VCS - No NTK

IN THE COUNTY COURT CLAIM No: XXXX

BETWEEN:

Vehicle Control Services Ltd (Claimant)

-and-

XXX (Defendant)


DEFENCE

Background

1. 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 XXXX, of which the Defendant is the registered keeper.

Premature claim - No ‘Notice to Keeper’

3. No Notice to Keeper (‘NTK’) was served to the registered keeper. Only upon request of a SAR was the NTK first seen, this was first stated in the original appeal although due to a lack of information provided by Vehicle Control Services a timely appeal was not possible. Protection of Freedoms Act 2012, Schedule 4 - the 'POFA' has not been followed and therefore a charge cannot be brought to the registered keeper. The Claimant is put to strict proof to state otherwise.

3.1. 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.


Denial of contract and denial of any breach, or liability

4. 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 that the hybrid/illegible windscreen note that the Claimant asserts in the POC 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.

4.1. 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.

5. 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 Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available, no consideration flowed between the parties and; there was no licence to park.

6. At best, parking without authorisation could be a matter for 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, confirmed that ParkingEye could not have pursued a sum pleaded in damages or as a matter of trespass. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

No 'legitimate interest' or commercial justification - Beavis is distinguished

7. 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.

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

8. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.


No standing or authority to form contracts and/or litigate

9. 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.

Summary

10. 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.


I believe the facts contained in this Defence are true.

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