Defence to VCS - please help and advice/proof read

jonesthebones wrote: »

4th April 2019 is the issue date.
I was advised to do an AOS I think it's called; where you request extra time to create a defence?

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

---

IN THE COUNTY COURT

CLAIM No: XXXXX

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

(Defendant)

DEFENCE

1. The Defendant was the registered keeper of vehicle registration number XXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXX, appears, from the sparse evidence supplied by this Claimant, to be parked on the material date in a public car park within a marked parking bay, not on any yellow lines nor causing an obstruction. The vehicle was clearly displaying a ‘Pay and Display’ ticket receipt in the windscreen, issued by a [STRIKE]‘Pay and Display Machine’[/STRIKE] machine opposite the vehicle, specifying that the vehicle could be parked within the [STRIKE]lot[/STRIKE] car park between the times of 08:56 AM and 20:56 PM on the material date.

3. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

4. The location appears to be set up - whether deliberately or negligently - to catch out motorists, given that it is divided between two companies that are both owned by Simon Renshaw-Smith; the first company being the Claimant 'VCS' and the other being Excel Parking Services Ltd ('Excel'). There are no clear demarcations between the areas, allowing one of Mr Renshaw-Smith's two companies to set out to penalise honest paying drivers who inadvertently pay the other sister company at the adjacent machine.

4.1. A driver cannot clearly distinguish which bays are for which customers. At the entrance of the car park, there is a one way sign making drivers turn right, then there is a wall opposite the first spaces, and next to it a Pay and Display machine which produced a valid ticket authorising a parking licence from Excel. This machine and the one way sign, as well as a private land sign from Excel and a private land sign from VCS, are all on the same wall and the Defendant will exhibit photographic evidence of this trap.

4.2. The Claimant has also breached its own Trade Body's Code of Practice (CoP) regarding transparent terms and signage; a CoP creating a mandatory set of parking firm rules which the Supreme Court found was effectively 'regulatory'. The Claimant may try in its witness statement to lead the court away from the relevance of this, but it is a fact that the CoP does not merely comprise 'recommendations' and full compliance is required to obtain DVLA data.

4.3. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage (or by a CN, which would in any event, be too late a warning to form part of any contract with either company).

[STRIKE]4. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
[/STRIKE]

5. The particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

[STRIKE]6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage is attached to a gate and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and 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 is capable of creating a legally binding contract.[/STRIKE]

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal.

6.1. The Defendant has the reasonable belief that the Claimant did not have the authority on the material date, to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim. A small portion of the Bounce Revolution car park is apparently reserved for customers of the trampoline business and it is understood to be the case that VCS patrolled this little section. The rest of it was patrolled by Excel. The trampoline business went into administration a few days before this parking event and the Claimant is put to strict proof of its authority flowing from the landowner on the material date, and must show the court how they could enforce terms that were void for impossibility, offering a licence only to 'customers' of the (by then closed down) business.

7. At best, parking without authorisation could be a matter or the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) confirmed that [STRIKE]ParkingEye[/STRIKE] a non-landowner parking firm could not have pursued a sum in damages for trespass.

8. An extortionate penalty charge from VCS, when a driver has paid Mr Renshaw-Smith's other firm, Excel, is not an 'understandable ingredient of of a scheme serving legitimate interests' and the Beavis case is fully distinguished in all respects. The Court will note that both the Claimant and Defendant Parties rely upon the Supreme Court judgment in the Beavis case, but it is important to note that they do so quite differently. The Claimant relies upon the case as a general proposition that parking charges are not penalties and that a contract may be established with the terms of a parking sign. The Defendant relies on the same case to aver that there was no contract for parking formed by clear/fair signage from this Claimant within a car park set up by two sister companies, creating a 'concealed pitfall or trap'.

8.1. This charge is unconscionable, with no 'legitimate interest' excuse that the Claimant can rely upon. The charge is designed purely to confuse, entrap and then punish paying drivers and the penalty rule has not been disengaged, unlike in the factually different and 'complex' Beavis case.

8.2. An action by a trader is misleading if it contains false information or if it is likely to mislead the average consumer in its overall presentation. It appears to the Defendant that this location should be of interest to Derby Trading Standards regarding a breach of Reg 5 of the Consumer Protection from Unfair Trading Regulations 2008 (misleading actions). The Defendant reserves the right to sue the Claimant under the Consumer Protection (Amendment) Regulations 2014 which gave consumers new private remedies where a trader lies or uses aggressive commercial practices and the Defendant is keen to expose this 'scam site' to the scrutiny of a Judge and/or to Trading Standards, and ultimately to seek compensation for the significant distress of this unfair charge and claim.

8.3. This Claimant is known to produce template Witness Statements, disingenuously leading courts to the Respondent's argument in Vine v London Borough of Waltham Forest [2000] EWCA and, critically, NOT the ratio of the judgment from Roch LJ, in which Miss Vine prevailed due to unclear signs and the fact she did not see them. Paragraph 19 of that judgment is quite different from the general presumption that the Claimant is likely to invite the Court to make. It is for the Claimant to show that their signage is capable of forming a contract and that the positions of signs, lines and machines within the car park is clear to all motorists before parking and buying a ticket from the machine (the authority in Thornton v Shoe Lane Parking being another case this Claimant is known to rely upon, which supports the Defendant's case better than it props up VCS' own meritless claim).

9. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 or £160 debt. Again, the Beavis case established that a parking firm cannot seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished and this is stated in the knowledge that this Claimant is likely to rely upon that case in their often trotted-out template Witness Statement. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms, whereas parking charges are capped by the POFA/the will of Parliament at the sum on any Notice to Keeper, and not higher, and the Beavis case confirmed this by only allowing £85 and no bolt on 'damages' or imaginary debt collector costs.

10. The Defendant relishes the chance to question this Claimant at trial and invites Mr Renshaw-Smith in particular, to explain his position in allowing this scam site to continue to trap honest drivers who have paid one firm but are penalised by the other. Further, the Claimant will be expected to explain its justification in pursuing court claims flowing from charges issued after the trampoline firm went out of business.

10.1. Mr Renshaw-Smith is no stranger to having his misleading signs and meritless claims exposed by the courts. Some six years ago, he was reported as describing the court ruling damning his misleading signage in Excel v Cutts (Stockport County Court case no: 1SE02795) as ".....an embarrassment to the judicial system" reportedly describing the Judge as "not fit to serve the civil courts". And in 2012 in VCS v Ibbotson, case No 1SE09849, District Judge McIlwaine warned VCS' representative against bringing meritless claims to court, stating: ''I am dismissing your action [...] it seems to me this whole action is ill-founded. You have no right to bring this action. Moreover, on my interpretation of your Code of Practice, you are in clear breach. You have signed statements of truth which say you adhere to the Code of Practice. You do not. To sign a statement of truth when it is not correct has significant implications. I will tell you now after these proceedings I will issue an alert so you are clear. I have had this case in my court and all judges with this case and this dispute are advised to look at the terms and conditions of contract. If you continue to pursue those cases on this flawed premise, the consequences will be significant. If there is another case in the (Grimsby/Hull area) County Courts live by 4pm on Friday, you will be coming to see me and I suggest you bring a toothbrush. Am I clear?''

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. The charge is unconscionable and relies upon a misleading business practice as described above and the attempt to add a further sum in 'damages' that a private parking firm is not entitled to collect, is a clear abuse of process. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name
Signature:
Date: