County Court stage - VCS Sheffield

superlegend

Hi,

So I have now reached the county court stage and the details are as follows:

Issue date: 05/08/19

AOS: Sent and acknowledged on 08/08/19

A SAR was sent to VCS on 07/08/19

The CPR 31.14 Request will be posted tomorrow.

The history is as follows. "Contravention" occurred on 07/08/16 and the issue date for the PCN was 31/08/16. This was an overstay of 22 minutes, the car park is free for one hour. This went through the IAS in December 2016 and obviously failed. I sent the standard letter for them to leave me alone and now we are here. At no point did I name a driver, they stated in the IAS "we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question and we support this by the knowledge the appellant has in relation to the circumstances ("events of the day") in relation to this Parking Charge Notice."

So now my defence begins...

KeithP

superlegend wrote: »

Issue date: 05/08/19

AOS: Sent and acknowledged on 08/08/19

With a Claim Issue Date of 5th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 9th September 2019 to file your Defence.

That's nearly four 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.
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 [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Also in post #2 of the NEWBIES thread is full guidance on how to create a winning Defence and links to many examples of winning Defences.

Redx

read ones that are ahead of you like this one too


https://forums.moneysavingexpert.com/discussion/5945572

superlegend

Wow, some quick replies already, thank you. I've done some trawling and I have this so far and would appreciate people's thoughts, I should point out I lack some understanding of the below but all fits to me so far:

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

1) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

2) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

3) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

4) Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

6) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

7) 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.

8) Further and in the alternative, it is denied that the Claimant’s signage is capable of creating a legally binding contract.

9) A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the full Terms & Conditions signs located throughout the car park’. Signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘Entry to or use of this privately operated and managed car park is subject to the current terms and conditions of vehicle control services ltd. Motorists/persons utilising this car park hereby accept in full the terms and conditions.’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

10) For all Pay and Display parking facilities owned by Sheffield City Council, including many on-road spaces in the vicinity of the car park in this case, the charges for overstay are initially £25 compared to the Claimant's £100. As the Claimant’s charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal facility it clearly disproportionate for the area.

11) 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 plus interest, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

12) 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.

superlegend

I should probably note the ropey particulars of claim, one of which I'm a little baffled by, although it may be irrelevant. It reads, "The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper...."

I have never agreed to pay (quite the opposite), would this need to be addressed in my defence?

KeithP

Yesterday I posted this on another thread:

KeithP wrote: »

The suggestion will be that by parking the driver agreed to the terms on the sign.

One of those terms on the sign will say something like "by parking here, and breaking these terms, the driver agrees to pay £70 within 28 days of issue".

Coupon-mad

And I posted this in May (the sentence starting 'Calm down'):

https://forums.moneysavingexpert.com/discussion/comment/75829798#Comment_75829798

Why do so many people focus on that? It means nothing special.

Redx

add the abuse of process paragraphs to your defence too

KeithP

And your indignantcy in post #5 has led you to nullify this statement in your Defence...

2) The driver has not been evidenced on any occasion...

superlegend

I've seen that as this is an ANPR they had 14 days to write to me. They were well over that as evidenced in their own letters. Should my defence focus on this rather than the scatter gun approach I've gone with?

superlegend

Thank you all for your input so far. I have now received a letter back from my CPR 31.14 stating 'CPR 31.14 is not relevant to small claims matter, pursuant to cpr 27.2......we are under no obligation to disclose the documentation at this stage.'

I assume this response is expected?

I have reworded my defence and made it more succinct, I'm not sure what else I could add?

1. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

2. It is admitted that the Defendant was the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

3. Signage at the site is not sufficient. A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the full Terms & Conditions signs located throughout the car park’. Signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘Entry to or use of this privately operated and managed car park is subject to the current terms and conditions of vehicle control services ltd. Motorists/persons utilising this car park hereby accept in full the terms and conditions.’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

4. 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 not with reference to the judgement in parking eye 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

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.