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

Le_Kirk

The agreement between VCS and the Client is dated Nov 2010.

By client I presume you mean the property fund you wrote about earlier. Is it a rolling contract, i.e. still in force? Maybe it says "in perpetuity" or "for twelve months" or something giving indication of validity at date of the parking issue.

KeithP

Ah, of course.

Anyone can write anything they like in a Witness Statement. Silly me.

What I should've said was that any advocate worthy of the name will object to new arguments being introduced at such a late stage.

gumgirl

ok, thanks for clarifying.

gumgirl

Yes the contract refers to then property fund as the client. The agreement was made on 25 Nov 2010 and states 'The Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 1st day of Dec 2010 upon the terms and conditions hereinafter set forth. '

The document is signed by VCS and the property fund, but no date is given for the signatures.

The incident in question took place in 2015.

Also, in my defence I refer to myself as the registered keeper, yet in the documentation for their WS, they make both reference to myself as the registered keeper and assert that ‘the defendant parked their vehicle in contravention of the terms and conditions etc...'.

So they are making an assumption and contradicting themselves.


Many thanks.

Gina

gumgirl

Hi Everyone

Many thanks to all those who have helped me and given me valuable advice so far. I am feeling nervous about court but I feel better prepared having spent time doing my Witness Statement.

Below is a draft of the WS which I am aware may currently contain errors, or formatting mistakes, but as I need to finish it tomorrow, I wanted to send it for comment now, if anyone can advise, which will be much appreciated.

A couple of things- Is 5 a and B relevant to my case? I took this off a WS on the forum so was not sure.

Also, I have not included in the WS reference to something other posters have commented on above- that is the possible invalidly of the contract between VCS and the Landowner/Client which VCS included in their WS. It may be I should draw attention to this in my WS as it would appear the contract is out of date?

See my post on this here:

'Yes the contract refers to then property fund as the client. The agreement was made on 25 Nov 2010 and states 'The Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 1st day of Dec 2010 upon the terms and conditions hereinafter set forth.

The document is signed by VCS and the property fund, but no date is given for the signatures.

The incident in question took place in 2015.'

Lastly, do I use what I said in my Defence Statement too much in my WS?

Many thanks.

Here is the draft of the WS:



IN THE COUNTY COURT AT XXXXXXX
CLAIM NUMBER: XXXXXX

BETWEEN
VEHICLE CONTROL SERVICES LIMITED (CLAIMANT)
-AND-
XXXXXX

WITNESS STATEMENT

I, XXXX, of XXXXX, will say as follows;

Introduction
1. I am the defendant and registered keeper of the vehicle in this case. I am unrepresented with no legal background, training or experience of county court procedures, I trust that the Court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.

2. Attached to this statement is a paginated bundle of evidentiary documents marked Exhibit XX to XX to which I will refer.

3. I deny that the claimant is entitled to relief in the sum claimed, or at all.

4. The claimant asserts that my vehicle was parked in contravention of advertised Terms and Conditions at XXXX.

5. Before providing further chronology and dispute of the supposed contractual breach that happened on XXXX car park, I confirm that the essence of my defense to this claim is;

a. The actions of the Claimant to (a) offer a contract in the form of a sign, (b) establish a parking charge, and (c) to claim against the registered keeper; are in breach of procedures mandated by;

i. The Parking Trade Association for which it is affiliated.
ii. The Act for which the claimant relies on.

b. A contract was not in place with the driver or the defendant who is the registered keeper. Therefore, no breach of contract has ever occurred. They have the ability prescribed by law (POFA 2012) to transfer the liability for the parking charge to the keeper if they do not know the name of the driver. As VCS have chosen not to use that right under POFA the keeper cannot be held liable.

c. Inadequate and illegible signage.

d. The sum of the claim brought forward includes £100 of a Parking Charge and an additional £60 for ‘debt recovery costs’ as previously indicated by the Claimant. The additional £60 is an attempt of double recovery and is unreasonable and extravagant.

e. The defendant invites the court to dismiss this claim.



Background

6. The vehicle for which I am the registered keeper was parked in a parking bay at XXXX on the evening of XXXX. A parking ticket was affixed to my windscreen on my return.

7. On 09/02/15, the Claimant issued a letter (see Exhibit XX) to my address bearing the wording ‘Parking Charge Notice’. Within the letter was the amount of charge for £100 and statement that the reason for the contravention was ‘Parked for longer than the maximum period permitted’ and also that’ The Terms and Conditions to which the Driver (their emphasis) agrees to be contractually bound upon entering the site are clearly placed at the entrance to car park and in prominent places throughout’.

8. On 27/02/15 the Claimant received a copy of my appeal against the Parking Charge Notice (PCN) issued by them. In the appeal I drew attention, in particular, to inadequate and confusing signage and disproportionate charges.

9. On 19/03/15 the Claimant wrote to me on the assumption I was the driver of the vehicle in question refuting my appeal on the grounds the signage at the grounds were displayed at the entrance and throughout the site, and that the costs demanded were appropriate.

10. I then appealed to the Independent Appeals Service (IAS), including photographs of the signage at the site in support of my appeal, but this appeal was dismissed on 24 04 2015.

11. I then received a number of debt collection letters demanding the allegedly owed sum, and a Debt Recovery letter by the firm BW Legal in June 16, then a Letter of Claim. I heard nothing further until 2019 (NB Need to find exact date when contacted recently.)


The Claimant’s breach of mandated Codes of Practise and ruling Act

12. Through the Claimant’s disregard for the very guidelines and law set out to aid their business, the defendant believes that the company failed to meet the minimum obligations that would allow them to bring forward a parking charge and ultimately seek registered keeper liability.

Inadequate and illegible signage

13. In my Defence Statement, submitted on 28 05 2019, I noted that in January 2015, at xxx the font sizes on the VCS signs were very 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 submitted that no reasonable person would agree that their terms were brief, clear and prominently proclaimed. Neither, in 2015, at the time of the alleged offence, were there adequate numbers of signs in each parking bay, only in some of them. I had not included pictures of the inadequate signing in the Defence Statement as they could not be located for this purpose, given the number of years since the alleged incident took place. I have since found these photographs- see Exhibit x.

14. In addition, in the Defence Statement, I noted that 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.

15. On a visit to the site on November 10th, 2019, I noted and took a photograph to show that there were other signs there now in bigger and clearer font, which were at ground level and more easily seen from a driver’s position than in January, 2015. (See Exhibit x.) These new signs were also lit up, whereas the visibility of previous signs was dependent on street lamp lighting. I also noted on November 10th that not all street lamps were working, and thus some of the other signs were still placed very high up and not visible, due to not being lit. (See Exhibit x.)

16. I note that in the evidence presented to the court as part of the Claimant’s Witness Statement, that the Claimant does not include any images of signage taken at the site in real life conditions, either in the day day or evening. I would contend their submitted photocopies of the signs are misleading, as they both exaggerate the font of the signs out of proportion, do not show how confusing the signs were at the time of the alleged incident, nor show the poor visibility of the signs in evening light, or other inadequate artificial lighting, such as broken street lamps. In addition, there are no dates on the two images of the signs submitted by the Claimant, so it is impossible to know if they applied to the alleged incident in 2015 or not.

17. 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 did not comply.

18. In addition, as I stated in my Defence Statement, 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.

23. In conclusion, breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.


Costs on the claim – disproportionate and disingenuous

24. In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.

25. 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.”

26. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

27. 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 and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

28. 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.

29. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case.

30. The Defendant refers to the following paragraphs given in the judgement on the 4th of November 2015 in ParkingEye v Beavis:

a. At para’ 98, {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves};

“Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...”

b. At para’ 193;
“judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit.”

c. At para’ 198.
“The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.”

31. 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.

32. 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.

33. 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 that their artificially inflated claim, as pleaded, constitutes double recovery.

34. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating:

''It is ordered that The claim is struck out as an abuse of process (Exhibit HC21). 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...''

35. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies Exhibit HC22) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that Distract Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

36. 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

37. 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.


Addressing individual points and distinguishing cases referred to in the claimant’s witness statement

38. Charlotte Trayers, representing the Claimant, has been employed by the company since July 2019. As the alleged contravention took place in January, 2015, none of the statements provided in her witness statement can be of her own knowledge. She is not aware of the alleged offence, the location, the signage or the facts in this case.

39. In light of the above, there are references in the Claimant’s witness statement that are contradictory.

a. For example, Paragraph 18 of the Claimant’s witness statement assert that ‘..the Defendant parked their vehicle in contravention of the Terms and Conditions associated with parking within the development’. However, at other times in the documentation, I am referred to as the ‘keeper of the vehicle’.

40. In Paragraph 33 of the Claimant’s Witness Statement, the Claimant refers to ‘Vine v Waltham Forest’.

41. The Court of Appeal on this case ruled in favour of the Defendant on the basis that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. It would appear that the Claimant is attempting to wrongfully persuade the court by mis-quoting Roch L.J. The full quote is this;

“Alternatively, and this is the ground principally urged upon us by Mr. Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. 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. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method landowners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.”

42. As you can see, Lord Justice Roch was simply reading one side of the argument. Roch L.J. found in favour of the motorist in this case. Therefore, this case can be immediately dismissed as it has no bearing on this case in question.

43. Paragraph 36 states the Claimant is intending to rely on the ParkingEye v Beavis (2015) case.

44. This case can be fully distinguished from my case due to the following facts;

a. There was no contractual offer made giving a licence to park nor any promise made, or contract agreed based on any prominent signs.

b. There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages.

45. In Paragraph 63, The claimant is intending to rely on Chaplair v Kumari (2015 )to attempt to justify an unknown £60 “debt recovery charge”.

46. This case is distinguished from the case above by the following facts; the Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms, whereas parking charges are capped by the Protections of Freedoms Act (the POFA)/the will of Parliament at the sum on any Notice to Keeper, and not higher, and the Beavis case confirmed this by only allowing £85 and no bolt on 'damages' or imaginary debt collector costs.

Conclusion

47. It is a material fact that the Claimant has failed to prove authority prior to this claim being brought forward and as such has not exhausted all options of coming to an agreement outside of the claims procedure.

48. The claimant is in breach of the very rules in place to protect its business and through obscuring the procedures as set out in trade associations codes of Practise and PoFA schedule 4, the claimant maintains a way of confusing motorists and harassing them for grossly inflated Parking charges.

49. It is reiterated that previous judgements have concluded the additional £60 on the original charge of £100 as being, in the words of District Judge Taylor; “an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover”

50. I have no doubt that an abundance of those threatening pieces of paper were affixed to cars before The Parking Bill 2017-2019 received Royal Assent on the 15th of March 2019 during the time that the Claimant patrolled the development referred to in this claim.

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature of Defendant:

Name: XXXXXX
Date: XXXXXX

RobinofLoxley

Also, I have not included in the WS reference to something other posters have commented on above- that is the possible invalidly of the contract between VCS and the Landowner/Client which VCS included in their WS. It may be I should draw attention to this in my WS as it would appear the contract is out of date?

The agreement was made on 25 Nov 2010 and states 'The Company will provide a parking control service at the Car Park for a fixed period of 36 months from the 1st day of Dec 2010 upon the terms and conditions hereinafter set forth.

Yes you should certainly reference this as one of your main points in your WS.
VCS have failed to provide evidence that a contract or agreement was in place between themselves and the landowner to enforce parking at the site at the material time. In fact the agreement they have provided as evidence expired more than 2 years before the event.

gumgirl

That's great, thanks.

RobinofLoxley

A couple of things- Is 5 a and B relevant to my case? I took this off a WS on the forum so was not sure.

Before providing further chronology and dispute of the supposed contractual breach that happened on XXXX car park, I confirm that the essence of my defense to this claim is;

a. The actions of the Claimant to (a) offer a contract in the form of a sign, (b) establish a parking charge, and (c) to claim against the registered keeper; are in breach of procedures mandated by;

i. The Parking Trade Association for which it is affiliated.
ii. The Act for which the claimant relies on.

I'm not sure what you mean by "breach of procedures". If there were any breaches of the BPA's COP you need to expand on this.

What do you mean by "the Act for which the claimant relies on" What Act?

gumgirl

I actually don’t think I need to include this. I thought it might be a general statement all WS included, but I don’ t think it’s relevant to me. Though 5b is I think as their WS does not mention POFA:

b. A contract was not in place with the driver or the defendant who is the registered keeper. Therefore, no breach of contract has ever occurred. They have the ability prescribed by law (POFA 2012) to transfer the liability for the parking charge to the keeper if they do not know the name of the driver. As VCS have chosen not to use that right under POFA the keeper cannot be held liable.

Thanks.

Coupon-mad

Yes, remove 5a but leave in 5b about the POFA/no keeper liability.

And put in evidence Excel v Smith, stating that this was AN APPEAL and so it is persuasive, and the Claimant was the sister company of this Claimant so they are well aware that any argument about the law of agency is 'improper' in the case of an individual consumer registered keeper.