Defense for VCS by 12/11 - 19/11/20 VCS WON

56756756

Hi,

Parked with a permit on dash issued by VCS (an open visitor permit). The permit was laminated and had previously fallen off the dash at this location due to high winds (speculative) and that was cancelled on appeal to VCS. After this, a photo was taken of the permit in place on the dash upon each visit.

The permit fell again, and a "not a Charge Notice" envelope was placed on the windscreen of the car. Have a photo of the permit in place and one upon return that shows it had fallen again into the footwell. However, this time the appeal was rejected and the landowner's details were requested in a SAR request email but this was not provided, only the SAR documents.

Read many pages and threads but if anyone knows a similar circumstance which can be defended for please advise.

Thanks in advance for taking time to read the defence...

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IN THE COUNTY COURT
CLAIM NUMBER: XXXXXXXX (VCSXXXXXXX)
BETWEEN:
NAME of Vehicle Control Services Ltd., 2 Europa Court, Sheffield Business Park, Sheffield, S9 1XE
-and-
NAME of FULL ADDRESS

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

2. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

4. The wording of the signage the Claimant provides from the site is for the disabled bay, which is clearly not where the car is shown to be parked, is asking for both a disabled badge and a parking permit to be displayed. This is not applicable but was given as evidence in the claim. No other signage relating to non-disabled parking bays can be found at the site.

5. It is denied that any contravention or breach of clearly signed terms occurred, and it is denied that the driver failed to reasonably comply with the instructions to place a valid parking permit within view as required, in line with the instructions on the permit.

6. Despite the driver following the instructions, the laminated permit fell off the dash of the car and into the footwell, which was out of the control of the driver as the car was unattended. The Defendant had previously made the Claimant aware of the issues with the permit being laminated and it falling from the dash and on that occasion, the Claimant agreed that the Defendant was not liable for such a situation outside of the Defendant’s control. This was brought up by the Defendant in their correspondence with the Claimant in this case, but this was deflected by the Claimant.

7. Section 4(5) of Schedule 4 of the Protection of Freedoms Act 2012 (''POFA'') states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case, £100. The claim includes an additional £60, for which no calculation is given, and which appears to be an attempt at double recovery.

8. This Claimant is known to routinely affix misleading pieces of paper in a red and black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper that was posted, that the hybrid note that the Claimant asserts was a Charge Notice was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

9. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal Notice To Keeper, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

10. It is denied that the Claimant has the authority to bring this claim. The proper Claimant is the landowner. The Claim is issued in the name of Vehicle Control Services Ltd. (Company No. 04298820). However, the Defendant requested the details of the landowner, which was not provided by the Claimant. Vehicle Control Services Ltd. cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to Vehicle Control Services.

11. Vehicle Control Services are not the lawful occupier of the land. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

13. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal Parking Charge Notices where there was no opportunity to serve a Charge Notice (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-Charge Notices, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

14. Parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

15. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Vehicle Control Services Ltd. have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.


I believe the facts stated in this Defence are true.

NAME

10th November 2019

KeithP

Hello and welcome to the forum.

What is the Issue Date on your County Court Claim Form?

56756756

Hi Keith,

10th October.

KeithP

Then, assuming you filed an Acknowledgment of Service before 29th October, you are right with your target Defence filing date.

With a Claim Issue Date of 10th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 12th November 2019 to file your Defence.

Not long now.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Le_Kirk

Search the forum for other defences against VCS and the "not a parking charge" rubbish. This has been recently posted and there is good ammunition for you, not least of which is that a judge threw out one claim and the DVLA have told VCS to stop using the red/black envelopes.

56756756

Thanks very much for the responses, really helpful!

Any further advice on what I've written?

56756756

I've updated the defence using a lot more detail thanks to the recent poster, AGURRU.

Hope this helps someone in the future.

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DEFENCE

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

2. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

4. The Claimant has also breached its own Trade Body's Code of Practice (CoP) regarding transparent terms and signage; a CoP creating a mandatory set of parking firm rules which the Supreme Court found was effectively 'regulatory'. The Claimant may try in its witness statement to lead the court away from the relevance of this, but it is a fact that the CoP does not merely comprise 'recommendations' and full compliance is required to obtain DVLA data.

a. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage (or by a Charge Notice, which would, in any event, be too late a warning to form part of any contract with either company).
b. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. The wording of the signage the Claimant provides from the site is for the disabled bay, which is clearly not where the car is shown to be parked, is asking for both a disabled badge and a parking permit to be displayed. This is not applicable but was given as evidence in the claim. No other signage relating to non-disabled parking bays can be found at the site.

6. Mr Renshaw-Smith is no stranger to having his misleading signs and meritless claims exposed by the courts. Some six years ago, he was reported as describing the court ruling damning his misleading signage in Excel v Cutts (Stockport County Court case no: 1SE02795) as ".....an embarrassment to the judicial system" reportedly describing the Judge as "not fit to serve the civil courts". And in 2012 in VCS v Ibbotson, case No 1SE09849, District Judge McIlwaine warned VCS' representative against bringing meritless claims to court, stating: ''I am dismissing your action [...] it seems to me this whole action is ill-founded. You have no right to bring this action. Moreover, on my interpretation of your Code of Practice, you are in clear breach. You have signed statements of truth which say you adhere to the Code of Practice. You do not. To sign a statement of truth when it is not correct has significant implications. I will tell you now after these proceedings I will issue an alert so you are clear. I have had this case in my court and all judges with this case and this dispute are advised to look at the terms and conditions of contract. If you continue to pursue those cases on this flawed premise, the consequences will be significant. If there is another case in the (Grimsby/Hull area) County Courts live by 4 pm on Friday, you will be coming to see me and I suggest you bring a toothbrush. Am I clear?''

7. It is denied that any contravention or breach of signed terms occurred, and it is denied that the driver failed to reasonably comply with the instructions to place a valid parking permit within view as required, in line with the instructions on the permit.

8. Despite the driver following the instructions, the laminated permit fell off the dash of the car and into the footwell, which was out of the control of the driver as the car was unattended. The Defendant had previously made the Claimant aware of the issues with the permit being laminated and it falling from the dash and on that occasion, the Claimant agreed that the Defendant was not liable for such a situation outside of the Defendant’s control. This was brought up by the Defendant in their correspondence with the Claimant in this case, but this was deflected by the Claimant.

9. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

10. Section 4(5) of Schedule 4 of the Protection of Freedoms Act 2012 (''POFA'') states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case, £100. The claim includes an additional £60, for which no calculation is given, and which appears to be an attempt at double recovery. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 or £160 debt. The Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished and this is stated in the knowledge that this Claimant is likely to rely upon that case in their often trotted-out template Witness Statement. 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 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.

11. CPR 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.

12. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

13. 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.
a. 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.
b. 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.
c. 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 Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67:
i. “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...''
ii. 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.''
iii. 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.''”

14. Any purported 'legal costs' are also made up out of thin air. Given the fact that robot-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.
a. 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.

15. 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 their artificially inflated claim, as pleaded, constitutes double recovery.
a. 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:
i. ''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 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...''
b. 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) on 4th September 2019, District Judge Jones-Evans stated:
i. ''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 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.''

16. This Claimant is known to routinely affix misleading pieces of paper in a red and black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper that was posted, that the hybrid note that the Claimant asserts was a Charge Notice was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

17. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal Notice To Keeper, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

18. It is denied that the Claimant has the authority to bring this claim. The proper Claimant is the landowner. The Claim is issued in the name of Vehicle Control Services Ltd. (Company No. 04298820). However, the Defendant requested the details of the landowner, which was not provided by the Claimant. Vehicle Control Services Ltd. cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to Vehicle Control Services.

19. Vehicle Control Services are not the lawful occupier of the land. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

20. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal.

21. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal Parking Charge Notices where there was no opportunity to serve a Charge Notice (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-Charge Notices, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

22. Parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

23. This charge is unconscionable, with no 'legitimate interest' excuse that the Claimant can rely upon. The charge is designed purely to confuse, entrap and then punish drivers and the penalty rule has not been disengaged, unlike in the factually different and 'complex' Beavis case.

24. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and Vehicle Control Services Ltd. have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

25. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. The charge is unconscionable and relies upon vexatious conduct from the outset that has been designed to be intimidating, misleading and indeed untrue in terms of the attempt to add a further sum in 'damages' that a private parking firm is not entitled to collect, which is a clear abuse of process. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4. and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

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

56756756

Thanks for your help, guys.

I've not submitted but do I need to log back into MCOL and submit a defence or do anything there too?

KeithP

56756756 wrote: »

Thanks for your help, guys.

I've not submitted but do I need to log back into MCOL and submit a defence or do anything there too?

Please re-read post #4 above.

There is nothing in there about filing a Defence via MCOL.

Post #2 of the NEWBIES thread advises against filing a Defence via MCOL.

56756756

Thanks.

I called MCOL to confirm and that is the case but they said I must also attach a N9B form with the name of the court and such as well as my defence wrote in a word document (signed and converted to PDF).

So they sent me the form and I did as instructed but the form had a counter-claim section which I left empty because I wasn't ready for that and thought I had only till 4PM to complete and return. Bit of a muddle but it's done.

KeithP

I really don't understand what was unclear in post #4 above.

People have been filing Defences that way for well over a year, apparently without issue.

Nothing is perfect, and if that post is unclear then it needs improvement.

Any suggestions?