VCS Claim

Coupon-mad

No don't respond.

 I will add the red card to my WS. 

and Adam's court trancript as evidence.  It's linked there for everyone to use.

He (with crowdfunding I think) paid money for that and it's a VERY useful court transcript about 'when is a PCN not a PCN' because he talked a Judge round who started with the opposite view, so it helps lead another Judge in the right direction too.

Le_Kirk

You could always reply with an offer of your own for say .............. ooh ....... £0.

sogu

I've read through adambuzz's case. The red card is a game changer. But, would I need to have photographic evidence of the contents of this? From the PPC's pictures sent via SAR request, I can see the red card on there, however they may dispute the contents of this. 

Interestingly, I went to the LGCP earlier today to take pictures. It seems that there is another company in charge of the car park now. I was unable to find their sign that is on myparkingcharge. Luckily, I found pictures on another thread here. Thanks to those that took the time to go there. 
Having viewed their images, it isn't clear where their sign was located in relation to my car.

When will VCS send their WS? Just trying to ascertain how much time I will have to respond to their WS.

Coupon-mad

The red card is a game changer. But, would I need to have photographic evidence of the contents of this? From the PPC's pictures sent via SAR request, I can see the red card on there, however they may dispute the contents of this. 

They won't and can't dispute that it was the 'red card' scenario, albeit Adam's transcript isn't a precedent that's binding on your Judge, it's just another County Court decision but the point is it deals with this exact issue.  And we know the DVLA have stopped this 'soft ticketing' last year (banned it).

This is the Claimant's claim to prove, not yours to prove.  You don't need evidence that it was a red card...it was.

When will VCS send their WS? Just trying to ascertain how much time I will have to respond to their WS.

What's the deadline, and when was/is the hearing set for?  VCS normally wait till the final weekend.

sogu

Ok, great. Thank you for clearing that up!
The hearing is end of June, so I need to submit my WS a month before.

KeithP

sogu said:

The hearing is end of June, so I need to submit my WS a month before.

I'm struggling with that logic.

It does not follow that a Witness Statement for an end of June hearing has to be filed a month before.

But you have the paperwork.

nosferatu1001

Indeed, confirm with your paperwork your exact deadline. 
The usual deadline is 14 days before

sogu

I've just checked my documents and it clearly states that WS "must be submitted no later than 28 days before the scheduled hearing". 

Coupon-mad

Ah, that's fine then. You have time to work on this but make sure you do use Adam's transcript as an exhibit.

sogu

Hi all. 
I haven't heard from VCS yet but this is my first draft WS. Please let me know what you think. 
In terms of Adam's transcript, can I simply print it off to include in my evidence bundle? The other transcripts are actual pictures of the judgement, rather than just the text.

In the County Court at ***

Claim No: ***

Between

VEHICLE CONTROL SERVICES LIMITED (Claimant)

and

***(Defendant)


WITNESS STATEMENT



I, ***, of ***, will say as follows:

Introduction

I am the Defendant in this matter. I am unrepresented, with no experience of Court procedures. If the contents of this Witness Statement or the evidence and exhibits that accompany it are set out in a manner to which the Court is not accustomed, I trust that the Court will excuse my inexperience.

Attached to this statement is a paginated bundle of exhibits marked as **X, to which I will refer.

1. I am the Defendant in this matter and the registered keeper of the vehicle in question, a  *** reg ***. I will be defending this claim as keeper of the vehicle only. Myself and two other people have access and are insured on this vehicle, and I have let close others drive third party on their own insurance. (Insurance certificate included in evidence bundle)

2. The contents of this witness statement are based on my own experiences and matters witnessed, and within my knowledge, all true.



Background
3. *** 2019 - A ‘This is not a Parking Charge Notice’ card was attached to the windscreen of a *** *** which I am the registered keeper, at Leensgate car park, Nottingham.

4. *** 2019 - VCS limited sent a Parking Charge Notice / Notice to keeper Letter addressed to myself as the registered Keeper.

 

Unclear signage

5. Having gone to the aforementioned car park after the alleged incident, I found that the signage within the car park was extraordinarily confusing – although difficult to describe, I have included a series of photos that demonstrate a walk through the car park (Exhibit **1).

6. In the first instance, there were signs from three separate private parking charge companies within the same space of land – LGCP Ltd, BSLG and the Claimant, Vehicle Control Services Ltd (Exhibit **3). As can be seen in Exhibits **2 and **3, the Claimant’s signage was not obvious at the entrance to the car park, and in fact could not be seen until much further into the car park.

7. The signs from these three private parking companies not only conflicted with each other – each asserting that to park was to accept terms and conditions equating to a contract with themselves only.

8. No contract could possibly have been construed because if such a contract could be construed at all, then it would be entirely unclear as to which company this was with. The multiple conflicting signs gave a message that was misleading, ambiguous and unclear, and as such, the doctrine of contra proferentem applies.

9. Additionally, even if the signage available within the car park was only offered by the Claimant, the wording on the sign was prohibitive, stating ‘Staff Parking Only/No Parking on Access Roads at Anytime’. A purported licence to stop without a permit in exchange for payment of a “charge” on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording.

 

 

This Is Not A Parking Charge Notice

10. Vehicle Control Services are known to flaunt POFA Regulations and IPC code of practice by issuing “This is not a parking charge notice” Stickers onto car windows.

11. POFA Regulations, and IPC code of practice state that if issuing a PCN to the vehicle at the time of the contravention, (this will double up as a Notice to Driver (NTD)) then the PPC would have to wait 28 days under POFA Regulations before they can request Registered Keeper details from the DVLA.

12. VCS try to get out of this by claiming the PCN or NTD they have left on the vehicle, isn’t a PCN, to completely bypass any legal duration or time period required under POFA Regulation and gain the registered keeper details immediately.

13. There are many points in POFA regulations, IPC wording and even the Claimants own witness statement, that back up and imply that the “This Is Not A Parking Charge Notice” does serve the purpose of a PCN, and many judges at county court level have also found this to be the case.

14. The original notice adhered to the windscreen of the vehicle is dated that of the recorded contravention and also states a serial number pertaining to that contravention. It cannot be denied that, even though the 'ticket' adhered to the windscreen is stated not to be a Parking Charge Notice, the myparkingcharge website, to which the driver is directed, clearly states 'To access the recorded contravention details, please enter the following information from the Notification received', thus indeed stating that it is a notification that was adhered to the windscreen.

15. Furthermore, by entering the serial number and registration details on the aforementioned website, the applicant, in this case the driver, is presented with all the details of the contraventions and invited to pay a charge. This then can only amount to the driver being issued a parking charge notice, by definition.


16. While the notice in itself does not conform to the regulations regarding a Notice to Driver, in accordance with POFA schedule 4 paragraph 7, the invitation to log on to the website (myparkingcharge), must mean that it is indeed a NTD, since it is the person in charge of the vehicle, therefore the driver and not necessarily the Registered Keeper, that is being authorised and invited to log on, in order to gain details of the contravention in question and even pay the parking charge accordingly.

17. It is therefore undeniable that a notice to driver has been issued in this case, as it is the driver who is invited to log on to myparkingcharge and pay the invoice for the contravention stated. If that is to be countered then, by default, there has been no parking charge issued on the date recorded that the driver can be held accountable for or expected to pay since it would then have to be logically argued that no notice had been given. If there was no parking charge notice of a contravention issued then firstly the very invitation to log on to a website to view a recorded contravention would be illogical, and/or the view is being taken, in this instance, that the registered keeper is undoubtedly the driver, counter what IPC code of practice clearly state

'You must not imply that the registered keeper can be held responsible for the parking charge under the Protection of Freedoms Act unless the relevant time limits within the Act have been met.'

18. As demonstrated by this argument it is clear that such regulations are not being adhered to, nor the POFA being met.

19. Moreover, this windscreen notification, if viewed as being a PCN, which by the definition above it must be, fails to conform to either the POFA or IPC code of practice. Should it be that the argument is put forth that by not conforming or adhering to the POFA or IPC requirements that the NTD is in fact not a NTD based on the fact that it does not conform to those standards, then I would like to draw your attention to the 'PCN Ref No' (Parking Charge Reference Number) as detailed on the subsequently issued Notice to Keeper. The serial number that appears on the windscreen notice is the same as that detailed as the PCN on the NTK.

20. Thus, by definition, the serial number on the windscreen notice is in fact the PCN Ref No, which must therefore mean that they are one and the same and as a result the Ref No. and the serial number, being one and the same, must both refer to the parking charge. The result of which is that the windscreen notice must indeed be a reference to a parking charge. And, therefore as a notice must, by definition, be a parking charge notice.


21. While it is understood that it is not mandatory for private parking firms to issue tickets using the POFA it is a requirement that the POFA act be followed in order to invoke keeper liability. It can only logically follow that as the POFA Act of 2012 is not being followed then the act of not following the Act would result in keeper liability being unable to be sought. If VCS assert, they are not issuing this ticket as per the POFA then there are no grounds for recovering the parking charge from the keeper, since there is no keeper liability.

22. Clearly a Notice left on the windscreen for the driver which allows them to pay or appeal, is a Notice to Driver.

23. In Claim number E1QZ7X7C on 31st May 2019, District Judge Griffiths sitting at the County Court at Derby, came to the conclusion that the red card acted as a notice to driver, therefore the subsequent notice to keeper was invalid due to breaching the provisions of paragraphs 6 and 8 of schedule 4, which requires that a notice to keeper cannot be issued until 28 days have elapsed from the date of the notice to driver.

Notice to keeper and not conforming to the Protection of Freedoms Act 2012 (POFA)

24. The PCN /NTK document received with an issue date of 11th June 2019 has failed to follow POFA regulations, which is statute in law and there for doesn’t follow the IPC code of practice which heavily relies of POFA. Therefore the PPC doesn’t legally have the right to transfer liability for the contravention from the driver to the registered keeper.

25. VCS are attempting to recover more that the initial involve price, also as double recovery for costs they didn’t incur. This is forbidden in POFA regulations
POFA SCHEDULE 4, paragraph 4 -5
“The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper”

26. POFA Regulations stipulate that the NTK should specify the period of parking to which the notice relates. I have only been given a time of contravention, and no period of parking, again another reason a none POFA compliant NTK has been issued;
POFA SCHEDULE 4, paragraph 9 -2: The notice must—
“(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”

27. Following from that, if no period of parking was determined, how can VCS or the issuing officer be sure that a sufficient grace period was given as is a requirement in part B, paragraph 15 of the IPC code of practice?

28. Can VCS be asked to provide evidence proves how long the vehicle was in situ and how long of a grace period was allowed before issuing of the ‘This is not a parking Charge notice’?


29. More of the wording on the NTK is not POFA compliant. On the NTK received by the defendant, it states “28 days beginning with the day after the issue date of this notice”, Whilst POFA states “28 days beginning the day after the notice was given”. To break this down, the differences here are “day after the issue date of this notice” Vs “day after the notice was given”. Whist this may same like a small discrepancy. POFA is statute in law, and so must be followed by the word, otherwise it is deceiving and giving out in correct information to the registered keeper.
“POFA SCHEDULE 4, paragraph 9 -2 (f)
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver”

30. I refer to the case of Excel Parking Services v Smith (appeal) Stockport, (included in evidence bundle) In which it was found that a person is not liable in law for the actions of somebody when they have allowed somebody else to use their property. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.



31.  I must also draw attention to VCS v Quayle 2017, where the judge concluded that VCS had not, on the balance of probabilities provided any evidence to prove Miss Quayle was the driver of the vehicle. On top of that, because they had not followed POFA, the judge stated VCS had no right to transfer liability to the registered keeper.

32. In his 2015 POPLA annual report, Henry Greenslade wrote about various topics in the Private Parking industry, one of which was Keeper Liability. (This section of his report is included in my evidence bundle). He makes it clear at many times in his report that liability rests with the driver, it can’t automatically be placed upon the keeper, and the none compliance with POFA means the keeper can’t be held liable at all. He is quoted as writing “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.”

33. All of the inaccuracies listed above, and further throughout this witness statement mean by law, the issuing of the NTK fails POFA regulations and thus can’t be used to transfer liability to the registered keeper.