VCS county court stage - witness statement review please

Lt20

Thanks so I’m guessing I should’ve heard directly from the court then. I’m just worried I’m missing some deadline without even knowing there was a hearing

KeithP

As @nosferatu1001 said, you can't just sit back and let things happen - or not.

Be proactive. Phone the hearing court and politely ask what's going on.

Coupon-mad

And you know what to make of the WS, given that it's standard template stuff from VCS that you can read about by searching the forum for VCS Vine for example.

Lt20

Hi everyone so an update. I managed to find out from the court on Friday that I had apparently been sent court info 29/2 but I’ve never received it. In the same breathe I was told ‘but these were all supposed to be withdrawn due to covid’ I’m still waiting to hear from the court if the listing will remain and I’m still waiting for the court papers that were issued first class Friday however I was advised (and I intended to continue) as if it will be in the listings. Claimant paid the fee on Friday.
so basically I have until weds cop to submit my w/s the court advised I could email this. So I copy below what I have done. I’ve looked at adambuzz and his case was in sane court same situation so hears hoping for the same outcome 
thanks for reviewing and any advice about the statement are welcomed 

Lt20

witness statement

1. I am *** of ****.  I will be defending this claim as keeper of the vehicle only.  I will say as follows:
2. The contents of this witness statement are based on my own experiences and matters witnessed, and within my knowledge, are all true.
3. Along with this statement is a bundle of documents to which I will refer.  This Witness statement is prepared for the hearing at Derby County Combined Court 24 July 2020.
4. At the time of the alleged contravention I was the registered keeper of the vehicle ****.
5. The date of the alleged contravention was my last working day before my 40thbirthday and in the evening, I celebrated with some alcoholic drinks with several of my colleagues in the Canal Street area of Nottingham.
6. I recall that the weather on this day was dark and wet with sleet and snow storms.
7. I did not at any point of 29 January 2016 drive vehicle ****.  This is because I will not drink any amount of alcohol and drive.
8. The first I knew of the alleged contravention was when I received the notice to keeper which was dated 21/03/2016 (Ex ref AA2). I received this some weeks after 21/03/16 due to it being sent to an address that I hadn’t lived in for almost 2 years.  I therefore did not receive the notice to keeper within 56 days of the original contravention date (as perProtection of Freedoms Act 2012 (POFA) sch 4 para8) rendering the claimant’s reliance on Sch 4 of POFA unsuitable.
9. Upon my receipt of the ‘notice to keeper’ letter I immediately emailed Vehicle Control Services Ltd telling them I was not the driver.  I sent this to the email address on the rear of the letter dated 21/03/16.
10. Unfortunately, due to the length of time passed I do not have a copy of this email.  As the Email account was hijacked, I no longer have access to it.
11. After recently visiting the site at Wool Pack Lane, Nottingham, I feel the first thing that is evident to any visitor is the lack of clear signage. The parking spaces consists of around 25 parking spaces with only 3 warning signs on the rear walls.  These are small sized signs with lots of confusing text written on dark backgrounds placed over 6-foot-high rendering them unreadable to a driver.  None of these signs are at the entrance. This leaves plenty of areas and ‘corners’ where signage cannot be seen at all. This is evidenced in the Claimants own photographic evidence (dated 2015) and the plan they submitted (dated 27/05/99) (both Ex Ref AA1).
12. As there are no signs at the entrance to the site it cannot be said the signs meets with Para 33 of the claimants statement ‘the signage is prominently displayed and visible on entry to the site’ and therefore fails to make the contractual terms and sufficient notice to which the claimant refers and the precedent they claim to rely on set under Vine v Waltham Forest LBC (2002) 1 WLR 2383,2390. In any case this claim was won by Ms Vine at appeal and if anything adds weight to my case. Whilst this case was centred on the act of clamping a vehicle, and whether by reading the signs, the owner consented to her car being clamped, the judge at retrial felt that although Ms Vine had seen the signage, he concluded that just seeing a sign didn’t necessarily give her the opportunity to read and understand the sign. In my case, I am claiming the signage at the Wool Pack Lane site is so poor, no driver can see, read or understand the signage and enter into a contract.
13. The same photographs provided by the claimant in Ex Ref AA1 show the signs are sited in different locations to those indicated in the plan within the same exhibit.
14. Ex Ref LR01 shows a ‘Google image’ of the street in May 2016.  This shows that the car park is at the rear of a public house and therefore it’s plausible that any patron of the public house could believe, not seeing any visible signs, that this was a public car park intended for use of visitors to the pub.
15. The parking spaces have absolutely no lighting, so whilst the claimant has included ‘library’ images from 2015 of the signage in broad daylight, this is a very different image to what would have been seen at 19:46 during sleet and snow storms in January.
16. As you can see in the claimant’s photos (Ex Ref AA1), the general state of the parking area is quite run down, with graffiti on walls, boarded up windows and repaired fencing. In short there are lots of little objects of similar shape and size on and around the walls.
17. Not until you know that the signage exists, and you get right underneath it, is it even readable. This isn’t just down to the lighting, but also the size of the signage being around the size of a piece of A4 paper. Even in the claimant’s evidence (Ex Ref AA1), the photographer has had to get right in front of the sign, utilising their flash to get a photo of it.
18. The claimant’s photographs in Ex Ref AA2 show that vehicle **** was parked on the left-hand front wall facing the road.  The approximate area is indicated by a blue circle on Ex Ref LR01.
19. It is plausible that the driver of vehicle **** could have entered the car park and drove directly to the left, and parked the vehicle facing the road without ever having seen any warning sign.  Indeed, the photos included in Ex Ref AA2 clearly show council warning signs on the opposite side of the road some meters away but none of the claimant’s photographs in Ex Ref AA2 depict any clear images of their own signs.
20. The claimant is relying on the signage at the site to establish a contract with the driver. In order to create a contract, the signage must comply with, amongst other things, IPC Code of Practice (to which the claimant is signed).
21. On the day of the alleged contravention the signage at the site fell woefully short of the standards required in:
    PART B - 2. Signs -2.2; “Signs must conform to the requirements as set out in a schedule 1 to the Code.”
22. Part E Schedule 1 – Signage.
    I won’t go through the whole section, as the code of practice is included (Ex Ref LR02), but Points of note here are; “Signs should, where practicable, be placed at the entrance to a site”. In this case there is no signage at the entrance. Can the Claimant confirm they have written agreement from the IPC that they did not require entrance signage or that it could be omitted.
23. IPC also cover text size “The size of text on a sign will be determined by a number of factors such as the position of it and whom it is aimed and the information it needs to convey”. So, in this case, if they chose not to have entrance signage, then the signage on the back wall (which is the only signage) would need to be sized adequately that a driver entering from the road would be able to see, read and agree to this. And in this car parking area, this clearly isn’t the case.
24. IPC code of practice also states that the signage MUST “Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA;” Looking at the copies of the signage the claimant has supplied in Ex Ref AA1, whilst they do state they may request details of the vehicle’s Registered Keeper from the DVLA, they fail to include the time period of 28 days, which is not only against IPC Code of practice but also against POFA regulations .
25. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and accessible, thus the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
26. The claimant is citing Thornton v Shoe Lane in the context that the contract is formed at the point of entry to the car park. The car park in the Shoe Lane case is a barrier car park with an entry lane and with a sign which would be quite visible on entry. In the Shoe Lane case Thornton would also have to stop at the barrier to take a ticket, which stated that the terms and conditions were clearly stated on sign in the car park. The motorist, in this case was claiming injury in the car park, so this case really can’t be used in compassion due to significant differences.
27. The claimant is relying on Sch 4 of theProtection of Freedoms Act 2012 (POFA) (Ex Ref LR04).  However, schedule 4 can only be relied upon if the conditions in paras 5,6,8,11 and 12 are met.
28. Para 8 states a notice which is to be relied upon as the Notice to Keeper must

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

Lt20

1. The Notice to Keeper/ Driver Dated 21/03/16 in Ex Ref AA2 does not give the period of parking but refers to the ‘period that immediately proceeds the contravention time referred’
2. Following from that, if no period of parking was determined, how can Vehicle Control Services Ltd 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.
3. More of the wording on the Notice to Keeper/ Driver Dated 21/03/16 in Ex Ref AA2 is not POFA compliant. This states “payment of £100 is required within 28days of 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”
   
   
4. I made Subject Access Request to Vehicle Control Services Ltd on 12/01/2020 and on 1102/2020 I was issued with a number of documents held by them.  One of these is a screen shot of their systems Ex Ref LR03.  This screen shot shows ‘are the PCN’s POFA complaint?’ to which the box is filled in ‘NONPOFA’. So by their own admission the Notice to Keeper/ Driver Dated 21/03/16 issued by Vehicle Control Services Ltd is not POFA compliant.
5. 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 Vehicle Control Services Ltd 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.
6. Clearly a Notice left on the windscreen for the driver which allows them to pay or appeal, is a Notice to Driver.
7. Vehicle Control Services Ltd (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”
8. I must also draw attention to VCS v Quayle 2017, where the judge concluded that VCShad 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.
9. The Judgement stated, “She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”
10. Henry Greenslade is the Lead Adjudicator for POPLA (Parking on Private Land Appeals) who are the independent appeals process for BPA registered PPC’s. And whilst I was unable to appeal through POPLA (as Vehicle Control Services Ltdare not BPA registered), being a barrister himself, Henry Greenslade is considered the parking law expert amongst many.
11. 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.”
12. All of the inaccuracies listed above, and further throughout this witness statement mean by law, the issuing of the Notice to Keeper/ Driver Dated 21/03/16 in Ex Ref AA2 fails POFA regulations, as admitted by VCS themselves in their documentation Ex Ref LR03 and thus can’t be used to transfer liability to the registered keeper.
13. Vehicle Control Serviced Limited have added an extra £60 onto this County Court claim, that wasn’t part of the original invoice amount. In my case, VCS have used Debt Recovery Plus , BW Legal and DCBL to try and recover payment. Debt recovery Plus don’t charge their client for their services, they operate on a strictly ‘no collection, no fee basis’, and instead add their fee, £60 onto the amount they are trying to recover, rather than charging their client. 
14. As Debt recovery plus were unsuccessful in recovering any payment from myself, £60 was never claimed but was never required to be paid by VCS. When the case was passed back to VCS as a failed recovery, there was no debt recovery cost to be paid by VCS, but instead VCS have added this amount of £60 onto their court claim, and are claiming it as cost for debt recovery. This is classed as Double recovery which is strictly forbidden under POFA regulations. On top of that, POFA Regulations (POFA SCHEDULE 4, paragraph 4) limits the amount that can be recovered to the sum stated at the Notice to Keeper stage, and no more.
15. There are various issues and inaccuracies with the VCS witness statement. Their Witness statement is clearly a template referring to the registered keeper as being both sexes throughout the document. I have viewed near enough the exact same witness statement a number of times online, with only minimal changes that are specific to my case. Below I the main (not all) points I object to in the claimants witness statement. I have referenced which VCS paragraph I am addressing in bold. E.g. VCS Paragraph 1.
16. VCS Paragraph 1 If he/she has been working for VCS since January 2019, this is 3 years after the alleged contravention occurred therefore how can any of the information within the witness statement by his/her own knowledge. What is their link to this case? They have no first-hand knowledge about the site, signs, or parking event. Surely this makes them an unreliable witness to this case as they are clearly just re hashing information given to them from others and using readymade templates from within their business. On top of this, 90% of the VCS witness statement is a generic template, with little genuine evidence referring to this case. Surely this could be seen as misleading a judge as it isn’t their knowledge to give.
17. VCS Paragraph 5 The Code of practice, from the IPC who VCS are a member does not merely comprise of 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance to the IPC code of conduct has to be followed to obtain DVLA data.
18. VCS Paragraph 7 This paragraph claims the defendant, myself, was identified as the registered keeper whilst the vehicle was in was in Woolpack Lane car park. If this was the case, it would be a serious breach POFA and IPC rules. On top of that it would mean a notice to keeper, but VCS claim the initial notice was a notice to driver. More likely this is a poorly worded sentence due to this Witness Statement being a template and not being edited correctly to reflect this case.
19. VCS Paragraph 8 Only minimal and poor signage was erected, leaving drivers unable to agree to terms and conditions.
20. VCS Paragraph 14 Here VCS are stating signs are visible on entry to the car park. There isn’t a sign on the at all at the entry of the car park.
21. VCS Paragraph 22 Here VCS are implying the driver is the defendant, knowing full well the defendant is the registered keeper, which is totally against POFA regulations. The card is addressed to ‘The person in charge of the vehicle’, who at the time would have to be the driver. So, at no point was the card made out to the registered keeper as claimed by VCS.
22. VCS Paragraph 24 and 25 There is no 'adjudicator' within this parking firm's 'Appeals Dept'. No such person, no such Dept, no such thing. and I received no such response to my Email sent in 2016.
23. VCS Paragraph 26  The IAS is made up of IPC members, so in no way is it independent. It’s basically Private Parking Companies deciding on appeals against themselves.
24. VCS Paragraph 30 Thornton vs Shoe Lane Parking is irrelevant, merely showing that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later. Previously addressed in this statement.
25. VCS Paragraph 32 Vine is misquoted/out of context. The court goes on to note that the signage was insufficient in the Vine case. It's fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the judgment from Roch LJ, where Miss Vine won. Again, also addressed previously in this witness statement.
26. VCS Paragraph 33 Again the claimant claims signage is not only displayed, but ‘Prominently displayed and visible on entry.’ There is no signage what so ever at the entry.
27. VCS Paragraph 34 The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turn over and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking and chose to challenge based on the monetary value to the car park operator of over staying the allowed time. In my case, there were no clear signs for a driver to enter a contract with the VCS and there was ample free space for other vehicles to park as shown in the claimant’s own evidence.
28. There are many more errors I could raise with this statement but my point with the evidence from VCS is where is the witness statement from the operative who issued the notice, who took the photographs and where are his/her comments about the identity of the driver or the CCTV footage request in my SAR to identify the driver.
29. Finally, I would like to draw your attention to an almost identical case heard at the same Court as this listing on 31/05/2019Case No: E1QZ7X7C VEHICLE CONTROL SERVICES V ADAM BURZYNSKI the transcript of which I provide as Ex Ref LR04.  This Case was regarding the same car park, the same signage, with the alleged contraventions happening at a similar time of year (Dec 2017 v’s Jan 2016) at a similar time of night (20:31hrs v’s 19:46hrs).  Judge Griffins awarded in the favour of the defendant stating ‘I am satisfied that there was a total inadequacy of warning signs in this car park. On that ground alone I find in favour of Mr Burzynski.’
30. I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth

Lt20

Don’t know why the numbering re started it is correct on my word doc and goes up to number 58

Coupon-mad

(dated 27/05/99)

What year does that mean?

#26 has the word 'compassion' instead of (presumably) comparison

You need only to quote para 8, not para 9 of POFA (postal NTK only with no windscreen PCN first).  So:

“POFA SCHEDULE 4, paragraph 9 -2 (f)
should read:
“POFA SCHEDULE 4, paragraph 8(2)(f)


Very well spotted here (below). Typo though, should read 'compliant' not 'complaint'

This screen shot shows ‘are the PCN’s POFA complaint?’ to which the box is filled in ‘NONPOFA’. So by their own admission the Notice to Keeper/ Driver Dated 21/03/16 issued by Vehicle Control Services Ltd is not POFA compliant.

Where you talk about VCS v Quayle & Henry Greenslade's words you need to give them exhibit numbers and append them.  You also ned your summary costs assessment, signed and dated.  

And the Southampton case of Britannia v Crosby about adding £60 not being lawful.

You've missed Excel v Smith (a higher appeal stage case) which is as easy as pie to find online (Parking Prankster case law pages) along with the Quayle transcript which is also there.   Excel v Smith is more important than Quayle because it was on appeal = persuasive and kills off ay attempt by VCS or Excel to use the case of Elliott v Loake/law of agency.  That's stone dead, if you cite Excel v Smith!

Are you appending the RIGHT version from 2016, of the IPC CoP (check, they can be hard to track down on Google).

BTW really good effort and what a result that Adam's case, complete with transcript (funded by SoftwareMad's fundraising) relates to exactly the same location and court!

Lt20

Thank you so much for the help I’ll get on this again today 
Yes - that is the date as it reads on the plan so I presume 1999 but I honestly don’t think that it can be. I will re check especially as Adams refers to the site plan being from 2017.
Do you think the end is the right place to refer to the most important case or would it be more impactful first? I might switch that round.

Lt20

Thank you all for your assistance. The statement and exhibits are done and I’ll keep you updated on the outcome 
just wondering if Vcs are likely to pull the case at this stage - anyone know? They’ve paid the fee