Help, got until 24th November to submit Defence for VCS

Leviathan747

Fruitcake said:

I would mention that VCS supplied the Excel contract as part of their evidence. Point out that they have not provided a contract showing VCS had standing to issue charges to disprove this assertion.

Thanks Fruitcake.  Like this?

4. The Claimant asserts - and the Defendant denies - that the driver entered into a contract with VCS and that the driver breached that contract and must pay a contractual charge, with further undefined and unexplained additional charges. However, the service agreement is not even with the named Claimant.  Vehicle Control Services Company number is 02498820.  Excel Parking Services Limited Company number is 02878122.  They are separate legal entities.  The Claimant is VCS.  The service agreement for the Berkley Centre is with Excel Parking Services Ltd.  VCS have supplied the Excel contract as part of their evidence but they have not provided a contract showing VCS have standing to issue charges.

KeithP

Why not use some of Bargepole's words from the link in my earlier post?

Fruitcake

Are the pictures of the signs supplied by VCS dated? The alleged event occurred on 06/06/19. Google Maps Streetview shows Excel signs in place the month before. If the pictures of the VCS signs are not dated, or are dated after 06/06, you should challenge when the VCS signs appeared as you aver they had not been changed over by the date of the alleged event and VCS have not provided any proof to the contrary.

Leviathan747

KeithP said:

Why not use some of Bargepole's words from the link in my earlier post?

Because at the bottom of one of the signs it says "Vehicle Control Services Ltd will be entitled to take legal proceedings to recover any outstanding charges".  Should I just put it in as a point anyway?

Leviathan747

Fruitcake said:

Are the pictures of the signs supplied by VCS dated? The alleged event occurred on 06/06/19. Google Maps Streetview shows Excel signs in place the month before. If the pictures of the VCS signs are not dated, or are dated after 06/06, you should challenge when the VCS signs appeared as you aver they had not been changed over by the date of the alleged event and VCS have not provided any proof to the contrary.

Photos are from Nov 2018!

Coupon-mad

Leviathan747 said:

KeithP said:

Why not use some of Bargepole's words from the link in my earlier post?

Because at the bottom of one of the signs it says "Vehicle Control Services Ltd will be entitled to take legal proceedings to recover any outstanding charges".  Should I just put it in as a point anyway?

Yes use bargepole's words anyway, as one line at the bottom does not a contract make!

Fruitcake

I'm looking at the main entrance sign of the Berkley Centre, Ecclesal Road, Sheffield on google maps streetview. By scrolling through the timeline I can see the signs had VCS on them in July 2017, and August 2018, However the images dated May 2019 definitely show Excel signs, a few weeks before the alleged event.
This brings us back to,

A VCS claim
An Excel contract with dodgy signatures dated December 2018
Excel signs just before the alleged event dated May 2019
VCS evidence of signs in 2018 implying they were there in June 2019

I used to live near Grimsby. This  smells very similar to what I remember from my childhood.

I'll post some screen grabs in a few minuets when I can remember how to.

Fruitcake

I can't upload them at the mo a-cause postimages is down for maintenance and I don't want to sign up for another site.

However, type in the location to Google Maps, select street view, find the location and zoom in. Zoom in and the Excel logo can be seen in the bottom left, and the image is dated May 2019.

Leviathan747

Hi guys.  Here is V4, with everyone’s kind suggestions added.  If anything has been missed out, please let me know, as there was a bit of a flurry of advice and my brain is quite full now!! 

In the County Court at SHEFFIELD, The law Courts, 50 West Bar, Sheffield, S3 8PH

Claim No. XX

Between VEHICLE CONTROL SERVICES LTD (Claimant)

and

XX

WITNESS STATEMENT

1.  I am the registered keeper of the vehicle in this case. I am unrepresented with no legal background in county court procedures, I trust that the Court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly.  I note that the Statement of Truth has not been signed by the Claimant.

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all.

3. Attached to this statement is a paginated bundle of evidence marked Exhibits A to H, to which I will refer.

4. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. This fact can be confirmed by reference to the images contained in the Claimant’s bundle. 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 Defendant. VCS were not a party to such a contract, and therefore cannot sue on it.

5. Further, landowner authority states that parking is free for 2 hours, as stipulated in the contract with VCS. This was revealed in the VCS v Andrew Norton case in Jan 2020. EXHIBIT A.

6. Before providing further chronology and dispute of the supposed contractual breach that happened at Berkley Centre car park, I confirm that the essence of my defence to this claim is;

a. The actions of the Claimant to (a) offer a contract in the form of a sign, (b) establish a parking charge, and (c) to claim against the registered keeper; are in breach of procedures mandated by;

i. The Parking Trade Association for which it is affiliated.
ii. The Act for which the claimant relies on.

b. A contract was not in place with the driver or the defendant who is the registered keeper. Therefore, no breach of contract has ever occurred. They have the ability prescribed by law (POFA 2012) EXHIBIT B - to transfer the liability for the parking charge to the keeper if they do not know the name of the driver. As VCS have chosen not to use that right under POFA the keeper cannot be held liable.

c. Inadequate and illegible signage.

d. The sum of the claim brought forward includes £100 of a Parking Charge and an additional £60 for ‘debt recovery costs’ as previously indicated by the Claimant. The additional £60 is an attempt at double recovery and is an Abuse of Process. The current POFA 2012 law states...

"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" it further goes on to state "artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery."

e. Reasonable doubt as to validity of contracts

f. No advertising consent existed at the time of the alleged incident

g. The Defendant invites the court to dismiss this claim.

The Claimant’s breach of mandated Codes of Practise and ruling Act

7. Through the Claimant’s disregard for the very guidelines and law set out to aid their business, the Defendant believes that the company failed to meet the minimum obligations that would allow them to bring forward a parking charge and ultimately seek registered keeper liability.

Inadequate and illegible signage

8. The font sizes on the VCS signs are very small and packed with confusing patterns and symbols around them. The sign is a mass of confusing and contradictory words. The icon showing the PCN charges are hidden in the small print. It is not prominent or obvious to see by a motorist driving, even very slowly, past the sign. I submitted that no reasonable person would agree that their terms were brief, clear and prominently proclaimed.

9.  I note that in the evidence presented to the court as part of the Claimant’s Witness Statement, that the Claimant does not include any images of signage taken at the site in real life conditions, either in the day or evening. I would contend their submitted photocopies of the signs are misleading, as they both exaggerate the font of the signs out of proportion, do not show how confusing the signs were at the time of the alleged incident, nor show the poor visibility of the signs in evening light, or other inadequate artificial lighting, such as broken street lamps. In addition, there are no dates on the two images of the signs submitted by the Claimant, so it is impossible to know if they applied to the alleged incident in 2019 or not.

10. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear. I submit that VCS do not comply.

11. In addition, a reasonable interpretation of Lord Denning’s 'red hand rule' and the BPA and IPC Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently and in larger lettering, with fewer words and more 'white space' as background contrast suited to an outdoor sign.

12. Breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

13. On 06/06/2019 the driver entered Berkley Centre car park for the purpose of doing some shopping. In order to be able to read the signs on entry into the car park, the driver would have had to have stopped the car or left the car, in order to do so. The signs are not readable from a moving car.  EXHIBIT C

14. The driver parked and went to Tesco.  The view from their parking spot had no visible signage.  EXHIBIT D

15. All the current signs are facing in the opposite direction and are above head height and with small font. This is in contrast to the type approved in the Parking Eye v Beavis case. No contract was entered, and terms and conditions were not and could not be accepted.  EXHIBIT E

Costs on the claim – Abuse of process

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

17. CPR 44.3 (2) states: EXHIBIT F

“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.”

18. The standard wording for parking charge/debt recovery contracts is 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.

19. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

20. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

21. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case.

22. The Defendant refers to the following paragraphs given in the judgement on the 4th of November 2015 in ParkingEye v Beavis:

a. 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...”

b. 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.”

c. 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.”

23. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

24. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

25. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware that their artificially inflated claim, as pleaded, constitutes double recovery.

26. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating:

''It is ordered that the claim is struck out as an abuse of process (Exhibit HC21). The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. 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...'' EXHIBIT: G

27. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies Exhibit HC22) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that Distract 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 v 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.''

Leviathan747

28. 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 and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

29. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

Reasonable doubt as to validity of contracts

30. The front page of the Excel contract is dated the 28th of September 2018, but the letter from VCS dated the 5th of December says, "Thank you for returning the contract for parking enforcement at the Berkley Centre. Please find enclosed your signed copy along with a VCS welcome pack." This letter predates the purported Excel contract by over three weeks and implies a parking enforcement contract between VCS and Lambert Smith Hampton was already in place at the time Excel signed theirs. This puts reasonable doubt onto what company actually had a parking contract in place at the time.

31. According to section 44 of the Companies Act 2006, for a contract to be executed (in other words, valid) it must be signed by TWO authorised persons from each party, or a Director AND a witness. Since there is only one signatory from each party, the contract fails to have been properly executed. The signatures are not dated so there is no proof that the contract was signed before the date of your alleged parking event.

32. The contract refers to the "landholder" but not the landowner. Anyone could say, "I'm authorised to sign contracts on behalf of the landowner," but for that to be true there would need to be a written contract between the landowner and the landholder, signed by two authorised persons from each party, authorising the landholder to form contracts with a third party. Since such a contract has not been provided, you aver that it does not exist and therefore the contract between Excel and LSH is invalid.

33. Where is the contract between VCS and the landowner or landholder? I aver that there is not one because there is already a contract in place with Excel that predates the VCS letter. If it does exist, why haven't VCS shown it? Perhaps it states 2 hours free parking so the scammers have included a contract with a different company instead.

34. The Excel contract is signed by someone called K. Brindley who alleges he/she was a director of LSH underneath the full name, Lambert Smith Hampton. According to Companies House records, the annual "Full accounts made up to 31 December 2018" for this company do not show K Brindley as being a director at the time. Even if a judge accepts that VCS had a contract with the landholder because they own Excel, you aver the signatory of the client was not a director of LSH at the time the contract was drawn up, the contract is therefore fraudulent and invalid.

35. The contract is signed by Simon Renshaw Smith on behalf of Excel and K Brindley on behalf of Lambert Smith Hampton, but the Claimant letter is from VCS.  VCS own Excel outright, but they are completely separate operating companies with different company numbers registered at Companies House. Vehicle Control Services Company number is 02498820.  Excel Parking Services Limited Company number is 02878122.  Signs and ticket machines mention both Excel and VCS.

No advertising consent existed at the time of the alleged incident

36. On 24 March 2020, I received an email from Mahmood Khalid, Planning Enforcement Officer.

“Dear XXX,

I write with reference to your recent enquiry regarding the signage, CCTV at the Berkley Precinct car park. The matter has been investigated and it has been determined that advertisement consent is required for the signs erected within the car park. I have informed the Management Company to submit an application to regularise this”

Advertising consent did not exist at the material time and it cannot be applied retrospectively. Not having it is a criminal offence, therefore the claim was illegally issued. 

37. Ex turpi causa non oritur action.  The Claimant cannot pursue legal remedy, if it arises in connection with his own unlawful act.

Addressing individual points and distinguishing cases referred to in the claimant’s witness statement

38. In Paragraph 32 of the Claimant’s Witness Statement, the Claimant refers to ‘Vine v Waltham Forest’.

39. The Court of Appeal on this case ruled in favour of the Defendant on the basis that a person cannot be presumed bound by terms and conditions on signage that they haven’t seen. It would appear that the Claimant is attempting to wrongfully persuade the court by mis-quoting Roch L.J. The full quote is this;

“Alternatively, and this is the ground principally urged upon us by Mr. Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method landowners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.”

40. As you can see, Lord Justice Roch was simply reading one side of the argument. Roch L.J. found in favour of the motorist in this case. Therefore, this case can be immediately dismissed as it has no bearing on this case in question.

41. Paragraph 34 states the Claimant is intending to rely on the ParkingEye v Beavis (2015) case.

42. This case can be fully distinguished from my case due to the following facts;

a. There was no contractual offer made giving a licence to park nor any promise made, or contract agreed based on any prominent signs.

b. There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages.

43. In Paragraph 61, The Claimant is intending to rely on Chaplair v Kumari (2015) to attempt to justify an unknown £60 “debt recovery charge”.

44. This case is distinguished from the case above by the following facts; the Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms, whereas parking charges are capped by the Protections of Freedoms Act (the POFA)/the will of Parliament at the sum on any Notice to Keeper, and not higher, and the Beavis case confirmed this by only allowing £85 and no bolt on 'damages' or imaginary debt collector costs.

Conclusion

45. The Claimant is in breach of the very rules in place to protect its business and through obscuring the procedures as set out in trade associations codes of Practise and POFA schedule 4, the Claimant maintains a way of confusing motorists and harassing them for grossly inflated Parking charges.

46. It is reiterated that previous judgements have concluded the additional £60 on the original charge of £100 as being, in the words of District Judge Taylor; “an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover”.

47. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance 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.

Signature of Defendant:
Name:
Date: