VCS Parking ticket, now elevated to Elms Legal

RainyDaySaver1

Good evening all,

Firstly I would like to say a big thank you to all that have contributed to the forum regarding parking tickets. I have tried to navigate my way through and take the best bits of info i can.

I had been issued a parking ticket by Vehicle Control Services (VCS). I paid for a ticket however at the time I had a hire vehicle (I was involved in an accident in my regular car) foolishly I entered my regular car's registration into the app for payment not the hire car registration. I subsequently received a ticket but (foolishly again!) chose to ignore it, I now know this was the wrong thing to do. I appealed to VCS however they rejected my appeal.

My timeline is as follows:

• Event - 19/04/21
• Appealed using their system on the basis that I had paid for a ticket but entered the incorrect registration - 14/05/21
• Received letter before claim - 22/07/21
• Claim issued - 22/07/21
• AOS submitted - 16/10/21
• AOS received - 18/10/21
• SAR submitted - 20/10/21

After receiving a claim form from Elms Legal I read through the forums and now understand this was a bad idea to ignore the ticket and I seeking advice on my defense and witness statement. They have increased the parking fine from £60 to £100 and then £160 and finally the claim form states it is £245 (160 claimed, 35 court fee, 50 legal rep's fee)

I have adapted a defense found in Coupon-Mad's post and adapted it to what happened in my scenario, however it does mention the signage of car parks a lot however i would be arguing that I paid for a ticket but entered the wrong registration, would this matter?

Do I also need to produce a witness statement? I have read the example one and it refers a lot to the signage, however I am arguing that I paid for a ticket not the signage? I would need to go back to the car park and take photos of the signage (which I plan to do tomorrow) to check if that would stand

Any help at all is greatly appreciated as I have spent many hours reading and researching and don't want to make any silly mistakes!

I also cannot find a way to attached my defense so I have just copied it into here below:

IN THE COUNTY COURT

Claim No.: xxxxxxxxx

Between

Vehicle Control Services Limited                                          (Claimant) 

- and -  

Mr. xxxxxx                                                        (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. The points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available. It is noted in any case, that these Claimants use third party pre-written templates as standard. This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum. The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the hirer of the vehicle in question, but liability is denied. 

3.  The Defendant has proof of purchasing a ticket for parking for the duration of the day. The Defendant had been involved in a Road Traffic Collision in the days prior to the event, in which his vehicle had been rendered unroadworthy resulting in the Defendant being issued with a hire car. On the day of the event the Defendant purchased a parking ticket for the day but entered his usual vehicle registration and not the hire car registration.

4.  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.

5.       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.

6.       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.  

7.  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').

8.  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

9.       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.  

10.       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.

11.   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.  

12.   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.

13.       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.

14.   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

(iii)                 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.

15.   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.

 

16.  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:

17.   (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.

18.   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.

Defendant’s signature:

Date:

1505grandad

• Claim issued - 22/07/21
• AOS submitted - 16/10/21

Please clarify

KeithP

RainyDaySaver1 said:

My timeline is as follows:

• Event - 19/04/21
• Appealed using their system on the basis that I had paid for a ticket but entered the incorrect registration - 14/05/21
• Received letter before claim - 22/07/21
• Claim issued - 22/07/21
• AOS submitted - 16/10/21
• AOS received - 18/10/21
• SAR submitted - 20/10/21

I think the line - Claim issued - 22/07/21 - might be wrong.

Can you please tell us the Issue Date on your County Court Claim Form?

RainyDaySaver1

Very sorry! Claim date is 11/10/21. I will edit my post now 

Redx

You cannot edit your posts , yet , not enough posts

Please post only your adapted paragraphs 2 and 3 from the template defence , not the rest , it's your homework being checked , not coupon mads , lol 

RainyDaySaver1

Apologies RedX

see below: 2.       It is admitted that the Defendant was the hirer of the vehicle in question, but liability is denied. 

3.  The Defendant has proof of purchasing a ticket for parking for the duration of the day. The Defendant had been involved in a Road Traffic Collision in the days prior to the event, in which his vehicle had been rendered unroadworthy resulting in the Defendant being issued with a hire car. On the day of the event the Defendant purchased a parking ticket for the day but entered his usual vehicle registration and not the hire car registration.

I have tried to find a case where this has happened and a defendant has won, however to date I have found nothing 

KeithP

RainyDaySaver1 said:

Claim date is 11/10/21. 

RainyDaySaver1 said:

• AOS submitted - 16/10/21
• AOS received - 18/10/21

With a Claim Issue Date of 11th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 15th November 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

I have tried to find a case where this has happened and a defendant has won, however to date I have found nothing.

Has happened and continues to be the case, with proper appeals to Local Authority Adjudicators:

https://forums.moneysavingexpert.com/discussion/6277814/ringgo-app-wrong-vehicle-pcn-claim-victory

There is also an older Local Authority 'key case' heard by Caroline Sheppard, Chief Adjudicator, where she found in favour of a dentist who put in the VRM of his own car instead of his fiance's.  Sadly I can't find that key case, maybe someone else can.  It was discussed a few times on pepipoo forum.

The reason these are useful to you is you can state in the defence, briefly, that the appeals services run by the private parking industry are a farce and so woeful that the Government has stepped in to regulate the sector and replace the self-serving 'appeals' services (one of which only allowed 4% of appeals last year - the IAS, run by VCS' Trade Body).  

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

The direction of travel and thinking of the Government is for a single appeals service and for those who have paid and displayed to be able to have their PCN cancelled (see the draft Appeals Charter).  Also, the Government stated an intention in 2021 (see above consultation outcome) to align the private parking industry more along the lines of Local Authority charges and fair appeals.

RainyDaySaver1

Thank you for your help.

I will research and try to find the Caroline Sheppard case and extract the key relevant points

Do I still include about signage etc? or do I base my case around the fact I purchased a ticket?

thank you again its all very helpful!

Coupon-mad

You ALWAYS mention that whilst the tariffs were in large font there was nothing prominent about the risk of £100 'penalty'.  The defendant concludes that it must have been hidden in the small print and the Claimant is put to strict proof.  It is denied that a contract about that sum (or any amount above the accepted/paid tariff) was 'agreed' or even seen by the driver.

RainyDaySaver1

I have been doing some research and have found some good sources for my case (I believe). I am still unable to find the case mentioned by Coupon Mad regarding Caroline Sheppard. i have updated my defense to say the following and i would be greatly appreciative of any advice whether it be to include or exclude any of the information. Thank you in advance!

My defense is:

2.       It is admitted that the Defendant was the hirer of the vehicle in question, but liability is denied. 

3.  The Defendant has proof of purchasing a ticket for parking for the duration of the day. The Defendant had been involved in a Road Traffic Collision in the days prior to the event, in which his vehicle had been rendered unroadworthy resulting in the Defendant being issued with a hire car. On the day of the event the Defendant purchased a parking ticket for the day but entered his usual vehicle registration and not the hire car registration. A genuine mistake made by the Defendant.

The Defendant points to the adjudication by Martin Hoare on the 24th of June 2021 whereby it was concluded that payment was made and no realistic suggestion of any material loss had been sustained by the PCN issuer.

The Defendant also raises the findings of the Government’s ‘Parking code enforcement framework: consultation response’ whereby it prescribes the ‘Parking charge cap outside London’ for a breach of ‘Entering a wrong vehicle registration number (with evidence it is a genuine mistake)’ be set at ‘0 - £20’. The Defendant states that this was never offered by the Claimant and also highlights how the Government are intervening to regulate the sector and replace the self-serving 'appeals' services.

The Defendant also raises the ‘Private parking charges, discount rates, debt collection fees and appeals charter: further technical consultation’ published on the 30th of July 2021 by the Government. Point 46 where it is stated that ‘There are a range of circumstances where the parking charge could be cancelled. These include, but are not limited, to points below’ in the below point A it is further stated that ‘Motorist has paid the tariff but made a keying error when registering their vehicle (for example, 0 instead of o; I instead of L;1 instead of I; letters wrong or missing; characters swapped; motorist entered the wrong car registration (eg. their previous car or another vehicle from their household)’. As stated in the Governments consultation entering a previous vehicle registration is considered as valid grounds to have a parking charged cancelled. The Defendant states that an appeal was raised with the Claimant, however it was denied.

The Defendant refers to an extract of the British Parking Association’s Approved Operator Scheme Code of Practice section 17.4 and section 17.4 B that state ‘The Code recognises that keying errors can be grouped into 2 main areas’, Major Keying Errors Examples of a major keying error could include:
• Motorist entered their spouse’s car registration
• Motorist entered something completely unrelated to their registration
• Motorist made multiple keying errors (beyond one character being entered incorrectly)
• Motorist has only entered a small part of their VRM, for example the first three digits

In these instances we would expect that such errors are dealt with appropriately at the first appeal stage, especially if it can be proven that the motorist has paid for the parking event or that the motorist attempted to enter their VRM or were a legitimate user of the car park (eg a hospital patient or a patron of a restaurant). It is appreciated that in issuing a PCN in these instances, the operator will have incurred charges including but not limited to the DVLA fee and other processing costs therefore we believe that it is reasonable to seek to recover some of these costs by making a modest charge to the motorist of no more than £20 for a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal’ this code of practice shows that a PCN given under these circumstances, as in this case, should be subject to a £20 charge. Again this was never offered to the Defendant by the Claimant despite an appeal raised by the Defendant with the Claimants own claim procedure. The Defendant refers to the appeal dismissal from the Claimant.