PCN Wrong registration number entered on ticket machine

The contract is between vcs and a managing agent. I am right in saying in my skeleton that this does not prove the landowner has given permission to pursue anyone?

Here's my sa that ive put together. If anyone could read it through and offer any pointers i would be very grateful. Thanks


PREAMBLE

1. This skeleton argument is to assist the Court in the above matter for the hearing dated xxxx

2. The Defendant will highlight to the Court that the claim is not only fundamentally misconceived and flawed, but that the Claimant behaved unreasonably

3. The witness and the accompanying witness statement is not credible. It contains invalid, false and vexatious statements which can be shown in this skeleton argument. Moreover, it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.

4. The witness statement by xxxx is contradictory, confusing and particularly troublesome as detailed below:

(a) Para #xx and #xx state the Claimant intends to rely on schedule 4 of the Protections of Freedoms Act 2012 and contends they can hold the Defendant liable for unpaid charges as their Notice to Keeper is compliant with the Act. The Defendant contends they cannot rely on this act, as they have failed to comply with all of its statutory wording as noted categorically in para #xx of the Defendant's witness statement.

(b) Having failed to comply with POFA, to then rely on the case law, which the witness introduces in para #xx, #xx and #xx, the witness would have needed to provide evidence that the Defendant was the driver. No evidence exists that Defendant was the driver, none has been provided and this is because the Defendant was not the driver. The Claimant has known this for over a year. The Defendant submits it is entirely unreasonable to pursue this claim despite this statement of fact.

(c) In para #xx, the witness asserts they have had the authority to implement a parking scheme since xx June 2018. The alleged offence in this case occurred in May 2017.

(d) Para #xx then refers to a contract between the Claimant and a managing agent. The Claimant was put to strict proof of claim, in the Defendant's Defence at para #xx, for evidence of the written authority of the landowner to pursue charges via litigation. Para #xx of the Claimant's witness statement does not point towards proof of such written authority. The witness refers to an expired contract between the Claimant and a managing agent. A managing agent is not the landowner. The Defendant asserts the Claimant is unable to pursue this claim without the written authority of the landowner.

(e) Para #xx refers to the Approved Operator Scheme and the Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks, which is only of relevance to BPA members. Vehicle Control Services Ltd are a and were a member of IPC at the material time

(f) In Para #xx the witness, in his attempt to refute the Defendant's claim of misuse of personal information, refers to the privacy notices on their website. The Claimant in this case is Vehicle Control Services Ltd. Why is the witness directing the Defendant and this court to the privacy notice of Excel Parking Services? An entirely separate legal entity. For the Claimant to refute my claim and to then refer me to an entirely separate company for their privacy notice is beyond belief. The Defendant refers to para #xx of his witness statement and asserts the statement of the witness in para #xx of his witness statement, furthers the Defendant's claim of unreasonable behaviour.

(g) In para #xx the witness claims there was a delay in a response from the DVLA to obtain the Defendant's details. This was never the case. The Notice to Keeper does not comply with POFA due to the Claimant's inability to adhere to the Act's statutory wording. I submit this is further proof that the witness statement provided by the claimant is a Robo-Claim and is vexatious in nature.

THE ISSUES

5. The Defendant has identified the following areas of dispute:

(a) The identity of the driver
(b) The presumption of the driver
(c) The burden of proof
(d) No contract
(e) Keeper liability
(f) No locus standi
(g) Any alleged breached of contract was de minimis
(h) Penalty
(i) Conduct


SUBMISSIONS

6. The Defendant submits that they were not the driver at the material time

7. It is submitted that it is impossible for the Defendant to speculate whether any signs were present as the Defendant was not present. Regardless, the photos induced as evidence by the Claimant are both illegible and dated months after the alleged offence and are therefore inadmissible.


GENERAL ARGUMENTS

8. According to the Particulars of Claim issued by the Claimant, their primary argument for issuing this claim against the Defendant is predominantly based on a crucial but rebutted piece of information; the Defendant was the driver at the material time of the Parking Charge Notice.

9. The remainder of the points raised in the Defendant's Defence are particularly specific in application. The Defendant will show that the Claimant failed to transfer liability from the driver to the keeper, was granted no locus standi for the land, any alleged breach of terms and conditions was de minimis and signs can be evidenced as illegible and confusing.

10. Any single one of the above is fatal to the Claimant's case

11. The Claimant has also failed their obligation to comply with the IPC Code of Practice. The Defendant refers the court to the disclosed sign artwork on page #xx of exhibit xxx:

(a) Fails to identify Vehicle Control Services Ltd as 'the creditor'
(b) The sign does not state that the registered keeper's detailed will be obtained if the charge is unpaid for a period of 28 days
(c) The sign is not clear that the driver is entering into a contract with 'the creditor'


DRIVER IDENTITY

12. The Defendant refutes the many allegations by the Claimant that they were the driver at
the material time either directly or by presumption. The Claimant has no evidence to the
contrary as none exists.

13. It is a matter of record that the Defendant evidenced within their witness statement that
they were not the driver

14. The right to authorise another person(s) to drive the vehicle lay with the rightful owner

15. The Defendant has therefore evidenced to the Court that they were not the driver and is under no obligation to name the driver to the Claimant


THE PRESUMPTION OF THE DRIVER

16. It is clear in trite law that where there is no forensic and/or reliable evidence, that a
registered keeper of a vehicle cannot be declared the driver at any given point in time. In
fact, in some instances they may barely drive the vehicle at all.

17. The Defendant brings to the Court's attention POPLA Lead adjudicator and Barrister Mr.
Henry Greenslade's statement regarding keeper liability in the POPLA Annual Report of
2015:

"there is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort"

18. District Judge Skalskyj-Reynolds in the case of Excel v Lamoureux [2016] C3DP56Q5
although only persuasive, comes to a comparable conclusion as Mr Greenslade:

"The defendant denies he is the driver and the claimant has absolutely no evidence that he was the driver. There is no assumption in law that the registered keeper is also the driver of the vehicle. That is trite law"

19. District Judge Skalskyj-Reynolds then concludes judgement by stating:

"The claim against Mr. Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver"


20. The Claimant had no entitlement to proceed on the presumption that the keeper is also the driver.


BURDEN OF PROOF

21. There is no statute requiring the registered keeper to identify the driver of a parking
charge on private land.


22. Mr Henry Greenslade comments on this particular issue in the 2015 POPLA Annual
Report:

"a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time"


23. The Defendant has demonstrated to the Court that the burden of proof for identifying the driver should not lay with the Defendant


NO CONTRACT

24. The Defendant was not present at the material time and can therefore not have entered into any alleged contract.


25. The Pay and Display ticket issued at the material time at the car park in question was issued by Excel Parking Services. Therefore, the Defendant submits any alleged contract was formed between the unnamed driver and Excel Parking Services at the point of sale ticket machine.


26. The Defendant has demonstrated to the Court that no contract could have existed between the Claimant and the Defendant at the material time.


KEEPER LIABILITY


27. Liability can only be transferred lawfully by strictly following Schedule 4, Protection of
Freedoms Act 2012 which was enacted into statute to prevent this very issue and ensure
lawful transfer of liability for private land owners. Vehicle Control Services Ltd chose not to utilise this statute by failing to comply with its statutory wording and therefore attempts to transfer liability unlawfully. Mr Henry Greenslade comments on this within the 2015 POPLA Annual Report:

"The only presumption that anyone else is liable for such a charge is under Schedule 4 of the
Protection of Freedoms Act 2012"

28. The Notice to Keeper fails to comply with the statutory wording that the Act states it must contain at para 9 (2)(f) and 9 (6) along with other non-compliance as noted in para #xx of the Defendant's witness statement.


29. The Defendant has demonstrated to the court that Vehicle Control Services Ltd have failed to make the Defendant liable for any parking charges


NO LOCUS STANDI


30. The Defendant refers the Court to Exhibit xx, Page xx and xx which shows a contract between Vehicle Control Services Ltd and xxxxx, a managing agent.


31. The contract does not provide evidence of written authority of the landowner to pursue litigation. A managing agent is not the landowner.


31. In any event, the contract is not signed by a person acting on behalf of the managing agent named on the contract. Further, the contract expired on xx June 2018. The Defendant submits it is therefore invalid and inadmissible.


32. The Defendant has evidenced to the Court that at the material time, the Claimant had no interest in the land, no legal standing to enter into a contract or to litigate in their own
name on behalf of the lawful occupier


PROMINENCE, ILLEGIBLE TERMS & CONFUSING SIGNAGE

33. The Defendant disputes the witness's assertion that the signs, or more specifically the
terms and conditions were highly prominent. In general, prominence can be a subjective
affair in which colours, fonts, height, size and ambient light all play a significant role in
determining if a 'something' is prominent


34. The Defendant draws the court's attention to pages #xx and #xx of the Claimant's bundle.


35. The text on these exhibits are illegible even though the photographs have been taken up close to the signage. The photos are also time stamped months after the material time.
The Defendant submits these photos are inadmissible.


36. The Defendant also draws to the attention of the court page #xx of the Claimant's witness statement.


37. A significant proportion of the core terms are exceptionally small


38. Can the Claimant reasonably claim anyone entering the car park must first drive around the car park to locate a free space, walk around the car park to locate and read the entirety of the small print on a number of signs, make a decision that they are willing to enter into a contract under said terms, locate the pay and display ticket machine, and then purchase a ticket within a timeframe of 10 minutes? The Defendant claims this is unreasonable.


39. The Defendant has demonstrated to the Court how the overall depiction of a sign being
prominent is significantly reduced by using a font of small size which makes core terms
illegible to the human eye.


ANY ALLEGED BREACH OF CONTRACT WAS DE MINIMIS


40. Any alleged breach of contract was between the unnamed driver and the company named on the ticket at the pay and display ticket machine, i.e. the point of sale. Regardless, any alleged breached of contract was entirely de minimis, as parking was fully paid for. The law does not concern itself with trifles and does not encourage parties to bring legal actions for technical breaches of rules and agreements where the impact of the breach is negligible.

41. The Defendant has induced as evidence a pay and display ticket that covers the time and date in question.


42. Further to this, the Claimant's evidence on page #xx of xx proves the Claimant has known this to be the case from the outset


43. The Defendant has demonstrated to the court that a technical breach has had negligible impact as parking was paid for in full. For the Claimant to pursue litigation for this is outrageous and wholly unreasonable.


PENALTY


44. The charge is a penalty. This case can clearly be distinguished from ParkingEye v Beavis
[2015] UKSC 67 by reason that the Supreme Court heard that ParkingEye had complied
with the ATA Code of Practice, the signs were unusually large and prominent, created an offer to park and the Mr. Beavis submitted a contract for parking was in place


45. The judgement of ParkingEye v Beavis also makes clear that if a driver has not had ample
opportunity to become acquainted with the contractual terms then the un-incurred costs of
a private parking company is still considered a penalty or unfair consumer charge

46. The Defendant puts the Claimant to strict proof that all costs were actually incurred


CONDUCT


47. The Defendant's conduct and defence was entirely with merit


48. The Defendant had no choice but to serve a fully comprehensive and inclusive defence in response to the claim and therefore should be used in determining the facts


49. The Defendant's view is that the witness statement is merely a 'copy and paste' exercise
by the Claimant by reason that some paragraphs are not related to this case and
propagates irrelevant points. It also includes names of parties not involved in this case, which further demonstrates the copy and paste exercise where the Claimant has failed to amend details from previous cases. If the Claimant's witness statement was a truthful, factual statement, it would not contain such basic errors.


50. The Claimant seeks to apportion liability to the Defendant for not identifying the driver, and suggests that this conduct caused the Claimant costs


51. The Claimant by conduct failed to mitigate their costs as by serving a non-compliant Notice to Keeper. Serving a compliant notice would have allowed the Claimant to lawfully shift liability to the Defendant and avoid litigation


52. The Claimant's litigation in this instance is entirely without merit and could constitute a breach of the Data Protection Act 1998


53. The Defendant has demonstrated to the Court that the Claimant has been wholly
unreasonable as stated in the Defendant's witness statement in para #xx. Further to this, it is argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court



signed and dated