East Midlands Airport // VCS // No Stopping PCN // County Court Claim stage

tennisfingers

Hello everyone. Firstly I'd like to thank everyone involved in providing help and advice in the **NEWBIES!! PRIVATE PARKING TICKET thread. It has been great reading and learning about all the steps involved and weirdly I'm at the stage now where I'm actually quite enjoying the process.

To save some time here is a summary of what happened and answers to some common questions:

I am a contractor who pulled over into a bus stop (to the left of the red lines) at 7am on Saturday 5th August 2023 in my lease van to make a quick phone call to find out where on the DHL cargo side of the airport I was required, to undertake some work on behalf of BT. CCTV van pulled in behind me for a few seconds and drove off.

Received a PCN from my fleet manager who has been sent it by the fleet van company. It's my understanding this was all done within the correct timeframe.

I appealed to VCS, and again to the IPC, which were unsuccessful. I then found this site and began to take things a little more seriously.

Using the templates on the NEWBIES thread, I sent a reply to the LBC letter stating their letter was defective which got no reply.

I received 2 letters from ELMS asking for the full amount, to which I replied using the templates as a guide. I also offered 2 different amounts of ADR which were not accepted.

I received another letter from ELMS which was EXACTLY the same as the previous, just with my second ADR offer amount changed. This letter was ignored, as I stated in my previous 2 letters that I cannot proceed with seeking advice and submitting a formal response until a compliant LBC letter is received.

Exactly 5 months later I received another letter from ELMS notifying me they're issuing proceedings. I received the County Court papers the same day.

Date of original PCN: 05/08/23
Date of Hirer Notification receipt: 04/09/23
Issue date of the Claim: 24/09/24
Date of AOS confirmation: 29/09/24
Defence has to be submitted by: 31/10/24

Here is my first draft. I've had to remove some text due to post length restrictions. Where you see '...[rest of point removed due to restrictions]' please note the full template point is included completely in the actual defence draft. 

I would be very grateful if someone could take a look and give me any advice. I also wanted to ask a question regarding point 33 in the template... I'll put that at the end...

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

Vehicle Control Services Limited

(Claimant) 

- and -  

XXXXXXX

 (Defendant)

_________________

DEFENCE

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC 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, based on the POC, 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 Defendant was the driver but is not the registered keeper.

The facts known to the Defendant:

3. The Defendant did not stop where the Claimant claims. The vehicle pulled off the live carriageway to the left-hand side of the double red lines, into an empty bus stop where stopping is permitted. This is evident by the Claimant’s own CCTV images.

4. The Defendant is not liable for the charge notice, as they fall within the following exemption categories from the DVLA Private Parking Code of Practice:

(i). ‘a vehicle that has been driven onto controlled land due to an instruction to the driver by a member of the emergency services, or an invitation or instruction from the landholder(s) or parking operator;’ (Annex F.1 section D)

(ii). ‘a vehicle paused on a private road network simply because the driver needs to check directions, e.g., on an industrial estate where the driver has a legitimate need to access premises within that estate.’ (Annex F.1 section G)

It is the Defendant’s belief this published guidance from the DVLA should be adhered to by the Claimant, particularly as they assert compliance with the IPC's Code of Practice (Version 9, point 30.6), which was the prevailing version at the time of the incident in question.

5. The Claimant will concede that no financial loss has arisen and that to impose an inflated charge notice, as well as proving a term was breached, there must be:

(i). A strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'Adequate notice' of the 'penalty clause' charge which, in this case, requires prominent signs and lines.

6. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

No agreement/breach of terms and no contract (alternatively, frustration of contract)

7. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage can create a legally binding contract. There has been no "grace period" applied to allow the Defendant to read the Claimant's signage. For these reasons, the case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, should not have a bearing in this instance. This is because with respect to VCS v Ward, HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represented an offer of a contractual licence, which was accepted when the user drove onto the private land. In this instance, the text is too small to alert the user to the fact that they are entering private land, and is therefore, not capable of creating a legally binding contract.

9. It is an ironic fact that the Claimant’s bus stop signs provide a helpline phone number, which cannot be seen or used by drivers without breaking alleged contractual agreement with the Claimant or the law. Furthermore, the terms on the Claimant's signage do not provide enough information to what is expected from the driver in an emergency such as a vehicle malfunction. The signs are misleading and missing information, therefore is not capable of creating a legally binding contract. Even if the Claimant shows the court that the terms on any signs were legible, any contract was frustrated. This is a fact that the Claimant would have known about, had their watching CCTV camera operator driver mitigated any loss, rather than taking photographs with the intent of penalising a driver that could well have stopped due to an emergency and who may have needed urgent assistance.

10. The Defendant would expect the Claimant's own CCTV van operator to attend the hearing in person and provide a witness statement to explain why instant penalties continue to be issued regardless of the van operator seeing for themselves any mitigating circumstances, and to explain whether that is due to VCS blanket policy to 'fine at all costs' or whether a personal decision was made to ignore the possible plight of the Defendant and take pecuniary advantage.

Exaggerated Claim and 'market failure' currently being addressed by UK Government

11. The alleged 'core debt'...[rest of point removed due to restrictions]

12. This claim is unfair and inflated...[rest of point removed due to restrictions]

13. This is a classic example...[rest of point removed due to restrictions]

14. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022...[rest of point removed due to restrictions]

15. Despite legal challenges...[rest of point removed due to restrictions]

16. Paragraphs 4.31 and 5.19 state...[rest of point removed due to restrictions]

17. This claim has been enhanced...[rest of point removed due to restrictions]

18. The draft IA shows...[rest of point removed due to restrictions]

19. It is denied that the added damages/fee...[rest of point removed due to restrictions]

20. This Claimant has not incurred costs...[rest of point removed due to restrictions]

21. Whilst the new Code is not retrospective...[rest of point removed due to restrictions]

22. At last, the DLUHC's analysis overrides...[rest of point removed due to restrictions]

23. In addition, pursuant to Schedule 4 paragraph 4(5)...[rest of point removed due to restrictions]

CRA breaches

24. Section 71 CRA creates a statutory duty upon Courts...[rest of point removed due to restrictions]

25. The CRA introduced new requirements...[rest of point removed due to restrictions]

26.  The Defendant avers that the CRA has been breached...[rest of point removed due to restrictions]

ParkingEye v Beavis is distinguished

27.  Unlike in Beavis, the penalty rule remains engaged...[rest of point removed due to restrictions] 

28. The Supreme Court held that deterrence is likely to be penal if...[rest of point removed due to restrictions]

29.  Fairness and clarity of terms and notices are paramount...[rest of point removed due to restrictions]

Lack of standing or landowner authority, and lack of ADR

30. DVLA data is only supplied if there is an agreement...[rest of point removed due to restrictions]

31. The Claimant rejected multiple offers of Alternative Dispute Resolution (ADR) proposed by the Defendant and failed to provide a genuinely independent ADR themselves. The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

32. There is now evidence to support the view...[rest of point removed due to restrictions]

33. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

34.  Attention is drawn to the (often-seen) distinct possibility of...[rest of point removed due to restrictions] 

 

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.

Signature:

Date:

 

I added a line about my attempts at ADR at the beginning of point 31 which I think is OK?

And my question is about point 33 and recovering costs...

Isn't it true that if I successfully claim costs as a self-appointed litigant, that I can then no longer claim costs as a witness too, according to CPR 46.5(5)?

CPR 46.5:

(5) "A litigant who is allowed costs for attending at court to conduct the case is not entitled to a witness allowance in respect of such attendance in addition to those costs."

Should I therefore not be asking for both, but for either:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, or

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

in point 33 above?

Also, should I include the exact amount I'd be asking for, or leave it as further costs for now?

Thanks in advance...

KeithP

tennisfingers said:

Issue date of the Claim: 24/09/24
Date of AOS confirmation: 29/09/24
Defence has to be submitted by: 31/10/24

Hello and welcome.

Can you please show us a picture of the Particulars of Claim - with all personal detail hidden of course.

Your Defence filing deadline is a few days earlier than that.

With a Claim Issue Date of 24th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 28th October 2024 to file a Defence.

That's four weeks away. Plenty of time to produce a Defence but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

tennisfingers

Hi KeithP,

Thanks for your reply. Please find requested information below. Please let me know if anything else is required.

Coupon-mad

You need to deny that there were any contractual costs agreed.

tennisfingers

Hi Coupon-mad,

Amended point 7:

7. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, and it is further denied that there were any contractual costs agreed.

Do you have any advice on point 33? I'm leaning towards re-phrasing it like this:

33. In the matter of costs, the Defendant seeks:

(a) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5, or

(b) standard witness costs for attendance at Court, pursuant to CPR 27.14

Coupon-mad

Point 33 doesn't need changing. It is correct.

tennisfingers

Can you help me understand how I’m able to claim both a whiteness statement cost and costs for being a litigant in person (namely x amount of hours at £19 per hour for preparing appeals, letters, defence and WS documents)?

Coupon-mad

That's not what the CPR you quoted says and I'm off out now but the template defence final paragraphs state the two different CPRs in play for standard attendance costs and the extra costs.

tennisfingers

My understanding is the witness costs (CPR 27.14) are reasonable travel expenses. That’s fine.

My confusion is with the 2nd point that refers to CPR 46.5. More specifically in my case, 46.5(4)(b) which states ‘where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.’ That rate in PD46 is £19 per hour. 

CPR 46.5(5) then goes on to say you can’t claim witness costs under CPR 27.14 if you’ve been allowed to claim costs under CPR 46.5, hence my query. 

tennisfingers

tennisfingers said:

Can you help me understand how I’m able to claim both a whiteness statement cost and costs for being a litigant in person (namely x amount of hours at £19 per hour for preparing appeals, letters, defence and WS documents)?

Apologies for this typo, I meant “witness travel costs”

tennisfingers

tennisfingers said:

My understanding is the witness costs (CPR 27.14) are reasonable travel expenses. That’s fine.

My confusion is with the 2nd point that refers to CPR 46.5. More specifically in my case, 46.5(4)(b) which states ‘where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.’ That rate in PD46 is £19 per hour. 

CPR 46.5(5) then goes on to say you can’t claim witness costs under CPR 27.14 if you’ve been allowed to claim costs under CPR 46.5, hence my query. 

So do we think this is accurate Coupon-mad? If so I think I’m happy to submit my defence. 

Would you advise waiting until nearer the deadline, or submit it as soon as it’s ready?