VCS MCOL Darlington, Co. Durham

Jeff_Wode

I went to the car park soon after I got the CCC - all the VCS signs had gone and there was just one saying "Easypark", which, as far as I can gather is the company running it now. Surely they can`t have authority from the landowner to sue if they don`t run it anymore?

KeithP

Jeff_Wode wrote: »

Surely they can`t have authority from the landowner to sue if they don`t run it anymore?

It is the situation at the time of the alleged incident that matters.

If they had the landowner's authority at that time, that's ok.

Jeff_Wode

In their second and final letter (early 2016) they told me "We must advise you that we are contracted by the landowner to enfore the agreed Ts and Cs on the land stipulated between ourselves...unfortunately due to the commercially sensitive nature of the contract we are unable to provide you with a copy. However, should the matter proceed to court we will be happy to provide said information on request by a court of law" - I`ve tried to track down the landowner but the Land registry tell me there are 4 names listed and I have to pay to find out what they are..

KeithP

You could try asking the local council who pays the Non-Domestic Rates on that site.

My local council has a spreadsheet on their website that lists all the sites and premises where NDRs are due and who pays them.

Jeff_Wode

Thanks, I`ll get on that - you and the other Forum regulars will know VCS better than I do, when they say they have a contract but can`t show it because it`s "comercially sensitive" - is that a usual dodge/bluff or do they mean it? I say this because of this point currently in my defence: [FONT=&quot]
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[FONT=&quot]6. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.[/FONT]

Jeff_Wode

Unfortunately, the Admin team blocked my main IP address yesterday, I`ve no idea why - I kept trying to post my latest draft here but it kept not posting then....blocked, just like that I`v appealed but that could take days to put right:/ Anyway, I`ve nipped into the library so the Forum can see my latest draft, hopefully it will post, here goes:


Preliminaries:

A Letter Before Claim (LBC) dated XXXX was received from the Claimant by the Defendant in late April 2019. This letter began “Dear/Sir madam” despite the letter being addressed to Mr. XXXXX XXXXX and the Claimant being well aware of the Defendant`s gender/title as shown in previous correspondence, indicating a “copy and paste robo-claim” operation/strategy.

The LBC states that “despite our (the Claimant`s) best endeavours to recover payment, it has proved unsuccessful.”

The Claimant`s last letter to the Defendant (before the LBC) was from January 2016: well over 3 years before the LBC was sent.

The claimant failed to include a copy of their written contract in said LBC as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). It should be noted that the phrase “practice direction” is not included at any point in the claimant’s LBC. No indication is given as to the Claimant’s contractual authority to operate there as required by the Claimant’s Trade Association's Code of Practice B1.1 which says:

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by

the operator directly. This applies whether or not you intend to use the keeper liability provisions.

Furthermore, the defendant questions the validity of the Claimant`s Parking Charge Notice (PCN) due to said PCN being incomplete, confusing and spoiled.

The PCN to indicates a “Contravention Code” which appears to be non-existent.

Two site numbers are indicated on the PCN. One appears to be crossed out, thereby rendering the PCN spoiled. The defendant therefore questions the validity of said PCN.

Both site numbers differ from the site number quoted in subsequent correspondence from the claimant to the defendant.

The latter two points appear to to contravene the The Independent Parking Committee (IPC) – Code of Practice Part C

2.1 The Notice to the Driver must;

(c) Specify the vehicle and the land on which it was parked.

(d) Identify the circumstances by which the charge became payable.

2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point: 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): a) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, b) those which are incoherent and make no sense, c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant On the basis of the above, we request the court strike out the claim for want of a cause of action.

________________________________________ DEFENCE

________________________________________

.The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. A ticket was paid for and displayed so the majority of details could be seen. At some point over the next four hours, said ticket became dislodged, presumably by a gust of wind through the vents. The Defendant has no knowledge of exactly when the ticket flipped over or why. The ticket gave the Defendant a licence to park for the entire day, from xx:xx-23.59 on X/11/2015, covering the time and date relating to the disputed claim. The ticket was displayed which will be demonstrated by the Claimant’s own evidence.

.The facts are that the vehicle, registration XXXX XXX, of which the Defendant is the registered keeper, was parked on the material date in the material place displaying a valid ticket “in windscreen.”

.. The ticket had no means of affixing it and was made of flimsy material. It is not known whether the ticket was dislodged by a gust of wind through the vents or the Claimant's patrol officer leaning across the car and dislodging it, as clamper firms used to do.

. The Defendant driver knows and can attest to the fact the car was parked with the ticket properly displayed, when it was left.

Consumer Rights Act (CRA) 2015 – Unfair Terms 9. If a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms

. The term, ‘’parked without clearly displaying a valid ticket or permit” in particular the meaning of ‘clearly displayed’ is not transparent as per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display tickets/permits, then clear terms to that effect should have been drafted and displayed.

6. Fluttering ticket cases have been ruled by London Tribunals (LT)/ Parking and Traffic Appeals Service (PATAS) adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. Said term is fundamental to the contract, and the Defendant invites the Court to find that in this case there was no such term displayed by the Claimant is therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term. 7. The Defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in this defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: ‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”

In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

Furthermore, the claimant’s own evidence will show that details were printed on both sides of the ticket meaning that the ticket is a two-sided object and extremely difficult for a user of the car park in question to ensure that all details are clearly displayed.

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.

4. In the Particulars of Claim (POC), the claimant states that the “terms and conditions upon entering private land were clearly displayed at the entrance.” The defendant asserts that there was no signage of any kind at the entrance.

5. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. 6. The Claimant is put to strict proof that it has sufficient interest in the land or that

there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim. 7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. Costs on the claim - disproportionate and disingenuous

9. 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. 10. 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. 11. 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. 12. 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. 13 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.

14. 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. 15. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

The claim includes a principal debt of £160 which as confirmed in the Letter before Claim includes a sum of £60.00 as a ‘debt collection charge’ which appears to be an attempt at double recovery. 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. DJ Grand stated: ''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.”, this was echoed by DJ Taylor.

16. 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. 17. 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.

18. 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 attempting to claim fanciful costs which they are not entitled to recover.

I confirm that the above facts and statements are true to the best of my knowledge. Name Signed Date

Le_Kirk

If you try to post anything copied from Word, that often get your IP address blocked.

Jeff_Wode

I`ve just come to the library to post this from the admin team - @Le Kirk - you were correct; this very likely is the reason I was blocked: The message from Admin reads:

"> We're increasingly finding genuine forum members who write posts in Word first, or copy and paste content directly from PDF, then post this into a forum post get caught up in our spam measures and have their IP banned.
>
> We're working to address this but in the meantime can you please try not to do it.
>
> If you really do need to, please copy it into Notepad first then copy from there into your posting window.
>
> To be clear, this isn't the solution to all the IP ban issues we've had (one is simply newer IP addresses (IPV6) are too new for this age of Forum) but it may help.
>
> If you can share this link with anyone you see experiencing issues that would be a huge help.
>
> https://forums.moneysavingexpert.com/discussion/5637311/warning-do-not-copy-and-paste-content-from-word-pdfs-etc-into-your-posts"

Jeff_Wode

Good news, the Admin team have unblocked my IP address and so I can post again: I sent off the defence, carefully following Keith P`s steps, with over 15 hours to go before the deadline. I spent a lot of time "pruning" and decided to take out the preliminaries to make it fit on 4 pages:

IN THE COUNTY COURT

CLAIM No:

BETWEEN:

Vexatious Claims Servers (Claimant)

-and-

Mr. Jeff Wode (Defendant)

________________________________________
DEFENCE
________________________________________

1. It is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the vehicle, registration xxxx xxx, of which the Defendant is the registered keeper, was parked in the material car park on the date stated by the Claimant.
2.1 A ticket was paid for and displayed so that the majority of details could be seen (displaying all details printed on the ticket is almost impossible due to this particular ticket having details printed on both sides). No means of affixing the flimsy ticket (i.e. adhesive backing) were provided. At some point over the next four hours, said ticket was caused to overturn, presumably by a gust of wind through the vehicle’s air vents.
2.2 The Defendant has no knowledge of exactly when the ticket flipped over or why. The ticket gave the Defendant a licence to park for the entire day, from xx.xx-23.59 on x/xx/2015, covering the time and date relating to the disputed claim. The ticket was displayed, which will be demonstrated by the Claimant’s own evidence.
3. In the Particulars of Claim (PoC), the claimant states that the “terms and conditions upon entering private land were clearly displayed at the entrance.” The Claimant is put to strict proof that there was signage of any kind at said entrance.
4. 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.

5. The terms on the Claimant's signage were displayed in a font which was too small to be read from a passing vehicle, and positioned in such a way that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract.

 

6. The term ‘’parked without clearly displaying a valid ticket or permit,” in particular the meaning of ‘clearly displayed’ is not transparent as per Section 68 of the Consumer Rights Act (CRA) 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display tickets/permits, then clear terms to that effect should have been drafted and displayed.

7. “Fluttering Ticket” cases have been ruled by London Tribunals (LT)/ Parking and Traffic Appeals Service (PATAS) adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. Said term is fundamental to the contract, and the Defendant invites the Court to find that in this case there was no such term displayed by the Claimant is therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

8. The Defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in this defence, because the Supreme Court (and the Court of Appeal Judges) in ParkingEye Limited v Beavis were happy to draw similarities with Council PCNs:


‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

9. As mentioned previously, the Claimant’s own evidence, along with the Defendant`s, will show that details were printed on both sides of the ticket, meaning that the ticket must be considered a two-sided object and therefore extremely difficult for a user of the car park in question to ensure that all details are clearly displayed.
10. Having failed to include a copy of a contract of any sort, either in the Letter Before Claim (LBC) or the PoC, the Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.


11. Costs on the claim - disproportionate and disingenuous. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

12. 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.

13. 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 “contractual costs” at all. Any debt collection letters sent were a standard feature of a low cost business model and are already counted within the parking charge itself.

14. The Parking Eye Limited v Beavis case, which the Claimant will no doubt cite, 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.

15. Judges have disallowed added parking firm 'costs' in County courts up and down the Country. In Claim No. 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. DJ Grand stated:

''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.”,

this was echoed by DJ Taylor.

16. Interest: In the PoC, the Claimant states they wish to recover Interest from the Defendant. CPR 16.4 (2) clearly states:

“(2) If the claimant is seeking interest he must
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.”

It should be noted that no apparent attempt has been made by the Claimant to follow any of these steps.

17. 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 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.

18. 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.

19. 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 attempting to claim fanciful costs which they are not entitled to recover.
I believe the facts contained in this Defence are true.

Name


Signed


Date

I hope the regulars on the Forum find this acceptable - I would like to thank all for their help thus far, both directly with comments/advice on this thread and also for giving your time for free to assist others in their battles against these parasites. Rest assured I will keep you updated as to how it all pans out.

eaustin

Le_Kirk wrote: »

You seem to be doing the right thing by reading the NEWBIE sticky. On post # 2 of that self-same sticky you will find, if you scroll down far enough, 17 or so defence examples, one of which is a fluttering ticket case.

Can someone please tell me which post this refers to. I've read the list many times and don't see any mention of fluttering ticket. Thanks