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

Coupon-mad

satinheartmgmt said:

Gahh, I'm going to be submitting this late. I am going to ring the court tomorrow and ask for leniency due to the postal strikes. I will send tonight

Please DO NOT do that! Just get it emailed tonight (at least it's the right day).

If you want to find a witness statement example with the words to reference Smith and Lamoureux just search this forum for:

witness statement Lamoureux Smith

and same for Jopson:

witness statement Jopson

It's already written hundreds of times and is here for the searching!

Isn't some of it (Jopson) already in your defence anyway, can't you just copy that wording?

CHANGE THE SEARCH TO 'NEWEST' (instead of the useless 'best match').

I already gave you a summary of words to say about Adam Burzynski's case.  So you have that.

You don't even need to search for Excel v Wilkinson wording to refer to that, because that's already in aphex007's exemplar WS that we told you to copy and adapt.

Mouse007

I’m sorry but I don’t like this witness statement at all. It does not flow. It jumps from one cut and paste point to another leaving me concerned that the OP does not understand their case, which is tragic, because they do. They had the right to park and are simply ignoring that point, they have not responded to any of my previous posts and have produced a dogs dinner document. I’m not confident for you, not confident at all.

Why on earth are you not including

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.

And

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.

And that’s before you cross examine the sign - the sign - the thing which allegedly created a contract. What did the sign offer? What consideration did the sign give in return? Was there anything new, to which you were not already entitled to in that sign? NOPE, nothing.

Stuff the nonsense about who was driving, stuff the nonsense about POFA. Get back to basics, what were your rights? Stop trying to hide behind technicalities - you clearly don’t understand them. Yet the truth is so much simpler. YOU HAD THE RIGHT TO PARK and no muppets with signs can displace that right. I gave you a link to that argument - what was wrong with it?

satinheartmgmt

I sent my witness statement off a few hours late on 11.01.2023 (hopefully this is fine)

I just need to hand in the transcripts now to the court in person.

Do I set them out the same way I did with my witness statement? and do I need to send a copy to DCBL too?

satinheartmgmt

Mouse007 said:

I’m sorry but I don’t like this witness statement at all. It does not flow. It jumps from one cut and paste point to another leaving me concerned that the OP does not understand their case, which is tragic, because they do. They had the right to park and are simply ignoring that point, they have not responded to any of my previous posts and have produced a dogs dinner document. I’m not confident for you, not confident at all.

Why on earth are you not including

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.

And

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.

And that’s before you cross examine the sign - the sign - the thing which allegedly created a contract. What did the sign offer? What consideration did the sign give in return? Was there anything new, to which you were not already entitled to in that sign? NOPE, nothing.

Stuff the nonsense about who was driving, stuff the nonsense about POFA. Get back to basics, what were your rights? Stop trying to hide behind technicalities - you clearly don’t understand them. Yet the truth is so much simpler. YOU HAD THE RIGHT TO PARK and no muppets with signs can displace that right. I gave you a link to that argument - what was wrong with it?

That was only the first draft of my WS.

I have included the things you have mentioned, I just did not have time to reply as it the deadline was tight. My only issue is that I was parked in a bay that was not allocated to me. My tenancy agreement doesn't state I require a permit and the signs which say 'if a permit is required' and technically, it was not required as per my tenancy agreement. This is something I have also focused on in my WS.

I also do understand my case.

I will include the WS that I sent off on my next post

Coupon-mad

You append them (the entire court transcripts*) to a pIece of paper headed 'CASE AUTHORITIES IN SUPPORT OF THE DEFENDANT, RE CLAIM NUMBER XXXXXX - HEARING DATE /TIME ......'

Then list them - and what page they appear on, of this final submission.  To help yourself and the Judge you could also state which specific paragraph of your WS each transcript supports/is mentioned at.


* what have you got?  Have I missed any?

- Jopson (appeal)
- Smith (appeal)
- Lamoureux
- Burzynski
- Wilkinson

You could also print out your signed WS and pop that in too, for context.

You just email it to the solicitors.  Don't waste postage on them.

satinheartmgmt

IN THE COUNTY COURT 

Claim No.:   XXXXXX

 

Between

Vehicle Control Services Limited

(Claimant)

- and -

XXXXXX

(Defendant)

_____________________________________________

THE WITNESS STATEMENT OF

XXXXXX (DEFENDANT)

FOR COURT HEARING ON XX/01/2023

_____________________________________________

1.     I am Miss XXXX of XXXXX, 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: XXXX’

3.     I had signed the lease and received the keys to my new apartment located at ‘XXXXX’ 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 ‘XXXXX’ 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 3a’).

5.     My Mother, XXXX (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 5a). Any signage was not visible or readable from my vehicle on the point of entry (located in ‘Exhibit 5b’).

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'. 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.    I would like to draw your attention to a similar case heard, listing on 31/05/2019 Case No: E1QZ7X7C VEHICLE CONTROL SERVICES V ADAM BURZYNSKI, (which is included in a separate case authority bundle to follow next week) Judge Griffins awarded in the favour of the defendant stating ‘I am satisfied that there was a total inadequacy of warning signs in this car park. On that ground alone I find in favour of Mr Burzynski.’

 8.     We then approached bay number ‘XX’. 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. 

9.     XXXX (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 7.3 ft and my car at the time was a XXXX, which had a width of 5.6ft. This leaves under 1ft either side open the doors, which made it impossible to assist my passenger in exiting and entering the vehicle (located in ‘Exhibit 2b’). 

10.  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 XXXst floor of a high-rise building which takes roughly 15 minutes to get to and from. (located in ‘Exhibit ‘6’)

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 XX/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 ‘XXX’ 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’).

satinheartmgmt

Sequence of Events for ‘PCN: VCS6265797’ and ‘PCN: VCS6265854’

1.     I had just moved out of my old flat on 16/06/2020 and I had multiple people helping me move heavy items of furniture from 15/06/2020 to 18/06/2020. I have included a council tax bill (Located in Exhibit 6c) that states the account on my previous apartment was closed on 16/06/2020 the day before each of the contravention dates on the PCN’s. 

2.     I do not know who the driver was due to the chaotic nature of moving house. 

3.     I would like to draw your attention to  ‘Jopson v Homeguard’ as it is a similar case (which is included in a separate case authority bundle to follow next week). Judge Harris was in favour of the defendant. He said:

‘Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.’

 

4.     The Claimant has no right to relief from the keeper of the vehicle as they have failed to comply with the requirements of the Protections of Freedom Act 2012 (which is included in a separate case authority bundle to follow next week) requiring the claimant to ensure the keeper receives the PCN within 14 days, which was not followed for both PCN’s.

 

5.     There are a number of cases which support my point, that a keeper cannot be held liable for a parking charge issued out-with the POFA, these include a persuasive Appeal case in Excel v Smith and also recent decisions on the same fact of law, in Excel v Lamoureux (All transcripts are included in a separate case authority bundle to follow next week)

  

Rental Agreement Terms

17   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. I parked in accordance with the terms outlined in my rental agreement. I rely on the relevant higher court case ‘Kettel v Bloomfold [2012], included in a separate case authority bundle to follow next week.

18   The signage at the car park states ‘if a valid permit/ticket is required, the ticket must be clearly displayed’  (located in ‘Exhibit 5b’). 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. 

19   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 

20.  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.

20.  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. 

satinheartmgmt

Abuse of Process - the Quantum 

21.  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. 

22.  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.'' 

 

23.  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. 

24.  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, 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. 

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

26.  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

27.  Response to ‘Paragraph XX’:

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.

28.   Response to ‘Paragraph XX’:

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.

29.  Response to ‘Paragraph XX’:

My medical records are located in Exhibit 4a. I went to see my GP about anxiety around 1 month after the PCN was issued. I regularly needed help due to my anxiety caused by this. As you can see I did not see my GP for any mental health reasons for 3 years until this happened. I have included some of the harassment  letters I received located in Exhibit 4b.

30.  Response to ‘Paragraph 25v’

I still rely on ‘Jopson v Homeguard’ (which is included in a separate case authority bundle to follow next week) as the time it takes to get from the parking bay to my flat which was located on the 21st floor of a high rise building (located in ‘Exhibit 6b’) and back averages a lot longer than 11 minutes, especially with heavy furniture. I have included photographs of the distance from the parking bay to the entrance of my apartment building (located in ‘Exhibit 6a’) which is at the other end of the car park.

 

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

satinheartmgmt

It was formatted way nicer than this, copy and pasting it just ruined the formatting

Coupon-mad

That's good but this wasn't anything like the reason I gave you Burzynski!

Have another look back at why I gave you that case and what I said the key reason for having it among your transcripts is (especially re the two PCNs where you were not driving).


7.    I would like to draw your attention to a similar case heard, listing on 31/05/2019 Case No: E1QZ7X7C VEHICLE CONTROL SERVICES V ADAM BURZYNSKI, (which is included in a separate case authority bundle to follow next week) Judge Griffins awarded in the favour of the defendant stating ‘I am satisfied that there was a total inadequacy of warning signs in this car park. On that ground alone I find in favour of Mr Burzynski.’


Just recalled you also need:

- an except about 'reasonable adjustments' from the Equality Act 2010

- the EHRC statutory Equality Act Code of Practice for 'Services & Public Functions'.