County claim VCS

Hi There,
Can anyone help me understanding what I can produce in #2 and #3 especially of templated defence. Context: I received County Claim letter from Vehicle Control Services issued on 28th June on old address but I  managed to file AoS within week. I had debt recovery letters (redirected to new address) but I don't have any with me now. I was stressed and forgot to do SAR request upon receipt of CC. I don't remember me going to the Parking location mentioned in CC and even don't know which city it is in as the incident date in CC is about 4 years ago. I even don't have any NTK with me. 
I want to fight this because of the bad practices being employed but I am not sure what I should put in #3. Should I request the SAR but seems I am already too late to get info by SAR and file defence. 
«1345

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  • edited 25 July at 4:01PM
    Le_KirkLe_Kirk Forumite
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    edited 25 July at 4:01PM
    You probably won't receive any data from the SAR in time to help you with a defence but it will come in handy for the witness statement later down the line, so do it anyway.  If you cannot remember if you went there, we on the forum have no chance to help you.  Try a bit of research around the location of the car park according to the particulars of claim (POC).  Google Street View can sometimes help.  Does the POC not indicate a post code or city?  Failing all of that you will have to do a generic defence (search the forum and read a few other defence from VCS).  There is one on the forum today where VCS chased the wrong man for five and a half years due to a mis-read of his VRM.
    If you have not been receiving letters, have you (now) updated your V5C with the DVLA?
  • edited 25 July at 5:06PM
    Coupon-madCoupon-mad
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    edited 25 July at 5:06PM
    The defence is never dependent upon the SAR, so just crack on with the SAR right now.  No-one gets it back in time, so what really?

    In the template defence thread I give some hints and suggestions about what facts to say about the car park and I even tell everyone what to say if they don’t know anything about the event. 
    This part really isn’t difficult.  Show us your draft as we can’t write the facts for you.
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  • edited 25 July at 7:18PM
    KeithPKeithP Forumite
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    edited 25 July at 7:18PM
    bitbibit said:
    I received County Claim letter from Vehicle Control Services issued on 28th June on old address but I  managed to file AoS within week. 
    I am going to assume that you filed an Acknowledgment of Service sometime after Friday 2nd July and before Monday 19th July, If you filed an AoS outside those dates it may affect your Defence filing deadline.
    Please confirm. Your MCOL Claim History will have the definitive answer.

    With a Claim Issue Date of 28th June, and assuming you have filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 2nd August 2021 to file your Defence.
    That's just a week 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.
  • bitbibitbitbibit Forumite
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    Thanks everyone for your response. I filed SoA online on 3rd which I think counted as 5th of July. I have now sent SAR for further information. Meanwhile I will prepare defence and post here soon.
  • bitbibitbitbibit Forumite
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    Hello guys,
    Although I am very late and don't have much to say on my defence but I would appreciate if you guys can comment on my defence. Much of the defence is same from template I just added few know facts in Para#3. The claim mentions the name of location as  Albert Street and date in 2017 but not time, as there is no parking on given street itself I assume claim could be from Albert Street car park and this is evident from forum discussion. I can recall I have been there with my friend and I have checked with friend to verify the facts. We both remembering purchasing a ticket from machine and displaying on dashboard. So I have stated what is known to me. I did received debt recovery letters related to parking charges but as I never had such incident in my mind so ignore those letter hence not sure those were from VCS. I have read many other threads with Defence against VCS claim but those seems older hence adapted para#3.

    I look forward hearing from you, thanks

    IN THE COUNTY COURT

    Claim No.: XXXXXXXX

    Between

    Vehicle Control Services Limited

    (Claimant) 

     and  

    XXXXXX

     (Defendant)

    ____________________

    DEFENCE

    ____________________

    1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

     

    The facts as known to the Defendant:

    2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

    3.  The Defendant denies parking the vehicle in question on Claimant property without purchasing and displaying a valid ticket from machine on given date and breaching any contract with Claimant.  The Defendant always purchased a valid ticket from car parking ticket-machine as per instructions on machine. No charge notice was displayed on screen or served to Defendant for alleged breach of the contract.

     

    4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

    5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

    6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

    7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

    8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

     

    The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

    9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

    10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

    11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

    12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

    13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

    14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

    (i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

    (ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

    both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

    (ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

    where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

    15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, 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."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

     

    16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

     

    In the matter of costs, the Defendant seeks:

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

    (b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

    18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

    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:

     

  • Coupon-madCoupon-mad
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    I think that’s fine but you may wish to add that the Defendant is unaware of the circumstances on an unremarkable date four years ago and the Claimant is put to strict proof of their allegations, including that they complied with the relevant law that would be the only way to hold a registered keeper liable. 

    And you may wish to Google ‘Albert Street Birmingham Excel VCS parking prankster’ and read the blogs.  I seem to recall the pay and display tickets have Excel Parking on them and so did the signs at one point.  

    That’s crucial because you could add a point that the Defendant only recalls a car park in Albert Street that had signs and tickets offering a contract with Excel Parking Services Ltd, not this Claimant,  which has a different company number. The signs appear to have changed more than once over the years.  Whilst both firms are owned by the same ex-clamper, they are distinct legal entities and the Claimant is put to strict proof that the signs and tickets on the material date carried their name, without which no contract with this Claimant existed.
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  • D_P_DanceD_P_Dance Forumite
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    Have you complained to your MP?
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  • bitbibitbitbibit Forumite
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    Thanks @Coupon-mad, I have revised the thirds paragraph as follows.

    "The Defendant denies parking the vehicle in question on Claimant property without purchasing and displaying a valid ticket from ticketing machine on given date and breaching any contract with Claimant. The Defendant only recalls a car park in Albert Street that had signs and tickets offering a contract with Excel Parking Services Ltd, not with this Claimant. The Defendant always purchased a valid ticket from car parking ticket-machine as per instructions displayed on machine. No charge notice complying to regulations was displayed on screen or served to Defendant for the alleged breach of the contract on Claimant property.  The Defendant is unaware of the circumstances on an unremarkable date four years ago and the Claimant is put to strict proof of their allegations, including that they complied with the relevant law that would be the only way to hold a registered keeper liable."

    In order to send this Defence can anybody confirm if it is sufficient to send defence by email to [email protected] and [email protected]
    Note: ELMS Legals Limited is mentioned to send documents with address but not email is given I have got it from their website

    @D_P_Dance I have not complained to MP, I will find MP details in that area and approach him/her.
  • edited 1 August at 10:55AM
    RedxRedx Forumite
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    edited 1 August at 10:55AM
    A defence is only emailed to the ccbcaq email address listed in the template defence thread , only there , not to anyone else !! , Do not post it , do not put anything in on MCOL either

    I would post your amended paragraphs 2 and 3 below , for any further critique , before saving as a pdf and emailing it
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • bitbibitbitbibit Forumite
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    Thanks @Redx, I will email to court email only I confused it with DQ. Followings are Para #2-3.

    The facts as known to the Defendant:

    2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

    3. The Defendant denies parking the vehicle in question on Claimant property without purchasing and displaying a valid ticket from ticketing machine on given date and breaching any contract with Claimant. The Defendant only recalls a car park in Albert Street that had signs and tickets offering a contract with Excel Parking Services Ltd, not with this Claimant. The Defendant always purchased a valid ticket from car parking ticket-machine as per instructions displayed on machine. No charge notice complying to regulations was displayed on screen or served to Defendant for the alleged breach of the contract on Claimant property. The Defendant is unaware of the circumstances on an unremarkable date four years ago and the Claimant is put to strict proof of their allegations, including that they complied with the relevant law that would be the only way to hold a registered keeper liable. 

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