VCS claim form/court papers received today

Coupon-mad

I wrote another one here, late last night with more than half of it about the added costs. Take a look at my posts. You can find it in 2 seconds flat.

I do this because I KNOW many posters will forget all about it at WS stage or will not remember to come back and do a WS...(she silently screams...!) so at least if every poster, even those who flit in and out, nail it in the defence then all posters should be able to bat away the added £60 even if they lose. That's the thinking behind it.

There is also a second thought, that by putting it in the defence your local Judge will read it when giving Directions and MIGHT summarily strike the entire claim out as they do in Soton and Warwick.

If you are sure that you will hang around, read more threads during the coming couple of months and will remember to include it at WS stage (and are OK about attending a hearing and not hoping to get the Judge to strike the claim out - fingers crossed) then just cut the detail down and simply mention at defence stage that the claim is exaggerated, then pick up the detail later, in evidence.

Velocifero

I'm just having my tea so I'll reply to everyone properly later. I think my worry over the length of the defence has come from people saying to keep it short and sweet, I've literally seen a defence with only 8 points and people saying that it was the right length.

Velocifero

1505grandad wrote: »

Para 3 - IPC = International Parking Community

Cheers, corrected in my latest version.

Coupon-mad wrote: »

I wrote another one here, late last night with more than half of it about the added costs. Take a look at my posts. You can find it in 2 seconds flat.

Having read every thread you posted in over the last ~48 hours I'll assume you're referring to this post in which case I've copied the bulk of it with a few minor tweaks (ie you've used acronyms like CPR/POFA before explaining what they are).

I know the numbers are off by one after 8 but its three in the morning and I'm falling asleep and will fix it in the morning.

In The County Court


Claim No: XXXX


Between

XXXXXX Ltd (Claimant)

-and-
XXXxxx
(Defendant)

____________
DEFENCE
____________
1. The Defendant was the registered keeper and driver of vehicle registration number XXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

3. Photos received from the claimant show the the driver stopped briefly for less than a minute. The International Parking Community (IPC), of which the claimant is an operator, details a grace period in their code of practice (Part B, section 15). Part B, Section 15.1 states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”

4. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (case number: B9GF0A9E) (2016) in regards to distinguishing stopping from parking.

5. 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide management services and is not capable of entering into a contract with the Defendant on its own account, as the land is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner that would be capable of binding any reasonable person reading them.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

10. If the Court is willing to consider that the Claim may continue to a hearing, the parking charge sum has been exaggerated by 60% and this is a clear abuse of process.

11. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt and the Claimant stands in breach of the Civil Procedure Rules 1998 (CPR), the Protection of Freedoms Act 2012 (POFA) and the Consumer Rights Act 2015 (CRA) Schedule 2 'terms that may be unfair'.

12. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

13. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws provide indisputable authority for the proposition that the parking firm's operational (or 'admin' or 'debt collection') costs cannot be added to a parking charge as if they are additional losses.

14. Alleging that the letters the parking firm sent have caused an additional loss in 'indemnity costs' over and above £100 parking charge, is simply untrue and unrecoverable, even if the signs and/or the Code of Practice (CoP) alludes to such a cost. This Claimant is known to mislead courts by putting into evidence the wrong version of the CoP (a document written by the parking industry, for the parking industry) and even if the 2016 version did mention adding admin costs, Judges are taking the two CoPs with a pinch of salt because they are self-serving, non-regulatory Trade Bodies and statute law is tipped firmly against that argument.

15. Whilst it is likely that this Claimant will try to rely upon it, in fact the case of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case') was specific to its own completely different facts and is fully distinguished. Mr Beavis was an admitted driver who saw legible and prominent parking charge terms on briefly-worded signs and accepted a contract on private land, where the parking firm had a legitimate interest and the claim was not exaggerated and was properly pleaded. That case is not authority for the proposition that all parking charges on private land are saved from the penalty rule; quite the opposite.

16. In fact, the Beavis case is the authority that shows that a parking firm may seek to recover the advertised 'parking charge' itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all the usual minor costs of a parking charge model, in the months prior to court action.

17. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

17.1. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

17.2. 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...''

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

The POFA 2012 is against this Claim
18. The POFA Schedule 4 at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (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 requirements of the statute and it has not, in this case.

The Consumer Rights Act 2015 ('the CRA') is against this claim
19. Further, the purported added 'costs' are in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in the past year, more than one Judge has noticed the pattern and moved to stop this abuse of process at source.

19.1. This Claimant has no excuse in continuing to file exaggerated £160 claims, given that they were a party to a Caernarfon case, number F2QZ4W28 (Vehicle Control Services Ltd v Davies) in 2019, where - after giving this Claimant more than one warning at hearings - District Judge Jones-Evans proceeded to strike out claims and declared the added £60 to be ''wholly without merit and an abuse of process''. The Judge stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings, which speaks volumes but the practice allows parking firms to recover far more in default judgments than they are entitled to pursue. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently. That statement has not been seen in the public domain to date, and the Claimant is put to strict proof.

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

19.3. Multiple claims were/are being summarily struck out in that Court Circuit, with Judges stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

19.4. It is in the public domain that in Southampton, the parking firm filed a N244 application regarding at least a dozen struck out cases and a hearing was held on 11th November 2019 where the parking firm's barrister failed in the application. All three points below were robustly upheld by District Judge Grand, who agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193 and 198.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) including breaches of paragraphs 6, 10 and 14.

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

Consumer Notices are never exempt from the CRA 2015 'test of fairness'
20. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent)...''

20.1. At 3.2 the Guidance continues: ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

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

More £160 private parking claims continue to be summarily struck out
21. In December 2019 in a different Court circuit, Deputy District Judge Josephs sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge.

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

22. 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 harassing and has now continued to blight the Defendant's peace of mind for over four years.

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

24. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14. It is noted that under CPR 48.6, the costs allowed for a Litigant in Person working/representing themselves must not exceed two thirds of the amount which would have been allowed if they been represented by a legal representative and the Defendant intends to demonstrate how such costs are justified, necessary and proportionate, unlike those of the Claimant.

Statement of Truth:

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

Name
Signature
Date

1505grandad

Still quoting IPC wrong

Velocifero

What a moron. Serves me right for doing it at stupid o'clock.


Actually fix ed it this time, like, for real. Honest.

Velocifero

Before I get this printed and signed later today does anyone have anything else to suggest in the way of corrections, amendments, etc.?

Coupon-mad

Go for it. I might use that defence as a current example for the NEWBIES thread.

:T

Velocifero

Well you wrote the bulk of it

Coupon-mad

Yep but it's a good example of how to adapt it, as written by a newbie, to show others how easy it is once you know what to copy!

Stick around after submitting it...read lots of claim/hearing threads, regularly.

And no asking us about stuff that the NEWBIES thread fully covers (please!) for example I will scream if anyone asks about the DQ N180 form stage again...a really simple form, with questions completely covered in the sticky thread.

Velocifero

I don't suppose anyone has any idea how long it takes for the defence to show up on MCOL once its been emailed in? I emailed it Friday night but its technically only been two business days, is that enough time for them to have acknowledged it or should I give them until the end of the week?