Please help- Please help !! PCN from Vehicle control services ltd

SoJacob

Thank you @Le_Kirk and @Coupon-mad

I have emailed the court twice to ensure that the letter should be coming to my new address. Email send one in December 22 and February23. I’ve done one again today. I’ll go to the court tomorrow. 

SoJacob

Hi all,
I’ve been to the court today and they are still waiting for a date for the hearing. 

SoJacob

Hi all, 
I hope you are all well and busy during the Easter week. 

I still have not heard from the court regards to the hearing. Can I email my WS to the court before I get the hearing date or should I wait to get a date? 
Thank you

Umkomaas

SoJacob said:

Hi all, 
I hope you are all well and busy during the Easter week. 

I still have not heard from the court regards to the hearing. Can I email my WS to the court before I get the hearing date or should I wait to get a date? 
Thank you

Unless you have a hearing date the danger is there will be nothing for the court to link your WS to and it just might end up in the bin. Why are you anxious to submit early?

B789

SoJacob said:

I still have not heard from the court regards to the hearing. Can I email my WS to the court before I get the hearing date or should I wait to get a date? 
Thank you

No you don't. Have a read of this document that covers Practice Directions 5B 3.6(c) and tells you what to include in the Subject line of any email sent to the court with attachments:

(c) the date and time of any hearing to which the e-mail relates. 

As you don't yet have a date and time, sending anything will probably get it deleted or binned. Don't rush.

SoJacob

Dear all, 
please advice- 
I have finally got a date for the hearing on 14/8/23. Please could you look into my ws I’ve prepared and anything more to be added? 

Many thanks 

KeithP

Does the second page of that Notice give you the deadline for filing and serving your Witness Statement and evidence?

Coupon-mad

Please repeat the link to your WS now as your thread is so long.

SoJacob

@Coupon-mad

IN THE SOUTHEND COUNTY COURT

 

Claim No.

 

Between

VEHICLE CONTROL SERVICES LTD

(Claimant)

And

 

(Defendant)

 

WITNESS STATEMENT OF DEFENDANT 

 

1.      I am , and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.      In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

Sequence of events 

3.      I live local to Southend airport. My husband had knee injury who was/is unable to walk long distances (EXHIBIT 01). Therefore, I dropped and picked him up from Southend airport rail station on multiple occasions. I remained in the car and according to the timestamps the car stopped for only seconds. I received 3 PCNs and according to the evidence (EXHIBIT 02) the car stopped to drop off passenger in a shop entrance where there is no red line.

4.      Reason for stopping should be considered. The vehicle stopped for only seconds according to the timestamps. The International Parking Community (IPC), of which the claimant is an operator, details a grace period in their code of practice (Part B, section 15). Part B, Section 15.1 states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”

5.      There is no evidence of any signs near this area, so no contract was even known about, let alone allegedly 'agreed'.  No signs are shown at all in the image evidence of the car.

6.      I have seen no evidence that this station-serving piece of roadway (and specifically, the three areas where the car was photographed, see enlarged photographs EXHIBIT 03) is private land and within the boundary of any authority flowing from the Airport owners. 

7.      The entrance to the retail park managed by Excel parking but I have got a PCN from VCS (EXHIBIT 04). The claim was made in the name Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the material location in question was, and is, in the name of 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. The Claimant were not a party to such a contract and cannot sue on it.

8.      The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a Private Parking Code of Practice includes the following two points which highlight that dropping a passenger or picking them up is not considered parking: 

2.19       Parked/parking

an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving (excluding instances where the driver has stopped to enable passengers leave or enter the vehicle). 

A vehicle may be deemed to be parked whether or not the driver has left the vehicle or turned off the ignition.

2.24 parking period

the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). 

The Claimant (who is an accredited operator scheme member of IPC, International Parking Community) has submitted no evidence regarding a consideration period. A contract to park by conduct cannot be formed unless there is a consideration period to discover, read, understand and accept the contract. To do any of these is impossible if a motorist is not allowed to stop or wait, in direct conflict with the IPC Code of Conduct’s “Considerations & Grace Periods”: “13.1 Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land.”. The Defendant maintains that the car was stopped for a period of time consistent with a consideration period, and was moved from the private land forthwith, thereby signalling that the Defendant has not accepted any contract (if such were to exist and be valid).

The ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

9.      Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach (EXHIBIT 05).

10.  Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

11.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'. Nor can a firm claim an unconscionable sum. In the present case, the Claimant has fallen foul of those tests (See EXHIBIT 06 for paragraphs of ParkingEye v Beavis).

12.  In the alternative, if the Claimant alleges signage was present, I aver that the small signs had vague/hidden terms and a mix of small font and are considered incapable of binding ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme a driver. Consequently, it remains my position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and 

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, 

where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

13.  Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved - it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." If the Claimant alleges a sign was present, my position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

SoJacob

Lack of landowner authority evidence and lack of ADR

14.  DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents

 

15.  I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

16.  The Claimant has not provided evidence that the landowner has given them the necessary authority to issue parking charge notices and to pursue payment by means of litigation

17.  The Claimant has failed to provide details of the alleged signage upon which they are relying to form a contract with the driver and neither have they demonstrated that it is appropriately positioned to allow all drivers to read and understand the terms of the alleged agreement

18.  I would also question the existence of the alleged contract which the Claimant claims to have been breached by “stopping in a zone where stopping is prohibited”.   The signage is wholly prohibitive and makes no offer of consideration in the absence of which no contract exists

Abuse of process - the quantum

19.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

20.  The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “Debt collection costs”.  No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.  (EXHIBIT 07)

21.  Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

22.  Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67.

23.  My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

24.  Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 27), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Clams Track.

25.  Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

26.  This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

27.  The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

28.  The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether: this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

29.  This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

30.  The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

31.  These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

32.   Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

33.  This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

34.  It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - EXHIBIT 08) where she went into great detail about this abuse.

35.  In Laura Jopson vs Homeguard Securities (2016) case number B9GF0A9E, His Honour Judge J Harris QC determined that loading and unloading is not parking. This was an appeal court case and thus persuasive on the lower courts.

36.  The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much needed clarity for consumers and Judges across England and Wales.

37.  In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence – including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms and were not in possession of the same level of facts and evidence as the DLUHC.

Statement of truth:
I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.