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

Fruitcake

Leviathan747 said:

Fruitcake said:

I'm still confused by the timeline. The Excel contract is dated 28th of September with a commencement date shortly after, but the VCS letter is dated the 5th of December, meaning the Excel contract was in place first before the letter, and this is backed up by the change of signs.

But the VCS signs were there in Aug 2018 and Excel were there in May 2019?

Yes, but the Excel contract was dated after August 2018 on September 2018, starting at the beginning of Nov or Dec, (I can't remember now) before the VCS letter. 

So, August 2018, VCS contract, maybe; with VCS signs.
September 2018, Excel contract signed, beginning soon afterwards.
December the 5th, VCS letter about an undefined contract when the Excel contract had already started and included as evidence.
May 2019, Excel signs have appeared.
June 2019, date of alleged event.

I may be wrong but I think your timeline as to which contract you state was in force and whether the egg or dinosaur came first and when is back to front. 

Leviathan747

Fruitcake said:
I may be wrong but I think your timeline as to which contract you state was in force and whether the egg or dinosaur came first and when is back to front. 

I think we both agree that any contract would have been with Excel in June 2019.  But if it had been with VCS, then 2 hrs are free.  As VCS is the Claimant, they are showing the Excel contract with parking charges.  So not sure where I've got it back to front FC, unless you mean leave out point 5?

KeithP

I'm not going to check out the dates, you can do that as well as I can.

If the signs in the car park at the time of the parking incident were Excel's, then as you say, any contract to park would've been between the driver and Excel.

You tell us that VCS are the Claimant.
If that's the case, then the Claimant has not suffered from any breach of contract as they never were a party to the contract.

VCS has no claim.

D_P_Dance

Also, they would not have had "just cause" to access your details from the DVLA.  Strongly consider entering a counter claim for a breach of confidentiality under the DPA.

Leviathan747

OK folks, this is the final version of the Witness Statement, V7, taking on board everyone's advice.  Thanks for bearing with me whilst I've been chipping away at it every day for the last week!  Have tidied it up and tried to make it flow more easily and am actually pretty proud of myself, considering have had to learn on the hop lol!  It's been a real labour of love!!  Thank you for all the help and support here at MSE.  You've all been amazing and I am genuinely deeply grateful 
PS Have added your suggestion at 51 Keith!

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.

2. I note that the statement of truth supplied by and on behalf of the Claimant, has not been signed by the Claimant.

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

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

5. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), 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.

6. Further, landowner authority states that parking is free for 2 hours, as stipulated in the contract with VCS, confirmed in Google Map images EXHIBIT A.  This was also revealed in the VCS v Andrew Norton case in Jan 2020 EXHIBIT B. 

7.  The Claimant’s breach of mandated Code of Practice and Statute and case law shows a 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.

8. The font sizes on the Excel 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 submit that no reasonable person would agree that their terms were brief, clear and prominently proclaimed.

9.  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 Excel 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

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 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. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

23. The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair. EXHIBIT G

24. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

25. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (EXHIBIT H)  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (EXHIBIT I).

26. Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

27. The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (EXHIBIT J).

28. The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

Leviathan747

29. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

30. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

31. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

32. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

33. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

34. This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

35. The front page of the Excel contract provided by the Claimant 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.

36. Google images show that parking signs changed from VCS after August 2018, to Excel by May 2019 (EXHIBIT K). This supports the assertion that the parking contract was indeed with Excel. VCS were not a party to such a contract, and therefore cannot sue on it.

37. According to section 44 of the Companies Act 2006 (EXHIBIT L), 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 the alleged parking event.

38. 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, I aver that it does not exist and therefore the contract between Excel and LSH is invalid.

39.  If a contract exists between VCS and LSH, I aver it states 2 hours free parking, so VCS have included a contract with a different company instead.

40. 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, I 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. EXHIBIT M

41. 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. 

42. On 24 March 2020, my partner 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. 

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

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

45. 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.”

46. 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.

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

48. 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.

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

50. 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

51. At the time of the parking incident, any contract to park would have been between Excel and the driver.  Therefore the Claimant has not suffered from any breach of contract as they never were a party to the contract. VCS has no claim.

52. 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.

53. The Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA, The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

54. 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:

 

beamerguy

Good, you have put a lot of work into this and all this for a scammer

Will VCS take notice of the new Civil Procedure.  and will they claim their fake claim of £60 is true.

The sure fact is that VCS/EXCEL will be suffering badly at the moment. Their business is CARS .... what cars I wonder  .... empty car parks, empty stations, empty airports ... WHAT JOY

KeithP

I would make paragraph 51 even clearer.

Something like:

51. At the time of the parking incident, any contract to park would have been between Excel Parking Services Ltd, the name of the company on the signs, and the driver.  Therefore the Claimant has not suffered from any breach of contract as they were never a party to the contract. Vehicle Control Services Ltd, the Claimant, has no claim.

D_P_Dance

If this as as cut and dried as it appears, I am puzzled why the WS rivals War and Peace in length.  Have you complained to your MP?

Humdinger1

Leviathan747 said:

Umkomaas said:

Thanks for your advice. Maybe I should take it.  Perhaps you'll take over?  Look forward to reading your input to others should I take a back seat.

Definitely take the advice Umk. Just as an FYI, you've made 6 posts on this thread, two of which have been helpful.  So in your 27,000 posts, am sure you've helped loads of folk (THANK YOU), but just respectfully pointing out that you've not depleted your energies here. And no, I won't be 'taking over' lol.  But regardless of who will fill your void, life goes on.....and you obviously need to switch off and recharge for a bit.  Sounds like some R & R would do you the world of good!

Leviathan it's good that you're acknowledging the free, expert help on here and you're so right about fighting the scam and us all being in it together.  As a long time reader of this board, I don't think the regular advisers are prickly; they get asked the same questions numerous times every hour, in spite of their step by step guides.  They are guardians of the rule of law and against the rising tide of abuse, brought on by improper understanding of rights and responsibilities on this area of the law.  Long may their public- spirited push continue! Humdinger