VCS County Court Claim - Hearing Stage: I Won!!!

Not_A_Hope

Don’t be too surprised if VCS / Elms Legal refuse to share the contract with you at this stage. They will probably claim it has confidential info. But they will have to provide a copy in their WS for the court. You will then be able to check and see if they have been lying and bring it to the attention of the judge.

koahanee

@Coupon-mad @Snakes_Belly @KeithP @Not_A_Hope

Morning all, so I managed to get hold of the VCS contract yesterday - attached photo

There it is in Clause 6.7 - looks to me that this means the PCN can be cancelled by the landowner, so what ELMS Legal said about no cancellation clause is untrue.

I will write back to them but just checking if there’s anything more to this I should prepare myself for (Knowing VCS and ELMS as they are 😒…)

Snakes_Belly

Even if the PCN was correctly issued the worst case scenario would be £20.00.   

Fruitcake

Have a look at the redactions in disclosure thread by Johnersh, and quote the Hancock vs Promontoria case. Since it was an appeal court case the judge's findings are persuasive on the lower courts.

Redactions in Disclosure — MoneySavingExpert Forum

The location, the alleged client's name, and the date the contract was allegedly signed have been redacted so there is no proof that it applied to the material location, and no proof that "Squiggle" was authorised by the client to sign legally binding contracts.

koahanee

@Fruitcake Ohh sorry I forgot to put in a disclaimer. I reacted the contract before putting on here as it has our landowner address etc 😅 The copy I managed to get got the full info and it was actually our property manager who signed it.

Coupon-mad

Flipping heck who would sign that? Look at some of the clauses!  

Such as if the client doesn't return all the signs by recorded delivery within 14 days of ending the contract, VCS can charge rental on every anniversary thereafter... i.e. forever.

Why would an idiot client agree to return 19 signs (plus poles, where attached) at their own expense in the event they decide to kick VCS out?

Why would a landowner indemnify VCS against court claims? I mean I've seen that clause before but why on earth would the landowner agree?  

The clause about cancelling the PCN is also so vague that VCS could 'agree' (with anyone) to cancel a whole batch of uncollected PCNs every year to clear their books of old ones (rather than sue) and charge the client £20 each PCN.  Using them like a factor.

Snakes_Belly

So much for Elms saying that there was no cancellation clause. Should have gone to Specsavers

koahanee

Hi all gurus on this forum,

First of all, I just wanted to say thank you for all the resources that this forum provided.

VCS has now put a claim through the County Court on 29/11/22 and I have filed an AoS accordingly. I have drafted my defence below with the resource from the forum - I would be most grateful for any advice on whether this defence is ok or anything else I need to change before submission.

Many thanks for all your help and advice.

IN THE COUNTY COURT

Claim No.:  XXXXXXX

 

Between

Vehicle Control Services Limited

(Claimant)

 

- and –

 

XXXXX

(Defendant)

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

2. It is admitted that at all material times the Defendant was the registered keeper and driver of the vehicle with registration mark XXXXX, which is the subject of these proceedings. 

3. The Defendant is a resident and owner of a property (XXXXXX) and a parking space (Space XX) at XXXXXX. This is confirmed by XXXX – the Landowner and developer of XXXXX, from whom the Defendant purchased the property and the parking space – as evidenced in Exhibit A

4. It is admitted that on XXXXXX, the Defendant’s vehicle was parked at XXXXXXX.

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

 

 

Defence 1 – Breaches of the Protection of Freedoms Act 2012 and the Consumer Rights Act 2015

6. The first communication, which the Defendant received from Vehicle Control Services Limited, was on the XXXXX. This was a ‘Demand for Payment’ letter with a postage date of XXXXXXX – as evidenced in Exhibit B – to pursue an alleged sum of £170.

7. Exhibit C shows the Defendant’s personal data held on Vehicle Control Services Limited system. This was provided to the Defendant by Vehicle Control Services Limited on XXXXXXX, following the Defendant’s Subject Access Request on XXXXXX.

8. Exhibit C shows Vehicle Control Services Limited requested the keeper’s details of the vehicle with registration mark XXXXXX on XXXXXX.

9. Exhibit C also shows that there was no record of Vehicle Control Services Limited providing either a notice to driver or a notice to keeper in accordance with the Protection of Freedoms Act 2012, Schedule 4, paragraph 7 and 8. Vehicle Control Services then started ‘Debt Recovery’ (IDR process) on XXXXX – as evidenced in Exhibit C – which corresponds to the Defendant first communication received on XXXXX.

10. As neither a Notice to Driver nor a Notice to Keeper was served, it is not admitted that the Claimant has complied with the relevant statutory requirements, in particular the Protection of Freedoms Act 2012, Schedule 4, paragraph 4, 6, 7, and 8.

11. 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.  The Consumer Rights Act 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.

12. 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. The Defendant avers that the Consumer Rights Act has been breached due to lack of notices, pursuant to section 62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

 

Defence 2 – Lack of authority to bring the claim

13. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the Landowner.

14. The Landowner (XXXXX) has on two occasions issued notice of cancelation of PCN VCSXXXXXX relating to the charge in these proceedings.  The notice of cancellation of PCN VCSXXXXXX was issued, first on XXXXX  (for the Defendant to submit to the Claimant), and then on XXXXXX (directly from the Landowner to the Claimant) – as evidenced in Exhibit A, D and E.

15. The Claimant is put to strict proof that it has sufficient interest in the land and that there are specific terms in its contract to ignore the Landowner’s request and bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim

16. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite 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 unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

17. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

18. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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." 

19. 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." 

20. 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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

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

22. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so against the Landowner’s instructions, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

23. It is denied that the Claimant has any entitlement to the sums sought.

 

Defence 3 – Primacy of Contract

24.  The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on XXXXXX. The basis for purported liability for this charge is a breach of contract due to ‘Parked without displaying a valid ticket/permit’.

25. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the (signed) contract accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated. 

26. The permit system for XXXXXX was (on the XXXXX) and is (currently) still incomplete, with the Defendant (owner of parking space XX) is expecting to be issued parking permit in February 2023 – as evidenced in Exhibit A. As such, the Claimant’s basis for purported liability for this charge is invalid; given parking permit was only partially issued to parking space owners at XXXXXX. In Pace Recovery v Mr [N. Redacted] (2016) C6GF14F0, it was found that the parking company could not override the resident's right to park by requiring a permit to park.

27. Accordingly it is denied that:

27.1. there was any agreement as between the Defendant and the Claimant

27.2. there was any obligation (at all) to display a permit; and

27.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss

 

Conclusion

28.  In conclusion, it is the Defendant’s position that the Claimant has breached relevant statutory requirements, in particular the Protection of Freedoms Act 2012 and the Consumer Rights Act 2015, and that the Claimant is lack of authority to bring this claim.

29. 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. 

30. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

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

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

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

31.  Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) 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))."   

 

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:

 

Exhibit A -  https://drive.google.com/file/d/1oS8lLOdkIeykh4UhGxcUABvyhh_2-QHh/view?usp=sharing
Exhibit B - https://drive.google.com/file/d/1y9h7REYFFIAAayg5gltCienQmdxPX44g/view?usp=sharing
Exhibit C - https://drive.google.com/file/d/1J9rFQlBb-y5kZv-xmhS4pl_nt9_Rmprb/view?usp=sharing

KeithP

koahanee said:

VCS has now put a claim through the County Court on 29/11/22 and I have filed an AoS accordingly.

I am going to assume you filed an Acknowledgment of Service sometime after 2nd December and before 20th December. Your MCOL Claim History will confirm this.

With a Claim Issue Date of 29th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 3rd January 2023 to file your Defence.

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


No evidence gets filed with a Defence. 

Le_Kirk

Copied from your other thread that you have now deleted - Ta.
Is that a defence or a witness statement? Evidence goes with WS not defence. In my opinion it is far too long for a defence, which should be short, punch legal or technical arguments that are backed up an supported by the WS.  Did you find the template defence?