*Updated* VCS Discontinue 7 days before WS & Court Fee Due for PCN Moorfoot Tavern Sheffield

Zeus65

Hi,
VCS seem to be busy on historic PCN's. I have received a County Court Claim Form. Firstly this now may seem a bit last minute; mainly due to travelling for work, holiday and in all honesty a bit of procrastination on my part as it is a bit daunting. However I am set on fighting back! Some basic details;
Contravention Date: 04/07/2016
Issue Date Of NTK (windscreen PCN was issued): 16/09/2016
Letter Before Claim: 07/11/2019 - Totaling £226.80
Court Claim Form Issue Date: 13/01/2020
Amount Claimed - £160
Court Fee - £25
Total - £185
Particulars of claim - 'The claim is for a breach of contract for breaching the terms and conditions set on private land. The defendant's vehicle, xxxxxxx, was identified in the Moorfoot Tavern on the 04/07/2016 in breach of the advertised terms and conditions; namely parking without displaying a valid ticket/permit. At all material times the defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the of the offer hereby entering into contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the defendant has failed to settle the outstanding liability. The claimant seeks the recovery of the parking charge notice, contractual costs and interests.'
AOS: Completed on 22/01/2020 (I believe this gives me until 15/02/2020 to file my defense)
SAR: Sent to VCS Data Protection 22/01/2020

I have spent some time reading through the forums posts and similar cases and have started pulling together a defense around these two main points;
- The signage being in adequate in the fact there is no signage upon entry into the car park. Signage is displayed on the far walls of the car park further then the driver would have had to go to park and leave the car park. The signs are also not obvious or readable from any fair distance.
- The added £60 costs abuse of power

I have a few other points that I would very much appreciate some advise on if they have any solid grounds to be included in the defense;
- The vehicle is a company car, has the NTK been issued in an adequate time following a windscreen PCN and a possible delay in date being received from the DVLA?
- There is no option to purchase a ticket, it seems only a valid permit is valid for parking
- The driver works in sales, and in work time visited a restaurant for the first time (not the landowners) in which they were unloading stock. The restaurants back door leads out to the car park with no other suitable place to load (double yellows all way around building) and the driver assumed the car park was for use in conjunction with the restaurant. As there is no information on the period of time the vehicle was parked, is there a grace period in this situation? 
- From the instance of the first NTK and all subsequent correspondence since, the Defendant's name has been misspelled by missing a letter. I imagine this is would have no value to my case and be easily correct but thought worth noting in case
- How do they get away with the wording in the debt recovery letters between the NTK and official claim? The language is very intimidating and misleading
*Referring to PE V Beavis 'This case eliminates the main defence that you may have should the matter go to Court'
*'You should also note that if you claim has been processed through IAS and an IAS has dismissed your appeal, then it is likely that a County Court will come to a similar conclusion and your defense will be unsuccessful'
*'In the event we are instructed by our client to issue a claim and if our client successfully obtains a County Court Judgement ("CCJ") against you (which is likely), then a CCJ wil be recorded on your credit file for 6 years unless you satisfy the CCJ in full within a month. A CCJ on your credit file may affect your ability to obtain future credit and employability'

Apologies if these questions have simple answers or have been answered in the past. Thank you in advance for any advice and support
Zeus

Le_Kirk

- The added £60 costs abuse of power

It's Abuse of Process

Apologies if these questions have simple answers or have been answered in the past

Yes, they have and all your answers along with links to 17 pre-written defences will be found in the NEWBIE sticky second post.  

BrownTrout

The moorfoot tavern does the best Mexican food by a long way!

Zeus65

Le_Kirk said:

- The added £60 costs abuse of power

It's Abuse of Process

Apologies if these questions have simple answers or have been answered in the past

Yes, they have and all your answers along with links to 17 pre-written defences will be found in the NEWBIE sticky second post.  

Thanks - Yep I am going through them now in detail. Will post my defense once compiled

Zeus65

BrownTrout said:

The moorfoot tavern does the best Mexican food by a long way!

It is good Mexican! Been a few years since it was even called The Moorfoot Tavern! No idea it is still referenced and named as that.

D_P_Dance

Amount Claimed - £160
Which includes an unlawful £69, read this

forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

BrownTrout

Yep I remember that pub when worked at the bottom of the moor

KeithP

Zeus65 said:

I have received a County Court Claim Form.
Court Claim Form Issue Date: 13/01/2020
AOS: Completed on 22/01/2020 (I believe this gives me until 15/02/2020 to file my defense)

With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.

That's just over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of he NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

Zeus65

Below is the defence I have compiled using a combination of other defences in the previous posts found on the Newbies thread. I spent some time reading through the Abuse of Process thread and read some conflicting opinions on if a defence should include the all the content on Abuse of Process. It does make the defence very long and will a Judge take the time to read all of this? Are there any thoughts?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LIMITED (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was unloading goods to Company El Paso at Moorfoot Tavern, and had verbal consent from the company El Paso. Signs displayed by Company El Paso upon entry to Moorfoot Tavern displaying instruction of loading were adhered to thus I would not be able to enter any further contracts advertised.

3. Further and in the alternative, 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked'. It is important to note that there are no clear parking bays or areas within the site. The signage gave no requirement to display the valid parking permit. Furthermore signage displayed on the far walls of the site are at a height that is not easily visible from inside of a vehicle or exiting a vehicle. Signage is also not displayed immediately outside the Company El Paso as it is in other areas of the site, coupled together with the Companies own signage this becomes confusing.

4. 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.

5. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

6. The driver was allowed the right to load/unload by the leasehold business, relying on an express verbal agreement with the on duty manager.

7. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

8. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC in June 2016 at Oxford County Court, in a similar case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES'.

9. The right of the on site businesses to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant and the Jopson Appeal case found that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract'.

10. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

11. The Particulars of Claim state that the Defendant XXXX was the registered keeper and/or the driver of the vehicle XXXXXXX. The vehicle has more the one driver and the claimant has not provided any evidence as to who was driving. 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.

12. Should the Claimant attempt to rely yet again on the irrelevant case of CPS Ltd v AJH Films Ltd, in an attempt to suggest to a Court that a driver 'acts on behalf of' an individual consumer registered keeper, using their well-documented and twisted interpretation of the law of agency, the Defendant points out that that there can be no agent/principal relationship between individual drivers and keepers in a family.

13. 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.

14. 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 parking charge notices in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

Zeus65

15. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) 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 or explanation is given, and which appears to be an attempt at double recovery.

16. 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 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.

17. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. 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.

17.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

18. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the 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 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.

18.1. 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''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

18.2. 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.''

18.3. 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...''

18.4. 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.''

19. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') 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' (further, 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.

20. Further, the purported added 'costs' are disproportionate, vague and 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 atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

Zeus65

20.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''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 in 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.''

20.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans 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. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. 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.

20.3. 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.

20.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge 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...''

20.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.