County Court Claim - VCS

Bananasparking

I am helping a friend out who has just received court papers from the lovely VCS. Service date was the 17th July and she has done her AOS which gives us until the 14th August by my counting. We have sent off another SAR with a threat to report them because they ignored the first one. Oh and an arsey email has been sent to my MP again.

I think this defence ran away from me a bit and got quite long so if anyone has any thoughts on anything that could done to make it more concise I would appreciate it...as well as anything I have got wrong. Thanks!

DEFENCE

1. The Defendant is the registered keeper of the vehicle in question. For the court, the Defendant married since last updating the V5C form and their maiden name was [name], they alerted the Claimant of their change in name and their updated address details on the [date], however, the Claimant has continued to use their maiden name and sent further correspondence to their previous address.

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

2. 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 the precinct.

No Contract between Claimant and Driver

3. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the location in question stated in January 2019, and continues to state, that the car park is managed by Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Driver. VCS were not a party to such a contract, and therefore cannot bring a Claim on it.

3.1 The signage on entry to the car park is not adequate to draw the attention of the driver to the terms and conditions. The driver on [date] did not see the signs because they are too small and not located where they can be easily seen.

4. At some point in the months immediately preceding the date of the alleged parking contravention the Claimant altered the terms and conditions of the car park.This change in terms and conditions was not adequately brought to the attention of the Driver.

4.1 The IPC code of practice states that any change in signage should be highlighted to regular users of the car park via additional temporary signage and left in place for an appropriate period of time.

4.2 Lord Dennings “red hand rule” would suggest that such a change should be brought very obviously to the attention of drivers entering the car park and over sufficient time to allow regular users to familiarise themselves with the new terms and conditions.

4.3 Within contract law one party of the contract cannot unilaterally make changes to that contract without the agreement of the other party. Without drawing the drivers attention to changes in the contract at the site the Claimant cannot say that a contract was formed as any contract entered into was based on the driver’s knowledge of the previous terms and conditions.

4.4 Where a driver does not see the terms, the driver cannot be bound by them and the authorities for this are (a) Vine v Waltham Forest [2000] EWCA, in which Miss Vine prevailed due to unclear signs hidden behind vans and the fact she did not see them - the judgment from Roch LJ being quite different from the general presumption that the Claimant is likely to invite the Court to make - and (b) ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) described non-prominent signs and unclear terms as creating a 'concealed pitfall or trap' and further confirmed that a non-landowner parking firm could not have pursued a sum pleaded in damages, or for trespass, which remains solely in the gift of a landowner.

4.5. It is for the Claimant to show that their signage is capable of forming a contract and offering a lawful parking licence. The Claimant must also show that the positions of signs remain clear to all motorists before parking/leaving the vehicle for a length of time.

4.6. This site is distinguished from the site in Parking Eye Ltd vs Beavis [2015] UKSC 67 where signage could not have been “briefer, simpler, or more prominently proclaimed.”

Terms and Conditions not adequate

5. The terms and conditions of the signage are themselves inadequate to form a contract. The Claimant in their particulars of Claim state that the Claim has been brought for being, “parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site,” however, the signs in the car park state that the reasons that a parking charge notice will be issued are:-

“Failure to enter the full and accurate VRN when making payment
Parked on site after the 2 hours maximum stay
Failure to park wholly within the lines of a single marked bay
Returning within 5 hours of exiting the car park
Parked in a restricted area of the car park or land
Using a disabled bay without clearly displaying a valid blue badge”

5.1. The Defendant submits that the driver did not breach any of those stipulations within the contract and this Claimants basis for making a claim is at odds with the signs within the car park. Specifically, regarding point one, the driver did not fail to enter the full and accurate VRN when making payment as they did not make any payment.

5.2. The signage is so poor as to tip the balance so far against visitors using the car park that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

5.3. On this basis it is not possible for the driver to have entered into a contact with the Claimant. The signage is woefully inadequate and well below the standard that would enable a contract to be formed.

Grace Periods

6. The IPC code of practice requires that drivers should be allowed sufficient time to park and be allowed a minimum of ten minutes to leave the car park. Waiting for a parking space is not parking, 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014).The driver on the [date] passed the exit ANPR 71 minutes after they passed the entry ANPR. This was a mere 11 minutes over the 1 hour allowed free without a ticket and within the grace periods set down within the IPC code of practice allowing time to find somewhere to park and then time to leave the site afterwards.

6.1 The Claimant has not provided any documentary evidence regarding grace periods applicable to this car park. Their signage makes no mention of any applicable grace periods.

6.2 Berkeley precinct is a busy car park and it often takes time to find a space as well as time to reach the exit of the car park where the ANPR camera is located. Given the time between entry to the car park and exit was only eleven minutes over the free time allowed without a ticket and the time the driver needed to find a space and exit the car park the Claimant is put to proof that the car was parked for more than the 60 minutes allowed. The Defendant submits that the 71 minutes that elapsed between the ANPR capturing the vehicle entering the car park and the ANPR capturing the vehicle leaving the car park did not contain more than 60 minutes of parking and thus was covered by the 60 minutes of free parking allowed without purchasing a ticket.

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

7. 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 PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £1 'parking charge' tariff that the sign states should be paid for the second hour of any two hour stay. As such, 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.

7.1. 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.''

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

8. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of £1. Had the driver been clearly alerted to the sum on the day they would have paid it and there would be no unfair penalty.

8.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £1 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

8.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, if the Judge finds that any contract was entered into by the driver, the 'parking charge' sum owed in this case can, at most, only be £1 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

8.3. This regime in a car park that was always free until November 2018 is not commercially justified, is damaging the reputation of the area and driving away visitors in future, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. Newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

[link]

8.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

8.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

8.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

9. 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 £1 and no more.

9.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

9.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £1 and the Claimant is trying to claim damages of £160.

Parking Charge Notice not Compliant with the Protections of Freedom Act, 2012

10. The Claimant’s parking charge notice issued on the [date] does not comply with the Protection of Freedom Act, 2012, schedule 4, in order to be able to hold the Keeper of the Vehicle, the Defendant, liable for the parking charge. The burden of proof regarding who was driving the vehicle on the[date] sits with the Claimant and there is no presumption in law that the registered keeper of the vehicle is also the driver.

Amount claim is inflated

11. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported debt recovery costs of £60, which has not actually been incurred by the Claimant.

11.1 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.

11.2 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 sent by the Claimant themselves and they have brought the claim themselves.

11.3 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.

11.4 Any purported 'legal costs' are also made up out of thin air as this Claim has been brought directly by the Claimant, no correspondence has been received at any stage by any solicitor.

11.5 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.

11.6 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.

11.7 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”

12. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to proof) and nor is it accepted that £100 can be claimed instead of £1 in this case, but either way, the additional sum of £60 on top, appears to be a disingenuous attempt at double recovery.

13. The Claimant has not complied with the civil procedure rules. They sent a woefully inadequate Letter Before Claim on the [date] that did not provide the information required as stipulated within the civil procedure rules. The Defendant responded to this letter before claim on [date]. They received no response from the Claimant until the Claim arrived from the CCBC. The Claimant has ignored correspondence from the Defendant and they have brought this claim without engaging in the appropriate pre-action conduct.

14. In summary, it is the Defendant's position that the claim is without merit and has no real prospect of success and the Court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts contained in this Defence are true.

beamerguy

You have done your homework, so well done

It is a very long defence, whilst all the points have been made, one wonders if a judge will actually read it all or just skim read.

Bearing that in mind, the attention grabber must be
1: Who is the entity
2: Abuse of process

In 11.7 and IT IS ORDERED THAT
Best to put .... The courts said .....
You don't want a judge thinking that "you order"

VCS will claim that they do not rely on POFA2012

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

Redx

Add this before It is ordered

The judges stated

The_Deep

Another Excel/CEL signage mix up, search for the others and see how they were dealt with

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies. .

KeithP

Bananasparking wrote: »

I am helping a friend out who has just received court papers from the lovely VCS. Service date was the 17th July and she has done her AOS which gives us until the 14th August by my counting.

So the Issue Date printed on the Claim Form is 12th July 2019. Is that correct?

Did the Claim Form come from the County Court Business Centre in Northampton, or from somewhere else?

Bananasparking

Beamerguy and Redx - thanks for that, I will alter that...and try and make it more concise and focus on the key issues.

The Deep, thanks - email has already gone to MP complaining so we shall see what that brings.

KeithP - sorry the issue date is the 17th July, that was my mistake saying service date when I meant issue date. And it came from the CCBC in Northampton.

KeithP

Bananasparking wrote: »

KeithP - sorry the issue date is the 17th July, that was my mistake saying service date when I meant issue date. And it came from the CCBC in Northampton.

Then you are mistaken with your Defence filing target date.

With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's three weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Of course everywhere I have said 'you' or 'your' I mean the Defendant.

Bananasparking

The friend in question was in court today and I went with her. She had filed a more concise version of this defence, her witness statement all neatly bundled and two costs schedules, one for ordinary costs and one for unreasonable behaviour.

And she won.

We got there nice and early. Their rep sat next to us but didn't say anything to us. We were called at two. The judge looked young and he took a structured approach by asking vcs for their points, us for ours and responses to each other. We had a slight adjournment as vcs hadn't given their rep our witness statement but I had a spare copy. Even with that we were not in long.

The judge decided to go down the signage route, he didn't address anything else in our defence except grace period. We won because the signage is unclear, particularly about drivers parking for between 60 minutes and 120 minutes as this was not specified on the sign as a reason a parking charge notice would be issued. The vcs rep did not argue and did not oppose our ordinary costs. It felt like he knew he was going to lose. We weren't awarded the costs for unreasonable behaviour but it was nice to try for them.

The friend I was with was very nervous but we had prepped notes for her so that helped.

I am not sure how much else we might have won on if the judge had addressed them.

Now my friend is waiting for the cheque.

The advice on this forum is truly excellent. Thanks to all.

nosferatu1001

WEll done!
Another one bites the dust

Coupon-mad

Brilliant, well done!

Always good when ANOTHER VCS ONE BITES THE DUST!

Bananasparking

Thanks.

Oh and our witness statement did include the latest on the abuse of process side of things from the thread on here, with copies of schedule two of the consumer rights act etc, we raised it during our turn to talk but the Judge didn't do anything with it other than nod so I don't know what weight he might have put to it.