VCS/DCBL Defence help required

nfsu26

IN THE COUNTY COURT
Claim No.: xxxxxx
Between
Vehicle Control Services Ltd
(Claimant)
-and-

Nfsu26
(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

1. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 
   

PCN number xxxxxx - Re Berkeley Centre Pay & Display, Sheffield

1. The Particulars refer to a material location as ‘Berkeley Centre Pay & Display, Sheffield’ for the reference xxxxxx. It is admitted that on this occasion, the Defendant was driving the vehicle. The material location had historically been free to park for a limit of two hours. It is noted that the duration of stay was under this limit. This unexpected change of terms had not been brought to the Defendants attention and as such, the Claimant has failed to meet the Code of Practice and failed to meet the Consumer Rights Act 2015 rules about prominence and transparency of terms.
   
2. The claim was made in the name Vehicle Control Services Ltd. (Company No. 04298820), whereas the signage displayed at the material location in question was, and is, in the name of Excel Parking Services Ltd. (company No. 02878122), a separate legal entity.  Any contract in a private car park can only be formed by signage and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. The Claimant were not a party to such a contract and cannot sue on it.

PCN numbers xxxxxx, xxxxxx, xxxxxx - Re ‘[residential location]’

1. The Particulars refer to another material location as ‘[residential location]'. The Defendant had, between [tenancy-start] until [tenancy-end], held legal title under the terms of an assured shorthand tenancy, to [Apartment no] at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
   
2. The parking area contains allocated parking spaces demised to some residents. Entry to the parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
   
3. There are no terms within the tenancy agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.
   
4. The Terms & Conditions signs stated that ‘If a valid permit/ticket is required, the permit/ticket must be clearly displayed’ with no further information as to what would make a permit/ticket a requirement for parking at the premises.
   
5. Further and in the alternative, the signs refer to ‘Valid Parking Permits Only', and suggest that by parking without a valid parking permit, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no valid parking permit, there is no offer, and therefore no contract.
   
6. The Defendant's vehicle clearly was 'authorised' as per the tenancy agreement and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.
   
7. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property. 

Template Included below (denoted as point 12 onwards in my document)

1. 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.
   
2. 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.
   
3. 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.
   
4. 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’).
   
5. 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
6. 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.  
   
7. 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.
   
8. 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.  
   
9. 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.
   
10. 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.
    
11. 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.

1. 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.
   
2. 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:

1. (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.
   
2. 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:

nfsu26

Included the full defence above.

• I have removed the counter claim and will look into producing this and can add it back in if I make enough progress.
• Added in Sub-headings relevant to each PCN

nfsu26

Fruitcake said:

Okay, you need to carefully follow the paper trail of contracts and letters for the Berkley Precinct PCN from the thread I linked, making notes of dates of letters and dates of contracts and the names of the companies involved.
Basically, Excel had a contract with the landowner, but their sister company VCS put up signs and issued PCNs for not paying, but somewhere the landowner contract says it is free parking.

Judges have thrown out similar cases because the contract is in the name of a completely different company to the one named on the signs and the PCNs.

@Fruitcake - a few of those links on that forum post appear to be dead. I don't suppose you still have a saved copy of the service agreement between Excel & the Landowner?

patient_dream

nfsu26 said:

Fruitcake said:

Okay, you need to carefully follow the paper trail of contracts and letters for the Berkley Precinct PCN from the thread I linked, making notes of dates of letters and dates of contracts and the names of the companies involved.
Basically, Excel had a contract with the landowner, but their sister company VCS put up signs and issued PCNs for not paying, but somewhere the landowner contract says it is free parking.

Judges have thrown out similar cases because the contract is in the name of a completely different company to the one named on the signs and the PCNs.

@Fruitcake - a few of those links on that forum post appear to be dead. I don't suppose you still have a saved copy of the service agreement between Excel & the Landowner?

There is no standard agreement, each landowner will differ.
The Key for you is .... was it Excel or VCS who signed the contract ?

 Whichever one it was has no legal authority over the other as they are two seperate entities 
A counterclaim would be good if you can show a "company" is not the company thar has authority to act.

Another parking company called Britannoa, using BWLegal  got smashed up in court for the same reason ?

The question is, do DCBL actually know what they are doing .... the recent case with VCS and DCBL was a complete car crash in court. VCS were ticketing on land they had no authority to do so.  And was a counterclaim that WON .... DCBL cost VCS £1000

VCS Caught Issuing PCNs on Public Highway - Hit For £1,000 Counterclaim

https://forums.moneysavingexpert.com/discussion/6308128/vcs-caught-issuing-pcns-on-public-highway-hit-for-1-000-counterclaim/p1

REMEMBER VCS/EXCEL are owned by Simpon Renshaw-smith

Coupon-mad

I don't think you said whether you or other family member(s) may have been driving on the three occasions at your own home.  If it wasn't definitely you, say so, and state that the Claimant has failed to invoke keeper liability under the POFA 2012, due to a lack of 'relevant obligation/contract' and non-compliant wording on their Notice to Keepers.  As such, there is no rule of law by which the Defendant keeper can be liable.

Add an additional numbered paragraph after this bit:

This unexpected change of terms had not been brought to the Defendants attention and as such, the Claimant has failed to meet the Code of Practice and failed to meet the Consumer Rights Act 2015 rules about prominence and transparency of terms.

Failure to add additional signs that are conspicuous, large and startling enough to meet Lord Denning's 'red hand rule' and draw new terms to the attention of local drivers (who would be familiar with the old terms and could not reasonably be expected to re-read the same signs on every visit to a free parking shopping centre, on the off-chance that terms had changed) is also a serious breach of the Trade Body Code of Practice.  Full compliance is a strict requirement before registered keeper data may be requested by an operator, under the DVLA 'Keeper on Date of Event' (KADOE) rules.

1505grandad

Template Included below (denoted as point 12 onwards in my document)

Para 4  -  don't forget to amend the following "point number" accordingly:-

" 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."

Le_Kirk

You have two paragraphs numbered "1"

Fruitcake

nfsu26 said:

Fruitcake said:

Okay, you need to carefully follow the paper trail of contracts and letters for the Berkley Precinct PCN from the thread I linked, making notes of dates of letters and dates of contracts and the names of the companies involved.
Basically, Excel had a contract with the landowner, but their sister company VCS put up signs and issued PCNs for not paying, but somewhere the landowner contract says it is free parking.

Judges have thrown out similar cases because the contract is in the name of a completely different company to the one named on the signs and the PCNs.

@Fruitcake - a few of those links on that forum post appear to be dead. I don't suppose you still have a saved copy of the service agreement between Excel & the Landowner?

I will have a look, but I don't think I have a copy of the contract. You will (should) get to see it at the WS/exhibits stage as long as you aver in your defence that the claimant does not have a contract with the landowner.

nfsu26

Le_Kirk said:

You have two paragraphs numbered "1"

This is due to the forum formatting things differently - they are sequential in my document, but thanks!

nfsu26

1505grandad said:

Template Included below (denoted as point 12 onwards in my document)

Para 4  -  don't forget to amend the following "point number" accordingly:-

" 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."

Great spot - I've modified this, thanks.