HELP! County Court letter received, VCS - deadline is 28/7

D335071

Thanks - I will do and will repost asap.

D335071

Righto - here is the edited version with your suggestions. It is still quite long but it covers all the aspects of this case. Stress levels are growing in the household but here we are:

Date xxx

IN THE COUNTY COURT

CLAIM No: xxx

BETWEEN:

Vehicle Control Services Limited (Claimant)

-and-

xxx

DEFENCE



Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at xxx on the DATE at TIME. .

2. The Defendant was not the driver of the vehicle at the time of the alleged contravention.

3. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'. for the lawful conduct described below.

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

5. The facts are that the vehicle, registration XXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on a public accessed road, namely XXX and parked in a ‘restricted area of the car park’.


Premature claim - no Letter before Claim, and sparse Particulars

6. Due to the sparse details on the Parking Charge Notice - 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later in January 2016) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, which has arrived some 4 years after the alleged breach of contract, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

7. The defendant made significant efforts to enter into arbitration with the claimant regarding the alleged parking charge between December 2015 and September 2016 to which only an automated standard template email reply was ever received from VCS Ltd. Indeed this indicated that VCS Ltd were reviewing the appeal made by the defendant to this PCN and the matter had been put 'on hold'. This was quickly followed by a number of other companies contacted the defendant between March and June of 2016 purporting to be engaged and working for VCS Ltd in relation to this alleged breach. These were all contacted by the defendant, with the matter being appealed at every stage, which finally concluded with written confirmation that the matter against the defendant had been dropped and closed as of September 2016 ‘on the instructions of their client’ VCS Ltd. No further correspondence has ever been received by the defendant since September of 2016 in relation to this matter and therefore the entirely reasonable conclusion that the matter had been concluded in full, was adopted.

8. The Defendant avers that the claim within the County Courts was premature (given the almost 4 year absence of any correspondence with the Defendant) and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

9. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

10. The particulars of claim are vague and lack suitable information as to the grounds for the Claimant’s case. The alleged contravention is not detailed, and so does not indicate what contravention has deemed to have occurred. Thus, the claim fails to comply with Civil Procedure Rule 16.4, 1(a) which states that the claim must include ‘a concise statement of the facts on which the claimant relies’

11. The Defendant has sent a subject access request (SAR) to the Claimant, for response during July 2019, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


Denial of contract and denial of any breach, or liability

12. Due to the sparseness of the POC 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

13. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

14. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The two small signs affixed to the entrance gates of the building site does not state clearly what aspect of the road is private and is not clear to read as it is obscured by the much larger signage directing traffic and offering health and safety advice to anyone entering the building site. All of these combine to make this signage easily missed, especially if passing in a motor vehicle.

15. There are only two signs affixed to the site entrances which appear to indicate that passing the adjacent gated entrance is to enter onto private land, as bounded by high safety fencing. Vehicle registration XXX has not at any point entered passed the locked and gated access to the building site whereby the two small signs are fixed and therefore it is argued has not entered into any contract with Vehicle Control Services.

16. The signage is not illuminated and the alleged incident occurred at 20:45hrs during the hours of darkness. The claimant is put to proof that this signage (two small signs) were visible to anyone at the location at the material time. If they were not then it is argued that it is impossible for a driver to make an informed decision or enter into any contract with VCS Ltd.

17. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a PCN.

18. Having visited the site in question it was apparent that the signs that were present are not illuminated at all. Therefore if the alleged parking terms are in force 24 hours a day then outside of daylight hours they do not conform to the IPC Accredited Operator Scheme Code of Practice Part E, under subheading ‘Contrast and illumination’ which states that ‘If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge’. As the AOS Code of Practice is designed to ensure transparency and fairness, the Defendant claims that the inadequacy of the signage does not adhere to this premise, and therefore VCS Ltd have not acted with transparency and fairness in this instance.

19. Notwithstanding the above, there were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case. There are NO signs at the entrance to the area in which the car was parked. The two small signs that do exist are small and inconspicuous, and not located in the immediate area in which the car was parked. The two signs are attached to a perimeter fence of a building site and located amongst many other warning and information signs relating to the building site entrance. These cannot be easily seen in contrast to the other signage, thus not bringing the information to the attention of any driver. This does not conform to the IPC Accredited Operator Scheme Code of Practice Part E which states that the signage should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’.

20. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. For all intents and purposes this is a continuation of the public highway leading to the public amenities and other buildings located at this location. There is no indication that the public highway ended and become a private road, at either approach end of the road. Nor is there any visual gateway, approach designation or other visual indication to show that the public highway has ended and become private land, that would be easily spotted by a motorist. It is a reasonable assumption that this location is, for all intents and purposes an extension of the public highway which has no parking restrictions identified by any road marking or clearly visible signage that a motorist would recognise as prohibiting parking.

No standing or authority to form contracts and/or litigate

21. 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 to issue parking charge notices, and to pursue payment by means of litigation against patrons of XXX. The defendant has made significant efforts to contact the landowner and has written confirmation from them stating no interest to pursue the defendant for any financial compensation.

No 'legitimate interest' or commercial justification - Beavis is distinguished

22. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the location of the offence is established given it makes mention of a private road (XXX) and the offence of ‘parked in a restricted area of a car park’. The car park is not land under the control of VCS Ltd and the access road if is identified as private land, is not a car park. The signs/terms are not prominent, nor clear visible as relating to the immediate location. Finally, the PCN was sent very late with a 'parking charge' that bears no resemblance to any loss exposed to the land owner from someone parking on an unrestricted road, at night when accessing the services of the public amenities at the location. Therefore, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

23. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

24. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be nothing as it appears that the road is not subject to any parking restrictions at the material time, and the adjacent car park which is not under the control of VCS Ltd is entirely free to park at. The access road therefore could be viewed as either an extension of the free car park and not subject to charges, or nothing to do with the car park and simply a road without any apparent restrictions. Either would be a perfectly understandable and reasonable assumption to be made by any normal member of the public and neither drawing any cost or charges. Added to the signage not being visible at night due to the complete lack of any adequate illumination, it can be argued that no contract has knowingly been entered into as the signs could not be seen.

25. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

26. Additionally, the defendant avers that they have written correspondence relating to this matter that will demonstrate that correspondence regarding this matter was entered into during the period between January 2016 and June 2016 and is documented as concluded and the matter dropped. The claimant is put to strict proof to demonstrate why this matter has been reopened after a period of almost 4 years without any contact at all with the defendant, as this seems speculative and punitive in nature.

27. The Defendant refutes any liability for the claimants claim. It is denied that any driver of the vehicle entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. In addition to this, the seemingly absent attempt by VCS Ltd to enter into any form of arbitration or correspondence for many years with the defendant, the absence of any response to or acknowledgement of the Defendants SAR request, the scarceness and lack of sufficient detail of the particulars of claim and the inadequate signage at the site, all add to the solidarity of defendant’s defence in this case.

Costs on the claim - disproportionate and disingenuous

28. 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.

29. 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.

30. 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.

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 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 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:

''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...''

35. 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.

36. 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.

37. 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.


I believe the facts contained in this Defence are true.


Name XXX

Signature

DATE


If you think that is suitable then I will get it printed, signed, scanned as a PDF and sent off.

Coupon-mad

They can't hold you liable as keeper, as their NTKs back then didn't include the right wording, such as the 9(2)f warning about keeper liability, so add here:

2. The Defendant was not the driver of the vehicle at the time of the alleged contravention and cannot be held liable due to this Claimant's well-documented admission that they did not use the Protection of Freedoms Act 2012, Schedule 4 ('the POFA') in their Notice to Keeper letters in the year in question.

2.1. Further, it is denied that any driver would have been acting 'on behalf of' the registered keeper in any kind of agency capacity. The owner of VCS and its sister parking company, Excel, is already well aware from a persuasive June 2017 case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062) heard on appeal after the county court Judge fell into error regarding the question of keeper liability, that the Senior Circuit Judge held when upholding the appeal, that their incorrect citation of CPS Ltd v AJH Films Ltd to try to paint an individual as liable under a twisted interpretation of the law of agency, was 'improper' and that outwith the POFA, liability cannot pass to the keeper.

At WS and evidence stage, Excel v Smith and VCS v Quayle would be your authorities as well as a printout of Schedule 4, highlighting the absent para 8(2)f - if windscreen PCN first - or 9(2)f (if no windscreen PCN first). No evidence goes yet, though.

Smith and Quayle are both hosted in the Parking Prankster's case law pages.

D335071

Excellent - I will add those in. Is the rest OK? If so I will get it submitted. Thank you for the help.

Coupon-mad

Looked very good, covers all the bases.

D335071

OK - so checked with CCBC and they have received my defence and I have had a letter this morning "Noticed of proposed allocation to the small claims track".

I have until the 8th Aug to complete the small claims directions questionnaire and file with CCBC and serve on the other parties.

Following the advice on the stickie - I have filled it in as follows:

• A1 = Say NO to mediation (they want the whole amount, you want to pay them nothing, so no scope for mediation. This will not go against you). DONE
  
  (Interestingly the lady at the CCBC told me that VCS has been entering into lots of mediation of late - I haven't posted yet so tell me if I should change this).
  
  
• B = fill in all the details, your name, your address, etc. DONE
  
• C1 = YES to small claims track – DONE
  
• D1 = name of your local County Court – I have named my local one and where the alleged parking issue occurred. DONE
  
• D2 = NO to expert evidence DONE
  
• D3 = 1 witness (that’s you) DONE
  
• D4 = Put down the dates of any pre-booked holidays, NO to interpreter - DONE and DONE

I will send a copy to the courts and another copy to the Claimant company tomorrow (using the address on the top of the CCBC claim form). I have also kept a copy for myself.

Can someone confirm re the mediation query and do I just send 1st class or is there a specific recommended manner of posting?

Thanks

KeithP

The guidance you have found in the NEWBIES sticky about mediation is correct.

Email your completed DQ to the CCBC in the same manner and to the same email address that you sent your Defence.

Whenever sending anything buy First Class Post, should that be necessary, get a free Certificate of Posting from the Post Office counter.

D335071

Printed off - I cannot find this on the PCN or NTK at all. There is no warning that reads as this does...

8 (2) (f) "...warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;"

D335071

Submitted by email and will post in the morning. Many thanks all. I will keep you posted. If there is next steps I can do whilst waiting to hear then please let me know. I think it is WS and Evidence next so do I draft that and submit here again for help? Thanks

Redx

yes you do