Vehicle Control Services challenging N244 on basis of 'Promptness of Application'

KeithP

JayAshcroft said:

The council state that the byelaws apply to 1 of the 2 car park sections at this train station. The Driver isn't sure which section of the car park they parked in. From the photos supplied by VCS it is not clear which section the car was parked.

Then it looks like the keeper needs to insist the vehicle was parked in that section where byelaws apply.

Shame that Letter of Authority isn't dated, but VCS proudly advertise down the left hand margin that wheel clamping is one of the services offered. Wheel clamping was outlawed in 2012 - two years before any alleged contract started in September 2014. Using up old stationery were they? If nothing else, it's a very poor business practice to be offering illegal services - vehicle removal too I see.

Castle

The letter of authority is clearly not the actual contract/agreement as it refers, (in paragraph 5), to an agreement which runs from 29/9/2014 to 31st October 2020. There is however one small problem with these dates in that, the WMCA didn't legally exist until 17th June 2016:-
https://en.wikipedia.org/wiki/West_Midlands_Combined_Authority

(Also there's no specific mention of giving VCS authority to issue court claims).

FenderJay

@Castle I've found the original tender opportunity here: 
https://www.whatdotheyknow.com/request/333927/response/823633/attach/7/Centro%20Park%20and%20Ride%20Enforcement%20A2014130.pdf

 Section 1.3 states: 
"The aim of enforcement is for Centro to provide safe and well managed facilities for our customers by eliminating bad parking behaviour. Centro and the successful supplier are not incentivised by issuing as many notices as possible. All payments received from charging notices are to be returned to Centro. Centro welcomes suggestions on how any return it receives will be reinvested back into the management of car parks.

Centro would want to set the charging notice at £100 for motorists parking in contravention of traffic signs, with a 40% discount offered if paid within the initial 14 days and thereafter full payment being paid within 28 days. Should the motorist fail to make the payment within the 28 days then any subsequent costs incurred and passed onto the motorist should be capped at no greater than what is deemed to be a reasonable cost which should be agreed with Centro in advance. "

The West Midlands Transport Network Parking Conditions state: 

"Enforcement Measures

Enforcement of considerate parking as detailed above applies 24 hours a day, seven days a week.

There is clear signage at all car park sites making customers aware of the  terms and conditions under which they use the facility and the spaces designated within them. The positioning of the signs has been done in accordance with car parking industry best practice to ensure they are visible to all car park customers.

When a Parking Charge Notice (PCN) for failing to comply with the enforcement scheme requirements, as detailed on the signage, is issued this will result in a charge of £100 with a 40% discount if the charge is paid within the initial 14 day period. Failure to make payment within 28 days will attract further costs that will be capped.

Customers will not have to pay more than a local call rate charge when contacting the enforcement company, Vehicle Control Services Ltd (VCS), regarding any issues relating to the issue of penalty notice.

Where customers wish to appeal against the enforcement process, VCS Ltd will manage the first stage of appeal, under terms and conditions agreed with West Midlands Combined Authority which are clearly set out on the VCS website www.vehiclecontrol.co.uk

The second stage of appeal will sit with an independent adjudication board The Independent Parking Committee (IPC) again as per industry best practice."

So it seems I have 3 lines of defence here: 
1. PCNs and Court documents were not received and as such I was unable to appeal (reference to CPR 13.2 and 13.3). Once aware I filed the N244 within 15 days.

2. Railway byelaws are in operation at this station. The Driver of the vehicle insists that the car was parked in the area where railway byelaws are in operation. VCS have not provided evidence to prove otherwise. 

3. The awarded contract does not authorise VCS to pursue unpaid penalties with the Keeper of the Vehicle at court or to file for default judgements. 

I'm going to begin drafting up my Witness Statement. Are there any other arguments I should pursue?

Fruitcake

The alleged contract has not been signed by the scammers, so there is nor proof they even knew about it, let alone were a party to it.

Have a look at section 44 of the Companies Act 2006. 

https://www.legislation.gov.uk/ukpga/2006/46/section/44

"44 Execution of documents

(1) Under the law of England and Wales or Northern Ireland a document is executed by a company—
(a) by the affixing of its common seal, or
(b) by signature in accordance with the following provisions.

(2) A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—
(a) every director of the company, and
(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company."

The alleged contract has not been executed in accordance with paragraph 1 because it has not been signed by two people from each company nor by a director and witness of each company in accordance with the requirements of paragraph 2, and has not been signed by authorised signatories as defined in paragraph 3.

In addition, the document is not dated, and the signature is illegible. You therefore require proof that the signatory is actually an employee of WMCA.
The person who signed the document is not a company secretary or director, and therefore is not an authorised signatory in accordance with the above act.

As such the contract is not valid in accordance with the above Act of Parliament, and thus the PCNs are also invalid. 

Have a look at the judgement from this case, posted on the 7th of July at 4.53pm

https://forums.moneysavingexpert.com/discussion/6024485/lbc-stage-but-who-is-my-parking-contract-with/p4

Here the judge stated that, 
"Claire Williams could not have signed the contract on behalf of the owner because she is not a director of the owner".

nosferatu1001

Think you need to make big on the fact the letter must be a false instrument. The supposed other party did not exist in 2014, so could not be party to an alleged contract from 2014

FenderJay

This is my draft Witness Statement. If anyone has feedback it would be good to hear

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on <DATE>. I am aware that the Claimant is Vehicle Control Services Limited, and that the assumed claim is in respect of unpaid Parking Charge Notice from the <DETAILS> 

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until <DATE> when I failed a credit check while remortgaging my house; as found in Schedule I (Equifax Credit Report)

The address on the claim is <ADDRESS>. I moved to my current address at <ADDRESS>. In support of this I can provide a scanned copy of my mortgage completion statement (Schedule II), alongside a utility contract; Schedule III

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.1 I discovered a CCJ was lodged onto my credit file on the DATE.

1.4.2 On DATE I contacted the County Court Business Centre to obtain relevant information relating to this default judgement.

1.4.3 On DATE I have wilfully submitted my case in order to set-aside this judgement and fairly presented my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having some 7 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.7. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

This judgement has left me unable to remortgage my house due to the impact on my credit score as no high street mortgage provider will underwrite an offer with an active CCJ on my credit file. As my initial mortgage rate expired on June 1st 2020, this means that my mortgage payments have increased by 20% compared to what I would have been paying had I remortgaged.

1.8. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

AUTHORITY OF THE LANDOWNER

2.1The Claimant submits that they had the authority to implement a parking scheme on the Site on the date of the contravention date. I believe the Letter of Authority the Claimant has provided to support this claim be a false instrument. The letter lists an agreement between West Midlands Combined Authority (WMCA) and Vehicle Control Services. 

...5. The authority is contained in an agreement running from the 29th September 2014 until 31st October 2020

2.2 WMCA was founded 17 June 2016, The supposed other party did not exist in 2014, so could not be party to an alleged contract from 2014

2.3 The Letter of Authority does not meet Section 44 of Companies House Act 2006 on the basis that the letter is not signed by both parties, the supposed landowner signatory does is not a Director and is not an authorised signatory, and the supposed landowner signatory has not dated nor printed their name.

"44 Execution of documents

(2) A document is validly executed by a company if it is signed on behalf of the company—

(a) by two authorised signatories, or

(b) by a director of the company in the presence of a witness who attests the signature.

(3) The following are “authorised signatories” for the purposes of subsection (2)—

(a) every director of the company, and

(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company."

2.4 The Claimant has produced no evidence to prove that they had a contract with the landowner or had a contract to implement a parking scheme.

2.5 In a similar case (F1DP92KF) 3 July 2020 District Judge Middleton of Truro County Court ruled that the Claimant, a private parking enforcement company, has provided no proof that they had the right to manage the car park on behalf of the landowner, dismissing the claim against the Defendant.  

“I remind myself that the burden of proof is on the claimant to prove its claim. The standard of proof is on the balance of probabilities. On the evidence before me this claim fails at the first hurdle. The evidence adduced by the claimant does not prove any right to manage this car park on behalf of the landowner and, as such, the claimant has no right to issue a PCN or to seek to recover any sums from the defendant.”

FenderJay

RAILWAY BYELAWS

3.1 The facts regarding this location – *XYZ Car Park* - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA'). The parking charge the Claimant is pursuing is statute barred.

3.2 The current national Railway Byelaws ('RB2005') apply to this land:

https://assets.publishing.service.go...ay-byelaws.pdf

3.3 The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.

3.4 Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.

3.5 Therefore the Claimant is in difficulty regarding their claim, due to these facts:

(i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event.

(ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005. *Evidence of VCS being a private company is from its statutory filings at Companies House, using Company Registration number 02498820.*

(iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.

(iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. [...] Centro's legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.

(v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro.

3.6 Liability cannot be transferred to the registered keeper

3.7. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2018 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.

3.8. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2018.

3.9. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.

3.10. The Defendant was under no legal obligation to disclose the name of the driver and can prove to the Court that more than one person had access to and was insured to drive the vehicle at the time of the alleged breach of contract, so the balance of probabilities is not tipped in the Claimant's favour.

3.11. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land when it cannot.

3.12. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at

https://assets.publishing.service.go...ng-charges.pdf

3.13. There, the DFT clarify the question at Section 4:

''On what type of land does Schedule 4 apply? 

4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

SIGNAGE

4.1. The Defendant is aware from visiting the site as a result of this claim, that *the sign at the time of the alleged contravention and* the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by The Claimant are considerably less prominent, are partly obscured by railings from driver line of sight and indeed entirely unreadable by the driver of a moving vehicle.

4.2 It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.

4.3. The signage fails to communicate that a contract or licence to park is on offer in areas of faded/no markings, and this Claimant offers nothing of value by way of consideration to drivers parking there.

4.4. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

NO STANDING

5.1. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).

5.2. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.

5.3. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:

(i) The land, as mentioned previously, is covered by byelaws

(ii) The driver has not been identified

(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines

(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.

(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.

ADDED COSTS: DISPROPORTIONATE AND UNRECOVERABLE 

6.1. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 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 £160, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.

SUMMARY

7.1. The Defendant invites the court to dismiss the claim as having no prospect of success.

KeithP

Para 2.3 Not Companies House Act, just Companies Act.

1505grandad

Para 3.5(iii)  -  "The location of the (Defendant's) alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates."

Should (Defendant's) be removed otherwise gives the impression D is driver contrary to other statements made in the doc.

Also  -  "Judgments" is the correct spelling in this context but you have numerous others containing a middle "e".

FenderJay

Update: 
The court found in my favour, set aside the CCJ and ordered VCS to reimburse me £255 for the N244 application. 
It was a telephone hearing and VCS did not attend. The judge ruled that I did challenge the CCJ in an adequate timescale once I became aware of it and that VCS's authority to operate a parking scheme is questionable given the evidence I supplied (which dismissed the 'limited success of defense' that VCS relied on upon in their witness statement)

Thankyou to everyone who has helped me. You've been superstars. 

The judge has given VCS the option to appeal the decision within 3 weeks and given both parties the option to provide additional evidence - in VCS's case that they do have the authority to operate in this parking lot. That seemed a bit strange to me as I did provide evidence provided by the City Council that proves Railway Byelaws are in operation in this car park and drew the judge's attention to that in my comments. Is this appeal option normal?