Update Judgement - Both struck out (29th Feb) - Victoria Quays - Sheffield, S2 5SY

Coupon-mad

Yes, I think it does matter and you should mention that the Defendant's statement of truth is undated and the defence should be struck out.

Might be a breach of the CPRs about pleadings/defences/statements of truth. It has got to be worth looking up!

This might be useful to read:

https://www.civillitigationbrief.com/2021/02/17/replies-to-defences-why-and-when/

Loads of great blogs in Civil Litigation Brief.

Anto_28

Coupon-mad said:

Yes, I think it does matter and you should mention that the Defendant's statement of truth is undated and the defence should be struck out.

Might be a breach of the CPRs about pleadings/defences/statements of truth. It has got to be worth looking up!

2.7 A statement of truth must be dated with the date on which it was signed.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22

I don’t think I can mis-interpret this PD, When I saw it undated I did think thats strange.

Castle

The Statement of Truth is "signed" on behalf of "Excel Parking Services Ltd", not VCS!!

Anto_28

Castle said:

The Statement of Truth is "signed" on behalf of "Excel Parking Services Ltd", not VCS!!

Great point!

Although VCS are EPS I guess in this case, they are not one and the same.

I think CPR 22 PD 3.1-6 makes this valid however

3.1 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.4 to 3.6 below, the statement of truth must be signed by a person holding a senior position4 in the company or corporation. That person must state the office or position held.

3.2 Each of the following persons is a person holding a senior position:

(1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation, and

3.6 Where a party is legally represented, the legal representative may sign the statement of truth on their behalf. The statement signed by the legal representative will refer to the client’s belief, not their own. They must state the capacity in which they sign and the name of their firm where appropriate.

But then, 3.6 says the SOT should refer to the clients belief, not ‘I believe that…’ but instead ‘The Defendant Company believes that…’

Umkomaas

While VCS and Excel are owned by the same owner, they are quite separate legal entities. Neither can sign 'on behalf of' the other. A strong point to make in any submission you make on the other points c

Anto_28

Added this to the start of the draft reply

1.      The Claimant brings to the court's attention that the entire defence presented by the Defendant is insufficient for this case due to the following reasons:

a.     The defence and statement of truth lack a required date, as outlined by CPR r.22 Practice Direction 22 2.7, which states, "A statement of truth must be dated with the date on which it was signed”.

b.     The defence and statement of truth are signed by Mark Robinson of Excel Parking Services Ltd. However, Excel Parking Services Ltd is not the Defendant in this case. Additionally, the statement of truth fails to explicitly state that the defence has been signed on behalf of the Defendant, instead using the wording "I believe”.

Given the outlined deficiencies, the Claimant respectfully requests the court's intervention to strike out this inadequately presented defence.

2.      The Claimant would now like to respond to points raised in the Defendants defence in turn.

Coupon-mad

"inadequately presented"

No, it's more than that.  Maybe:

to strike out this defence - which is undated and is signed by a third party, not the Defendant - and find in favour of the Claimant forthwith.

You could attach a filled in copy of a court form to request judgment.  Tick the box to say the defendant has failed to defend.

Anto_28

In light of the short amount of time I have to do the reply (15th Jan, so have to post on the 13th Jan) here is the latest Reply & Defence I have drafted so far.

1.      The Claimant brings to the court's attention that the entire defence presented by the Defendant is insufficient for this case due to the following reasons:

a.     The defence and statement of truth lack a required date, as outlined by CPR r.22 Practice Direction 22 2.7, which states, "A statement of truth must be dated with the date on which it was signed”.

b.     The defence and statement of truth are signed by Mark Robinson of Excel Parking Services Ltd. However, Excel Parking Services Ltd is not the Defendant in this case. Additionally, the statement of truth fails to explicitly state that the defence has been signed on behalf of the Defendant, instead using the wording "I believe”.

Given the outlined deficiencies, the Claimant respectfully requests the court's intervention to strike out this defence - which is undated and is signed by a third party, not the Defendant - and find in favour of the Claimant forthwith.

2.      The Claimant would now like to respond to points raised in the Defendants defence in turn.

3.      Paragraph 12 admits Paragraph 4 of the Particulars of Claim and states the patrol officer would be required to have taken images of the vehicle.

a.     The Claimant would like to make the court aware the car park allows for 30m of parking without the need for a permit for the purposes of loading and unloading; therefore The Claimant holds the Defendant to strict proof that the patrol officer observed the car for the required 30 minutes to ascertain whether loading/unloading was taking place at the time of the alleged contravention.

b.     The Claimant wishes to draw the court's attention to a significant point: considering the patrol officer had a 30-minute window to observe the vehicle, how could he overlook the prominently displayed permit inside the front windscreen of the Claimant's vehicle? Exhibit AH01 is presented to demonstrate the conspicuousness of the permit to the patrol officer. The only logical conclusions that the Claimant can draw are either the patrol officer conducted an insufficient observation, much shorter than the required 30 minutes as indicated by the signage, or the patrol officer noticed the permit on the center console and strategically took evidence photos from angles attempting to conceal the permit.

4.      Paragraph 13 of the defence states the permit be displayed on the front windscreen which is not what the terms and conditions state. They state inside the front windscreen. EXHIBIT AH02 shows the permit in situ inside the front windscreen.

a.     The Claimant avers that the term “inside the front windscreen” is ambiguous in this context due to the many meanings of such term, with the possible meanings of this including but not limited to:

                                               i.     Placed on the dashboard

                                             ii.     Affixed to the interior side of the front windscreen

                                           iii.     Positioned inside the vehicle cabin specifically near or close to the front windscreen area where the permit would be visible from outside

                                            iv.     Infused into the glass of the front windscreen

b.     I therefore refer the court to Exhibit AH03 the Consumer Rights Act 2015 ('CRA2015') – Section 69

5.      Paragraph 14 – as this was a verbal exchange only Mr Scott Taylor would be able to corroborate the wording he used. The Claimant vehemently denies the Defendants allegation of retrospectively placing the permit on the centre console as the permit can be seen in the Defendants evidence photos contained with the PCN, as evidenced in EXHIBIT AH02.

The Claimant raises a question to the court: If the permit was retrospectively placed as the Defendant speculates, why would the Defendant's patrol officer have taken additional evidential photos? The Claimant suggests that it is a natural human instinct to immediately engage with the patrol officer beside his car to understand the reason for a ticket being issued. At that moment, the patrol officer would have been closely observing the Claimant's actions, leaving no opportunity to retrospectively place the permit. The Claimant seeks the court's agreement on this perspective.

Exhibit AH04 displays the Claimant's attempt to recreate, to the best of his ability, the photo from the same angle captured by the patrol officer in the evidence photo. This recreation illustrates that, from the perspective of the photo, the permit is situated in the region that the Claimant has identified in Exhibit AH02. This proves the object highlighted in Exhibit AH02 to be the permit that the Defendant erroneously accuses the Claimant of placing retrospectively.

The Defendant mentions the words “on the front windscreen” in this paragraph, the Claimant asks the court to disregard this as the wording is “inside the front windscreen”.

The Claimant denies there was any delay in talking to the patrol officer upon exiting the building. The Claimant can only assume the 5 minutes the patrol officer speaks of is the time he stood at the Claimants vehicle before being noticed by a colleague which prompted the Claimant to exit the building to engage with the patrol officer.

6.      Paragraph 15 - The SAR response pack sent to the Claimant by the Defendant included notes indicating at 15:03:06 on the 15th June 2023, Mr. Scott Taylor informed the Defendant about the interaction the Claimant had with him in which the valid permit the Claimant was in possession of was pointed out as evidenced by EXHIBIT AH05.

I find it perplexing and wish to pose a question: Why, when Mr. Taylor made the Defendant aware of the permit's presence, did he not provide the additional evidence to the Defendant at that moment? Instead, he chose to wait for an entire month before doing so.

The Claimant wishes to clarify that it was not his responsibility to ensure that the patrol officer handed over all the photographic evidence to the Defendant. The Claimant avers that this delay in supplying all relevant evidence before the issuance of the PCN is a failure on the part of the patrol officer employed by the Defendant. The failure to hand over all the evidence on the day it was collected undermines the validity of the PCN as a critical evidential photograph was withheld.

7.      Paragraph 16 – As there was no auto response via email having used the website contact form, the Defendants website gives no way to prove the contact was made. The Claimant finds it interesting to note that emails to the data protection officer are met by auto responses.

8.      Paragraph 17-24 aims to reject the Claimants claim in its entirety. The Claimant vehemently rejects these paragraphs for the following reasons:

a.     Failing to display the permit on the windscreen is the incorrect wording rise to the terms displayed on the Defendants signage.

b.     DVLA KADOE rules for obtaining keeper details implicitly states that the details can only be obtained where a vehicle has been parked without the right to do as evidenced by EXHIBIT AH06.

c.     To enter the Victoria Quays car park you must enter a code at the barrier. This code is periodically changed. By knowing this code the driver inherently has the right to park.

d.     Despite the patrol officer personally witnessing and confirming the presence of a valid permit, as an employee of the Defendant, he neglected his duty to provide all pertinent evidence to the Defendant during the alleged contravention. The Claimant avers that the failure to disclose crucial evidence resulted in the unlawful issuance of the PCN.

e.     The Claimant avers that there is absolutely no legitimate interest in pursuing a driver that the Defendant knew had the right to park.

9.     In respect to Paragraph 26 of the Defendant’s defence the Claimant presents the following to the court to uphold his belief that the charge is unjust:

a.     The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

b.     The charge the Defendant seeks to enforce is unfair and inflated and it is denied that any sum is due in debt or damages. This Defendant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

c.     This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action.

d.     The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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." 

e.     Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

f.      Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

g.     The PCN issued has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

Anto_28

h.     The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent. MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

i.      It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis. 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 (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

j.      The Defendant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

k.     Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

l.      At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

m.   The Claimant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Defendant’s lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

10.  Paragraph 28 – The Claimant provides to the court all communications sent to the Defendant in an attempt to have the PCN cancelled as evidenced by EXHIBIT AH06.

a.     The Claimant vehemently disagrees that the letter before action was pure retaliation rise to the fact the Claimant wholeheartedly believes the Defendant issued the PCN unlawfully rise to evidence raised in this reply.

b.     As a litigant-in-person whose routine daily responsibilities are not that of a law background the Claimant did all in his power to research and abide by the Civil Procedure Rules and relevant Practice Directions required to bring forth this claim against the Defendant’s. The letter before action sent by the Claimant was constructed using the relevant Pre-Action Protocol/Practice Direction he believed to be the one applicable to this case which was not the Media and Communications one highlighted by the Defendant. The Claimant can therefore neither accept or deny this allegation.

c.     The Claimant urges the court to carefully examine the highlighted sections in the evidence, revealing that the Defendant had no intention of cooperating with the Claimant to prevent legal proceedings. Instead, the Claimant consistently encountered dismissive language, indicating an unwillingness to engage in further dialogue.

11.  In Paragraph 30 of the Defendant's defence, the intention is to reject any unlawful breaches of the GDPR. The Claimant avers that the acquisition of personal details, against DVLA KADOE rules, without any legitimate interest or reasonable cause, for the purpose of issuing a PCN, and subsequently sharing this information with ELMS Legal (a third-party company), constitutes a further breach of the GDPR.

12.  In paragraph 30 of the Defendant’s defence, there is an attempt to dismiss the significance of the terms displayed at the entrance to the car park where the Claimant parked his vehicle. Exhibit AH07 illustrates the terms presented by "Victoria Quays", not the Defendant. The Claimant avers that he entered the car park based on these terms, and consequently, additional clauses cannot be incorporated after a contract has been established (i.e., upon entering the car park at the barrier). There is legal precedent supporting this position, as seen in the case of Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2.

a.     The Claimant also would like to make the court aware that he was parked on the private road and not withing a designated parking space.

b.     The Defendants signs can only be found beside these designated spaces and not on the private road leading to confusion as to which terms should be abided by as evidenced by Exhibit AH08.

c.     The Claimant does not deny that this has been the case for the past 5 years.

13.  In paragraph 31 of the Defendant's defence, the intention is to reject the idea that the Claimant is entitled to compensation for the breach of the GDPR. However, there are precedent cases where such compensation has been awarded against private parking companies. The Claimant urges the court to consider the case of SIMON CLAY vs CIVIL ENFORCEMENT LIMITED (D9QZ9E8Q) as presented in EXHIBIT AH09. Notably, the Defendant has a track record of breaching data protection laws due to internal failures, and the Claimant argues that similar failings are evident in this case, drawing parallels with VEHICLE CONTROL SERVICES LTD vs ROBERT FERGUSON (G2QZ60G1) as demonstrated in EXHIBIT AH10.

14.  The Claimant vehemently disagrees with Paragraph 32 in its entirety that the Defendant issued the PCN correctly and that the exhibited contravention images prove without doubt the permit was displayed inside the front windscreen and therefore there are reasonable grounds for bringing forth this claim.

a.     The Claimant as a litigant in person whose routine daily responsibilities are not that of a law background was of the understanding that evidence is not be provided with the Particulars of Claim and that it is provided later in the court proceedings via a witness statement.

15.  The Claimant does not deny that he has not paid the PCN issued as stated in Paragraph 33, however he would like to make the court aware that while no financial loss has yet been suffered (apart from the court fee bringing forth this claim), the Claimant has had to dedicate a significant amount of time having to deal with this unlawfully issued PCN.

16.  The Claimant vehemently rejects everything in Paragraph 34 except the fact the Claimant had used the car park for 5 year which neither party disagree on.

a.     The Claimant disputes the Defendant's assertion that there is no cause of action. It is evident that the cause of this legal action stems from the failures of both the Defendant and their patrol officer. The actions of these parties left the Claimant with no alternative but to commence legal proceedings, aiming to put an end to the Defendant's unlawful processing and sharing of his personal data.

 

 

DEFENCE TO PART 20 COUNTER CLAIM

 

 

17.  The Claimant does not deny that signage at the car park is intended to form contracts between the landowner, its agents and the party entering the land, however the Claimant vehemently disagree with paragraph 36 that he entered any contract with the Defendant; only entering into a contract with Victoria Quays, the sole contract offered at the car park entrance. Exhibit AH07.

18.  The Claimant denies all allegations contained within Paragraph 37 averring to the fact that the wording on the Defendant’s signage do not mention the words “on the front windscreen”

19.  The Claimant denies Paragraph 38 in its entirety as there was no breach of the aforementioned term and again notes the use of the words “on the front windscreen”.

a.     The Claimant avers that the continued usage of the word “on” is an attempt to misdirect the court away from the actual ambiguous wording found on the Defendant’s signage.

Anto_28

20.  The Claimant is puzzled by Paragraph 39, which appears to suggest that the Defendant has breached their own explicit terms and conditions. Since the Defendant has not specified the particular terms breached by the Claimant, confusion arises as to why the Defendant has initiated a counterclaim. The Claimant requests the court to dismiss the counterclaim promptly due to the lack of clarity regarding the alleged breaches.

21.  The Defendant denies that the Defendant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Defendant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

22.  The Claimant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoCC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

23.  A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POCC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

[images of the ruling]

The facts known to the Defendant:

24.  The facts in this defence to part 20 counter claim come from the Claimant's own knowledge and honest belief. Conversely, the Defendant sets out a cut-and-paste incoherent and sparse statement of case. The PoCC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the PoCC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Claimant was the registered keeper and driver.

25.  The Claimant drove to his workplace on the 15th June 2023 and parked his car on the private road at Victoria Quays. Placing his VCS parking permit inside the front windscreen. On this day, the Claimant made multiple trips to and from the office. A workmate informed the Claimant that his car was being photographed by a “parking attendant” which the Defendant refers to as a “patrol officer”. The Claimant quickly ran out to speak to the patrol officer who named himself as Scott driving a vehicle with registration number **** ***, and during this interaction the Claimant pointed out the prominently displayed permit out to him.

26.  The patrol officer then proceeded to take further evidential photos and told the Claimant to get in touch with the Defendant and to appeal any PCN that arose in the belief that the PCN would be cancelled.

27.  On the 24th June 2023 the Claimant surprisingly received a PCN through the post to his home address. The Claimant appealed to the Defendant on the 28th June 2023 instructing the Defendant to speak to and obtain the missing evidence from the patrol officer.

28.  The Defendant responded to the appeal on the 5th July 2023 requesting additional evidence with the Claimant providing the requested evidence on that same day. The Defendant responded on the 17th July 2023 informing the Claimant that they were unable to accept his appeal. A further reason for the appeal being rejected was provided by the Defendant stating “furthermore, as this permit is an 'open' permit, it is not specific to yourself or your vehicle in respect of the period your vehicle was parked.” This reason has no bearing on this case whatsoever. The fact that the Claimant was in possession of a valid parking permit on the day of the alleged contravention gave him the right to park his vehicle regardless of whether the permit was open or tied specifically to an individual. The Claimant respectfully asks that the court agree.

29.  REST OF TEMPLATE DEFENCE HERE

Summary

30.  In light of the evidence provided by the Claimant, it's evident that there were serious lapses on the part of the Defendant and their patrol officer. The failure of the patrol officer to disclose all relevant evidence to the Defendant from the outset subsequently led to the Defendant unlawfully obtaining the Claimant's personal data from the DVLA. Subsequently, this data was processed and shared with a 3rd party in violation of the GDPR, resulting in the initiation of this claim. The Claimant respectfully urges the court to reject the Defendant's request to dismiss this claim.

The Defendant's assertion that the permit was retrospectively placed has been conclusively disproven. This casts doubt on the Defendant's claim that the sole motivation behind the Claimant's legal action was retaliation for receiving a PCN. The claim was filed independently based on the evidence presented by the Claimant, who firmly believes that the PCN issued by the Defendant was both invalid and illegal. Considering these circumstances, the Claimant kindly requests the court to strike out the counterclaim lodged against them, as they believe there is no merit to the Defendant's allegations. The Claimant asserts their right to park on the day of the alleged contravention.

Statement of truth

 

I believe that the facts stated in this Reply to 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.

is this the correct Statement of truth to add to the end also, need to make sure mine is right if were going to use that theirs is wrong