Vehicle Control Services court letter: 42-months after alleged incident, and no prior correspondence

Covid_Vaccinator

Coupon-mad said:

You can use it as an attachment with your Witness Statement later and at the hearing, to paint a picture of wholly unreasonable conduct, to try to get your full costs (hours of time) that are normally not allowed, but come into play of a party has acted vexatiously or wholly unreasonably.

Thanks @Coupon-mad. I have sent the letter to the courts along with a brief impact statement.nosferatu1001 said:

Yep, admin. If the court sent a letter to VCS thats assumed 2 days for delivery, some processing time while COVID is putting staff out the office. Easily explained. 

They were told verbally by the courts that it was a defended case on 12th February. At the time VCS had rang the courts to seek a CCJ. They stated that they received the court judgement on 12th February in their favour despite the fact that no judgement was ever issued.

nosferatu1001

OK, different dept sends a letter out, delays in post etc
Seriously, you're not going to get too far on this. Courts dont seem to care when a claimant doesnt even show up to a hearing

Coupon-mad

Impact statement?  This isn't a criminal trial.

 I said you can use it against them LATER at WS stage.

Covid_Vaccinator

Hello,
I have received a long document from VCS - please could I have support with the rebuttal? Happy to upload the anonymised VCS document. The document fails to discuss their earlier data protection breach (discussed separately on forum). Following advice, I have flagged this breach to the relevant parties.

Many thanks,

D_P_Dance

If a court makes an administrative error ask them for compensation, it focuses their mind admirably.  

Covid_Vaccinator

@D_P_Dance
It wasn't the court - it was VCS. VCS state it was an "unfortunate oversight" and that no breach occurred... --> https://forums.moneysavingexpert.com/discussion/6257922/data-protection-breach#latest

D_P_Dance said:

If a court makes an administrative error ask them for compensation, it focuses their mind admirably.  

Coupon-mad

Surely you are just at WS and evidence stage and you’ve got their WS and evidence... please don’t post it yet again, we’ve seen VCS’ template WS before, too often. 

This has all been seen and rebutted on umpteen dozen VCS CLAIM threads in recent months so there is no point us repeating it here. Better that you read other threads as you will learn more and be better prepared.

The question is, have you done yours, as explained on the NEWBIES thread?

Covid_Vaccinator

Sorry @Coupon-mad - been a very difficult time lately due to a combination of factors. I am not enjoying the current episode of sick leave, though it is not appropriate to put further details online. MSE team very kindly helped with earlier witness statement (within this thread). I am also grateful to @Silversea for their support.

VCS have sent another huge bundle. I am thus trying to respond. I hope that the following is ok;

a)    The defendant has had opportunity to review the latest VCS document (posted 5th May 2021).

 

 

b)    The VCS witness, Ambreen Arshad, states they have been employed by VCS since January 2019. As such, they are not witness to the signs that were up at the time of the alleged episode (17/07/2017).

 

c)     The defendant notes the sign states “Permit holder only” for Barker & Stonehouse customers. Additional signs are placed in the car park at lower level which have misleading and deceiving information using Pseudo-legal language “without a parking permit will receive a parking fine.” There is a breach of the Consumer Protection from Unfair Trading Regulations. The defendant denies that there was any contractual agreement which arose as a result of the parking as the defendant asserts that the claimant has not shown the right to charge for parking at the site and that the signs at the car park were sufficient to result in an agreement.
VCS supplied prohibitive 'forbidding parking' signs which offer no contract a driver can accept. This was highlighted by UKPC v Masterson B6QZ4H3R and PCMUK v Bull et al B4GF26K6.
Timestamps from VCS photographs highlight that my car was located adjacent to barker and Stonehouse between 20:19:32 - 20:20:07, a mere 35 seconds.
The perimeter of the Barker and Stonehouse store is quite large and has two entrances and carparks – one of which is owned by Newcastle Council. The latter carpark is free after 17:00 hours. It is not unreasonable to suggest that the defendant was initially confused regarding signage of the two carparks, and was trying to obtain a ‘valid parking ticket’ during this time. VCS have failed to demonstrate that the defendant was parked for a prolonged period, and thus are unable to counter this argument.

The British Parking Association (BPA) code of practice states a grace period of ten minutes should be given for drivers to read terms on parking signage.

Second, the defendant denies that the sun claimed is recoverable as it is set at a level which is above the costs of recovery of operating the scheme.

Third, the sum claimed is unconscionable and unfair as a result of the Consumer Rights Act 2015.

Fourth the claim involves an element of double recovery and is an abuse of process as it is an inflated claim.

Fifth, the defendant did not receive the letter before action, however has since had the opportunity to read the letter that was allegedly posted 21/05/2020. The defendant was disadvantaged by the letter before action not complying with the pre-action protocol and the particulars of the claim are embarrassing, incoherent, and lacking details. The defendant was not given the opportunity to appeal to POPLA.

 

 

d)    It is submitted that the Claimant, VCS, is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.
Furthermore, on examination of the terms and conditions of contract between the Claimant and the Car Park owner (Barker and Stonehouse) it is fact that THE CONTRACT EXPIRED ON 16 JULY 2019, and also not valid due to inappropriate signature. The signatory, K Thompson, is an assistant store manager, and not a Barker & Stonehouse Director. K Thompson is no longer assistant store manager at Newcastle Barker and Stonehouse.
I refer to Companies Act 2006 Section 44. – Companies Act 2006 (legislation.gov.uk).

 

 

e)    The operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement.

 

 

f)      A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) 'The second condition is that the creditor (or a person acting for or on behalf of the creditor) - (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further 'If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.'

The NTK must have been delivered to the registered keeper's address within the 'relevant period' which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

VCS have failed to demonstrate that such documents were received by the defendant, merely that they were generated on specific dates. Given that VCS sent the defendant details of another case, it is possible that such documents were also mislaid by VCS.

 

g)    According to the Particulars of Claim, the claimant states the vehicle was parked in breach of terms of parking stipulated on the signage (the Contract). I refer to case Pace Recovery and Storage Ltd vs Zoltan Lengyel (24th May 2017) in which it was agreed that ‘… the signs must inform the driver that he is entering into a contract with the claimant’. As in the Pace vs Lengyel case, nowhere within this sign does it inform the driver that by parking in the car park, he is entering into a contract with the claimant. Indeed, the words “contract” do not appear at all within the sign, which merely refers to the driver being liable for a parking charge if in breach of any term or condition. In the Pace vs Lengyel case, the judge established that the phrase “terms and conditions” are not synonymous with a contract.

 

h)    In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

 

 

i)      As highlighted by VCS in their document, there were no entrance signs to warn motorists that they are entering onto private land. Furthermore, as highlighted by the google map photo, the street lighting is on the opposite side of the road. Compared to the bundle sent by VCS, more signs are displayed within the current googlemaps. The current image is thus not an accurate reflection of the signage in 2017.

 https://www.google.com/maps/place/Barker+and+Stonehouse/@54.9755126,-1.6183793,3a,75y,356.96h,90t/data=!3m6!1e1!3m4!1s326CVu0bZbJo69tDicZ9Mw!2e0!7i16384!8i8192!4m9!1m2!2m1!1sgoogle+maps+barker+and+stonehouse!3m5!1s0x0:0x2d7baf4f1402483b!8m2!3d54.9755556!4d-1.6186111!15sCiFnb29nbGUgbWFwcyBiYXJrZXIgYW5kIHN0b25laG91c2UiA4gBAVoXIhViYXJrZXIgYW5kIHN0b25laG91c2WSARdiZWRyb29tX2Z1cm5pdHVyZV9zdG9yZQ

 

j)      The defendant notes comments by MPs within the Parking (Code of Practice) Bill Volume 635: debated on Friday 2 February 2018 – https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

 

Covid_Vaccinator

k)     The defendant wishes to raise concerns with respect to the process undertaken by VCS. This was first raised on 23/04/2021.

1)    I filed my defence with CCBC via email on Thursday 11th February. VCS were made aware that this was a defended claim when they contacted the CCBC the following day. On Tuesday 16th February, VCS wrote a “NOTICE OF RECOVERY” letter stating that they had been awarded a CCJ on Friday 12th February. They stated that I needed to pay a fee immediately otherwise enforcement action would commence. Furthermore, I was threatened with bailiffs and additional charges. This was HUGELY distressing. I was left shaken and unable to concentrate due to the contents of the letter. I would not have been in a fit state to safely complete my clinical duties. Thankfully, the letter was received on a day when I was not due to undertake clinical activities.
I immediately contacted CCBC who confirmed that my defence was filed in time by email to customerservice.mcol@hmcourts-service.gsi.gov.uk . VCS have failed to acknowledge this fact. They have also failed to apologise for their inaccurate and distressing letter.

2)    VCS have failed to send me their form N180. This was due by 1st March 2021. My Form N180 was emailed to the CCBC within the deadline.

3)    On 16th March, VCS sent me the details of a court case against Mr. XXX XXX. Claim reference number XXXXXX will be heard at Liverpool Civil and Family Court. The letter was from Ambreen Arshad, and was attached to a screenshot stating my name and home address. My concern is two-fold, namely that I have the details of another case (thus breaching GDPR), and that this person may have my details (breaching GDPR). I have flagged this to VCS today by email (please see attached printed copy of email). I understand that the car park owners, Barker and Stonehouse are potential liable for a substantial claim as they are jointly and severally liable for the actions of their agents (VCS).

4)    The aforementioned document also contained colour photographs with an electronic date and time stamp showing “Aug09 2016 1045am.” In this photo are six (6) different vehicles. The registration plates are visible. This is a data breach under GDPR. I have flagged this to VCS today by email (please see attached printed copy of email). I understand that the car park owners, Barker and Stonehouse are potential liable for a substantial claim as they are jointly and severally liable for the actions of their agents (VCS).

5)    On Thursday 25th March 2021 Ambreen Arshad, VCS Litigation department, posted another document. This document was stapled and contained the same photograph mentioned in point 3. This document can be shared if requested.

6)    Within the documents mention in points 3-5, Ambreen Arshad, VCS Litigation department has stated that I have not sent them a copy of my defence. This is untrue. As highlighted by the County Court Business Centre, VCS were provided with a copy of my defence. I also confirmed this by telephone to CCBC on Monday 19th April.

7)    The document mentioned in points 3-5 state that I was sent two parking charge notices. I do not recall receiving such letters. Moreover, the attached photos demonstrate no notices were attached on vehicles. Given that VCS sent me details of another party, it is possible that VCS failed to send letters to the appropriate address. This could also have implications for other drivers.

8)    I understand that similar concerns have been raised against VCS. Moreover, VCS have been advised to report previous data protection breaches to relevant parties. I am not in a position to know whether the latter has been actioned, however it raises further concerns regarding VCS.

9)    I request that VCS urgently notify the relevant parties of this data protection breach. I believe they have a duty to notify Mr. XXX XXX. Furthermore, I believe they have a responsibility to notify Liverpool Civil and Family Court, Information Commissioners Office, DVLA data manager, British Parking Association, County Court Business Centre, and Gateshead Law Courts.

10)  I request that VCS urgently notify me of any data protection breaches of my information.

11)  This episode has been incredibly distressing. This has been especially tough as it comes at a time when NHS staff are continuing to battle the Covid-19 pandemic. However, I feel that it is appropriate take time to raise this concerns due to the severity of the data protection breaches and misinformation that VCS have supplied the court. I have engaged with appropriate services for support due to the additional angst related to this episode.

12)  In view of the time taken and additional and expenses incurred, I appreciate consideration of awarding costs at the forthcoming hearing.

 

l)      Mark Robinson, data compliance team, VCS, was sent the aforementioned letter by email on 21/05/2021. A copy of the response can be emailed if requested. VCS state that it was an “unfortunate oversight” and “thankfully a unique instance of the wrong letterhead being inadvertently being included within the documents issued.” No explanation or apology was given for the ‘NOTICE OF RECOVERY’ letter.

 

 

Coupon-mad

You mean you got help with your defence at the start?  That wasn't your WS.   

What is the deadline for filing and serving all your documents and your WS that you wish to rely on, as shown in a court order - either a Notice of Allocation or the hearing letter (on page two of it in the numbered diections)?

The numbering is odd in your draft above and it doesn't look like the most recent example we keep telling people to adapt; the one by @jrhys shows you how it all should look.