Notification of Instruction from ELMS Legal LTd

1505grandad

A reminder from a previous post  -  so D is not RK:-

"The vehicle is a Company car on lease hire and I did get an email from the lease hire company saying they had been contacted to pass on the keepers address regards a PCN, but I never came so I forgot about it."

Coupon-mad

So you were never served with a Notice to Hirer?

You need to state in 2 that you were the hirer/lessee of this vehicle but were never served with a Notice to hirer so cannot be held liable in law, given it is impossible to know which of the drivers parked the car that day.

In 3, what you have now said is far better except for referring to photos because evidence doesn't accompany a defence. Photos come a fair bit later, at WS stage, as the 'IMPORTANT - KNOW WHAT HAPPENS WHEN' section of the NEWBIES thread 2nd post tells you.

DWGrassman

The first letter I received from VCS was letter before claim, I emailed them stating I hadn’t received any correspondence from them beforehand so they posted me a copy all the notices they said they had already sent including the notice to hirer. So not sure why I didn’t receive them? But they said it was too late for them to investigate.

Coupon-mad

Did they go to the right address?

Does the hirer know who was driving or think it might not have been them?

DWGrassman

Yes when they sent me the copies they had the correct address, but numerous times over the years Royal Mail post workers have miixed my address up with a similar named road around the corner as I have had someone else’s mail on that road before and vis-versa. With regards the hirer I don’t think they would know who the driver was would they? As they have just informed me as the keeper the vehicle that it has been issued with a parking ticket from someone

Fruitcake

In para 2, state that you were the hirer/lessee but the identity of the driver is not known as several people had access to the vehicle at the material time, and liability is denied.

In para 3, state that no Notice to Hirer (NTH) compliant with the Protection of Freedoms Act (PoFA) 2012 was ever received, and the documents detailed in paragraphs 13 and 14 of the PoFA 2012 were never received, therefore as hirer/lessee, you cannot be held liable.


You will need to sort through every document you have received and compare them with those referred to in paras 13 and 14 of the PoFA to understand how the claimant failed to hold you liable.

Coupon-mad

With regards the hirer I don’t think they would know who the driver was would they? As they have just informed me as the keeper the vehicle that it has been issued with a parking ticket from someone

You are the hirer.

I wasn't asking about what the hire firm company know.  I will re-word it:

Do YOU (the hirer) know who was driving or think it might not have been them?

The Judge needs to know.

DWGrassman

Thanks Fruitcake that’s most helpful I’m planning to re jig my defence tonight.
Sorry Coupon for misunderstanding you, I’m not sure who the driver was as not the same person drives my son to football training everweek and a few weeks had passed when I received my first letter from VCS

Coupon-mad

DWGrassman said:

Thankyou for your comments.
With regards to who the driver was at the time, this is not known. As the PCN was not brought to my attention until a few weeks afterwards and somebody else has access to the vehicle which could have been them driving that day.

My vehicle is parked in that area once a week for an hour due to my son having football practice at the site next door. The Vehicle has been parked in the car park before when there is no room at the site next door to park, but as my photos prove there is no signage at the front/ entrance to the carpark where the vehicle is normally parked.

Ok, so state in 2 that your were the hirer of this vehicle but more than one driver in the family uses it locally (including for this regular trip) and there is no evidence that the driver was the Defendant on this occasion.  In order to hold the hirer liable for the actions of an unidentified driver, a parking firm must have complied with paragraph 13 and 14 of Schedule 4 of the Protection of Freedoms Act 2012.  It is denied that the Claimant complied in terms of the documents that must have bern served and thus, liability is denied.

Then make 3 a version of what you said above, by way of facts and detail.

DWGrassman

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Xxxxxxxxxxxxxxxxxxxxxx

- and -  

Xxxxxxxxxxxxxxxxxxxxxxx                        

 (Defendant)

_________________

DEFENCE

1. I deny  that the Claimant is entitled to relief in the sum claimed, or at all.  I deny that any conduct by the driver gave rise to a ‘parking charge’ and I  deny that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.P

2. I am the hirer of this vehicle but more than one driver in the family uses it locally (including for this regular trip) and there is no evidence that the driver was the Defendant on this occasion.  In order to hold the hirer liable for the actions of an unidentified driver, a parking firm must have complied with paragraph 13 and 14 of Schedule 4 of the Protection of Freedoms Act 2012.  It is denied that the Claimant complied in terms of the documents that must have bern served and thus, liability is denied

3. My vehicle is parked in that area once a week for an hour due to my son having football practice at the site next door. The Vehicle has been parked in the car park before when there is no room at the site next door to park.

I received a letter before claim from VCS on XX/xx/xx

In the letter, there is no explanation of the contravention and having had no previous contact from VCS before in regards to the PCN this is something I am totally unaware of. Also I never received the PCN which was photographed on my windscreen which may have not been attached properly and just fell off when the vehicle drove off. I emailed VCS with regards their PCN and they replied by saying they said it was too late to investigate why I had not received their previous correspondence and said they will be pressing on with further action against me. As VCN don’t have any proof that I received their PCN I believe it should be deemed null and void due to the fact that I had not received it in my hand or at my address within 56 days of the time stated on their notice.

              Having since visited the site I found the following;

There is no signage at the entrance to the car park/ land stating the restrictions in force.

There are not sufficient signs in place around the carpark covering every parking spot  stating the restrictions that are in force.

The signs that are attached to the fencing in the car park area are not well lit in the dark and can easily be missed.

The requirements are that clear signage must be erected at all entrances to the carpark stating the restrictions in force. Therefore anybody who was driving the vehicle at the time has not entered into a contract with VCS

VCS’s Civil Parking Notice online constitutes an invoice for payment. Accordingly their invoiced charge must include an element of VAT. However, their civil parking notice does not state a breakdown of VAT, and an invoice reference number and so cannot constitute a lawfully valid demand for payment.

Having examined VCS’s parking charge notice online I believe it is a non compliant demand for payment for the following reason;

Their  notice refers to a “contravention” which is misleading for implying it to have been issued by a statutory authority.  The term "contravention" which is usable only in penalty charge notices issued by local authorities is neither correct nor appropriate terminology for a civil parking notice. 

I understand that, as a legal minimum, the Parking Charge Notice must include a prescribed set of information.  The following is not shown on your notice online and therefore it is invalid. 

I understand that a Parking Charge Notice must also include the following which is absent from the notice online you have provided and therefore it may be invalid. 

A detailed location of the vehicle within the carpark

An identifier number of the warden who issued the ticket

Any additional charges which may be levied.

I asked VCS in an email for the following information which was not provided to me.

A copy of your contract with the land owner which authorises you to act on their behalf in the management of this car parking area.

A copy of the contract which you allege I entered in to when the vehicle was parked.

Photographic evidence of the actual signs in situ, together with identification of the locations around the site where these signs are currently placed. Please also confirm the date when the photographs were taken (if not evident from the photographs themselves) and whether you have made any alterations to the signage since the photograph was taken.

A copy of the full terms and conditions for use of the land where I was allegedly parked wrongly.

A copy of your certificate of membership to any trade bodies

A copy of your protocol which your enforcement and CCTV operators are required to follow. 

A copy of your standard appeal procedure and confirm whether or not it complies with the Arbitration Act 1996.

Full details of the owner of the parking area (if it is not already stated in the copy contract above) as I wish to send them a copy of my letter to you.

A copy of your protocol for handling personal data such as images of my vehicle. I assume that such data is not disclosed to any third party (other than POPLA in the event of an appeal) but please confirm this.

All correspondence between me and VCS / ELMS can be provided to the court as evidence. Also photographic evidence can be provide that there is no signage at the entrance to the carpark which warns the driver that the site is private parking only.

In my opinion VCS have made no attempt to resolve my complaints and have just sent me copies of their paper chain template letters that they must send out to thousands of other motorists trying to distort money off them.