Court Claim form from VCS

chris0147

Coupon-mad said:

Is it a face to face hearing?  If it is a telephone hearing will that be suitable for you or not?

It didnt say anything on the letter but I believe it is face to face hearing.
As for telephone hearing no I would not be able to hear it as I have got hard of hearing and it is not suitable for me.

chris0147

KeithP said:

Yes. Together with your evidence and Summary Costs Assessment - all explained in the second post of the NEWBIES thread.

Remember to send a copy of all that stuff to the Claimant too.

Ok thank you very much. I know it is plenty of time to do but I want to do it quickly as possible to get out of the way.
I have write a witness statement draft so here it is:

In The County Court at Canterbury

Claim No: xxxxxxxx

Between

Vehicle Control Services (Claimant)

-and-

XXXXXXXXXX (Defendant)

WITNESS STATEMENT

 

1. I am the Defendant in this matter and the registered keeper of the vehicle in question. I will be defending this claim as keeper of the vehicle.  

2. I deny any liability for the alleged breach of Terms and Conditions with the Claimant.

3. The details of the breach of contract that occurred are unclear. I have not see a copy of the terms and conditions and any evidence that these were in fact clearly on display at the time of the alleged incident.

4. Before I describe what happened on the day that my vehicle was parked on the rear of the xxxxxxxxxx Car Park (the car park), I confirm that the essence of my defence to this claim is that:

A) You do not need to display a visitor permit on a private land.

 

C) 

BACKGROUND

5. On xxx xxxxxx 2019 I had entered to a private car park from the front to the rear of Iceland, then I stopped my car and my mum got out of my car and going to shopping at Iceland. There are no parking signs to the entrance of the car park which can be seen in the evidence photo.

6. While I waited in my car in less than 15 minutes, I used my mobile phone to go on facebook then I saw the parking warden came toward me and said that I wasn't allowed to park. I have explained to him that I waited for my mum to finish her shopping at Iceland then we would leave. He refused to accept my reasons and he started the take the photographs of me.

7. He took the photographs of me in front of  my car when I sat in my car waited for my mum to finish her shopping. I had told him to stop take photographs of me as it have affect my privately. I was shocked to see that he ignored me while he took the photographs and he did not put the PCN on my windscreen when he took photographs.

8. The parking sign in the evidence attached to the Claimants bundle is not applicable to this private car park because the land doesn't belong to them and the private car park is free for anyone to park.

The Court is invited to dismiss the claim and to award my costs of dealing with this claim and 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. 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.

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

Defendant’s signature:

Defendant’s name:

Date:

Coupon-mad

Remove this:

4. Before I describe what happened on the day that my vehicle was parked on the rear of the xxxxxxxxxx Car Park (the car park), I confirm that the essence of my defence to this claim is that:

A) You do not need to display a visitor permit on a private land.

B ) 

C) 

and this:

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

Where is your evidence?    Your WS doesn't mention photo evidence that you need to attach, showing that there are no signs (I doubt that there are none).  If it is your case that there are no signs you hav to evidence that so go and get photos this weekend if it's local.

Also, were is your costs assessment and your supplementry witness statement about the abuse of process of VCS adding false 'damages' £60 which can't be added because that woud be double recovery?

DoaM

chris0147 said:

KeithP said:

You need to assume the Claimant will pay the fee. They usually do.

Ok, I prepared to start writing a witness statement draft quickly as possible.

You have time so don't rush it. Read the NEWBIES thread and other threads to find other WS examples to crib from. You'll also find Summary Costs Assessment examples too.

Le_Kirk

@chris0147 you need to start with the Final Defence that you submitted and the start of your Witness Statement (WS)  will state "This witness statement is in support of my defence as already filed................."  This means you don't need to rewrite your defence in your WS.  You then need to compile a narrative of what happened on the day (in the First Person) using the defence as a guide to remind you and help you structure your WS.  The point of your WS is to tell the story and introduce evidence to back up and support what you wrote in your defence.

chris0147

Coupon-mad said:

Remove this:

4. Before I describe what happened on the day that my vehicle was parked on the rear of the xxxxxxxxxx Car Park (the car park), I confirm that the essence of my defence to this claim is that:

A) You do not need to display a visitor permit on a private land.

B ) 

C) 

and this:

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

Where is your evidence?    Your WS doesn't mention photo evidence that you need to attach, showing that there are no signs (I doubt that there are none).  If it is your case that there are no signs you hav to evidence that so go and get photos this weekend if it's local.

Also, were is your costs assessment and your supplementry witness statement about the abuse of process of VCS adding false 'damages' £60 which can't be added because that woud be double recovery?

Thank you. There is no sign before the entrance but there are signs when you enter at the rear of the car park. Do I need to take the pictures for evidence?

You need to display the permit to park at the rear of Iceland. I have seen alot of people have been parking without the need for permit at the car park and they didn't get the ticket. Should I take the pics at the rear car park where the signs are and take the pics of other people's car that they don't need to display the permit?

Yes it is local so I am going to take the pics tomorrow.

chris0147

It might look a bit messy, but please let me know what I need to add to my witness statement what is more important and what I need to remove.
Here is the update WS draft:

1. I am the Defendant in this matter and the registered keeper of the vehicle in question. I will be defending this claim as keeper of the vehicle.  

2. I deny any liability for the alleged breach of Terms and Conditions with the Claimant.

3. The details of the breach of contract that occurred are unclear. I have not see a copy of the terms and conditions and any evidence that these were in fact clearly on display at the time of the alleged incident.

BACKGROUND

5. On xxxxxxx 2019 I had entered to a private car park at the rear of Iceland, then I stopped my car and my mum got out of my car and going to shopping at Iceland. There are no parking signs to the entrance of the car park which can be seen in the evidence photo.

6. When I waited in my car in less than 15 minutes, I used my mobile phone to go on facebook then I saw the parking warden came toward me and said that I wasn't allowed to park. I have explained to him that I was waiting for my mum to finish her shopping at Iceland then we would leave. He refused to accept my reasons and he started to take the photographs.

7. He took the photographs of me in front of my car when I sat in my car. I had told him to stop take photographs of me as it have affect my privately. I was shocked to see that he did not put the PCN on my windscreen when he took photographs.

8. The parking sign in the evidence attached to the Claimants bundle is not applicable to this private car park because the land doesn't belong to them and the private car park is free for anyone to park.

8. 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).

9. The Claimant seeks to apportion liability to the Defendant for not replying to their letters or identifying the driver, and suggests that this conduct caused the Claimant costs.

10. Alleging that the letters the parking firm sent have caused an additional loss is simply untrue. The standard wording for parking charge/debt recovery contracts is/was ''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 they used a third-party debt collector during the process.

11. The Claimant quotes paragraph 4 of the POFA however this is irrelevant and misleading to the case as it has been outlined multiple times that the Claimant has not with the POFA and therefore chose not to utilise this statue.

12. In para #31 The Claimant states that I had ‘failed to act upon’ each notice. This is not the case I have contacted the claimant asking for further information to be provided with evidence in regards to the claim so that I could review my position and act appropriately. The only option provided by the Claimant has been for myself to accept all liability and pay the charge or to name the driver of the vehicle on the day in question. As outlined in my witness statement this is not a lawful requirement therefore it is unreasonable to claim the defendant has ‘failed to act.’

13. All the letters from the claimant in addition to the claim form fail to mention any grace periods allowed under the alleged contract which the defendant believe is a deliberate attempt to mislead the defendant and court about any estimated alleged damages and costs.

14. The Claimant states in their witness statement that the signage is clearly displayed but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present.

15. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs or running an automated regime of template letters. Thus, there can be no ‘costs’ to pile on top of any parking charge claim Ex..

16. This case is fully distinguished in all respects from ParkingEye LTD v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a ‘complex’ and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or ‘concealed pitfall or trap’.

17. This parking charge is not valid, as the registered keeper has been invoiced though in the post for time it took the vehicle to enter and exit the car park. The ANPR does not record how long the vehicle was parked for, and therefore cannot issue a charge for overstaying the parking limit.

18. In summary, the Claimant's particulars of claim 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

19. 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 that relief from sanctions should be refused.

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 £180. 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.

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.  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. 

26.  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.

27.  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.

28.  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.

29.  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.

KeithP

3. The details of the breach of contract that occurred are unclear.

Change that to... "3. The details of the breach of contract that is alleged to have occurred are unclear".

11. The Claimant quotes paragraph 4 of the POFA however this is irrelevant and misleading to the case as it has been outlined multiple times that the Claimant has not with the POFA and therefore chose not to utilise this statue.

The Claimant has not... what?

Throughout, you need to refer to your evidence. For example, if you say there are no entrance signs, you need to have evidence, e.g. photos, that show that. Otherwise, it is just your word against theirs.
E.g. you might say something like " there are no entrance signs - as can be seen in exhibits ABC001 and ABC002". (where "ABC" are your initials)

chris0147

KeithP said:

3. The details of the breach of contract that occurred are unclear.

Change that to... "3. The details of the breach of contract that is alleged to have occurred are unclear".

11. The Claimant quotes paragraph 4 of the POFA however this is irrelevant and misleading to the case as it has been outlined multiple times that the Claimant has not with the POFA and therefore chose not to utilise this statue.

The Claimant has not... what?

Throughout, you need to refer to your evidence. For example, if you say there are no entrance signs, you need to have evidence, e.g. photos, that show that. Otherwise, it is just your word against theirs.
E.g. you might say something like " there are no entrance signs - as can be seen in exhibits ABC001 and ABC002". (where "ABC" are your initials)

Thank you. I have changed the paragraph 3 so is it looks good to go?

3. The details of the breach of contract that is alleged to have occurred are unclear. I have not see a copy of the terms and conditions and any evidence that these were in fact clearly on display at the time of the alleged incident.

Sorry I copied the paragraph from someone else so should I remove this?

The Claimant quotes paragraph 4 of the POFA however this is irrelevant and misleading to the case as it has been outlined multiple times that the Claimant has not with the POFA and therefore chose not to utilise this statue.

Yes there is no signage at the entrance of the car park area and car park next to Iceland where it have no signage. Do I need to take the pics of the entrance of the car park and a car park next to Iceland where it have no signage?

KeithP

Sorry I copied the paragraph from someone else so should I remove this?

Not necessarily. Adjust it to make sense. Look at it this way... if the judge says to you "what are you trying to say at paragraph 11. Can you please explain".
Perhaps between the words 'not' and 'with' there should be the word 'complied' - but it is your Witness Statement - you need to understand it.
I've also just noticed the last word in that paragraph is wrong too - statute, not statue.

There may be other points that I have not mentioned.