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

Zeus65

Thanks Coupon. I have found the document here https://forums.moneysavingexpert.com/discussion/6079858/bw-legal-premier-park-thanks-for-all-your-help/p2

I intend to add a new point after para 17

18. Attached is a copy of DDJ Joseph's order to strike out a claim as an abuse of power dated 6th December 2019. The order concludes that the additional charge is not recoverable under POFA 2012, is not backed up by the judgment in Parking Eye v Beavis and falls into examples 6,10 and 14 of unfair terms in schedule 2 of the CRA 2015.

Le_Kirk

Coupon-mad said:

Looks fine, why not attach a copy of DDJ Joseph's strike out decision reasoning from Warwick court, as shown in a scan in the thread by jon8838 (username was something like that but can't work out how to search this new forum properly now!).

Trying to search for a user Jon8838 doesn't find anybody but searching for DDJ Joseph did lead me to the following: -
https://forums.moneysavingexpert.com/discussion/6079858/bw-legal-premier-park-thanks-for-all-your-help
ETA If you start typing Jon in the Author box as suggested, it doesn't find anything relating to Jon BUT if you type Jon8838 it does!  Go figure.  This needs reporting in the Issues thread on the feedback forum which I shall do after choir practice (euphemism for pub lunch!) 

Le_Kirk

Le_Kirk said:

Coupon-mad said:

Looks fine, why not attach a copy of DDJ Joseph's strike out decision reasoning from Warwick court, as shown in a scan in the thread by jon8838 (username was something like that but can't work out how to search this new forum properly now!).

Trying to search for a user Jon8838 doesn't find anybody but searching for DDJ Joseph did lead me to the following: -
https://forums.moneysavingexpert.com/discussion/6079858/bw-legal-premier-park-thanks-for-all-your-help
ETA If you start typing Jon in the Author box as suggested, it doesn't find anything relating to Jon BUT if you type Jon8838 it does!  Go figure.  This needs reporting in the Issues thread on the feedback forum which I shall do after choir practice (euphemism for pub lunch!) 

I have added this as a question/suggestion to the snagging list.

Zeus65

For future reference and anyone interested below is my final submitted defence 

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LIMITED (Claimant)

-and-

xxxxxxxx (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 xxxxxx, of which the Defendant is the registered keeper, was unloading company goods to the restaurant El Paso at Moorfoot Tavern, and had verbal consent to do from El Paso. Signs displayed on the building of El Paso upon entry in to Moorfoot Tavern displaying instruction of loading were adhered to and no further contracts of parking were entered.

Inadequate and vague signage

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 parked, 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 a 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 El Paso as it is in other areas of the site, coupled together with the Companies own signage this becomes confusing and contradicting.

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.

Leasehold authorisation to load/unload

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 onsite 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).

Sparse particulars of the Claim

11. The Particulars of Claim state that the Defendant xxxxxx was the registered keeper and/or the driver of the vehicle xxxxxx. The vehicle has more than 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. 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.

Proof of authorisation to operate on land

13. 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.

Exaggerated claim - £160 represents Double Recovery

14. 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.

15. 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.

16. 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.

17. 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.

£160 private parking claims continue to be summarily struck out

18. There have been a number of exaggerated £160 claims struck out in recent months as defendants continue to highlight and fight this clear abuse of process.

18.1 This Claimant 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.

18.2. 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.

18.3. 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...''

18.4. 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.

18.5 More recently in December 2019 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.

18.5.1 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''.

18.5.2 Below is copy of DDJ Joseph’s order to strike out the claim as an abuse of process dated 6th December 2019.

 

19. 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.

20. 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.

21. 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Zeus65

Firstly I hope everyone is staying safe and well at this time.

As expected I have now received my 'Notice of Allocation to the Small Claims Track (Hearing)' and with this a 'Notice of Trial Date' for the 11th September at Derby County Court with District Judge Parker . 

Yes I would have liked it to not get to this stage but at the same time I am strangely looking forward to the challenge and having my day in court. My wife can't quite get her head around that as she fears the worst, but knowing I really don't have much to lose I am going to spend a good amount of time forming my WS, arguments and evidence over the coming months to ensure I give myself the strongest possibility at winning my case and sticking it to VCS.

Having caught up again on the Newbies thread and reading some other ongoing cases I can see things have changed a bit since I filed my defence in February. I have read and noted the thread on Telephone hearings, however as of yet there is no mention of this in the latest correspondence. I will keep an eye on this. I have also read the updated information on the Abuse Of Process which formed a strong part of my defence, in which I have had a thorough read through of the Southampton Judgement transcript from November last year. I will certainly be attaching this to my further evidence/WS when the time comes and using it as a fundamental part of my argument.

A couple of questions I have regarding the Notice of Trial Date;

- It states 'Please note: This case may be released to another Judge, possibly in a different court'. Is this standard or due to Covid-19? Can they move it to a different city/court without giving me a choice?
- Is the below point 4 on the Judges orders standard for all claims for breach of parking terms or is it a sign they may be aware of specific historic cases around the points I raised in my defence? On the listed order number 4 states;
4. Additional Directions in a contractual claim for breach of parking terms. Additional Directions: The evidence which the Claimant must file at court and send to the Defendant must include;
a. A copy of any written terms of the contract between the parties,
b. A copy of the agreement by which the Claimant is authorised by the landowner to conduct parking operations on the land in question, redacted as necessary,
c. Details of the location where the contract was made,
d.If photographic evidence is relied upon, each image must be clear, in colour and A4 size,
e. Detailed allegation of any breach of contract relied upon by the Claimant; and
f. An explanation of how the amount of the alleged debt is calculated under the agreement

A few days later I received a letter from a Jake Burgess at VCS stating;

'We are confident that we have a strong case against you and we are entitled to recover the outstanding Parking Charge Notice and any additional costs, as set out in the Particulars of Claim. However, we are mindful that under the Civil Procedure Rules litigants are expected to try and resolve their disputes wherever possible. T

Therefore we are willing to accept a reduced settlement charge of £125 payable within 14 days from the date of this letter. This offer is made on a without prejudice basis. Should you fail to accept our offer of settlement then we will continue with our Claim for the full amount claimed and bring this letter to the Courts' attention upon the question of costs'

I take this as a sign of them knowing the £160 is an abuse of process and following my defence and Judges Orders this is likely to be the main talking point of the hearing which they want to avoid. Interesting they say the letter will be brought to the courts attention as I am not sure how at this stage it makes any difference when the Particulars of Claim state the £160 and they say they will continue with the full amount claimed??

I guess it is nice to have quite a bit of time to get prepared, any further advice or direction to useful threads since 13th Feb that I may have missed would be much appreciated

Z

Coupon-mad

This is standard from that court (not related to your defence).  Good for that Judge, for pressing chancer PPC claimants to have to provide better particulars relating to their claim.  We can't guess if that Sept hearing will be a remote or a face to face one, as yet, but you must still note and keep to the deadline the letter tells you about exchanging evidence and WS in good time.

Ignore VCS's standard begging letter 'special offer'!

Redx

Zeus65 said:

Yes I would have liked it to not get to this stage but at the same time I am strangely looking forward to the challenge and having my day in court. My wife can't quite get her head around that as she fears the worst, but knowing I really don't have much to lose I am going to spend a good amount of time forming my WS, arguments and evidence over the coming months to ensure I give myself the strongest possibility at winning my case and sticking it to VCS.

A few days later I received a letter from a Jake Burgess at VCS stating;

'We are confident that we have a strong case against you and we are entitled to recover the outstanding Parking Charge Notice and any additional costs, as set out in the Particulars of Claim. However, we are mindful that under the Civil Procedure Rules litigants are expected to try and resolve their disputes wherever possible. T

this makes no sense at all

what does she expect to happen ?

12 months in prison ?

madame la guillotine ?

the stocks and rotten tomatoes ?

your pet cat will be confiscated and hung , drawn and quartered ?

or simply a loss of say £200 maximum for one pcn, to be paid within 30 days, if you lost in court

I say the latter, and none of the others , its just a dispute over money, a civil dispute , not a criminal matter , if you lose , pay up , IN FULL , promptly !!

Jake Burgess would say that , wouldnt he ? yes he would, but its the decision by the judge , not Jake Burgess , that counts

good to see that judges now require proper explicit information on a court case and not vagaries

good luck

Snakes_Belly

Some courts have closed and cases that are heard by telephone are conducted from the main court. I guess it depends where we are with the virus in September.

Recent VCS cases (various circumstances) at Derby CC have been won by the defendants.  In one case at Derby, VCS discontinued. That is a possibility.

Zeus65

Thanks for the responses
Redx said:

Zeus65 said:

Yes I would have liked it to not get to this stage but at the same time I am strangely looking forward to the challenge and having my day in court. My wife can't quite get her head around that as she fears the worst, but knowing I really don't have much to lose I am going to spend a good amount of time forming my WS, arguments and evidence over the coming months to ensure I give myself the strongest possibility at winning my case and sticking it to VCS.

A few days later I received a letter from a Jake Burgess at VCS stating;

'We are confident that we have a strong case against you and we are entitled to recover the outstanding Parking Charge Notice and any additional costs, as set out in the Particulars of Claim. However, we are mindful that under the Civil Procedure Rules litigants are expected to try and resolve their disputes wherever possible. T

this makes no sense at all

what does she expect to happen ?

I think she was just worried that if I lost it would go against me further then money i.e. a CCJ or it could escalate to further monies. I have explained to her the process and outcomes and now she is mocking me for thinking I am some sort of  lawyer haha!

Snakes_Belly said:

Some courts have closed and cases that are heard by telephone are conducted from the main court. I guess it depends where we are with the virus in September.

Recent VCS cases (various circumstances) at Derby CC have been won by the defendants.  In one case at Derby, VCS discontinued. That is a possibility.

Ye spotted some of the Derby ones and made a note of them to take a proper look through. There are a couple of notorious
 VCS/Excel car parks in Derby!

Coupon-mad said:

This is standard from that court (not related to your defence).  Good for that Judge, for pressing chancer PPC claimants to have to provide better particulars relating to their claim.  We can't guess if that Sept hearing will be a remote or a face to face one, as yet, but you must still note and keep to the deadline the letter tells you about exchanging evidence and WS in good time.

Ignore VCS's standard begging letter 'special offer'!

I am assuming at some point this will not be an issue, however at the moment I am unable to travel to Sheffield to gain evidence on signage and entering/exiting the car park which I believe will play a strong part for me. If this lockdown continued would I just have to accept I can not get hold of and rely on this evidence in my case?

Umkomaas

at the moment I am unable to travel to Sheffield to gain evidence on signage and entering/exiting the car park which I believe will play a strong part for me. If this lockdown continued would I just have to accept I can not get hold of and rely on this evidence in my case?

Hasn't Boris lifted the ban on travel to a remote site to take exercise?  'I'm driving to Sheffield to take some exercise, officer'!