VCS Court Claim (Residential Parking, Disabled Passenger) - Defence Advice Needed

satinheartmgmt

Hi everyone,

I received 3 PCN’s from Vehicle Control Services Limited in 2020, all within the same month. It is residential parking, but allocated bays. I had a valid permit. My allocated bay was heavily obstructed by two walls, you could not open the door more than around 12 inches. For one of the PCN's I admitted to driving, but I had a disabled passenger (my mother) who could not easily leave and enter the vehicle, so I made the decision with my passengers best interest at heart, and parked in the bay next to it. I have photographic evidence. I do not want to claim liability as it was an accessibility issue. I appealed this PCN on the grounds that the bay was not accessible. I contacted my landlord and building manager for a new bay but was ignored. 

The other 2 PCN's where issued when I was moving into the property, multiple people had access to the vehicle so I do not know who was driving at the time. I do not claim liability. They issued the PCN's over the 14 day deadline so they can't hold me liable as the keeper.

This has now amounted to a County Court Claim Form from VCS and DCBL. They are claiming £710.  The issue date is 05 August 2022. I will be filling my AOC on the 10th August, which means I have until the 8th September (If I am correct) to send my defence off.

VCS' particulars of claim:

'The PCN's was issued on private land owned or managed by Claimant. The vehicle was parked in breach of Terms on Claimants signs (the Contract), this incurring the PCN's. The driver agreed to pay within 28 days but did not. Defendant is liable as the driver or keeper. Despite requests, the PCN's is outstanding. The contract entitles C to damages. AND THE CLAIMANT CLAIMS

1. £480 being the total of the PCN's. 2. Interest at the rate of 8% per annum persuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.07 until judgement or sooner payment. 3. Costs and court fees.'

Luckily, I already started my defence back in 2021, I have just finished writing it up. Please can I get some advice on it? I really can't afford to be paying these scammers £710 when I can barely afford to eat. I really want to win this battle as I am sick to death of these scammers taking our money, especially in a time of economic uncertainty.

I have attached a picture of the sign at the alleged contravention.

Please let me know if you need any more info.

Many thanks.

MY DEFENCE BELOW:

satinheartmgmt

IN THE COUNTY COURT

Claim No.:  XXXXXX

Between

NAME HERE

(Claimant) 

- and -  

NAME HERE

 (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 the Defendant was the registered keeper of the vehicle in question but liability is denied for PCN: VCSxxxxx1 and PCN: VCSxxxxx2. However, defendant admits being the driver and keeper for PCN: VCSxxxxx3 but liability is denied. 

3. The Defendant had just got keys for her new flat 2 weeks prior, which included a permit for an allocated parking bay.  The Defendant had many people help move her belongings who also had access to the vehicle between the dates: 15/06/20 – 18/06/20. The Defendant was not the driver as she was decorating her apartment.  The Defendant does not know who was driving.  The Defendant first heard about PCN: VCSxxxxx1 on 02.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx1 is 30.06.2020 and contravention date on PCN: VCSxxxxx1 is 16.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out it in the Protection of Freedoms Act 2012, Schedule 4.  The Defendant first heard about PCN: VCSxxxxx2 on 04.07.2020 which is 17 days after the contravention date.  The issue date on PCN: VCSxxxxx2 is 02.07.2020 and the contravention date on PCN: VCSxxxxx2 is 18.06.2020, therefore the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

3.1. The Defendant has felt bombarded, harassed and threatened by the Claimant.  The Defendant has had a serious decline in her mental health since this has started.  The Defendant has been regularly seeing a therapist to help her overcome the anxieties that this has caused her.  The Defendant mentions that with the Covid-19 pandemic and the rising cost of living, they do not wish this on anybody.  

3.2. For PCN: VCSxxxxx3, the Defendant had a disabled passenger with her which was her mother. The bay that was allocated for her at her residential parking was not suitable for them to leave or enter the vehicle. As this was the Defendants first time witnessing the obstructed parking bay (the Defendant signed the lease on 01/06/2020), the disabled passenger did not have her blue badge with her to display and there was no suitable alternative, accessible options that were obvious to the Defendant and the disabled passenger at the time. The Defendant had to make a decision to park in the bay next to it to ensure the needs of her disabled passenger where met. The Defendant had contacted their landlord and building manager to get the bay swapped to a more suitable option, but was ignored.  Due to the Defendant’s relationship with the disabled passenger, this quickly became an issue as the EHRC statutory code was not followed.  The Defendant vacated the property 10 months later partly due to the discrimination the disabled passenger faced and not having a reasonable adjustment to their disabilities. 

Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: LINK HERE which has a section on accessible parking:

“4. Accessible Parking Where parking is being provided as a service, parking operators need to have regard to the obligations placed upon them by the Equality Act 2010 and the EHRC statutory code, in particular to make reasonable adaptations to accommodate disabled people. Reference should also be given to the car park accessibility section in Inclusive Mobility, guidance published on GOV.UK by the Department for Transport on the creation and maintenance of an accessible and inclusive built environment and public realm, an essential document for those seeking to produce an inclusive environment and meet the requirements of the Act, including the public sector Equality Duty, and other legislation. Many parking operators and landowners choose to recognise the Blue Badge scheme and provide designated provision with specific bays which allow more space for opening vehicle doors, getting in and out of the vehicle, accessing a wheelchair etc. This might be appropriate for recognising the needs of people with limited physical mobility, but adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods, more time to access payment machinery, and other ways to pay where payment is required. Recognition of these obligations is important in the consideration of appeals.”

4. 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.

5. 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 any way, 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.

6. 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.

7. 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. 

8. 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 contract (sign) 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.  

9.  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'.

10. 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: LINK TO CoP HERE

11. 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." 

12. 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." 

13. 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.  

14. 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.

15. 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. 

16. 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.

17. 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. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

 

POFA and CRA breaches

18. 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 and liability transferred. 

19. 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.

20. 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. 

satinheartmgmt

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

21. 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.

22. 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 hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.

23.  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).  

24. 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

25. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  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.

26.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - 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 reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

 

Conclusion

27. 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. 

28. 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.

 

29. 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. 

30.  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:

Coupon-mad

I saw a typo: 'needs where met'.

Add into the section about others helping you move furniture and belongings into the flat, that they were engaged in unloading heavy items and furniture. This has already been tested at appeal to a Circuit Judge in another parking/residential case: Jopson v Homeguard, where HHJ Harris QC held that a resident's car being briefly stopped (no longer than necessary) purely to facilitate unloading heavy belongings/furniture was allowable under a tenant's lease which grants a right to peaceful enjoyment and this overrides parking signs which do not apply in such cases.  HHJ Harris QC held at 21 that 'any other approach would leave life at a block of flats close to unworkable' and upheld the tenant's appeal against the first instance judgment.

I'd remove this as it adds nothing:

"The Defendant mentions that with the Covid-19 pandemic and the rising cost of living, they do not wish this on anybody."  

KeithP

satinheartmgmt said:

This has now amounted to a County Court Claim Form from VCS and DCBL. They are claiming £710.  The issue date is 05 August 2022. I will be filling my AOC on the 10th August, which means I have until the 8th September (If I am correct) to send my defence off.

With a Claim Issue Date of 5th August, you have until Wednesday 24th August to file an Acknowledgment of Service but there is nothing to be gained by delaying it (because after 4pm on 9th August counts as 10th August). 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 7th September 2022 to file your Defence.

That's over four 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

satinheartmgmt

Coupon-mad said:

I saw a typo: 'needs where met'.

Add into the section about others helping you move furniture and belongings into the flat, that they were engaged in unloading heavy items and furniture. This has already been tested at appeal to a Circuit Judge in another parking/residential case: Jopson v Homeguard, where HHJ Harris QC held that a resident's car being briefly stopped (no longer than necessary) purely to facilitate unloading heavy belongings/furniture was allowable under a tenant's lease which grants a right to peaceful enjoyment and this overrides parking signs which do not apply in such cases.  HHJ Harris QC held at 21 that 'any other approach would leave life at a block of flats close to unworkable' and upheld the tenant's appeal against the first instance judgment.

I'd remove this as it adds nothing:

"The Defendant mentions that with the Covid-19 pandemic and the rising cost of living, they do not wish this on anybody."  

That’s perfect thank you so much for this, it’s really appreciated. 

- The car park is only accessible by fob access, should I mention something to do with this?

- In terms of my disabled passenger, do you know whether there are any other references I can include to back up my case even more? 

Thanks again.

Coupon-mad

- The car park is only accessible by fob access, should I mention something to do with this?

Yes. Search the forum for keyfob defence as this section has been written before several times over.

- In terms of my disabled passenger, do you know whether there are any other references I can include to back up my case even more? 

The Equality Act 2010 and Kettel v Bloomfold (search the forum).

KeithP

Did you file a Defence?

satinheartmgmt

 KeithP said:

Did you file a Defence?

Yes I received a letter from DCB legal saying that they are pursuing the claim. Im just waiting for my questionnaire to fill out. I am so over my head with all of this and I'm not feeling confident. I'm a 23 year old girl so that doesn't really go in my favour against these lawyers!

satinheartmgmt

I have sent my defence off and received the letter from DCB legal that VCS are going ahead with the claim of £720. Which x3 parking tickets (residential)

I really cant be dealing with any of this right now due to a lot of personal problems and financial stress. 

They have said that they may be prepared to settle the case and to call a number to do so. I am tempted to do this, so I have some questions:

• If I attempt to settle the amount will this go against me in court if they decline my offer?
• I can give them all my savings, which is only £50 (thanks to the cost of living crisis) I have nothing else - will they just laugh at this offer?

Im so so annoyed at these heartless parasites going after the vulnerable in the middle of a cost of living crisis, it is vile.

Coupon-mad

We agree it is vile. That's why we are here in our own time every day, and why we are making a difference by responding to the Government to help shape the new law coming in.

Stand firm.  As we all said on the other thread you started, you are unlikely to pay a penny in the end.

No offering this scam industry money.