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2 MCOL in the space of weeks @Coupon-mad could you help please?
happysue
Posts: 49 Forumite
Hi ,
To anyone reading this, all feedback is welcome and appreciated
(English is not my native language sorry for any mistakes)
Firstly I will discuss the defendants 1st MCOL.
Dated July 30th 2019
PCN Setember 2015
Claimant VCS
Below is alleged information given by the claimant.
'The claim is for a breach of conduct for beaching the terms and conditions set on private land.' 'namely parking without displaying a valid ticket/permit'
The defendants vehicle was parked on private land.
However, no signs were visible at the time of when the vehicle in questions was parked on the private land.
Below is the defendants defense (which has been plagiarized in parts off this forum).
IN THE COUNTY COURT BUSINESS CENTRE
CLAIM No: *****
BETWEEN:
Vehicle Control Services Limited (Claimant)
-and-
***** (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all
2. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. It is admitted that on [date] the Defendant's vehicle was parked at [location].However no contract was breached.
3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection Of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
4. No contract with driver.If a contract is to be formed, upon entering the site a driver must be able to see, read, understand and agree to the terms and conditions.
On the (DATE) at the site where the defendants car was park at (LOCATION), there were no visual signs clearly displayed at the entrance or in prominent locations.
Which is a breach of the International Parking Community (IPC) Code of Practice (COP). who state “Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”.
The Claimant is put to strict proof that terms and conditions upon entering private land was clearly displayed.
5.In any case, as Vehicle Control Service (VCS) are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever.
5.1 At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.
5.2.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. The Claimant is not the owner of this land and as such they cannot form a contract with the driver. The defendant presumes that there is no contract with the landowner that gives the Claimant the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.
6. The POFA, 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.
7. The Defendant believes the Claimant’s behaviour to be predatory, which is a breach of the International Parking Community (IPC) Code of Practice (COP) (14.1) relating to “predatory tactics” by not allowing any grace period.
7.1. According to the PCN left on the defendant's vehicle, the vehicle was ‘seen at 18.02’ and the PCN was issued at 18.04’. This giving the driver of the vehicle No Grace Period which is a breach of IPC COP, to whom Vehicle Control Services are members of.
7.2IPC state in their COP
(15) Grace Periods
(15.1) 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.
8.In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this defence are true.
Name
Signature
Date
To anyone reading this, all feedback is welcome and appreciated
(English is not my native language sorry for any mistakes)Firstly I will discuss the defendants 1st MCOL.
Dated July 30th 2019
PCN Setember 2015
Claimant VCS
Below is alleged information given by the claimant.
'The claim is for a breach of conduct for beaching the terms and conditions set on private land.' 'namely parking without displaying a valid ticket/permit'
The defendants vehicle was parked on private land.
However, no signs were visible at the time of when the vehicle in questions was parked on the private land.
Below is the defendants defense (which has been plagiarized in parts off this forum).
IN THE COUNTY COURT BUSINESS CENTRE
CLAIM No: *****
BETWEEN:
Vehicle Control Services Limited (Claimant)
-and-
***** (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all
2. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. It is admitted that on [date] the Defendant's vehicle was parked at [location].However no contract was breached.
3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection Of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
4. No contract with driver.If a contract is to be formed, upon entering the site a driver must be able to see, read, understand and agree to the terms and conditions.
On the (DATE) at the site where the defendants car was park at (LOCATION), there were no visual signs clearly displayed at the entrance or in prominent locations.
Which is a breach of the International Parking Community (IPC) Code of Practice (COP). who state “Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”.
The Claimant is put to strict proof that terms and conditions upon entering private land was clearly displayed.
5.In any case, as Vehicle Control Service (VCS) are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever.
5.1 At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.
5.2.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. The Claimant is not the owner of this land and as such they cannot form a contract with the driver. The defendant presumes that there is no contract with the landowner that gives the Claimant the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.
6. The POFA, 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.
7. The Defendant believes the Claimant’s behaviour to be predatory, which is a breach of the International Parking Community (IPC) Code of Practice (COP) (14.1) relating to “predatory tactics” by not allowing any grace period.
7.1. According to the PCN left on the defendant's vehicle, the vehicle was ‘seen at 18.02’ and the PCN was issued at 18.04’. This giving the driver of the vehicle No Grace Period which is a breach of IPC COP, to whom Vehicle Control Services are members of.
7.2IPC state in their COP
(15) Grace Periods
(15.1) 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.
8.In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this defence are true.
Name
Signature
Date
0
Comments
-
The total amount is now £185. £160 for amount claimed and £25 court fee.0
-
Unless both your claims are identical start s separate thread for your second claim0
-
With a Claim Issue Date of 30th July, you have until Monday 19th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL]. About ten minutes work - no thinking required.
Having done the AoS, you have until 4pm on Monday 2nd September 2019 to file your Defence.
That's three weeks away. Plenty of time to produce a 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
Post #2 of the NEWBIES thread also contains everything else you might need on your journey to court.0 - Sign it and date it.
-
Thank you, the defendants Aos, was done today. Do you have any thoughts on the defence?0
-
Yes, my first thoughts are that it looks nothing like any of the example Defences linked from post #2 of the NEWBIES thread.Do you have any thoughts on the defence?
1) The title - there is no S in DEFENCE, and delete the word STATEMENT.
2) your para 1) is pointless since 2015.
3) A Defence should be written in the third person - too much use of the word 'I'.
4) VCS are members of the IPC AOS yet you repeatedly refer to the BPA CoP and talk about PoPLA.
Have a look at the many example Defences linked from post #2 of the NEWBIES thread. There's a link to that thread in my earlier post.0 -
Yes, my first thoughts are that it looks nothing like any of the example Defences linked from post #2 of the NEWBIES thread.
1) The title - there is no S in DEFENCE, and delete the word STATEMENT.
2) your para 1) is pointless since 2015.
3) A Defence should be written in the third person - too much use of the word 'I'.
4) VCS are members of the IPC AOS yet you repeatedly refer to the BPA CoP and talk about PoPLA.
Have a look at the many example Defences linked from post #2 of the NEWBIES thread. There's a link to that thread in my earlier post.
Will do thank you0 -
If your forum name contains your real name then you need to get MSE to change it to something anonymous
The ppcs monitor this forum and can use posts in your thread against you in Court0 -
Yes, my first thoughts are that it looks nothing like any of the example Defences linked from post #2 of the NEWBIES thread.
1) The title - there is no S in DEFENCE, and delete the word STATEMENT.
2) your para 1) is pointless since 2015.
3) A Defence should be written in the third person - too much use of the word 'I'.
4) VCS are members of the IPC AOS yet you repeatedly refer to the BPA CoP and talk about PoPLA.
Have a look at the many example Defences linked from post #2 of the NEWBIES thread. There's a link to that thread in my earlier post.
Hey I have edited it now, if you have time could you take another look please?0
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