VCS - EAST MIDLANDS

Gkits

Hi everyone, Just wanted clarification Im doing this right. I received a fine through the post from VCS. I was the registered owner not the driver of a vehicle. The driver pulled into the hotel turning entrance road but never stopped the vehicle. Seconds later a patrol car took images and drive off. 

This was on the 4th october 2022 and on the 26th november I received a NTK from VCS 

Reading all the information on here I appealed the decision giving 3 reasons- 1) Im not the driver, 2) there were no signs visible in the area he pulled into and 3 VCS have failed to follow POFA 2012 law. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper due to the timescale of the NTK being delivered more than14 days after the vehicle was parked and no notice to driver.

I now have court claim

Fruitcake

It is not a fine.

Plan A is always to complain to the landowner/hotel manager/CEO and your MP.

Ignore the begging letter asking for the driver's details.

You could try an IAS appeal. If you are lucky you might be one of the 4% of motorists who win.

Cite Airport byelaws, not relevant land, not the driver, non PoFA complaint NTK, inadequate signage amongst other things if you decide to go down that road.

Otherwise wait for a letter of/before claim or a court claim, but exhaust the complaints process first without missing the IAS appeal deadline.

Do not under any circumstances reveal the driver's identity. You should be aware that PPCs monitor this forum. Be careful what you post as you have already given away too much if VCS are watching.

Gkits

So appeal was unsuccessful and now I have a court case. Could anyone check this defence please am I missing anything?

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 but was not the driver at the time of the alleged offence..

3. It is evidenced in the claimants footage that the defendant was not the driver at the time of the offence.

4. The vehicle did not stop where Vehicle Control services claims, it was merely turning around in an emergency, the vehicle was not stationary at any point. Within seconds, a CCTV van appeared out of nowhere and took images of the van in question. The defendant has checked the airport byelaws which permit brief stopping on double red lines in case of an emergency.

5. As the registered keeper I cannot be held responsible for this alleged fine as the claimant failed to follow POFA 2012 law. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. It states that a NTK can be delivered no later than 14 days after the vehicle was parked in the instance where no notice to driver was issued to the driver or placed on the vehicle.  The alleged offence is stated to have taken place on the 4/10/2022 so the NTK should have been issued before the 18/10/2022. The Notice to keeper issued was issued on the 21/11/2022 and received on the 26/11/2022. Therefore the NTK is invalid.

6. Furthermore: Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The Notice to Keeper sent by Vehicle Control Services does not contain

•           What exact road the car was parked on - it states a generic large area

•           The period of time the car was parked

•           Does not state wether a notice to the driver was given to the driver or placed on the vehicle

•           Does not specify the maximum additional costs they seek to recover

 

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 using, in part, pre-written wording suggested by a reliable online help 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.  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 and specific breach allegations, which makes it difficult to respond in depth at this time; however this claim is unfair, generic and inflated.  

9.  This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. 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 stated in 2022 that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

11. Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) 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 this 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, considering 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.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.  

14. 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.  In Beavis, there were 4 or 5 letters including reminders.  The parking charge was held to cover that work.

15. The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

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 which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

17.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case.  Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice 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 parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.

 

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.  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/open dealing and good faith. 

 

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 each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

22. 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 '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

(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, 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 standing or landowner authority, 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 this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name.  The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

26.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see 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 appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

 

Gkits

Conclusion

27. The claim is entirely without merit. 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.

28. 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 intimidating pre-action threats.

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) distinct 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:

Le_Kirk

5. As the registered keeper I 

Check if you have used the first person anywhere else, defences are written in the third person, i.e. "the defendant" not "I", "me" or "my".  Did you edit any of the paragraphs from the standard defence template and if so where - I can see the ones you added - but we do not need to check the template.

Gkits

no didnt edit them just added to my first section

KeithP

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

B789

3. It is evidenced in the claimants footage that the defendant was not the driver at the time of the offence.

What "evidence" does the Claimant have that the defendant was not the driver? Evidence does not go with the defence. Have they provided access to the "footage" and does it clearly show a recognisable image of the "drivers" face? How does anyone, except the defendant, know that that image is not the defendant? Do you think that the PPC has access to some magic database with photos of every driver in the UK with their details? Did the van that was used to record this "footage" have anything written on it to say how any footage captured by it would be used?

You are bringing up PoFA, so why haven't you also used the bit about PoFA does not apply on land covered by byelaws? If PoFA does not apply, then everything about the dates and the time that it took to serve the PCN are irrelevant. You would only use that argument if the PCN was POFA compliant with its wording but fails by being served outside of the time limits.

Also, as noted above, write it in the third person and don't go into too much detail as you only need the hooks of the legal points which you will later use to hang your WS on. Your paras #5 and #6 read more like a WS.

Fruitcake

It is not a fine, so do not use that word.

Half_way

A few quick bits:

Jopson Vs Homegaurd and the difference between parking and stopping - you have been issued  parking charge notice

PoFA and By-laws, do a quick search for east midlands airport by-laws  - the last time i looked at them they had things such as maps where the by laws are in force as well as other stuff like where to park your plane if you are flying one in.

Coupon-mad

Fruitcake said:

It is not a fine, so do not use that word.

Yep, and remove the word 'offence'.