VCS Case - Going to Court

Freystoke

Hello all
New to this forum but have been reading in great depth over the past few months.
I am keeping relevant/specific names, dates and times purposefully vague at the moment in case anyone from VCS/Excel is on these forums.
I have been contesting a PCN issued by VCS via ANPR (Post) issued as a Notice to (Registered) Keeper. The infringement was for overstay in a car park. No Notice to Driver was issued.
I now have a court date in a couple of months and am preparing my Witness Statement to be filed and served (in the next couple of weeks)
Basically the facts are that the NTK was issued outside of the 14+1 days  (date of issue close to 31 days after the incident).
Correct me if I'm wrong but as the NTK was issued outside of the 14 Days I (as the Registered Keeper) am not obliged by Law to name the driver under POFA 2012 Section 4.
I can clearly prove I was somewhere else at the date/time of the incident.
VCS are arguing their usual  which include as follows:

• Defendant was the registered keeper and/or the driver
• Law of Agency - Excel Parking Services Ltd v Nick Jennings
• Inflated/Unsubstantiated Charges

I have addressed these and others to the best of my knowledge in the Witness Statement.
Would appreciate if I could post or have someone review (redacted version) Witness Statement for a sanity check prior to filling and serving.
Many thanks in advance.

D_P_Dance

If you want our advice we need far more detail ..  Why does it matter that the PPC read this? 

WRT to the timeliness of the invoice, everything is explained in the newbies, have you read  them?   Have you complained to your MP?  

Have they added £60, if o read this,

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

Half_way

Whos car park was this?
what did the car park owner say when you complained?
what did you say to the car park owner when you complained?

Freystoke

Wasn't sure if it would compromise any defence I put forward. Obviously not from your response.
I have complained to my MP and he has never even bothered to get back to me.
I have read some of the newbies although to be honest there are so many different threads and opinions it can be difficult to abstract the right information.
They have added the £60. Thanks for the heads up on Excel v Wilkinson - wasn't aware of that case although I have responded to that particular item.

Freystoke

Car Park Was Peel Centre in Gloucester. 
I didn't complain to the car park owner

Redx

Freystoke said:

Car Park Was Peel Centre in Gloucester. 
I didn't complain to the car park owner

So a VCS court claim and no landowner complaint yet ( get it done ASAP )

Post a copy of your defence below , it's already been submitted and VCS have a copy , so no point hiding it !!

Note , because your defence is alteady in , it's too late to change it

You are now working on your witness statement plus exhibits bundle

POFA protects you as a keeper who was not the driver , VCS never comply with POFA
You have no legal obligation to name the driver , so don't !!

VCS/ Excel staff definitely read and post on this forum !!

Umkomaas

You say you are writing your 'Witness Statement', we assume you have already submitted your Defence?  If so, can we please see it?

D_P_Dance

I have read some of the newbies although to be honest there are so many different threads and opinions it can be difficult to abstract the right information.

N0-one said that this was easy.

Freystoke

Sure
Copy attached.
I have also drafted the witness statement ready to serve and file.

APPENDIX 1 IN THE COUNTY COURT
CLAIM No: Redacted
BETWEEN: VEHICLE CONTROL SERVICES LIMITED (Claimant) -
and
Redacted(Defendant) ________________________________________
DEFENCE
 1.The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question.

3. The Defendant was not the driver of the vehicle on the date of the alleged parking infringement and was working away (in London), has clear and unequivocal evidence to corroborate this fact in relation to date and time (Datascope print out which is based on and generated by fingerprint recognition – Appendix 2 – DATASCOPE RECORD) and as such was not and cannot have been the driver of the vehicle.

4. The Defendant has no liability as they are the Registered Keeper of the vehicle and the Claimant has failed to comply with the strict provisions of the Protection of Freedoms Act 2012 (PoFA) to hold anyone other than the driver liable for the charges.
4(i) the driver has not been evidenced on any occasion and the Claimant has not demonstrated that the individual who it is pursuing is in fact liable for the charge
4(ii) There is no presumption in law that the Registered Keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

5 The Notice to Keeper (NTK) is not valid in accordance with Schedule 4 of PoFA for the following reasons: Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12. The Claimant has failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9 (b), which stipulates a mandatory timeline and wording: - ’’The notice must be given by— (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’ The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

6. Material Facts
a) The Parking Charge Notice Redacted via letter (Notice to Keeper) was issued dated Redacted and was delivered on Redacted  details the alleged parking infringement on Redacted (Appendix 3 – VCS PCN 1 & VCS PCN 2).

b) A Notice to Keeper can be served by ordinary post and the PoFA requires that for the Notice to Keeper to be valid it must be delivered (Where no notice to driver has been served (e.g. ANPR is used)) not later than 14 days after the vehicle was parked. The alleged parking contravention occurred on 31st January and the Notice was issued on the 27th February (27 Days) and delivered on the 5th March (33 Days). It is not therefore valid under the provisions of the Act and would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).

c) The Notice was delivered later than 14+1 days after the alleged parking infringement and is therefore not valid under the provisions of the PoFA. Schedule 4 paragraphs 8(5) or 9(5) of the PoFA specify the time limits for serving a Notice to Keeper and as this was not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

d) This means that the Claimant has failed to issue the PCN in time for ‘keeper liability’ to apply. With no POFA 'keeper liability' to rely upon, no presumption can be made about liability whatsoever. Furthermore, it would appear that the Claimant has knowledge of this fact because they have used the alternative version of their template ‘Parking Charge Notice’ – with 4 complete paragraphs being omitted from the ‘PARKING CHARGE INFORMATION' section on the reverse side of the notice, and no reference to ‘keeper liability’ or the POFA.

e) The signs at the car park must tell drivers that ANPR technology is being used and what the data captured by ANPR cameras will be used for neither of which were evident on later inspection of the signage. Neither of these conditions satisfy the requirements set down in the Parking Association’s Code of Practice. In this case, no other party apart from an evidenced driver can be compelled to pay. I am the Defendant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid Notice to Keeper (NTK). The burden of proof rests with the Claimant, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot and will fail to show I am liable because the driver was not me as evidenced in Paragraph 3.

7. The Particulars of Claim states the Claimant believes the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

8. The legal basis the claim is brought for breach of contract. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

9. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the Particulars of Claim are templates, so it is simply not credible that £60 costs were incurred. The Defendant believes that the Claimant has artificially inflated this claim. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not demonstrated how the claim has increased from the original parking notice to £165.00 (£185.00 minus the court costs of £25.00). If the Claimant alleges they are claiming the “contractual cost” of its in-house administration, these should not be recoverable - they are staff performing the task that they have been employed for and therefore essential to the Claimant's business plan.

10. With no POFA and no law of agency to rely on, the Claimant has no cause of action.

11. In summary, it is the Defendant's position that the claim is without merit, discloses no cause of action and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth I believe the facts contained in this Defence are true.
Redacted
Signature
Date 9th February 2021

Freystoke

Hi
I don't expect this to be easy and the process I have have gone through to get here has taken a lot of time and effort over the last 3 years which is why I am asking for some guidance which in advance would be much appreciated.

Redx

You should have edited your personal details in the above post

We did not want the court claim number , or your name etc , or the reference numbers , so not the claim reference or the PCN reference , or the VRM details of the vehicle either

Your post needs editing but you cannot use this tool yet , so pm Soolin or Savvy and ask them to edit it or remove it if necessary

Post a redacted version below , so we can move forward to assist you