Berkeley centre Sheffield

Albert_Arkwright

Very nice to hear, just hope it's not a PR thing, need to check if SRS or one of his buddies owns this company too.
I had a look at EXCEL company accounts for 2022, turnover of 12million, after no doubt fiddling some of that income away still posted 2million profit. That wasn't from the £1 coins, the MP's should look at that when deciding whats an appropriate charge for them to make, they definitely been getting too much from the pcn's.

1505grandad

"......they definitely been getting too much from the pcn's"

You are not the only one to think that:-

And a very profitable scam it is too for the unregulated industry (1.3.2023):-

https://www.racfoundation.org/media-centre/private-parking-on-course-to-be-billion-pound-industry

"Steve Gooding, director of the RAC Foundation, said:

“If only the rest of the economy was booming like the private parking sector, perhaps we’d all be feeling more prosperous.

“Private parking looks set to be a billion pound-a-year business, if it isn’t already, with demands for up to £100 a time being sent out to drivers at the rate of more than one every three seconds."

Albert_Arkwright

In the defence template it states   "Further, 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." what do you mean by that?

Its seems to be acknowledging them as managers of the site. I looked up bare licence:
A bare license occurs when a person enters or uses the property of another with the express or implied permission of the owner.
Are you saying there is a bare licence ie. "there is a lawful" right granted with the land owner for vehicle owners to park on the site? Is it to say this is not a contractual licence so no contract entered into?

I don't want to put anything I don't understand, what I told them before and thought to put in the defence;

The Defendant denies the Claimants right to issue this claim as no legitimate proof of that right as either owner of this land or a contractual agreement with a the owner with proof of that ownership has been provided.

Albert_Arkwright

Here is a scan of the POC;

Defendant

Particulars of Claim

The Claim is for a breach of contract for

breaching the terms and conditions set on

private land. The Defendant's vehicle,

XXXXXX, was identified in the Berkeley

Centre 24 Hour Pay Car Park on the XX/XX/23

in breach of the advertised terms and

conditions; namely Parked without purchasing

a valid Pay & Display ticket for VRM. At all

material times the Defendant was the

registered keeper and/or driver. The terms

and conditions upon entering private land

were clearly displayed at the entrance and in

prominent locations. The sign was the offer

and the act of entering private land was the

acceptance of the offer hereby entering into

a contract by conduct. The signs specifically

detail the terms and conditions and the

consequences of failure to comply, namely a

parking charge notice will be issued, and the

Defendant has failed to settle the

outstanding liability. The Claimant seeks the

recovery of the parking charge notice,

contractual costs and interest.

The Claimant believes that the facts stated in this claim form

are true and I am duly authorised by the claimant to sign this

statement

Signed Edmund Shoreman-Lawson

(Claimant's Legal Representative)

It refers to a "valid pay and display ticket", as you will see from the notice photo it says "YOU DO NOT NEED TO DISPLAY YOUR TICKET", (it's all done through apnr to save money on a person walking around checking tickets, the reduced operating cost should make the PCN less!), is it relevant?

Albert_Arkwright

The ticket machine does however state it's a pay and display car park and contrary to the main signage says the ticket should be displayed. Then again it says the car park is managed by VCS.

Coupon-mad

Albert_Arkwright said:

The ticket machine does however state it's a pay and display car park and contrary to the main signage says the ticket should be displayed. Then again it says the car park is managed by VCS.

That's a very useful photo.  For others as well!

Major defence point.

Didn't know the point of sale (the machine) says the place is controlled & managed by VCS.

Don't get sidetracked arguing about 'not displaying'. The POC says the breach is not failing to display, but:

"Parked without purchasing a valid Pay & Display ticket for VRM".

As for your first point about the first paragraph in the Template Defence, you can certainly swap it for your own one, which says the same thing.

In fact now you've drawn my attention to it, I might just change the word 'managers' in the Template to 'agents' to make it clearer but you can use yours.  It's the same challenge.

Your Defendant (a relative, not you?) can also add an extra paragraph about the fact that the machine that they walked over to, which is where the contract is potentially made (the 'point of sale') identified two different Ltd companies.  This Claimant merely has a logo on the machine (suggesting to an observer, no more than that Excel perhaps supplied the machine).  However, the contract offered on the machine clearly states that the land is 'managed and controlled' by VCS Ltd (a different legal entity, not this Claimant).  As such, regardless of the conflicting information that might be on a sign elsewhere in the car park, the contract was not offered by the Claimant.  This Claimant is a stranger to the bargain and has failed to 'make the contract their own' (Fairlie v Fenton applies).

The point made in Fairlie v Fenton is that the trader who says they are offering the contract and can sue on it, has to 'make the contract their own' with clear language  Any lay person would conclude that the contract is offered by VCS.

I seem to recall from other Berkeley Centre threads, that the machine also printed tickets with VCS on them?  If the machine and the Pay & Display tickets say VCS, why is Excel the entity litigating?

Albert_Arkwright

Hmm, a case here was thrown out of court (claimant mentioned the help from MSE in dispatches) because it was VCS claiming and the signage was excel on those grounds. Can you imagine winning a case now saying the complete opposite, wouldn't it be loverly, really really loverly.
The ticket had no company name except metric.

Coupon-mad

Yes!

It's a really solid point with that photo you took!  

No evidence goes with the defence though, save that silver bullet pic for evidence stage and when you do, embed the date/time metadata into the photo (using a free PhotoStamper app or simply by screen-shotting the photo, and using that as your exhibit.

Albert_Arkwright

Re. excel's logo (I actually didn't notice it) , it also has Metric (the manufacturers logo), surely a logo unsubstantiated in its presence is meaningless, could be advertising, signage supplier or anything not even worth mentioning i would have thought unless they bring it up?

I added it in my first paragraph as bellow, really questioning excels right to bring the claim as I have been shown no proof.

1. The Defendant denies that the Claimant is entitled to the sum claimed. It is denied that any conduct by the driver was in breach of any term. The Defendant denies the Claimant has any standing to this claim as no legitimate proof of that right as, either owner of this land or a contractual agreement with the owner and with proof of that ownership has been provided. As the two ticket machines present on this site state that the car park is actually controlled and managed by Vehicle Control Services Ltd, a different and legally separate company, the Claimants right to take action against users of the land is seen to be highly questionable.

The nature of the registered ownership of this land by trustees on behalf of various real-estate/ investment companies, the names of which keep changing and the change of agent would make it difficult to knit together, I do however expect the Judge to accept their claim that the agent at the time the contract was signed had the legal right on behalf of of the land owner to sign the contract with excel and the contract is binding on new owners / agents - but still I would like to chuck it in and pursue it as much as possible. 

Then Perhaps also put another paragraph in going at a slightly different angle, basically yours, so that even if they provide a contract that the Judge cannot be convinced does not prove legal flow from landowner at the time, then challenging that any claimed contract wasn't with excel but with VCS .

2. The Defendant denies a breach of contract with the Claimant, the only two machines situated on this site which is where the contract would be made (the 'point of sale')  clearly state that the land is 'managed and controlled' by VCS Ltd (a different legal entity, not this Claimant).  As such, the contract was not offered by the Claimant, this Claimant is a stranger to the bargain and has failed to 'make the contract their own' (Fairlie v Fenton applies).

I am unable to find a copy of the Fairlie v Fenton case, a lot of references to it but no actual case info. Would I have to have a copy to back up the reference or is it such a legal precedent it doesn't need providing?

Coupon-mad

You'd attach it later at WS & evidence stage.  Nothing goes with a defence.

  It's kicking about the forum a few dozen times!  I might have linked it in my thread in May about the NCP Railway case I won based partly on Fairlie v Fenton. Read that thread.