Flora St Sheffield Restricted Area - VCS / Elms Legal Defence

Elaine_43

Hi Everyone,

Really hope you can help me. 

 I received a County court claim form 4th April from VCS Ltd.

They claim that in 2018 a car registered in my name parked in a Flora Street Retail Park in a restricted/prohibited area. I was not the driver nor the passenger on that day. 

The location seems to be popular place for issuing PCNs, and the "prohibited area" is just an unmarked space that is still used by cars as parking area till this day.

Here is a case identical to mine ( not CCJ but PCN side of it ) where the person also explained the parking issue:

Looking around on here and on other forums it has become clear that VCS use this particular location as a honey trap and the Sheffield courts are fully aware of this; cases have been thrown out during a very short hearing in which the judge has agreed that the area in question is not marked at all to indicate that it is in fact a restricted area

 https://forums.moneysavingexpert.com/discussion/6182737/surprise-ccj-flora-st-sheffield-restricted-area-vcs-elms-legal

 I will be using his points for my case, due to being the same.

From PCN perspective: I changed 3 addresses in last 5 yrs, therefore only received a letter referring to this PCN a month ago, which I disregarded ( unfortunately ). The only letter I am in receipt is Claim form dated 4th April.

Here are the details on the claim form:

 THE CLAIM IS FOR A BREACH OF CONTRACT FOR BREACHING THE TERMS AND CONDITIONS SET ON PRIVATE LAND. THE DEFENDANT'S VEHICLE, [XXXXXXX], WAS IDENTIFIED IN THE FLORA STREET RETAIL PARK ON THE XX/12/2018 IN BREACH OF THE ADVERTISED TERMS AND CONDITIONS; NAMELY PARKED IN A RESTRICTED / PROHIBITED AREA AT ALL MATERIAL TIMES THE DEFENDANT WAS THE REGISTERED KEEPER AND/OR DRIVER. THE TERMS AND CONDITIONS UPON ENTERING PRIVATE LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE AND INPROMINENT LOCATIONS. THE SIGN WAS THE OFFER AND THE ACT OF ENTERING PRIVATE LAND WAS THE ACCEPTANCE OF THE OFFER HEREBY ENTERING INTO A CONTRACT BY CONDUCT. THE SIGNS SPECIFICALLYDETAIL THE TERMS AND CONDITIONS AND THE CONSEQUENCES OF FAILURE TO COMPLY, NAMELY A PARKING CHARGE NOTICE WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY. THE CLAIMANT SEEKS THE RECOVERY OF THE PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.

Amount claimed :£160 ( It is £100 fine plus an additional £60 )
Court Fee :£35

Legal representative’s costs :£50

Total amount: £245

AOS:

 I sent acknowledgement of service 15th April, therefore I have time till 6th May to file Defence.

 SAR:

I also requested SAR as I have no paperwork on me, 15th April, still waiting. 

If you could please advise how in the world I go about defending this, it would be much appreciated 

 

Elaine_43

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver gave rise to a ‘parking charge’ and it is denied 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.

 

The facts as known to the Defendant:

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

2.2 The Defendant was not the driver of the vehicle on the date in question.

 

3.1 The Particulars of Claim refer to ‘A Breach of contract for breaching the terms and conditions set on private land. [XX/12/2018].  However, they do not state the basis of any purported liability for these charges, in that they do not state whether the Defendant is being pursued under the POFA 2012 as the registered keeper (they use template wording 'keeper and/or driver' yet the law and liability chain and defence needed for those polar opposite positions, would be entirely different).  The Particulars also fail to explain the locus standi of the Claimant, who are not the landowner yet also fail to state why they, as a mere agent (if indeed they are) of a landowner principal, are bringing this claim.  Further, this is a money-claim and the Particulars state no sum of money, nor even break the total claim down, nor even state the sum of the alleged parking charge.

3.2 On the date of the alleged contravention the defendant’s vehicle was parked in a large, open area of the car park, along with many other vehicles, assumed to be used as overflow parking. The vehicle was not blocking access to any other vehicles, pedestrian walkways, or access points, nor could it be reasonably assumed that it was causing any inconvenience of any kind. This area is not marked, unlike other areas nearby which are marked clearly with the cross hatch, so the onus is on the Claimant to prove that the area is restricted.

3.2. The Claimant’s signage as at xx April 2022 (assumed to be present at the date of alleged contravention until full details and photographs are provided by the Claimant to the Defendant as requested under a Subject Access Request) states “No parking in restricted areas, double yellow lines, hatched areas, roadways, pedestrian walkways, entrances or exits.” No other description is offered as to what constitutes a ‘restricted area’. Accordingly, the Defendant denies having breached any contractual terms whether expressed, implied, or by conduct.

3.4. Furthermore, as at 15th April 2022 the signage was in accordance with that found to be ‘completely inadequate’ by a competent court due to the penalty charge (£100) being in the smallest font on a sign containing hundreds of words. Reference: One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020).

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after full research and having read this defence several times, because the court process is outside of their life experience.  The claim was an unexpected shock.

5. With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) was served with a Letter of Claim.  The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.  

6.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

7. This finding is underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: 

8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

9. The Code's Ministerial Foreword is unequivocal about abusive 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." 

10. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

11. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

12. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

13. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

14. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

Elaine_43

POFA and CRA breaches

15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance. 

16. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. 

 

ParkingEye v Beavis is distinguished

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

19. 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 a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with concealed pitfalls/traps, hidden terms or unfair/unexpected obligations.

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, 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." 

 

Lack of landowner authority evidence and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an independently signed landowner agreement (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, hours of operation, any extended grace period or exemptions (whatever these definitions were) nor that this Claimant has authority from the landowner to issue charges at this place or for the reason given.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal, as some parking firms do.

23. Further, the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  The rival Trade Bodies provided 'blink and you've missed it' time-limited appeals services which failed to consider facts or rules of law properly and unfairly rejected disputes: e.g. despite using legally qualified but anonymous Adjudicators, the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  The Appeals Annex in the new Code shows that genuine disputes such as this, even if made late, would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and any reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer.

 

24. In the matter of costs, the Defendant asks:

(a) for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that, in the event of a late Notice of Discontinuance (due to parking firms using and abusing the court process as a cheap - indeed lucrative - form of debt collection) the hearing continues as a costs hearing. CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) but this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   The Defendant may seek a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

 

Conclusion

25. With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. The Defendant believes that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue.  The Defendant invites the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'. 

26. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

 

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

Looks good.  Remove this though because that case was appealed and overturned:

Reference: One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020).

D_P_Dance

You have done your homework I see.  They have added an unawful £60 .  Have you complained to your MP?

Elaine_43

Coupon-mad, many thanks for the note, I will remove the paragraph.

Elaine_43

D_P_Dance, thank you I have read all info on sticky board, therefore what you all guys are doing is very helpful! I must admit, all this is above my understanding therefore your help and detailed guidance is very much appreciated.

I will then amend the defence, and email it as per guidance seen on forum.

Will keep everyone posted on the process, so that it is helpful for anyone else.

I haven't sent the complaint yet, but will do it later today. 

KeithP

Elaine_43 said:

I received a County court claim form 4th April...

The only letter I am in receipt is Claim form dated 4th April.

I sent acknowledgement of service 15th April, therefore I have time till 6th May to file Defence.

From what you have written there it looks like you have longer than you think to file a Defence.

I am going to assume that the Issue Date on your County Court Claim Form is 4th April and 4th April is not when you received it. Please correct me if I'm wrong.

With a Claim Issue Date of 4th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 9th May 2022 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see that 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'.

Johnersh

I don't see how they can hope to claim debt recovery charges if all previous correspondence went to an entirely different address.

If limitation wasnt an issue, they should have started the protocol processes again and given the o/p a chance to name the driver and avoid proceedings. 

patient_dream

Johnersh said:

I don't see how they can hope to claim debt recovery charges if all previous correspondence went to an entirely different address.

I agree ....  is this just more incompetence by VCS and Elm Legal

Elaine_43

KeithP said:

Elaine_43 said:

I received a County court claim form 4th April...

The only letter I am in receipt is Claim form dated 4th April.

I sent acknowledgement of service 15th April, therefore I have time till 6th May to file Defence.

From what you have written there it looks like you have longer than you think to file a Defence.

I am going to assume that the Issue Date on your County Court Claim Form is 4th April and 4th April is not when you received it. Please correct me if I'm wrong.

With a Claim Issue Date of 4th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 9th May 2022 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence and it is good to see that 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'.

KeithP, yes your assumption is correct and claim form is dated 4th April, therefore I will amend my calendar to show 9th May as a deadline. However reading through all comments, I think I will file it on Monday ( working hrs ), as per your link, just to be on a safe side.