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

D335071

Redx wrote: »

DVLA particulars (surely) ?

Can you explain a bit more please? I don't understand what you mean.

KeithP

D335071 wrote: »

Can you explain a bit more please? I don't understand what you mean.

Paragraph 2.



Also in para 2 you say you cannot be sure who was driving, yet in para 3 you deny being the driver.

Para 39 - A Subject Access Request has nothing to do with The Freedom of Information Act.

D335071

KeithP wrote: »

Paragraph 2.



Also in para 2 you say you cannot be sure who was driving, yet in para 3 you deny being the driver.

Para 39 - A Subject Access Request has nothing to do with The Freedom of Information Act.

Thank you - I have edited it. Good points and I am grateful.
Is the skeleton argument (which I know is long) OK? I have not had anything from VCS so I have tried to cover any and all points that they may raise. The WS I tried to set out the matter as I see it. I am not sure if I have done it in the right way.

Le_Kirk

In my opinion (feel free to knock me back), any skeleton argument that starts off with a "pre-amble" is already too long, certainly one that has over 130 paragraphs and is longer than the WS is WAY too long. A skeleton argument should be just that - a skeleton - and you have far too much flesh on the bones. It should be more of an aide memoire for you to use in court to remind you of your key points and point the judge at significant areas in your defence and/or WS.

D335071

Le_Kirk wrote: »

In my opinion (feel free to knock me back), any skeleton argument that starts off with a "pre-amble" is already too long, certainly one that has over 130 paragraphs and is longer than the WS is WAY too long. A skeleton argument should be just that - a skeleton - and you have far too much flesh on the bones. It should be more of an aide memoire for you to use in court to remind you of your key points and point the judge at significant areas in your defence and/or WS.

The Claimant WS has arrived so I will now be able to address it directly. That should cut it down. I will edit and repost the edit version above once I have done this.

D335071

OK so I have had their WS through and have edited / re written mine. I will need to submit Monday so any pointers or advice let me know. I appreciate this is long but I have tried to cover everything. Thank you. I have done the best I can and hopefully it will be good enough.

D335071

In the matter of

VEHICLE CONTROL SERVICES LTD
(Claimant)

v

xxxx
(Defendant)

Claim no: xxxxx

Witness statement of xxxxx, Defendant


I am the Defendant in this matter, I am unrepresented, with no experience of County Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

1. Whilst I was the Registered Keeper of the vehicle concerned, I was not the owner of the vehicle and there is no evidence provided by the Claimant or witness of the driver at the material time. This matter has been resurrected from 4 years

2. I have several vehicles in my household of which I am the registered keeper on the DVLA ‘V5’ particulars. What I can say with absolutely honestly is that I was not the driver.

3. I therefore put VCS Ltd to strict proof that any contract can exist between myself as the Defendant and themselves. The witness statement I have received refers throughout to the ‘driver’ of the vehicle, and the PCN states that ‘the driver is liable’.

4. At the time in 2015, the insurance policy in place that covered more than one family member, who I have no obligation to name to a private parking firm. It remains the burden of the Claimant to prove their case.

5. No adverse inference can be drawn from my lawful decision to ignore the colourful parking charge notice (Exh DIR1/ Court REF ), impersonating a parking ticket yet with no basis in law.

6. On the xxx 2016 I received what I perceived as a ‘demands letter’ (reference number of xxxx from VCS Ltd that states it is a ‘notice to the ‘keeper/driver’ (REF DIR2 / Court Exh ). The letter describes that the Parking Charge Notice (PCN) was issued due to the motor vehicle being “parked in a restricted area in a car park.” This I found confusing as there is no car park on Tower Wharf as it is a road. The car park that is present at the location services the Telfords Warehouse Public House and is free of charge to use.

7. I emailed VCS Ltd on the xxx to obtain clearer information about this matter and setting out reasonable questions (REF DIR3 / Court Exh ) to which I received an automated reply which advised that the matter would be put ‘ON HOLD’. I followed the instruction within the PCN and NTK using the email address cpo@vehiclecontrol.co.uk. In this correspondence I indicated that I would not respond to further escalation letters until they responded to my reasonable questions and that a better alternative to legal proceedings would be to utilise the services of a completely independent ADR service such as POPLA.

8. Having not heard about this matter for nearly 4 years, suddenly on the xxx 2019 I received a court claim REF xxx out of the blue reportedly for the same matter. I have researched this and discovered that VCS Ltd are issuing robo-claims for archive 'parking charges' in their thousands. The costs on the County Court claim is listed as £160 plus £25 court fees. Confusingly, this is yet another figure amoung the many that I have been informed I owe.

9. I am no more liable now than I was when this matter was first being disputed, but this unwarranted harassment and baseless litigation has caused me significant alarm and distress.

10. My DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for four years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or even better, that I will be so scared that I will pay over £160, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.

11. It would appear from Court records reported in the public domain that this Claimant did not comply with the Protection of Freedoms Act 2012. I have examined the Parking Charge Notice and Notice to Keeper I was sent in this matter and I believe that they also do not comply with the POFA 2012.

12. I have made a number of enquiries into this matter in an attempt to resolve it without the need to involve the Court. To aid the Court I have summarised these in a timeline which I produce as (Exh DIR 38 / REF ).

13. I attended the location of xxx on the xxx 2015 to make enquiries about this matter. I took photographs of the unnamed access road leading from xxx down to the carpark at XXX. These I produce as Exh DIR 27 through to Exh DIR 30.

14. During my visit to the location I noted that there is no painted bays or any information or indication regarding where you are or are not, permitted to park. I also observed that the car park at the bottom of the road is free to park within and the unnamed road is simply an access road leading to the car park.

15. I noted no signage to indicate the exact name of the road and it is not clear if the access road is an extension of xxx, or part of the car park at the bottom by xxx, or indeed any of the small businesses that are present at the location. Of my own knowledge, this has been a location where people have parked freely, in the car park and on the road for many years, Indeed there were cars parked at the location during my visit.

16. Whilst at the location I observed 2 small ‘No Parking or Waiting at any time’ signs affixed to the dark coloured wooden fencing which relate to parking on the road. They are fixed adjacent to the two building site entrances. The building site entrances have a mix of signs, some large and clear and others small and for information. The ones that stand out read KEEP OUT and CAUTION SITE ACCESS in large letters that are easily seen as a white wording on a large red background. Due to their colour and location of the parking signs being the same as Watkins Jones signs , I found it to be confusing as they conflict with each other and are of similar colours, fonts and style.

17. There is nothing to distinguish the two ‘No Parking’ signs from the other building site information signs and they are easily overlooked, even in the daytime. At night they would be easily missed and not seen.

18. I find it misleading and incomprehensible how a sign that prohibits ‘parking or waiting at any time’ can also have conditions and charges attached to it.

19. I have reviewed the witness statement and evidence supplied in the paginated bundle from the witness Fanila xxx.

20. Page 2 is a contract between VCS Ltd and CTP Ltd (the Client). I have written confirmation from CTP Ltd that they do not wish to pursue any matter against me in respect of this matter. I have also demonstrated that the company CTP Ltd has now changed ownership and structure since 2015 and I therefore question the validity of this document. (Exh REF 33 / REF ).

21. In para 18 to 24 the witness describes an appeals process that I have never been offered or afforded at any time. This is confusing and inaccurate. In para 24 the witness states that I have been sent a Final Reminder [“FR”]. As I am unaware of and unfamiliar with the process the witness has described I cannot comment further but I have never received this document that I am aware of nor is it contained within the Subject Access Request nor the paginated bundle the witness has provided.

22. The location in this matter is described by the Claimant and witness as both a private road and a car park, and yet the allegation is ‘parking in a restricted area of the car park’. The car park at the location is free to park in without any signage to confirm, and without designated bays or signage to indicate where you can park. The area marked in the witness bundle page 3 identifies a road and not a car park. It is my honestly held belief that no breach of contract has or could have willingly or knowingly have occurred by any driver at the location, as the road would either be seen as a normal unrestricted road, and fairly assumed a continuation to the free car park.

23. Page 3 of the witness bundle shows the area under the control of the Claimant and I can confirm that when I visited the location that there was no clear designation of a ‘start or end’ as marked by the boundary indicated on the document. The location under the control of the Claimant is therefore either a private road with no parking or waiting at any time, and alleged infraction is incorrectly recorded as parking within a restricted area of the car park, which they do not own. Or it is a car park and therefore the signage is poorly worded and misleading. For the average person this is extremely confusing as to where one starts and the other ends, and what applies where and when.

24. Page 3 of the paginated bundle shows the location of 7 signs. This is not correct and misleading. I visited the location on the xxxx and will state that only 2 signs were on display as I have evidenced in the photographs that I took. This is also supported by the Parking Operative statement found at page 19 which records only 2 signs. The photographs that I took are not time stamped and were taken on a mobile phone that I no longer have. If the validity of when they were taken is in question, I emailed them to xxxx on the xxxx and that email is date stamped (Exh DIR 23 / REF ).

25. The photographs contained within the witness paginated bundle are inaccurate and misleading. Page 5, 6, 7 and 8 are coloured photographs time stamped xxx 2015 at 3:11pm. These show the site as it was in xxx and not as it was 8 months later. The photographs I took on the xxxx 2015 show a building site with 2 main entrances and new signage relating to the building site in place. Of note they show that the fencing has completely changed and show that only 2 signs are in place. It would suggest that the signs had been removed for the fencing to be replaced and has not been replaced. I can confirm that I recall only observing 2 signs as per the photographs.

26. Both sets of images show the location in daylight and on a clear day. They both are taken from a similar distance and at the approach to the location and from different angles and positions along the road. I am unable to read the signage in any of the photographs and submit that for a motorist passing by, they would be unable to read the signs during the day. At night it would be difficult to see the signs, and impossible to read them during the hours of darkness.

27. From the photographs I have provided, in comparison to those supplied by the witness xxx it is absolutely clear to see that the street lights have been removed from around the building site part of road, to make way for the main building site entrance. There is therefore no illumination in the road at this point.

28. This is further supported by the photographs of the parked car provided by the witness in the paginated bundle pages 11 to 15. These photographs are only possible as they are illuminated by a camera flash and clearly show that there is no street lighting in operation at the time. This reinforces the evidence that the street lights have been removed. Moreover, it supports that the 2 signs that were in place would be completely unseen by anyone during the hours of darkness, let alone the terms and conditions able to be read and understood.

29. The sign as provided by the witness on page 4 of their evidence is on A4 paper and within their statement they have recorded that the dimensions of the 7 signs were 470mm x 635mm. This is the equivalent to an A2 piece of paper (or four A4 sheets combined). Therefore, the size of the wording relating to “if there is a breach of these terms and conditions…” would fit 3 lines of text within a 40mm space, or a font of 9.33mm in height, with a space of 9mm per line. I have used a 10 pence piece as an indication of the size. A 10 pence coin is 24.5mm in diameter which means that 2 lines of this text would fit within this diameter. Therefore, the information on the sign is not clear at all. Given it is white font on a red and black background, this make it even more difficult to read.

30. In summary, this matter has caused unnecessary alarm and distress and feels that the claimant has not acted in a manner that is wholly unreasonable. I have made every effort to try and resolve the matter and indeed it appeared that had been achieved in September of 2016 when I received conformation the matter was closed. The further continuation of this matter to the County Court after nearly 4 years without contact feels unfair, punitive and entirely designed to put me at a disadvantage.

31. The behaviour of the claimant as described in this statement and the skeleton argument demonstrates a ‘laissez-faire’ attitude towards this case. The preparation for this matter has taken significant time and cost which I have detailed in the submitted schedule of costs. I would humbly submit to the Court for consideration of these costs if found to be appropriate.


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



Signed

D335071

In the matter of

VEHICLE CONTROL SERVICES LTD
(Claimant)

v

xxxx
(Defendant)

Claim no: xxxxx
___________________________________________________________________________

SKELETON ARGUMENT
PREAMBLE
This skeleton argument is to assist the Court in the above matter for the hearing dated xxxxx. I am the Defendant in this matter, I am unrepresented, with no experience of County Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

In this skeleton argument, the facts and matters stated are true and within my own knowledge and understanding, except where indicated otherwise.

1. The witness and accompanying witness statement is not credible. It contains invalid, false and inaccurate statements which can be shown in this skeleton argument. Moreover it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.

2. The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that the Claimant behaved unreasonably.

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

4. The witness statement by xxxxxis contradictory, confusing and particulary troublesome as detailed below:

(a) The witness statement states in para #6 that the action brought relates to a xxxxxx The Defendant has never parked at this location, has no knowledge of such location, nor has the witness nor Claimant produced any evidence to support this.
(b) The witness states in Para #14 that there were 7 signs erected. This is contradicted within the witness own paginated bundle xxxxx which contains a record from the Parking Officer which has marked only 2 signs on the paperwork.
(c) The witness has supplied images in paginated bundle xxxx which are dated xxxx 2015 and are not a factual representation as this matter occurred in December 2015.
(d) Para #5 refers to the Approved Operator Scheme and the Code of Practice for Private Enforcement on Private Land and Unregulated car Parks, which is only of relevance to BPA members. VCS Ltd are not members of the BPA approved Operator Scheme which is evidenced by the Defendant in Exh DIR17 / REF ).
(e) In Para #45, the witness spuriously asserts the Defendant acquired the defence from a website or other party – a vexatious false statement that is cited as fact without corroborating evidence.
(f) The witness statement avers that motorist should only park there if you displayed a valid permit inside the windscreen of your vehicle at all times, in para #43. There is no ability to obtain a permit at the site.
(g) The witness makes confusing and contradictory statements throughout. In para #11 it refers to a parking scheme, then in para #12 they state a No Parking system is in operation.
(h) In Para’s 18 to 24 the witness explains an appeal system that does not relate to this matter. The Defendant has never been afforded any of this process as has been described. This is confusing, incorrect and wholly inaccurate.
(i) The witness has included two pages from a witness statement completed and signed by xxxxx and dated 19th July 2019. This has no bearing to this case of which I am aware. This is confusing and is a breach of the Data Protection Act and General Data Protection Regulations which they should report as a breach of personal data for consideration of the ICO.

THE ISSUES
The Defendant has identified the following areas of dispute:
I. The identity of the driver
II. The presumption of the driver
III. The burden of proof
IV. Keeper liability
V. No contract
VI. No locus standi
VII. Prominence, illegible terms & confusing signage
VIII. Penalty
IX. Conduct

SUBMISSIONS
5. The Defendant submits that the bright, alarmist letters were seen as a scam or spam, and recognised at the material time that they were not from an authority such as local council or the police. The Claimant referenced nothing in relation to holding the Defendant liable under any statute.

6. It is submitted that the Defendant did not and has never appealed the PCN as a driver and was under no obligation to do so as the keeper. The original PCN from xxx xxxr 2015 from this Claimant VCS Ltd, states ‘liability lies with the driver.’

7. It is submitted that the Defendant correctly assumed at the material time (and to-date) that the issue was of no relevance to them as the registered keeper, and yet still made significant efforts to contact and resolve the matter over the 9 month period between xxxxx resulting in written confirmation from Wright Hassall Solicitors and DCBL Ltd that the matter had been dropped on the instruction of the client, VCS Ltd.

8. The Defendant submits they did not receive the PCN at the material time as they were not the driver nor in the city at the time of the allegation.

9. The Defendant submits that it would not be in the interest of Court time to rebuff each and every individual accusation by the Claimant that the Defendant was the driver.

GENERAL ARGUMENTS
10. The initial Particulars of Claim (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.

11. 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

12. As detailed in the Particulars of Claim (POC), the primary argument for issuing the claim against the Defendant is that they were the driver, of which they have not provided any evidence.

13. Furthermore, the Defendant will show that the claimant failed to transfer liability from the driver to the keeper, was granted no locus standi for the land and signs can be evidenced as prohibitive, illegible and confusing.

14. Any single one of the above is fatal to the Claimant’s case

DRIVER IDENTITY
15. The Courts attention is drawn to the very similar and recent case of VCS Ltd v Sarah Quayle [2017] C1DP0H0J where Deputy District Judge Gourley made it clear that the identity of the driver must be established first in order to identify any possible breach of contract: (APPENDED AS App.1

“The claimant puts its case squarely and solely on the basis that the defendant has entered into a contract and that she should be held to that contract by virtue of the fact that the defendant was the driver at the time and that the driver decided to park in contravention of those signs and thereby entered into a contract that was set out on those signs, namely to pay £100 plus contractual costs of pursuing that money.”

16. Deputy District Judge Gourley then concludes judgement saying:

“…the Claimant comes nowhere close to satisfying me on the balance of probabilities that the defendant was the driver at the time…. They cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of any parking notice.”

THE PRESUMPTION OF THE DRIVER
17. The Defendant brings to the Court’s attention POPLA Lead adjudicator and parking law expert Barrister Mr. Henry Greenslade’s statement regarding keeper liability in the POPLA Annual Report of 2015: (APPENDED AS App.2

“there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.”

18. This is further supported by District Judge Skalskyj-Reynolds in the case of Excel v Lamoureux [2016] C3DP56Q5 although only persuasive, comes to a comparable conclusion as Mr Greenslade: (APPENDED AS App.3

“The defendant denies he is the driver and the claimant has absolutely no evidence that he was the driver. There is no assumption in law that the registered keeper is also the driver of the vehicle. That is trite law...”

19. District Judge Skalskyj-Reynolds then concludes judgement by stating:

“The claim against Mr. Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver”

20. At para 28 of their statement the witness has included Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390. This case relates to the entirely different case of an identified driver of a motor vehicle and whether they had consented to being clamped.

21. The Claimant has not identified the driver and this suggested is fatal to the Claimants case.

BURDEN OF PROOF
22. Any suggestion by the Claimant that the Defendant has the obligation to prove by evidential submission that they were not the driver is an unfair attempt to reverse the burden of proof

23. Section 172 (2)(a) of the Road Traffic Act 1988 makes it clear that the registered keeper of a vehicle is required to furnish the police with the identity of the driver under statute:
“(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a Chief Officer of Police...”
24. There is no such statute requiring the registered keeper to identify the driver of a parking charge on private land. In any event, the Defendant does not know for certain the identity of the driver at the time of the incident, only that they themselves were not driving.

25. The Courts attention is again brought to Mr Henry Greenslade comments on this particular issue in the 2015 POPLA Annual Report:

“...a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time”

26. The Defendant has demonstrated to the Court that the burden of proof for identifying the driver lies with the Claimant.

KEEPER LIABILITY
27. Liability can only be transferred lawfully by strictly following Schedule 4, Protection of Freedoms Act 2012 which was enacted into statute to prevent this very issue and ensure lawful transfer of liability for private land owners. APPENDED AS App.4

28. The Parking Charge Notice (PCN) fails to comply with para 8 (2)(b)(c)(d)(e)(f)(g)(h) as it is not compliant as does the Notice to Keeper (NTK) which fails with para 9 (2)(f), which was received by post by the Defendant.

29. The Courts attention is drawn to the case of Excel Parking Services Ltd. v SMITH [CoDp9C4E / M17X062]. It is well documented in the public domain that the claimant VCS Ltd chose, as in this case, not to utilise Sch 4 of POFA 2012 properly at the time of the allegation. APPENDED AS App.5

30. The information which must be present on both as clearly stated by the POFA Para 8(2)(f) is not present within either and therefore the Notice to Keeper and any suggested obligations of the defendant must fail.

31. The Defendant has demonstrated to the Court that the Claimant has failed to show liability for any parking charges, which proves fatal to their claim.
NO CONTRACT
32. The Claimant makes a confusing statement in their Particulars of Claim. They state that the vehicle in question was “identified in the private road; in breach of the advertised terms and conditions, namely parked in a restricted area of the car park”. This is then mixed and interchanged in various paragraphs within the witness statement.

33. From the details in the witness paginated bundle page 4, the wording of the sign is “No Parking or Waiting on Access Road at Any Time.”

34. A sign of this nature is prohibitive and cannot create a contract with a driver. The Defendant refers the Court to recent cases relating to this point:

35. Parking Control Management (UK) v Christopher Bull [2016] B4GF26K6 in which District Judge Glen reflects on the wording of the sign: APPENDED AS App.6

“This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway” District Judge Glen continues in his judgement that: “...there was never any contractual relationship [snip] For that reason alone I will dismiss this claim”

36. Deputy District Judge Ellington in the case of UK Parking Control Ltd v Sean Masterson [2016] B6QZ4H3R although only persuasive, drew the same conclusion as District Judge Glen with regards to prohibitive signage: (APPENDED AS App.7

“I am not able to consider that that is an open offer to contract to park at first sight. If anything it prohibits unauthorised parking on my reading of it”

37. In para 26 the witness refers in their statement to Thornton v Shoe Lane Parking 1971 2 QB 163, which relates to entirely different circumstances of a personal injuries claim by a driver, who was involved in an accident whilst leaving a car park after having paid and parked. This does not appear to have any bearing on this case.

38. The Defendant has demonstrated to the Court that no contract could have existed regarding parking due to the nature of the wording on the sign.

NO LOCUS STANDI. (No standing or authority to form contracts and/or litigate)

39. The Defendant refers the Court to Page 2 of the paginated bundle xxxx, which shows a contract between xxxx and Vehicle Control Sevices Ltd, dated xxth December 2008.

40. The defendant has written confirmation from the landowner at the time xxx (the landowner) stating “no desire to pursue” the defendant with regards this matter. (Exh DIR 33 / REF ).

41. The Defendant has shown in para 46 that xxx underwent a corporate restructure on the 7th March 2014 and became new companies. This suggests that the contract that the witness has provided in the paginated bundle page 2 dated 2009 is no longer current or valid and has expired. This brings into question the legal validity of the contractual arrangements between the Claimant and the named Client xxx and any subsequent claim of acting with their authority.

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

42. With no 'legitimate interest' excuse 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.

43. The land under the control of the Claimant boundary (Exh xxx page 3) is an access road and not a car park. The adjacent free carpark, is accessed from the road, and the Claimant does not have any control of the car park.

44. The signs/terms are not prominent, nor clearly visible. There is no clearly designated start or stop of the land under the control of the Claimant. For all intents and purposes this is a continuation of the public highway onto a road leading to the free car park and public amenities and other buildings located at this location. There is nothing to show that the public highway has ended and become private land, that would be easily spotted by a motorist.

45. This case can be distinguished from the Beavis case, which was dependent upon Mr Beavis being the driver who accepted a clear contract to park in a designated car park, formed by unusually prominent signage. Strict compliance with the BPA Code of Practice and the clear, prominent terms on brief signs was held to be paramount. None of this applies in this material case.

The BEAVIS Case APPENDED AS App.8

.PROMINENCE, ILLEGIBLE TERMS & CONFUSING SIGNAGE
46. It is denied by the Defendant 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. The Defendant disputes that the signs, or more specifically the terms and conditions, were highly prominent. In general, prominence can be a subjective affair in which colours, fonts, height, size and ambient light all play a significant role in determining if a ‘something’ is prominent

47. From the evidence within the witness paginated bundle, Exh xxx page 2 shows that the contract between xxxx (The Client) and the Claimant required 8 signs are to be displayed. The witness has provided evidence in their paginated bundle, Exh xxx page 3, shows the location of signs and page 5,6,7 and 8 which show photographs taken on the 20th March 2015 at 3:11pm which show only 7 signs were present.

48. The Defendant has identified in their witness statement (para 24 to 26) that these images to not bear any resemblance to the location in December 2015, 8 months later.

49. The Defendants images are more relevant as they are more up to date. The Defendants submitted evidence Exh DIR27, 28, 29 and 30 clearly show that the fencing has changed and a building site has commenced. They also show that there are only 2 signs in place and not the 7 as reported by the witness. They also show that street lighting has been removed.

50. The Defendant has evidenced as per their witness statement that the road was in complete darkness at the time as there is no street lighting. This undermines completely the assertion made by the Claimant’s witness at para 38 of their witness statement that the Defendants vehicle was surrounded by street lighting, therefore illuminating the signage. This is not supported by the Claimants own photographic evidence which clearly shows that the signage is only illuminated by the flash of the camera, and the terms and conditions are impossible to read.

51. The Defendant has reviewed the sign attached in Exh xxx page 4 and used a 10 pence coin as a guide to indicate the size of the text of the sign. A 10 pence coin is 24.5mm in diameter. The font height means that 2 lines fit within this diameter. A conclusion can be drawn that the maximum height per line is approximately 9.33mm (giving a minimum of 3mm for spacing. Therefore, a significant proportion of core terms are exceptionally small especially when attempting to read from a moving vehicle in compliance with ‘No parking or Waiting at any time’.

52. The Defendant draws the Court’s attention to (Exh DIR27 / REF ) and (Exh DIR 29 / REF ) of the Defendant’s bundle which shows the location in daylight hours. There are only two small parking signs visible fixed the wooden fence panelling surrounding the WATKIN JONES building site. The two signs that do exist are small and inconspicuous. They are 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, and are not placed in such a way of bringing the information to the attention of any driver.

53. It is clear that the signs that were present are not illuminated at all. Therefore, if the 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, which states that:

‘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’.

And also states under subheading ‘Contrast and illumination’:

‘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’.

54. 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.
APPENDED AS App.4

55. The Defendant has demonstrated to the Court how the overall depiction of the signs being ‘prominent’ is significantly reduced by using a font of small size which makes core terms illegible from a moving vehicle. Conflicting signage also causes misperception. Lack of illumination in darkness renders them unseen at all. Accordingly, it is denied that any contravention or breach of contract can have occurred and it is denied that any driver could be properly informed about any parking charge. This distinguishes this case completely from ParkingEye v Beavis.

PENALTY - disproportionate and disingenuous

56. The charge is a penalty. This case can clearly be distinguished from ParkingEye v Beavis [2015] UKSC 67 by reason that the Supreme Court heard that ParkingEye had complied with the ATA Code of Practice, the signs were unusually large and prominent, created an offer to park and the Mr. Beavis submitted a contract for parking was in place.

57. The judgement of ParkingEye v Beavis also makes clear that if a driver has not had ample opportunity to become acquainted with the contractual terms then the un-incurred costs of a private parking company is still considered a penalty or unfair consumer charge.

58. The Defendant puts the Claimant to strict proof that all costs were actually incurred

59. 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...''

CONDUCT

60. The Defendant has received various demands for money in the period from Dec 2015 to this case. All are very confusing and fluctuate without explanation or merit. They are all entirely disproportionate to this matter and demonstrate the chaotic and ‘copy and paste’ approach the Claimant has taken in this matter.

£60.00 5th Dec 2015
£100.00 23rd Feb 2016
£150.00 18th March 2016
£186.00 5th April 2016
£160.00 12th May 2016
£235.00 2nd June 2016
£160 plus court costs £25 26th June 2019

61. The Claimant’s accusations that the Defendant’s inactivity caused litigation is outlandish. Even if the Defendant appealed the Notice to Keeper by reason that they were not the driver, the Claimant would still have incorrectly pursued the Defendant under ‘presumption of driver’ as this is the basis of the claim.

62. It can be argued to the Court that the Claimant failed Civil Procedure Rules and Practice Directions:
(a) CPR Part 16, Rule 16.4(1)(a)
(b) PD Part 16, Para 7.3 to 7.5

63. The Defendant has demonstrated to the Court that the Claimant has been wholly unreasonable. It is also argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court.

I believe the facts contained in this skeleton Defence are true.

Name xxxx

Signature

KeithP

Keith - would you mind looking over it again. Thank you.

No, sorry, far too long for me to concentrate on.

Not too sure a Judge would look forward to that either.

Do you understand the word 'skeleton' in the phrase 'skeleton argument'? Far too much flesh on the bones there.

D335071

KeithP wrote: »

No, sorry, far too long for me to concentrate on.

Not too sure a Judge would look forward to that either.

Do you understand the word 'skeleton' in the phrase 'skeleton argument'? Far too much flesh on the bones there.

Gosh - righto but I thought I had to cover all points. I will try and strip it back. Stress levels just went up.