Claim Form

Coupon-mad

I keep reading on posts about no disclosing the driver of the vehicle but what if that driver is the only named driver of the vehicle? and if the judge asks who was driving what is one supposed to say?

We tell people to admit to being the driver, generally, if you were and your main defence is about the inadequate signs.

I would not try to mock up the event if the signs are no longer there. Why not twist that around and say that their contract ended at that location due to local complaints about inadequate signs, and Google to find some local newspaper articles about the place and have them as evidence of 'predatory ticketing' and unclear signs?

Just got a feeling I will get shot down in court because the sign where my car was at the back does say no parking..

Good - no contract was offered then. Great!

Search the forum for witness statement PCM v Bull and copy one.

Then go and read CEC16's thread and post #14 of the Abuse of Process thread too, as you need a costs schedule and a supplementary WS as well, like others have already written (you can search for the word 'supplementary' to find some really good examples to copy from).

CandyManCan

Thanks, I have been thinking as the private land sign has been taken off I was going to use a picture of it with a car in front as thats how low the sign is if one is parked in front you can not see the sign/or part of it.

I have pictures of before it was taken off, but I think my argument with this would be that its an abuse of process with the additional £60 that they are asking for on top of £100..

The place I parked had been empty for months and I parked there before it was just an empty business premises, I kind of recall as it was going back 3 years ago the sign was not there on the friday but on monday when i parked and came back to my car it was there

Do i mention this in my witness statement? it's possible the car was there before the sign was up.

Coupon-mad

The place I parked had been empty for months and I parked there before it was just an empty business premises, I kind of recall as it was going back 3 years ago the sign was not there on the friday but on monday when i parked and came back to my car it was there

Do i mention this in my witness statement? it's possible the car was there before the sign was up.

Absolutely YES!

It is their claim to prove and you can put them to strict proof of when the sign went up.

Even more reason NOT to mock up a pic with a car an the sign as it may not have been there and that's a really good argument. Even if the sign WAS there, as a new restriction, you can argue that the IPC CoP requires that additional signage and warnings are placed, to alert local drivers if a change of restriction is imposed where none previously existed.

So if you argue it that way and use the IPC CoP as an exhibit, they are on to a loser, even if they show proof the sign was there on that day.

You also need the CRA 2015 Sch 2 and the Beavis case quotes x 3 and the POFA Sch 4 as exhibits as well, and do look for any newspaper articles about the place where the parking enforcement was shown to be draconian and predatory there, to suggest malpractice to the Judge.

CandyManCan

Thanks, I have left things a little late and need to send documents by the 7th Jan to the court and it says each other,
I have not received anything from VCS, am I supposed to get a witness statement from them?

Can I post my final copy on Tuesday 7th Jan, or do I have to send it before so get it posted on Monday 6th?


** I tried searching google to find out about why they have taken the notice off and see if there was any articles about it,
One thing I did come across is that the land got sold in March 2017 as it was private land am I right in saying that it's them who are the ones who would be the ones going to court rather than vcs it makes no sense/

Also is it worth me asking the current owner of the property about the notice why he has taken it off and if he had a contract still in place with them, or would that be a bit rude of me?

KeithP

CandyManCan wrote: »

Thanks, I have left things a little late and need to send documents by the 7th Jan to the court and it says each other,
I have not received anything from VCS, am I supposed to get a witness statement from them?

Can I post my final copy on Tuesday 7th Jan, or do I have to send it before so get it posted on Monday 6th?

Last Saturday you told us...

I got a letter and court date and to submit witness statements by the 6th Jan.

That's Monday. Only you know whether it is the 6th, or as you are now saying, the 7th January.

That is the date when all documents you intend to rely on must be received by both the Claimant and the Court.

VCS have the same target date to file and serve their documentation.

Don't forget to file a Costs Schedule too.

CandyManCan

I got the letter and I have a bad habit of leaving this late and I got the letter and it is the 7th.

This is what I wrote so far, going to bed before I continue tomorrow and get it posted on Monday.

I just realised something which could work in my favour /couponmad pointed it out.

Since the notices have been taken off and the only picture that I have been given you cant read anything on the sign itself, I wonder if the judge will only see the same thing? as the signs taken off now...

So here is what i wrote so far including post #14 from couponmad.


In the County Court at xxxxxx
Claim Number: xxxxxxxxx
BETWEEN:
xxxxxxxxxxxxxxxxxxxxxxx (Claimant)
vs
Mrs xxxxxxx xxxxxxxxxxxx (Defendant)


1. I am ******* of **********, the defendant in this matter and I will say as follows.

2. I am representing myself against the PCN as the driver of the vehicle on the ********. I am not trained in legal matters and this is the first time writing a defence and witness statement regarding this nature.

3. On the ******* my previous vehicle, registration ********** of which I was the registered keeper and driver was parked at *************
The claimant has included photos of the vehicle on the day, see Exhibit A
(the picture they got is quite poor I can post it here but would it be ok to do so?

4. Letters were sent by the claimant asking for charges which was not responded to until a letter before claim was sent to my new address which I responded to.

5. I want to make it clear as I written in the defence that this premises was not in use and empty for a long period of time, I have parked here before days, weeks and even a month or two before this PCN was given.

6. Only on this day ******* a PCN was given, there has been no notices prior to this, nothing to say not to park here, or notices will be going up, I did not see a soul entering this building never mind leaving it.

7. Considering this has been over 3 years ago, I parked here during the day and weekends also.
The only notice was that is still there to this date is wheel clamping in progress See exhibit B

8. The claimant or even the landowner did not at any stage during the time that my vehicle was parked there at this location, serve any notice to myself about any changes to parking restrictions or penalties.

9. This land was sold as of March 2017, it is recorded on land registry.
So the landowner whose private property it is, is not here to claim this PCN so in terms of penalties or loss of earning etc. This can not be justified if the landowner themselves are not pursuing this PCN.


10. I would like VCS to provide strict proof that this sign was there before the date of convention as my vehicle was there the day before and there was no notice of this kind.

11. I believe this notice could have been placed whilst my vehicle was already on the premises the day before.

12. Even if the sign was there before the car was parked, it's located so low and there is no light there and it was December, the days are short you can not see the notice in the dark as you can see from one of there own pictures see exhibit D.

13. VCS has no right to make a claim for the amount in court as it's the landowner who would be the one who be claiming any losses or damages, VCS are only the ones who are contracted by the landowner. Since the property was sold in March 2017, is the landowner aware of this claim being made by VCS and has he given authority for this claim to be made in court.

14. Currently there is no sign at the premises, it has been taken off and would like to know for what reason was this taken off?
I believe VCS have had this notice in place without a contract with the current landowner, if they do I would like to see strict proof of this and when the contract ended and when the notice was taken off as I have proof of notice being there on xxx date, see exhbit E, only recently has this sign been taken off.

15. Also as you can see from exhibit c there are cars parked and one already has a ticket on the front of it, so it could well be that this notice was placed on the day when cars were already parked there.

16. If you look at the pictures, this is the current state of the spot the car was parked it's not used at all even by the current landowner, I have since not seen any car parked here, see exhbit F. This space is not used.

17. This space that I parked in it has come to a claim of x amount, if it's not even an area that is being used by the landowner how can you justify the cost of this, I believe it's not fair.

18. I requested a SAR from VCS and was given this, which is not acceptable.
They have sent my details to 3rd party companies to claim the debt that they have not acknowledged in the SAR and dates which are different to what is stated in the SAR, of when these documents were sent/issued.

19. I have included the letters that I have received for you to look at see exhbit G



20.I requested a SAR regarding my personal details and I have not been given all the information
I have also another NTK which is issued by VCS that they failed to acknowledge in the SAR,
(I think I should not mention this)?

“

21. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

22. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

23. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

23.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
24. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

251. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at 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''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

25.2. In the Beavis case it was said at 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.''

25.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

25.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

26. The POFA 2012 and the ATA Code of Practice are against this Claim
The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

27. The Consumer Rights Act 2015 ('the CRA') is against this claim
Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

27.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:!''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

27.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to!Beavis, and subsequently.

27.3. In Claim numbers F0DP806M and F0DP201T -!BRITANNIA PARKING -v- Mr C and another!- less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

27.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating:!''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 the Beavis case. 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...''

27.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

27.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

27.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

27.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated:!''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

27.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

27.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

28. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

28.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

29. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

30. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

31 . If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.



Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date
”

KeithP

I'll just point out the obvious...

Why does your Statement of Truth mention Defence?

CandyManCan

I copied what /couponmad put in the thread abuse of process, I will get it altered when i revise it again.

Can some clarify this because the witness statement from what I have been reading is my version of events writing this what coupon mad put I am just worried the judge might think ive put so much details in there and you can tell it's something that I have definitely not written..

I have 6 photos of what VCS has taken of the vehicle not one of them shows any writing on the notice but to show there is a sign there.. Would this be a good argument to make the fact that I have requested the SAR they given me all the pictures the hold, not one of them clearly details the notice, now that it;'s been removed from the site (i do actually have a picture of it) but like couponmad said they need to provide the evidence..

CandyManCan

In the County Court at xxxxxx
Claim Number: xxxxxxxxx
BETWEEN:
xxxxxxxxxxxxxxxxxxxxxxx (Claimant)
vs
Mr xxxxxxx xxxxxxxxxxxx (Defendant)


1. I am ******* of **********, the defendant in this matter and I will say as follows.

2. I am representing myself against the PCN as the driver of the vehicle on the ********. I am not trained in legal matters and this is the first time writing a defence and witness statement regarding this nature.

3. On the ******* my previous vehicle, registration ********** of which I was the registered keeper and driver was parked at *************

4. Letters were sent by the claimant to an old address asking for charges which was not responded to until a letter before claim was sent to my new address which I responded to.

5. SAR was requested to VCS by email see Exhibit A

6. Screenshot of the attachment that was sent by VCS in Exhibit B and I have included copies of each of those images in Exhibit C

7. None of the images show the sign clearly and what it reads, as this occurred over 3 years ago. At the moment the sign has been removed on this premises, so I believe in this instance this because of poor signage and lack of information this case should be dismissed because we do not know what this sign did actually say. And the claimant has given no proof of this when requested in the SAR or on any correspondence to that matter.

8. I want to make it clear as I written in the defence that this premises was not in use and empty for a long period of time, I have parked here before on several occasions. Even on the Friday 3rd December 2016, I did not see any notices.

9. Only on this day ******* a PCN was given, I did not see no notices again and there has been no notices prior to this, nothing to say not to park here, or notices will be going up telling myself as the driver not to park here as it will be enforced.

10. Considering this has been over 3 years ago, I parked here during the day and weekends also.
The only notice was that is still there to this date is no parking and a sign relating to wheel clamping, see exhibit D.

11. The claimant or even the landowner did not at any stage during the time that my vehicle was parked there at this location, serve any notice to myself about any changes to parking restrictions or penalties. As I have parked here before, days and weeks before this notice was issued.

12. This land was sold as of March 2017, it is recorded on land registry. See Exhibit E

13. So I am also questioning if VCS have the authority to make a claim at this stage, due to the landowner whose private property it is, is not here to claim this PCN so in terms of penalties or loss of earning etc. This can not be justified if the landowner themselves are not pursuing this PCN. I believe this is breach of IPC COP 1.1 as VCS have given no letter at from landowner to pursue this matter.

14. I would like VCS to provide strict proof that this sign was there before the date of convention as my vehicle was there the day before and there was no notice of this kind.

15. I believe this notice could have been placed whilst my vehicle was already on the premises as it was parked there the day before.

16. Even if the sign was there before the car was parked, it's located so low and there is no light there and it was December, the days are short you can not see the notice in the dark as you can see from one of there own pictures, see Exhibit C again.

17. Currently there is no sign at the premises, it has been taken off and would like to know for what reason was this taken off?

18. I believe VCS have had this notice in place without a contract with the current landowner, if they do I would like to see strict proof of this.

19. Also as you can see from exhibit c there are cars parked and one already has a ticket on the front of it, so it could well be that this notice was placed on the day when cars were already parked there.

20. My vehicle that was parked, the space itself is not used at all for parking, this is the state of it for over a year, see exhibit F, again the costs I believe for parking here is not fair and can not be justified as a loss of earnings as this area does not get used. IPC COP Section 8.1 states “All Parking Charges issued by you must be reasonable and enforceable under any applicable legal provisions. If your charges amount to damages you should be able to demonstrate how such charges are calculated for each site as a ‘genuine pre-estimate of loss’ in order to be able to justify the amounts. More information on Charges can be found in Schedule 5”

21. I took a picture before the notice was taken down a few weeks ago and the purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

22. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

23. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

23.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
24. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

251. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at 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''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

25.2. In the Beavis case it was said at 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.''

25.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

25.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

26. The POFA 2012 and the ATA Code of Practice are against this Claim
The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

27. The Consumer Rights Act 2015 ('the CRA') is against this claim
Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

27.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:!''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

27.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to!Beavis, and subsequently.

27.3. In Claim numbers F0DP806M and F0DP201T -!BRITANNIA PARKING -v- Mr C and another!- less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

27.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating:!''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 the Beavis case. 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...''

27.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

27.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

27.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

27.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated:!''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

27.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

27.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

28. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

28.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

29. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

30. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

31 . If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.


Statement of Truth:

I believe that the facts stated in this witness statement are true.

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Coupon-mad

One thing I did come across is that the land got sold in March 2017 as it was private land am I right in saying that it's them who are the ones who would be the ones going to court rather than vcs it makes no sense

No, the Beavis case and a VCS case involving VAT, confirmed (and it was already known) that a PPC can sue on a contract made on land they do not own.

Also is it worth me asking the current owner of the property about the notice why he has taken it off and if he had a contract still in place with them, or would that be a bit rude of me?

I would, what's the worst that can happen if you make that call in the morning, you look a bit rude? So what! You might get told something useful.

A PPC ex-clamper scam firm are suing people over this land, so you have every right to ask why VCS were removed. Be really polite and professional in your conversation.

The claimant has included photos of the vehicle on the day, see Exhibit A
(the picture they got is quite poor I can post it here but would it be ok to do so?

If you wish, but all this is delaying you being able to print it all out and get it served!

Your #10 about wheel-clamping needs to point out that clamping was made illegal in 2012, over seven years ago, and it was a condition of the only Trade Body in existence in 2012 - the British Parking Association, of which VCS was a member at that time - that all wheel-clamping illegal threat signs were removed from private land in England & Wales, by mid-2013. Therefore the signs and terms at this land cannot possibly be considered compliant with either of the industry Codes of Practice. Confusing and illegal signage is ambiguous at best, and creates no parking licence or contractual terms that could be agreed by a driver, especially one who was familiar with the location and no parking enforcement was known to exist, before or since, and no signs are there now.