WS that demolish the template VCS one, and which expose hat VCS are misquoting from Vine to mislead the court.

Also search the forum for VCS and the SURNAME from any other case law they have cited, and you will find it dealt with several times over, for you to copy!

I also have found pictures of the inadequate signs at the time of the incident in the carpark which I thought I no longer had, and will take photos of current signage which I believe they have increased since that time.

Very good! Often inadequate signage wins the day as Judges lap it up.

And RobinofLoxley makes some very pertinent observations above. It is possible that the signs were in the name of Excel and you need to expose that, if so, as it blow the whole case. If 'Excel' was on the signs at the time, search the forum for:

VCS Zozulya Excel company entity

...and learn what to put about that.

gumgirl

OK, thanks. I will remove 6,7.8 & 9 and 2.

I checked my photos from the time the incident took place and the signs do have VCS on them.

I’ve checked all the documentation but no mention of them having a contract with the landowner at all.

There is no mention of POFA 2012?[/QUOTE]

Re 'You also need to demolish the extra £60 they have added onto the PCN as supposed debt recovery charges which they haven't incurred. This has been disallowed by many judges as can be found in the 'Abuse of process' thread.’-- I will do this.

Because I cited Beavis in my Defence statement, they are very keen to trash that! But I will focus on costs, signage and abuse off process.
Thanks again if you can advise.

Gina

gumgirl

Thanks. Will do as you suggest.

They do mention Vine v Waltham Forest (2002) saying I as the defendant am relying on the fact Roch stated: ‘Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. ..’

They then state the signage at the site I am referring to is prominently displayed. So I will start to demolish that.

Unfortunately the pictures I have when taken at the site a few years ago do say VCS.

Am I allowed to refer directly to their Witness Statement in mine- given I have it now and they do not yet have mine?

Many thanks. Gina