VCS COURT CLAIM

KC1974

Hi everyone, I have received a county court claim from VCS. The history of the case is - The car is registered to me but I was not the driver on the day/time, I have refused to notify them who was. The car was parked for 40 minutes on a dark, wet night on an spare piece of land,  which we have recently returned to and have taken pictures and video of the lack of signage (just one facing in the opposite direction to the entrance!).  A card was placed on the vehicle windscreen which stated 'privacy notice' and gave VCS  privacy manual website link. 2 days after I received a letter titled PCN and NTK, Is there any breach of POFA schedule 4 here? Is the windscreen card classed as a NTD therefore they should not have requested my details from the dvla until after 28 days? Or is my only defence the lack of signage? 

Redx

Probably both , signage and no landowner authority are extremely likely  , as is POFA and refusing to name the driver as is your right

No , the privacy notice is not classed as an NTD by the DVLA , who ruled on it a while ago I believe

Post the issue date from the claim form below

Email a SAR to the DPO at VCS and attach a copy of the claim form as proof of I D under the GDPR law to obtain all your data

D_P_Dance

Complain to your MP 

KC1974

Hi, Sorry I should have explained I already have the data for the case - pictures, contract by the landowner to issue fines etc.  I am just not sure if the windscreen card can be classed as the Notice to driver as it had no specific details on it?
The issue date on the claim form is 2/12/2020. I will be sending in my AOS in the next 5 days. I then have full info on how to submit my defence and have the following so far: 

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  The defendant was not the driver of the vehicle on the day/time in question.

 3.  The address given where the alleged offence took place has insignificant signage. The limited signage is not lit making it impossible to see in hours of darkness.

4. The Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. The date of the alleged Parking Charge Notice was 26/02/2020; to comply the earliest date of which the claimant could request the registered keeper details was 28 days from the NTK. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect. The Claimant has chosen not to rely on POFA as they are aware, they have no legal claim against the Defendant under Law.The defendant has felt harassed by the ‘debt recovery’ letters.

5.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

6.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

7.       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 the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

8.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

9.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

10.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

11.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  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 (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

12.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  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.  

13.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

14.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

15.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

16.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

17.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

18.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

19.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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

Redx

Do the AOS online next Tuesday or whenever KeithP says , not snail mail

Your defence will be emailed to the ccbcaq email address before Xmas ideally , not posted , not done on MCOL website either !

Only post the adapted paragraphs from the coupon mad template below , not all of them , we are checking your homework , not hers

beamerguy

Was the ticket from VCS or Conkai Security Limited
Who is listed on the signs

KC1974

Yes my defence will definitely be emailed.
Both the Ticket and signage is from VCS.

The card put on the car was just a piece of card stating "images of this vehicle and its reg no have been recorded for the purpose of parking enforcement. This data is collected in order to identify the responsible party as we have reasonable cause that a contraventions has occurred." Am I able to state that POFA has been breached by them leaving this card or will they argue that sending me the joint NTK/Penalty notice 2 days after was the first notification.... this is the bit im confused about

Thanks for your help

Redx

Leaving it doesn't break POFA because it's not a relevant POFA ntd , it's just a paper warning that the DVLA has stated is not an NTD but you could argue that it was a notice issued to the driver , just as I might put one on the windscreen if an unauthorised vehicle parked in my private driveway

What really matters is the timing and wording on the postal NTK that they posted out

Private parking companies cannot issue Penalty notices

beamerguy

Signage is always a problem with VCS.


You have a video and still pictures as you say, How do they compare with their pictures

KeithP

KC1974 said:

I am just not sure if the windscreen card can be classed as the Notice to driver as it had no specific details on it?

Yes, it's a 'notice' and by being affixed to the windscreen it is clearly 'to the driver'.

KC1974 said:

The issue date on the claim form is 2/12/2020. I will be sending in my AOS in the next 5 days.

With a Claim Issue Date of 2nd December, you have until Monday 21st December to file an Acknowledgment of Service. If possible, do not file an AoS before 8th November, but otherwise, there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS, you have until 4pm on Tuesday 5th January 2021 to file your Defence.

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

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

KC1974

beamerguy said:

Signage is always a problem with VCS.


You have a video and still pictures as you say, How do they compare with their pictures

They only have a closeup picture of the sign itself. I have pictures of the sign from where the car was located (showing it faces in the opposite direction to the land and entrance) the surrounding area to the where the car was located (showing absolutely no signs), the fact there is no lights on the sign and a full video of driving into the area and how the sign faces in the dark up the other side of road!!
I will go ahead with the breach of POFA as part of the defence on the Notice to driver and the 28 day rule... I guess I have nothing to lose with that the judge might dismiss it but I still have the lack of signage evidence.