Mystery CCJ - any support appreciated

LJG83

KeithP said:

Your para 20 - suggest you leave out the last bit - the words following the semi-colon.

Your para 22 - perhaps the last sentence could be better written as "Clearly Vehicle Control Services Ltd, the Claimant, is not the contracting party".

But just a general observation - there appears to be an awful lot of repetition in you paras. How many times do you need to explain that VCS and Excel are two different entities - one can sue you and the other can't?

Thank you so much Keith, really appreciative of you looking at it. 

I’ll make the changes as you suggest and yes I see where you are coming from with the repetition. Thanks again 

1505grandad

"24. At the date of the parking event in issue, the Claimant did not have Sheffield City Council’s consent to display their contractual parking sign advertisement (or any of their other parking signs at the material location) that was essential for them to have been displayed lawfully, pursuant to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“the Regulations”). Section 30 of the Regulations, as also Section 224 of the Town and Country Planning Act 1990, provides that any unauthorised display of an advertisement that requires Express Consent to be displayed is a strict-liability criminal offence."

Just checking if this correct  -   the claimant is VCS  -  the signs show Excel

LJG83

1505grandad said:

"24. At the date of the parking event in issue, the Claimant did not have Sheffield City Council’s consent to display their contractual parking sign advertisement (or any of their other parking signs at the material location) that was essential for them to have been displayed lawfully, pursuant to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“the Regulations”). Section 30 of the Regulations, as also Section 224 of the Town and Country Planning Act 1990, provides that any unauthorised display of an advertisement that requires Express Consent to be displayed is a strict-liability criminal offence."

Just checking if this correct  -   the claimant is VCS  -  the signs show Excel

I’ve only checked with the council for VCS and there wasn’t any records etc. Think I should check about Excel too? 

Umkomaas

LJG83 said:

1505grandad said:

"24. At the date of the parking event in issue, the Claimant did not have Sheffield City Council’s consent to display their contractual parking sign advertisement (or any of their other parking signs at the material location) that was essential for them to have been displayed lawfully, pursuant to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“the Regulations”). Section 30 of the Regulations, as also Section 224 of the Town and Country Planning Act 1990, provides that any unauthorised display of an advertisement that requires Express Consent to be displayed is a strict-liability criminal offence."

Just checking if this correct  -   the claimant is VCS  -  the signs show Excel

I’ve only checked with the council for VCS and there wasn’t any records etc. Think I should check about Excel too? 

For thoroughness and completeness - yes.

1505grandad

What I cannot understand is why does VCS (claimant) have to have Sheffield CC consent for signs that are in the name of an entirely different entity - which you have gone to great lengths to emphasise:-

"21. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. Vehicle Control Services were not a party to such a contract, and therefore cannot sue on it.  

22. The logo in the bottom and top right of the signs is for Excel Parking Services and not Vehicle Control Services who are making the claim in this case. In addition, it is clearly indicated in the Terms & Conditions sign (icons) adjacent to the ticket machine that tickets are issued in the name of Excel. This creates uncertainty as to which is the contracting party."

LJG83

1505grandad said:

What I cannot understand is why does VCS (claimant) have to have Sheffield CC consent for signs that are in the name of an entirely different entity - which you have gone to great lengths to emphasise:-

"21. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. Vehicle Control Services were not a party to such a contract, and therefore cannot sue on it.  

22. The logo in the bottom and top right of the signs is for Excel Parking Services and not Vehicle Control Services who are making the claim in this case. In addition, it is clearly indicated in the Terms & Conditions sign (icons) adjacent to the ticket machine that tickets are issued in the name of Excel. This creates uncertainty as to which is the contracting party."

I’ve just rechecked my original query with the Council I did enquire both about VCS/Excel in which it was deemed they’ve neither never applied and need to, and that they have been informed of this. 

1505grandad

The point I am trying to make:-

Is it correct for your para 24 to mention that the Claimant (VCS) has to have Sheffield CC consent for the signs. In previous paras you have emphasised that VCS and Excel are entirely different entities - your contract is with the entity on the signs and that therefore the Claimant (VCS) is a stranger to the proceedings. 

If you are going to go with "no consent for signage" as a point in your defence should it be Excel "have no consent" because  as it stands the Claimant (VCS) have nothing to do with the signage. There is no explanation as to why the Claimant (VCS) needs "consent".

In a very simplified example I see it as Tesco have made a claim against you for a parking violation in an Asda car park  -  with whom you have made a contract (Asda signs)  -   but you are defending by saying Tesco do not have "consent" for Asda's signs (contract).

It may well be that I have incorrectly analysed the situation in which case the experts will hopefully correct me.

LJG83

Firstly I just want to say thank you for your continued support on this forum. It really is appreciated! 

I’ve used the template defence and that’s been posted previously. I’ve now written up a WS using some of the old ones floating about regarding VCS and Berkeley Car Park in Sheffield. It would be great if someone could glance it for me in case there are some big no-no’s in it that I need to remove/alter! Thanks again. 

LJG83

In the County Court at SHEFFIELD, The Law Courts, 50 West Bar, Sheffield, S3 8PH 

 

Claim No. XXXX

 

Between VEHICLE CONTROL SERVICES LTD (Claimant) 

 

and 

 

XXXX (Defendant) 

 

WITNESS STATEMENT 

 

1. I am the registered keeper of the vehicle in this case. I am unrepresented with no legal background in county court procedures, I trust that the Court will excuse my inexperience, if need be, and if any of the documentation is not presented correctly. 

 

2. I deny that the Claimant is entitled to relief in the sum claimed, or at all. 

 

3. Attached to this statement is a paginated bundle of evidence marked Exhibits A to O, to which I will refer.

 

4. The alleged driver of the vehicle stayed, according to ANPR, at Berkeley Centre Car Park, Sheffield on the XXXfor a period of 73 minutes when the alleged free allowed period according to Claimant is 60 minutes. 

 

5. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

6. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

7. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

8. Furthermore, as the alleged contravention occurred 20 months ago, the Defendant is unable to confirm or deny visiting the stated car park on the specified date, nor confirm the driver. The Defendant is therefore unable to name the driver, as well as being under no obligation in law as keeper to do so. This was confirmed by the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the registered keeper can only be held liable under the PoFA Schedule 4 and not by presumption or any other legal argument.

9. Therefore it is denied that the Defendant entered into a Contract with the Claimant.

 

10. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820, incorporated 3/5/90), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd. (Company No. 02878122, incorporated 6/12/93), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. 

 

11. This is demonstrated by both the entrance and exit signs which show both the name and logo in the bottom and top right of the signs for Excel Parking Services and not Vehicle Control Services who are making the claim in this case (Exhibits A&B).

12. This is further demonstrated by the signage within the car park which includes the “Terms and Conditions” (Exhibit C). It is clearly indicated within the “Terms and Conditions” sign (icons) adjacent to the ticket machine that tickets are issued in the name of Excel Parking Services.

13. The defendant could therefore only form a contract with Excel Parking Services Ltd, not the claimant. Vehicle Control Services is a stranger to the contract between the defendant and therefore cannot sue on it. The Claimant will know this to be the case as there have been many dismissed cases and discontinued claims.

 

a) Vehicle Control Services -v- Ms A. C6DP7P37 at Birmingham County Court. Dismissed. Wrong Claimant.

b) Vehicle Control Services -v- Unknown. C1DP3H5V at Birmingham County Court. Discontinued. Wrong claimant.

c) As well as all of the following Discontinued claims. A8QZ6666, 3QZ53955, C8DP9D8C, C2DP0H7C, C1DP3H5V and C8DP37CH et al, all discontinued when it was pointed out to BW Legal that VEHICLE CONTROL SERVICES had no right to pursue the matter as they were not the rightful claimant.

 

14. The front page of the current landowner contract (Exhibit D) for parking enforcement services at Berkeley Precinct dated 28 September 2018 is for Excel Parking Services, and demonstrates the contract is between EXCEL PARKING SERVICES LIMITED and THRE (UK) PROPERTY FUND. In this contract (Exhibit E), paragraph 3.5 states that “The Company [EXCEL PARKING SERVICES LIMITED] has the absolute right to demand and collect in its own name, the Parking Charges”. Vehicle Control Services Ltd is a separate legal entity and has no right to “demand and collect” parking charges as a result of this contract, let alone lodge claims on its behalf.

 

15. Strict proof is to be given that a relationship exists of a contract conferring any rights by EXCEL PARKING SERVICES LIMITED to VEHICLE CONTROL SERVICES LIMITED. 

 

16. Vehicle Control Services Ltd know this to be the case as with judgement F8Q281NE, with District Judge Baddeley, sitting in at Sheffield County Court on the 7 August 2020 dismissing the case on this ground for the same car park (Exhibit F). The court is invited to continue in this regard and strike out this case in a similar manner.

17. It has also come to light that a contract was presented to this court regarding this car park, stating that 2 hours free parking must be provided. The claim number for the case is F7QZ8E8K, and was heard on 13th January 2020. This case and all subsequent cases on that day regarding Vehicle Control Services and the Berkeley centre were subsequently struck out.

18. Breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

19. After further assessing the Excel signage, the Defendant’s “Terms and Conditions” are in a blue rounded box with white text which appears to the right of the main sign (Exhibit C). At the top of that box and inset is a white rounded box in which appear in blue the words “Terms and Conditions”. 

 

20. Within these it does not state that a PCN will be issued for failure to purchase a ticket; this information is only present in the general section of the signage which is not part of the “terms and conditions” and therefore not legally binding. This was demonstrated in a case between BW Legal (acting on behalf of VCS) and a defendant ‘S’ which was presented in Court in July 2018 (Detailed here: https:// perincuriam.com/vehicle-control-services-b-w-legal/ ). The Judge in this case ruled in favour of the Defendant and dismissed the case on the grounds the Defendant had not breached the terms and conditions.

 

20. There is a statement (tucked away, potentially intentionally at the very foot of the main sign) that “By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions. The Parking Charge is £100.00 (payable within 28 days of the Parking Charge Notice issue date).” However, this is not included in part of the “Terms and Conditions” (Exhibit G).

 

21. If the Claimant wanted to charge £100 for overstaying a 60 minute time limit then it was incumbent on the Claimant to include this in its “terms and conditions”. It did not do so and there is no such term or condition. There has been no breach of contract. 

 

22. Having assessed the archives of planning permissions for Sheffield Council there appears to be no application for the signage as required by The Town and Country Planning (Control of Advertisements) Regulations 2007 Part 1 Para 4 (Exhibit H): 

 

“No advertisement may be displayed unless consent for its display has been granted —

 

(a)by the local planning authority or the Secretary of State on an application in that behalf (referred to in these Regulations as “express consent”); “

 

23. Further to this on 29 May 2020 the Defendant received an email from Mahmood Khalid, Planning Enforcement Officer for Sheffield City Council (Exhibit I);

“Dear XXX, 

 

Further to your enquiry below.  

 

I can confirm that we have investigated this recently and it has been determined that advertisement consent is required for the signs erected within the car park. We have informed the Management Company to submit an application to regularise this. To date, no such application has been submitted”.

24. Advertising consent did not exist at the material time and it cannot be applied retrospectively. Not having it is a criminal offence, therefore the claim was illegally issued. Ex turpicausa non oritur action. The Claimant cannot pursue legal remedy, if it arises in connection with his own unlawful act.

25. The Claimant is put to strict proof that it has planning permission granted by Sheffield Council to display signs as required by The Town and Country Planning (Control of Advertisements) Regulations 2007 Part 1 Para 4. 

 

26. In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. 

 

27. CPR 44.3 (2) states: (Exhibit J)
 

 

“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; 

(b) 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.” 

 

28. The standard wording for parking charge/debt recovery contracts is 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.

LJG83

29. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim. 

 

30. 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. 

 

31. 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. 

 

32. 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 £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.  

 

33. 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 (Exhibit K). 

 

34. 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. 

 

35. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Exhibit L) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Exhibit M). 

 

36. Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.  

 

37. 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.  That Judgment is appended (Exhibit N). 

 

38. The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA. 

 

39. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''   

 

40. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''   

 

41. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’ 

 

42. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out. 

 

43. 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. 

 

Conclusion 

 

44. In summary, 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. 

 

45. 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. 

 

46. At the time of the parking incident, any contract to park would have been between Excel Parking and the driver. Therefore, the Claimant has not suffered from any breach of contract as they never were a party to the contract. 

 

47. Numerous failings with the car parks signage including no approved Town Planning approval demonstrate that no legal contract can be made.  

 

 48. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, in which I have included a Costs Schedule (Exhibit O) 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.

 

Signed: 

 

XXX