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

koahanee

@KeithP - thanks for getting back to me. yes I filed an AoS on 13th Dec 22nd  and also selected the option to ask for 14 days extra to file a defence.

@Le_Kirk - thanks for getting back to me. This is the Defende; I did use the templete defence and edited to suit my case. Would you suggest getting rid of the bits where I include the exhibits - is there a Witness Statement I would have to provide following the defence? Also I think I can delete points 16-20 that I copied from the template to shorten it - what do you think? Any advice gratefully received 😊 xx

Mouse007

I think that is far to long for a Defence which should be short to the point paragraphs. Looks more like a Witness Statement.

If you are admitting to being the driver then PoFA is irrelevant, that is about keeper liability when the driver is unknown.

Have a look at my Defence here

and then the Witness Statement here

Have you based your draft defence on the right template? It doesn't look like it to me. In my defence new paragraphs were added at 3 to 13, the rest from para 14 was sent unchanged. Subsequently I was able to refer to a couple of the template paragraphs in my Witness Statement (para 53 and para 89).

Umkomaas

is there a Witness Statement I would have to provide following the defence?

Yes, but that's some months away. However in preparation, once your Defence is submitted, read the one helpfully linked by @Mouse007 above, as well as looking at that written by @aphex007 (the final draft -v3 - in his thread, so read to the end) and use those as the style and areas to cover in the drafting of your own. 

Le_Kirk

koahanee said:

@Le_Kirk - thanks for getting back to me. This is the Defende; I did use the templete defence and edited to suit my case. Would you suggest getting rid of the bits where I include the exhibits - is there a Witness Statement I would have to provide following the defence? Also I think I can delete points 16-20 that I copied from the template to shorten it - what do you think? Any advice gratefully received 😊 xx

See my post at 4.16 today where your questions were answered.

koahanee

Hi @Mouse007 @Umkomaas @KeithP and @Le_Kirk - thank you all for these advice, especially Mouse007 for the defence template to a similar case. 

I have now re-written the Defence with Paragraph 3 to 13 is in relation to my case; and Paragraph 14 onwards is unchanged from Mouse007's template.
I also plagiarised paragraph 7-9 from @Coupon-mad 's thread on the Bargepole case (https://forums.moneysavingexpert.com/discussion/comment/74708527#Comment_74708527)

Any further advice from you all on my defence below would be greatly appreciated 

And Happy Christmas everyone!!! 

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

3. The Particulars refer to the material location as XXXXX. The Defendant has, since XXXXX, held legal title under the terms of a Lease, to XXXXXX and Parking Space XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Under this Lease, the Defendant’s contractual rights and obligations are with the Landowner (XXXXX) and no other party.

5. The Lease grants the defendant the right to use communal areas without specifying any uses or conditions.

6. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

7. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in anyway, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

9. Further and in the alternative, the signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

9.1. The Defendant's vehicle clearly was 'authorised' as per the lease 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.

9.2. 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.

10. In Pace v Mr N C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

11. In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

12. The Landowner (XXXXXX), on two occasions, has issued notice of cancelation of PCN VCSXXXXXXX relating to the charge in these proceedings.  The notice of cancellation of PCN VCSXXXXXXX was issued, first on 12th Aug 22 (for the Defendant to submit to the Claimant), and then on 9th Sept 22 (directly from the Landowner to the Claimant).

13. Both notices were ignored by the Claimant. The Claimant subsequently proceeded with bringing on this claim.

14. 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.

15. 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.

16. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned. It seems they have also calculated 8% interest on that false sum. 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'.

17. 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: 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 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."

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; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.

21. 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.

22. 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.

23. 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.

24. 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.

koahanee

POFA and CRA breaches

25. 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.

26. 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.

27. 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

28. 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.

29. 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.

30. 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

(iii) 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).

31. 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

32. 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.

33. 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.

34. 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

35. 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'.

36. 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:

Defendant’s signature:

Date:

Mouse007

koahanee said:

I have now re-written the Defence with Paragraph 3 to 13 is in relation to my case; and Paragraph 14 onwards is unchanged from Mouse007's template.

Not quite paragraph 14 onwards was @CouponMads template, not mine, credit where credit is due - I just got it.

Nothwithstanding that, I do like the new improved defence - over to the resident experts.

koahanee

Hi all - hope you are all having a lovely festive period and all the best for the New Year! 

@Coupon-mad @Umkomaas @Le_Kirk @Fruitcake @Johnersh @KeithP : Sorry to bother you again - please will you look through my defence below? I made some changes to paragraph 9 to ensure it align with the signage at my residential complex. I am hoping to submit my defence by Friday morning COP (as my claim date was 29th Nov so the 33-day period will run out on 1st January plus the requirement to submit my defence on a workig day)

Most grateful for your expert advice and help :-)

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

3. The Particulars refer to the material location as XXXXX. The Defendant has, since XXXXX, held legal title under the terms of a Lease, to XXXXXX and Parking Space XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. Under this Lease, the Defendant’s contractual rights and obligations are with the Landowner (XXXXX) and no other party.

5. The Lease grants the defendant the right to use communal areas without specifying any uses or conditions.

6. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

7. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in anyway, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

9. Further and in the alternative, the signs refer to 'Valid Permit Holders only', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract. 

9.1. The parking permit scheme at XXXX was (on 14/05/22) is still currently incomplete; with all parking space owners at XXXX expected to receive a parking permit by February 2023. The Defendant's parking space is amongst those awaiting a permit. The Defendant's vehicle clearly was 'authorised' as per the lease 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.

9.2. 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.

10. In Pace v Mr N C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

11. In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

12. The Landowner (XXXXXX), on two occasions, has issued notice of cancelation of PCN VCSXXXXXXX relating to the charge in these proceedings.  The notice of cancellation of PCN VCSXXXXXXX was issued, first on 12th Aug 22 (for the Defendant to submit to the Claimant), and then on 9th Sept 22 (directly from the Landowner to the Claimant).

13. Both notices were ignored by the Claimant. The Claimant subsequently proceeded with bringing on this claim.

KeithP

koahanee said:

I am hoping to submit my defence by Friday morning COP (as my claim date was 29th Nov so the 33-day period will run out on 1st January plus the requirement to submit my defence on a working day).

My post on 23 December at 2:36PM gave you a different Defence filing deadline...

...you have until 4pm on Tuesday 3rd January 2023 to file your Defence.

koahanee

Thank you @KeithP - I just checked the date again, think I didn’t take into account the bank holidays. 

Also is the procedure for submitting the defence still as below (I copied this from the Newbies thread)? Just double checking in case I miss anything (again!)

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk but due to the CCBC's dysfunctional systems, only do this during working hours (a weekday) and you MUST get an acknowledgement.  Also copy in the parking firm's legal team or solicitors, whose email you can find on any other thread about the same law firm.
5. Just put the claim number (check it very carefully) and the word Defence in the email title, and in the body of the email something like 'URGENT RE CLAIM XXXXXXXX - Please find my Defence attached,
6. IMPORTANT - MAKE SURE YOU GET AN EMAIL ACKNOWLEDGEMENT BACK FROM THE CCBC!  After filing your Defence, there is more to do.