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

Mouse007

Ignore POFA, did you read through the WS example I linked to earlier? No mention of POFA in that. Not relevant. Your lease gave you the right to park with no obligation to display a permit. The sign was NOT offering you a contract. Use Pace and Link Parking cases to assert this right can not be displaced by PPC and their signs, use Jopson v Homeguard to assert loading and unloading is not parking.

Focus on points 4, 5 and 6 in your defence. Those are the knock out winning points.

Galloglass

Your lease gave you the right to park with no obligation to display a permit

It wasn't a lease AFIAK. It was a rental agreement

Wasn't the OP ticketed when they were in someone else's space i.e. no right to park?

Mouse007

Go back and read the sign. It is a bit unclear, but to me it looks like it says

"If a valid permit / ticket is required the permit / ticket must be clearly displayed"

In your case NO PERMIT WAS REQUIRED, full stop, end of.

Does it say anywhere on that sign when a permit is required? It's a pants sign.

Mouse007

Coupon-mad said:

Please don't be distracted by other replies from non-regulars telling you to do it differently as they are 'playing Devil's advocate'... you don't have time to look at that.

Stay focussed on the WS bundle we talked about and what needs to go with it.

I'll second this, confident that it's not pointed at me

Coupon-mad

satinheartmgmt said:

slightly panicking. They have in their witness statement that because they fixed the a notice of PCN to my vehicle that I cant rely on POFA? is this true? They never attached the full PCN just a notice 

That is not true.  They are lying.

You can rely on the POFA if you were not driving in 2 out of the 3 PCNs.

VCS do not use the POFA wording and a hybrid piece of nothing 'this is not a PCN' warning is...not a proper compliant PCN!

You need to state that neither the 'privacy' notice on the windscreen nor the later NTK complied with the POFA Schedule 4 (neither para 8(2)f nor para 9(2)f is complied with).

That's all you need to say in your WS about that.

I can then give you another case authority for next week (VCS v Adam Byrzynski) that will cover that legal argument.  Remember you are not appending case transcripts today.

satinheartmgmt

Done my first draft. Still need to add my sequence of events for the no keeper liabiliy PCN's, reference the equality act and add my exhibits which I will do tomorrow. Any feedback? Thanks

IN THE COUNTY COURT AT XXXXX

Claim No.:  XXXXX

 

Between

Vehicle Control Services Limited

(Claimant)

- and -

XXXXXXXX

(Defendant)

_____________________________________________

THE WITNESS STATEMENT OF

XXXXXX (DEFENDANT)

FOR COURT HEARING ON XXXXX

_____________________________________________

1.     I am XXXX of XXXXXX, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.     In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and refence numbers where appropriate. My defence is repeated, and I will say as follows:

 

Sequence of Events for ‘PCN: XXXXX’

3.     I had signed the lease and received the keys to my new apartment located at ‘XXXXXX’ on 01/06/2020 in the height of the Covid-19 pandemic. My rental agreement (located in ‘Exhibit 1a’) included a parking permit and fob (located in ‘Exhibit 1b’) for the underground car park located at ‘XXXXXX’ which can only be accessed with a fob that can only be obtained by residents who are authorised to park there. Therefore, authorising me to park there.

4.     The parking permit I was given was expired so as soon as I realised, I quickly followed up with my landlord about this and they stated that ‘even though the permit says it has expired, it has been extended as they don’t have the resources right now to issue new permits’ (located in ‘Exhibit 1c’).

5.     My Mother, XXXXX (my passenger) and I then arrived at the underground car park for the first time on 02/06/2020. The lighting was noticeably dim (located in ‘Exhibit 9a). Any signage was not visible or readable from my vehicle on the point of entry (located in ‘Exhibit 9’).

6.     A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign (located in ‘Exhibit 9c) for comparison. In this case, the signage (located in ‘Exhibit 9a) fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community ('IPC'). The IPC mandatory Code says that text on signage “should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign”. It also states that “they should be clearly seen upon entering the site” and that the signs are a vital element of forming a contract with drivers. 

7.     We then approached bay number ‘XX’ that is stated on my parking permit. The bay was heavily obstructed by 2 walls either side, making it near impossible for anyone to get in or out of the vehicle and extremely difficult to park in (located in ‘Exhibit 2a’). I was not notified prior by the landowner or landlord that this was a heavily obstructed parking bay with limited access. Had I known I would not have signed the rental agreement. 

8.     XXXXX (my passenger) is disabled due to a spinal injury so has limited mobility. She required the vehicle doors to be wide open so I could assist her safely in exiting and entering the vehicle. Given the heavily obstructed parking bay this was not possible (located in ‘Exhibit 2a’). The width of the parking bay is xxxcmand the width of my car was xxxcm leaving a total of xxxcm either side to open the doors, which made it impossible to assist my passenger in exiting and entering the vehicle (located in ‘Exhibit 2b’).

9.     I could not stop anywhere else in the car park to assist her as the other options were unsafe and obstructed other drivers (located in ‘Exhibit 2c’). The safest option was to park in the bay next to mine to allow me to assist my passenger out of the vehicle and assist her up to my new flat, which was on the 21st floor of a high-rise building which takes roughly 15 minutes to get to and from. (Exhibit 10b)

10.  INCLUDE EQUALITY RIGHTS REFERENCE HERE AND PARAGRAPH

11.  I contacted my landlord that same day about the unsuitability of the parking bay, to which I was made aware that the bay behind is also mine which I was not made aware of prior and did not have a permit for (Located in ‘Exhibit 3a’). I contacted my landlord once again on 11/01/2020 about the fact I had still not received another permit for the parking bay behind to which I was notified that I should contact ‘XXXX’ who manage the permits (Located in ‘Exhibit 3a’).

12.  I then contacted ‘XXXX’ regarding the unsuitability of the car parking space and requesting an alternative one. I also notified them that I had not received my other parking permit for the bay behind – meaning I have no suitable or valid place to park. I received no other communication from ‘XXXX’ (Located in ‘Exhibit 3b’).

 

Sequence of Events for ‘PCN: XXXX’ and ‘PCN: XXXX’

Include references to  ‘Jopson v Homeguard’  ‘Excel v Smith’  ‘Excel v Wilkinson’ AND ‘Kettel v Bloomfold’ 

Include POFA as I was not the driver

Rental Agreement Terms

My rental agreement (located in ‘Exhibit 1a’) did not include any terms requiring me to pay any penalties to third parties for parking in the car park or to display the permit. 

satinheartmgmt

1.     I parked in accordance with the terms outlined in my rental agreement. I rely on the relevant higher court case ‘Kettel v Bloomfold [2012]’ (located in ‘Exhibit 7’).
2.     The signage at the car park states ‘if a valid permit/ticket is required, the ticket must be clearly displayed’ (located in ‘Exhibit 9b’). Due to my rental agreement not clearly stating that a valid permit/ticket is required to be displayed, I parked within the terms and conditions stated in the signage, therefore not breaking any ‘Contract’ that the Claimant is relying on. 
3.     Myself, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the rental agreement, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and I am unaware of any such vote having been passed by the residents.

 

The Beavis Case is Against this Claim 

4.     This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

5.     However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 

 

Abuse of Process - the Quantum 

6.     The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process (located in ‘Exhibit 14’) transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. 

7.     Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence. 

8.     The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html 

 

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.'' 

 

satinheartmgmt

1.     This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both. 

2.     This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - xx-10), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest. 

3.     This Claimant has failed to provide adequate notice of any terms, let alone the parking charge, which is not 'prominent' in reality. 

4.     Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

Response to Particulars Included in Claimants Witness Statement
5.     Response to ‘Paragraph 21’:
It was not possible for me to nominate a driver as there where multiple people who had access to my vehicle, as mentioned in my Defence.
6.      Response to ‘Paragraph 24’:
The facts from my Defence and Witness Statement come from my own knowledge and honest belief. The court process is outside of my life experience, and I cannot be criticised for adapting some pre-written wording from a reliable advice resource. I urge the Claimant not to patronise me with unfounded accusations of not dealing with the ‘substantive issues’ as my Defence and Witness Statement only includes information relevant to this case.
7.     MENTAL HEALTH RESPONSE
8.     RESPONSE 
9.     RESPONSE
10.  RESPONSE

 

Statement of Truth
I believe that the facts stated in this Witness Statement 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.
Signature
_______________________
Date
_______________________

satinheartmgmt

Exhibit 1 – Rental Agreement, Parking Permit and Fob
a)    Rental Agreement
Add rental agreement here
b)    Parking Permit and Fob
Add photographs of Permit and fob 
c)     Expired Permit Response
Add screenshots of their response to expired permit 

Exhibit 2 – Unsuitable Parking Bay
a)    Heavily Obstructed Parking Bay
Add photo of the bay with car in it. One with the door open. One without car.
b)    Measurements of Bay 
One with tape measure measuring the width of bay. Evidence of width of my car
c)     Unsafe to Stop
Add photo of the places to stop (full car park)
 
Exhibit 3 – Communication with Landlord of Unsuitable Bay
a)    Communications with Landlord
b)    Communications with XXXXX

Exhibit 4 – Harassment and Mental Health
a)    Mental Health Records (Redacted Personal and Sensitive Information)
b)    Therapy Records
c)     Multiple Threatening Letters

Exhibit 5 – Lack of Keeper Liability (POFA)

Exhibit 6 – The Equality Act 2010

Exhibit 7 – Kettel v Bloomfold [2012] Transcript

Exhibit 8 – Previous Tenancy

Exhibit 9 – Bad Lighting and Signage
a)    Bad Lighting
b)    Signage

Exhibit 10 – Loading and Unloading
a) Length from Parking Bay to the Entrance
b) x1 The Tower – 21st floor

Exhibit 11 – ‘Jopson v Homeguard’ Transcript

Exhibit 12 – ‘Excel v Smith’ Transcript

Exhibit 13 – ‘Excel v Wilkinson’ Transcript

Exhibit 14 – ‘Britannia Parking v Crosby’ Transcript

Coupon-mad

Exhibit 6 – The Exhibit 6 – The Equality Act 2010

Exhibit 7 – Kettel v Bloomfold [2012] Transcript

Exhibit 11 – ‘Jopson v Homeguard’ Transcript

Exhibit 12 – ‘Excel v Smith’ Transcript

Exhibit 13 – ‘Excel v Wilkinson’ Transcript

Exhibit 14 – ‘Britannia Parking v Crosby’ Transcript


A good start but not Britannia v Crosby at all.

And you will be replacing that one next week anyway, with the transcript from Adam Burzynski's case where he talked the Judge around to understand that a 'this is not a NTD' was indeed exactly that - a notice to driver:
https://www.dropbox.com/s/peh3uwf1wnrwq5g/APPROVED -E1QZ7X7C-VCS-BURZYNSKI.pdf?dl=0

VCS v Burzynski - claim E1QZ7X7C, Derby Court, 31/5/2019



BUT NONE OF THE ABOVE WILL GO WITH YOUR WS AS EXHIBITS!

I did explain your WS and other (non legal case) attachments AND the signed WS from the passenger must add up to under 50 pages and that is why you are not exhibiting the court transcripts with this bundle.

I told you what to say instead of 'see Exhibit xx' for the legal authorities and Equality Act.

They will follow as hard copies next week as I said - but you do need paragraphs about each of them in this WS.