PCN CCJ from VCS Ltd Help

ParkingMachine

Hi all, In brief I was issued a PCN despite having a parking permit and being on a register of permitted VRNs for the work car park. However, the PCN wasn't in the clearest of views TBH and apparently this register of allowed PCNs wasn't passed onto VCS by the landlord/owner. PCN and all other correspondence went to old address and I found myself with a CCJ about 7/8 months after, despite changing address on V5 the same month PCN was issued. I've followed djhodgko 's thread and advice he's received but would be greatful if any/some one could look over what ive put together - WS, 6-point order and draft defence.

I found out about CCJ in September and plan to submit n244 this week, it would have been earlier but i've had to contend with going back to the office full time, managing house renovations and running my own business on the side else this would have been much sooner.

Any feedback welcome, sorry if i've missed something out.

WS & 6-point Order:

I am XXXXX and I am the defendant in this matter. This is my supporting statement to my application dated  December 2021 requesting to:

a. Set aside the Default Judgment dated 17 September 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on X September 2020. I am aware that the Claimant is Vehicle Control Services Ltd., and that the assumed claim is in respect of an unpaid Parking Charge Notice from the X February 2020 at Car Park XXXXXXX. I contest this charge for the reasons outlined in the attached draft defence; in brief these amount to having a valid permit for the car park in question with the vehicle registration number also present on a database of exempt vehicles with the landowner.

1.3. The claim form was not served at my current address, and I thus was not aware of the particulars of the Default Judgment until 27th September 2021 following a routine Experian credit check before looking to apply for a loan. It took two weeks for CCBC to furnish me with judgment details via e-mail.

1.4 The address on the claim is XXXX. I moved to my current address at XXXX in September 2019. In support of this I can provide bank statements dated before Charge Notice on February 2020; Schedule (A &

1.5 In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.5.1 I discovered a CCJ was lodged onto my credit file on the 14th September 2021.

1.5.2 On 14th September I contacted the County Court Business Centre via e-mail to obtain relevant information relating to this default judgment.

1.5.3 On December 6 2021 I have submitted my case in order to set-aside this judgment and fairly present my case.

1.6 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. The defendant 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate CRA address check, but despite having an in-house legal team headed by a barrister, this Claimant took no steps whatsoever to check the address. 

1.7 On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having some 8 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

1.8 Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim stands dismissed and the period for service cannot be extended by this application process.  The Defendant has no details of this claim, nor the 'parking charge' that it presumably relates to, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is (Removed by Forum Team).

1.9 According to publicly available information my circumstances are far from unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

2.0 Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

Statement of Truth

I, XXXXXXX, the Defendant, believe that the facts stated in this witness statement 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.

DRAFT ORDER

Upon reading the defendant’s application dated 04/12/2021

It is ordered that:

1. The judgment dated X/09/2020 be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue.

3. The Claimant do pay the Defendants costs of this application on an indemnity basis.

3.  The claim form was served (sent) to an incorrect address and the Claimant had no proper basis to assert they sent the claim to a last known address, where no enquiry was made to ensure that it was still in use and Defendant was "there to be found" on a simple directory enquiry check. The absence of any response to mandatory pre-action correspondence created at least the likelihood Defendant had moved which therefore mandated further enquiry.

5. Claimant was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on Defendants usual residential address.

6. Claimant has the option to issue afresh, the merits of the claim not having been ruled upon.

ParkingMachine

IN THE COUNTY COURT

Claim No.: xxXXXXXX

Between

Vehicle Control Services Limited

(Claimant) 

- and -  

XXXXXXX                        

 (Defendant)

____________________

DEFENCE

____________________

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. 

3. The facts of the matter are that the Defendant occupied a parking space at the site of X on the X February 2020. A parking site which the Defendant utilised with the express permission of his employer in the act of gainful employment. The Defendant has a parking permit which can be seen in VCS’s correspondence (albeit & admittedly not in clear view) and a vehicle registration number which was logged with the landlord(Lugano Property Group) as a vehicle which is permitted to park at the aforementioned location. The latter of which was to be passed onto Vehicle Control Services Ltd. in the event that a permit may be have fallen off the dashboard or not be in clear view. The Defendant can evidence this with e-mail correspondence between his employer X and X. In addition, such correspondence confers that the Defendant’s colleagues have had many vexatious encounters with Vehicle Control Services Ltd. despite the display of permits and the logging of VRNs on a database.

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

(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.

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:

Coupon-mad

Your actual address is shown in that first bit!

Remove this:

albeit & admittedly not in clear view)  

Add something like this:

The Defendant was issued a Parking charge, despite having a parking permit and being on a register of permitted VRNs for the work car park.   The Claimant is put to strict proof that they did not have access to this register of allowed VRMs and the Defendant asks 'if not, why not?' given that they invariably operate with a 'white list' and as far as the Defendant is concerned, the register was the whitelist for this site.  The Claimant's operative would also have seen the permit on this car every day for x years. 

Coupon-mad

Remove #3 (that's just commentary) from the Draft Order and re-number properly.

I think #5 in the Draft Order would be better coming at the top as having been noted by the Judge:

DRAFT ORDER

UPON reading the Defendant's application dated 04/12/2021 and hearing from the Defendant in person, and UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address

It is ordered that:

ParkingMachine

Thanks very much for the feedback, I couldn't see how to edit the post to remove my address so i've screen shotted your feedback and will re-post without personal deets!

Le_Kirk

You cannot edit posts until you have a certain number under your belt and have been here a certain time but you could a) send an e-mail to the Forum Team and ask them to do it or b) report your own post using the REPORT button.

ParkingMachine

Thanks, reported and re-posting shortly!

ParkingMachine

Ok, address has been redacted by mods so this is back live.

I've rehashed draft defence point 3 as per Coupon-mad suggestions: 

3. The facts of the matter are that the Defendant occupied a parking space at the site of X on the X February 2020. A parking site which the Defendant utilised with the express permission of his employer in the act of gainful employment. 

The Defendant was issued a parking charge, despite having a parking permit and being on a register of permitted VRNs for the work car park with the landlord(X). The Defendant can evidence this with e-mail correspondence between his employer X and X. In addition, such correspondence confers that the Defendant’s colleagues have had vexatious encounters with Vehicle Control Services Ltd. despite the display of permits and the logging of VRNs on a ‘white-list’.

 The Claimant is put to strict proof that they did not have access to this register of allowed VRMs and the Defendant asks 'if not, why not?' given that they invariably operate with a 'white list' and as far as the Defendant is concerned, the register was the whitelist for this site.  The Claimant's operative would also have seen the permit on this car every day for at least six months prior to the issuance of this parking charge.

ParkingMachine

Draft order changed also to:

DRAFT ORDER

UPON reading the Defendant's application dated 06/12/2021 and hearing from the Defendant in person, and UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address.

It is ordered that:

1.  Claimant was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on Defendants usual residential address.

2. The judgment dated X/09/20 be set aside.

3. The claim be struck out as the claim form having not been served within 4 months of issue.

4.  The claim form was served (sent) to an incorrect address and the Claimant had no proper basis to assert they sent the claim to a last known address, where no enquiry was made to ensure that it was still in use and Defendant was "there to be found" on a simple directory enquiry check. The absence of any response to mandatory pre-action correspondence created at least the likelihood Defendant had moved which therefore mandated further enquiry.

5. Claimant has the option to issue afresh, the merits of the claim not having been ruled upon.

---------

Is this better? Is it ok there aren't 6 points? Any other suggestions/criticism would be welcome.

Thanks

Coupon-mad

Get rid of 1 and 4 of the draft Order and add the usual point about the C paying your costs. 

This is exactly the same as the other CCJ  one we are replying to right now.  Read other threads like yours, we've literally just said the same thing to another poster.

ParkingMachine

Hi, thanks for that I've changed as you suggested in line with other CCJ posts. Just for clarification should I be referencing cpr 13.2 & 13.3 in the WS? I've read a few threads but couldn't figure out if it applies to my situation.