VCS Notice to Keeper – left car park – Brook Retail Car Park, Ruislip – VCS LBC – ELMS Legal NOInstr

ken1_2

Hi there,

I have received a NTK from VCS after my car was in Brook Retail Car Park, Ruislip.

The reason given is: 34) vehicle parked in a customer only car park/site and driver observed leaving premises. For info: 

I logged into myparkingcharge and saw that the car had a blue privacy notice card on the windshield. No notice to driver has been given. Can VCS issue an NTK without first issuing a NTD and it still be valid? Do I have keeper’s liability? 

I have ignored all previous speculative paperwork which has been in order of receipt 1. 29/8/2022 Privacy notice card, 2. 31/8/2022 Parking charge notice, notice to keeper, 3. 29/9/2022 Parking charge notice, final reminder – do not ignore, 4. 25/10/2022 Demand for payment, 5. 9/11/2022 Final demand, 6. 23/11/2022 Letter before claim, and finally 7. 4/1/2023 ELMS Legal – urgent notification of instruction  hxxps://imgur.com/a/HVjWF2U

I sent a SAR to VCS to which they have sent me an evidence pack consisting of all of the above minus the privacy notice and ELMS legal – urgent notification of instruction. In addition VCS also provided notes of the parking officer which describes in detail the driver and passenger.

Do you think that ELMS Legal will issue a court claim and if they do what are my chances to successfully defend?

At this stage is it worth asking VCS for 1. their contract with the landowner and 2. boundary plan?

Do I need to make any response to either VCS or ELMS Legal at this stage? I’m still not quite sure what their different options are.

Thank you so much for taking the time to read!   

1. The date of infringement was 29/8/2022

2. This has not been appealed to the parking company

3. A Notice To Keeper has been received (NTK) dated 31/8/2022 but no Notice to Driver was received  

The NTK provided photographic evidence of the car only

4. The NTK has not mentioned Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) 

5. No appeal was made after receiving the NTK as it was likely to be rejected.   

6. The parking company is Vehicle Control Services Limited

7. The vehicle was parked in Brook Retail Car Park, Ruislip, HA4 0LN

360 degree video of car park hxxps://i.imgur.com/16OZ1Cz.mp4

B789

Non POFA so liability cannot transfer from the driver to the keeper. No evidence of "driver" leaving the site. There are two contradictory statements in their Terms, "Any driver entering and remaining in the car park agrees to the blah blah blah". Also, "Anyone seen to be parking and walking off site will be in breach of blah blah blah."

So, according to the first term, if the driver does not remain in the car park (ne mention of the vehicle), they have not formed a contract.

Secondly, who is "anyone"? Is the "driver" (who they don't know) liable to pay £100 because one of their passengers left the car park?

As the PCN is non-POFA and you haven't identified the driver (you are under no legal obligation to do so), the keeper (you I presume) are not liable for this claim. They cannot presume you were the driver and have provided no proof that it was you that left the premises. They do not know who you are. They are in for a spanking if this ever gets in front of a judge.

VCS are really one of the bottom (literally) feeding players in this scam and the fact they have instructed Elms Legal to chase it up just does to prove that !!!!!! sticks together.

For now you should respond to the LBC and tell them to put the matter on hold for 30 days whilst you seek debt advice but admit no liability. Read the Newbies thread, re-read the newbies thread and understand all the steps in this process.

Coupon-mad

There are not many signs in that car park.

And they will have no evidence of the driver leaving the site (whatever the 'boundary' of that fairly open retail site is).

"Do you think that ELMS Legal will issue a court claim?"

Yes.


"...and if they do what are my chances to successfully defend?"

You'll almost certainly win, with our help.

"At this stage is it worth asking VCS for 1. their contract with the landowner and 2. boundary plan?"

You won't get the landowner contract but you should respond robustly to Elms once you get a LBC.

Ask Elms for the boundary plan, the photos of the signs, and all evidence their client is relying upon to support the unfounded allegation that 'the driver left the site'.  Tell them that you require these documents and photos under your rights set out specifically under the PAP for Debt Claims, and their client must supply these documents and photos (as part of the pre-action phase) within 30 days of the request.

ken1_2

B789 – Thank you for your response.

In VCS’s PCN – Notice to Keeper dated 31/8/2022 it is stated that “At the Issue Date of this notice we do not know both the name and current address for service for the driver and, as the Registered keeper of the vehicle, you are now invited to:

(i)            Pay the charge

Or

(ii)           If you were not the driver of the vehicles, to notify us of the full name of the driver and current address for service for the driver by following the instruction in etc etc

Please be warned: that if, after the period of 28 days beginning with the day after that on which the Notice is given, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and a current address for service for the driver, we will have the right to recover from you, the Keeper, any unpaid balance of the Parking Charge.”

Can VCS wriggle out of POFA compliance this way?

Also, under the newbies thread it is stated that

“If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!)  a postal PCN must arrive by day 14 if there was no windscreen ticket.”

In my case there was no windscreen ticket and the PCN was received within 2 days of the alleged contravention.

B789 said:

They cannot presume you were the driver and have provided no proof that it was you that left the premises. They do not know who you are. 

Do they have to produce photos or video of the “driver” or would their “parking officers” notes suffice?

Coupon-mad – Thank you for responding.

Coupon-mad said:

There are not many signs in that car park.

Totally agree I counted 4 in total (excluding the one at the entrance).

I am so glad to hear that I would have a good chance of winning should VCS and ELMS Legal decide to waste their money in taking this to court.

I will draft a response to ELMS Legal and post here.

I have received a request for a proof of ID in response to a SAR emailed to info@vehiclecontrol.co.uk in relation to my VCS Limited PCN. The curious thing is that it is from a Mark Robinson (Legal), Debt & Litigation Manager, Excel Parking Services Ltd, 7 Europa View, Sheffield Business Park, Sheffield, S9 1XH

Can anyone shed any light on this?

Coupon-mad

Can VCS wriggle out of POFA compliance this way?

That sounds like a POFA compliant NTK.

Re the Excel/VCS data sharing farce, they always do that.  You could respond to Mark, saying you will send a copy of the V5C as ID to VCS but not to Excel because Excel are not the same Ltd company and should not be processing your data at all.

Tell him to cease involvement and to erase your data from Excel's databases, and pass this complaint to the DPO at VCS.

B789

ken1_2 said:

4. The NTK has not mentioned Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) 

You said in your earlier post that the NTK was not POFA compliant and even though your screenshots of the notice are really bad and barely discernible, I see no evidence of a POFA compliant paragraph.

Have they or have they not included the POFA required paragraph in their PCN or NtK?

Aside from all the other defences, as long as you have not disclosed who was the driver and the notices are NON-POFA compliant, there is no way to transfer liability from the driver to the keeper. You are appealing as the keeper only. They do not know who the driver is and there is absolutely no obligation to reveal who the driver was.

As this is also one of those stupid scams to try and get the driver to own up, and they have absolutely no evidence to show who the driver was, and if they or a passenger left the site, so this is completely winnable and if it was to ever get in front of a judge they would be in for a spanking.

Follow @Coupon-mad advice above and also put them to strict proof that the person who they are making the claim against was the driver and that you left the premises (where the boundary is clearly defined and signposted that anyone crossing that obviously visible boundary who is a driver of a vehicle parked in their car park is about to breach an agreed term in a contract)... good luck to them as they would certainly need it to progress this to court.

Coupon-mad

The words they quoted above are POFA compliant. 

B789

And the OP stated earlier that it wasn't POFA compliant. Also, looking at the very poor screenshots provided of all the correspondence, I wasn't able to discern a POFA paragraph. However, I defer to your expertise and agree that if that POFA compliant paragraph is present then liability can transfer to the keeper.

ken1_2

Coupon-mad – I have emailed Mark as you have requested.

B789 said:

ken1_2 said:

4. The NTK has not mentioned Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) 

I have re checked and none of the paperwork mentions PoFA. The above is correct. However, wording as in post 4 is stated.

Please let me know if you want me to re-produce the screenshots.

The identity of the driver has not been disclosed.

This is an adaptation of Gan’s submission which I propose to use in response to the LBC and Notification of Instruction. Readers thoughts on it would be appreciated.

Dear Sirs,

Your Ref xx/xx re: Vehicle Control Services Ltd PCN xxxxxxx

I note your Notification of Instruction dated ****

I deny any debt to your client. I will not be telephoning you but require further information in writing.

The driver is not identified in your letter and you have written to me as the registered keeper.

Please send copies of any documents that will be produced in the event of your threatened action, including copies of all photographs taken and evidence of the contract itself (clear evidence of the terms on the signs at the time).

I also require evidence of the contravention. If the driver is alleged not to have been a patron of the shops, I cannot be expected to know or answer to that allegation as keeper of the car. However, the burden remains with your client to produce evidence and I require that now (e.g. photographs of the driver leaving the site, if that is the allegation).

In order to understand my legal position, I also require the following information:

1 What is your client's intended action based on?
2 What is the basis of the additional £70 charge?
3 If it is for legal services, has your client already paid it?
4 The Boundary Plan
5 VCS contract with the landowner

When I receive the documents and your answers under the pre-action phase for Debt Claims within the next 30 days I will be in a position to make a more detailed response and as such, it would be wholly unreasonable and vexatious to proceed in the small claims track at the present time. If, however, you unwisely pursue this to court then do note I will claim costs from you. Additionally, I will go for an unreasonable costs order.

 

Yours faithfully,

B789

ken1_2 said:

Coupon-mad – I have emailed Mark as you have requested.

B789 said:

ken1_2 said:

4. The NTK has not mentioned Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) 

I have re checked and none of the paperwork mentions PoFA. The above is correct. However, wording as in post 4 is stated.

Please let me know if you want me to re-produce the screenshots.

The identity of the driver has not been disclosed.

It is not clear, at least to me, what you are saying here. As I noted, you claim that the PCN is non-POFA and i cannot see anything in the poor quality screenshots you provided of any POFA mention. Yet, you say above that the wording as quoted in post #4 specifically states that it is POFA compliant.

Which document is the wording you quote in post #4 from? Is that wording from the PCN? If so, then as @Coupon-mad states, it is POFA compliant and you are liable as the RK.

Aside from that, whether as driver or RK, this is easily defeated due to the nonsense claim.

ken1_2

B789 – As I understand it a PCN is PoFA compliant if there has been no windscreen ticket and the PCN arrives by post within 14 days. The PPC can allege keeper liability by issuing the PCN with the wording as in post#4. I hope this makes it clearer.