VCS Parking ticket, now elevated to Elms Legal

Castle

95Rollers said:

Ideal for Double Dip stitch ups and ones where there is a frustration of contract amongst countless others. You might even be lucky catch the Ghost Ticketers on it and supply the video evidence to the police when you report the PPC for Fraud.

Or theft of your NTD.

RainyDaySaver1

Hi All,

Quick update - I have not been given my court date and have to submit my witness statement to the court. I have prepared one which i hope you very helpful people will be able to give me some advice on. I am planning to defend the point that i did in fact purchase a ticket and it was their application that auto-selected my usual vehicle registration when i went to pay

please see my WS below (ignore the numbering i have some formatting still to complete!):

1.            I am Mr xxxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.            In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Sequence of events and signage

 

3.            The approach and entrance to the car park is on a busy single carriageway with double yellow lines (Appendix AA1). This is a very busy road where stopping is impossible due to the double yellow lines and traffic (including many buses). The only safe way to stop to view the car park terms and conditions is by entering.

4.            On April 17th 2021 I had been involved in a Road Traffic Collision involving my usual vehicle (registration number xxxxx). The collision resulted in my vehicle being rendered unroadworthy and a hire car (registration number AAAA) being issued to me.

5.            On April 19th 2019 I entered xxx Car Park, found an available parking bay and parked the vehicle I was driving in said parking bay. I then approached the ticket machine to purchase a ticket for the duration of my stay via bank card. See Appendix AA1 showing the ticket machine and no option to pay via card

6.            When I got to the machine it was clear that the machine did not accept bank card and was prompted to pay via the application ‘Connect Cashless Parking’. I had previously used the application to pay for parking using my usual car (registration xxxxx). See Appendix AA2 showing the sign referring to the online application.

7.            On opening the application I selected the car park via the code displayed on the ticket machine, the application then auto selected my usual car registration (xxxxx) and took me directly to the payment screen. My card details were already auto selected and I paid for a parking ticket. See Appendix AA3 showing the parking ticket paid for on the car registration xxxxx

8.            On April 19th 2021, when I returned to the vehicle, I had received a Privacy Notice posted on the car windshield. The notice gave me no indication of how to view the details of the Privacy Notice as directed on the notice. This gave me no options of how to contact Vehicle Control Services over the issue with their online application. See Appendix AA4 for photographs of the notice.

9.            On the 19th of May I appealed the Privacy Notice via VCS (Vehicle Control Services) online portal and made them aware that I had purchased a ticket for the parking duration but for the incorrect vehicle registration. I also attached the parking ticket that I had paid for that day, as shown in Appendix AA3, and a parking ticket from when I last parked in the car park with my usual vehicle from the 8th of March 2021 (the last time I used the car park). This can be seen in Appendix AA5

 

10.          I categorically refute the accusation by Vehicle Control Services that I did not pay for parking, when in fact I paid for a ticket as directed on their ticket machine through their online application.

 

11.          I politely request that the claim brought against me by Vehicle Control Services be dismissed.

 

17. I deny 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’ within 28 days. I strongly deny being indebted to Vehicle Control Services.

 

The Beavis case is against this claim (The Claimant uses this case to prove their point)

18. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 

19. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the view that the parking charge in my case is unenforceable. A fee was paid for the parking by myself for the allotted hours in the car park. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

The Claimant is not entitled to the sums claimed.

21. Schedule 4 of POFA 2012 is clear in stating that there is a limit to the amount that can be claimed:

Right to claim unpaid parking charges from keeper of vehicle:

(5) the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

Therefore, the Claimant is not entitled to claim any of the following sums:

i. Damages cannot be claimed as the law puts a limit on how much can be claimed from the keeper.

ii. Debt recovery costs are not recoverable and have no legal basis.

iii. Operational costs are not recoverable from the Defendant.

iv. Interest payments under section 69 of the County Courts Act 1984 are not recoverable because the Claimant is not entitled to claim Debt or Damages.

 

22. The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with

The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

In the present case, the Claimant has added a sum that their notorious industry variously describes as damages for debt recovery.  These are banned costs which they have neither paid nor incurred.  I aver that by continuing to pursue claims including this objectionable sum - when this serial litigator Claimant is indisputably aware due to their 'approved operator' membership of an Accredited Parking Association - that these exaggerated 'costs' are banned by the Government, appears to meet the high bar of wholly unreasonable conduct.

I believe that knowingly inflated claims such as this case should not be allowed to continue.  I further observe that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused inflated default judgments and consumer harm on a grand scale in recent years.  The Court is invited to strike out the false 'damages/debt recovery' element at the very least and to consider whether the appropriate sanction may be to strike out the entire claim, in order to signal that the Court shares the Government's view regarding one of the most vexatious, greedy and intimidating elements of some members of the private parking industry's conduct in litigation.

 

In the matter of costs

24. I remind the court that I tried to make the Claimant aware of the issue of the ticket being purchased for an alternate registration number on their on line appeals process as soon as I received a letter notifying me of the PCN. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

 

25. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. However I am aware that I chose not to spend additional funds to make a counter-claim.

 

26. If the claim is not struck out, I therefore seek:

i. Standard witness costs of attendance at court, pursuant to CPR 27.14; and

ii. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.”

iii. That any hearing is not vacated but continues as a cost hearing.

 

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.

Coupon-mad

That's good!  

Where you talk about the privacy notice, object that it was in an envelope stating 'this is not a parking charge notice' and adduce as evidence, the transcript of VCS v Adam Burzynski:

https://www.dropbox.com/s/peh3uwf1wnrwq5g/APPROVED -E1QZ7X7C-VCS-BURZYNSKI.pdf?dl=0

See the relevance?  That's a useful exhibit for a VCS case with a 'privacy notice'.

1505grandad

Statement of truth

I believe that the facts stated in this defence are true.  Witness Statement?

RainyDaySaver1

Thank you @Coupon-mad the privacy notice on the car wasn't in an envelope it was just a small card put beneath the window wiper. They same as this, although mine did not have a cross in either of the boxes: https://imagizer.imageshack.com/img921/3336/XSDEtg.jpg I have read through the case you linked and I can't see where i would relate it to mine unless the privacy note was a notice to driver not a notice to keeper? (If i have understood that correctly?)

@1505grandad thank you i have now changed that 

KeithP

Yes, the Privacy Notice was definitely a Notice to Driver, having been left on the vehicle rather than being posted to the keeper.

RainyDaySaver1

@KeithP do i make a reference in my defence to that? I assume this would foul the process that the claimant (VCS) have to follow?

Coupon-mad

Your case is almost exactly like Adam Burzynski's which is why I gave it to you.  A card plonked on the driver's windscreen is a notice to driver to all intents and purposes, as that Judge concluded.

RainyDaySaver1

@Coupon-mad - Yes i see it clearly now having re-read it a few times. I have adapted by above witness statement point 8 to the following: 


8. On April 19th 2021, when I returned to the vehicle, I had received a Privacy Notice posted on the car windshield that was in an envelope stating ‘this is not a parking charge notice’. As in VCS vs Adam Burzynski (2019) where the judgement concluded that ‘on balance I am persuaded that it was a notice to driver for the purposes of the Act because it was part and parcel of a process linked to the Claimant’s website which enabled the recipient of such a notice to be given full details of the alleged contravention in accordance with paragraph 7 of schedule 4’. I state that the notice had the hallmarks of a notice to driver as required by paragraph 7 of Schedule 4 of the Protection of Freedoms Act 2012. Under the provisions of paragraph 8(5) of Schedule 4, the notice to keeper should not be issued by the car park operator for at least 28 days from the day after the date of service of the notice to driver. From the witness statement submitted by the Claimant under appendix AA-2 it can clearly be seen that the notice to keeper was issued on the 21/04/21 only 3 days after the alleged parking infringement occurred (19/04/2021). On this basis I believe it is clear the Claimant has not followed the correct process and therefore the alleged claim be struck out. See Appendix AA4 for photographs of the notice.


Do i need to append the entire VCS vs Burzynski case in my witness statement? Also VCS have included a copy of the NTK issued 4 days after the alleged parking infringement do i need to append this or can i refer to their witness statement?

Coupon-mad

Do i need to append the entire VCS vs Burzynski case in my witness statement? 

Yes, it is an Exhibit.

Also VCS have included a copy of the NTK issued 4 days after the alleged parking infringement do i need to append this?

No.