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BW Legal for VCS county court claim
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If it is a road accessible to the public, then the RTE apply and so the land is still not relevant land. Ditto if owned by a governement - that si NOT private ownership but PUBLIC!0
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There is a week left to file defence. I've spoken with someone at Welsh Government but as of yet not had confirmation if they contracted out to VCS to control parking on the road after the TRO came into effect in 2014.
I had no reply from the SAR I sent to either of the VCS email addresses however I had also sent one to the VCS address at BW legal which did get an initial response on the 8th day. They replied asking to confirm name and PCN number before they could give any information. I sent what they requested as it was nothing additional to what they already have. That was over a week ago and not had anything from them since.
As I currently don't know if VCS held a contract with Welsh Government to ticket the road is the best line of defence still the fact that the car was not parked where they claim?0 -
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No, you MUST include both points as they both have merit, along with 'unclear signs' (always!).As I currently don't know if VCS held a contract with Welsh Government to ticket the road is the best line of defence still the fact that the car was not parked where they claim?
You DO know that VCS cannot issue 'parking' charge notices in a road covered by a TRO.
That's because it's not possible under the TMA 2004. Where there is a TRO, the roads in question can only be enforced by penalty notices complying with the TMA (i.e. proper Council penalties). Now, Councils can use contractors to issue them (e.g. NSL do this for some Councils) but that have to issue proper, Council penalty notices.
Not 'parking charge notices'.
Public highway cannot lawfully be enforced as if it were private land and/or under contract law.
So, you do know that the roads within the TRO are not places that VCS can enforce, and that they cannot have a contract with the local Council/Welsh Govt. VCS never act for Councils, this is a fact.
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Ok so this is my final draft of my defence unless anyone suggests further changes?Defence
In the County Court Business Centre
Claim Number: E8DP25C4
BETWEEN:
Vehicle Control Services Ltd (Claimant)
vs
Djdamo (Defendant)
It is admitted that the defendant was the registered keeper of the vehicle noted at the date of alleged breaches. However, the claimant has no cause of action against the defendant on the following grounds: -
1. The Defendants vehicle was never parked at the location claimed by the Claimant, and therefore the Claimant has no cause of action. Furthermore, where the Defendants vehicle was parked is public land, over which the Claimant is unable to demonstrate any standing as the land is controlled by a public order. Evidence of this will be provided at hearing.
The Defendant's vehicle was parked on Langdon Road directly opposite the entrance to the car park at SA1 where the claimant claims the vehicle was parked. Langdon road is under Swansea City Control according to the Swansea SA1 Waterfront Traffic Regulation Order Scheme which came into effect on Friday 19th May 2014.
2. It is denied that the Claimant served the required documents with statutory wording as prescribed under the POFA and as such, there can be no keeper liability in any event.
3. The Claimant alleges that parking charges notices were given for "breaching the car park terms and conditions" but no terms are given nor is any valid breach established.
4. The place of the alleged breach is given as "restricted area in a privately owned car park at SA1 "which contains many registered parcels of land as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
5. Vehicle Control Services Ltd are not the lawful occupier of any land around the SA1 development. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
6. No attempt was made by the claimant to provide suitable information or evidence of this breach despite the Defendant's direct request on appeal dated 17/06/2016 and acknowledged by the claimant on 20/09/2016.
7. PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative's costs.
8. No contract, terms and conditions or sum payable were never accepted by any driver.
9. The claimant's notices attempt to make a forbidding offer, which isn not an offer at all, therefore no contract exists.
10. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of the claim are not clear and concise as is required by CPR 16.4 1(a).
11. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice A7.1 which says that if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
12. The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio).
The facts stated in this defence are true, to the best of my knowledge and belief.
Signed,0 -
Needs the heading: DEFENCE
...and the date as well as signature at the end.
And this is wrong:controlled by a public order
should be:controlled by a Traffic Regulation Order
Apart from that, this defence looks good if you are certain that the place is under a TRO. PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad, I'm fairly certain I understand the TRO I have, I guess I'll find out soon enough.
I'll pop the document in the post this afternoon recorded delivery, and then get to work on the witness statements.
I have spoke with the person the driver was meeting and they have agreed to supply a witness statement. So would that mean I have 3 witness statements, he drivers, the keepers and the person being met?0 -
@Djadamo do, please, be careful - this (below) looks distinctly like the TRO applies to most, but does not apply to all of the road. The critical issue is exactly where the car was parked. The last thing you want to do is to get this to a hearing and discover that you were within the curtillage of some private land.
In principle, though, you seem to be in a reasonable position (more likely than not that it was public land/subject to council enforcement not a PPC) at least on balance of probabilities. At para 5 of the Defence, stuff your reasonable beliefs and issue an outright denial that there is a right to ticket if you believe your documents prove they cannot or put them to strict proof. Either way, you need to make clear that this is for them to prove, not merely a refusal to pay because you don't like it. Para 12 probably won't wash. At Para 10 PD 16 7.3(1) is the section that requires the terms of the contract to be set out. PD 16 7.5 requires the Claimant to specify the conduct that you took to complete your acceptance of the contract (they probably haven't done that adequately either). If there was no signage, it is not clear how para 9 can be maintained. It may need to be reworked.
- Langdon Road / Heol Langdon (from its junction with the north eastern
kerbline of King's Road / Heol Y Brenin to a point 990 metres north east
thereof
- Langdon Road / Heol Langdon (from a point 44 metres south of its junction
with the southern kerbline of Fabian Way to the northern kerbline of Langdon
Road / Heol Langdon, for clarification where the roundabout on Langdon
Road / Heol Langdon is situated, a distance of 49 metres)0 -
Thanks Johnersh, The part of the road that is not covered by the TRO is a gated section currently privately owned by Allied British Port. This is approximately 900 meters away from where the vehicle was parked. The vehicle was parked roughly between 80 to 100 meters north east away from the junction of Kings Road.
I can remove Para 12.
Im a little confused with your other recomendations, do i have the PD's the wrong way around?
There was signage up at one time all along Langdon Road however I'm unsure as to when this was removed, its not there now.
Para 5 reworded5. Vehicle Control Services Ltd are not the lawful occupier of any land around the SA1 development and therefore do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.0 -
Fair enough. Worth flagging the point just in case.The part of the road that is not covered by the TRO is a gated section currently privately owned by Allied British Port. This is approximately 900 meters away from where the vehicle was parked.
Practice directions below, so you can see the two points I flag. One relates to setting out the full wording and the latter to the need to specify that they rely on the action of the driver parking as acceptance of the contract. The latter being much harder to establish as "acceptance" if you're on a public road.
PD16
7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
At your para 11, I'm not quite sure of your point relating to PD7C where it is correct that the contract doesn't need to be physically supplied with the claim.
the only issue you need to turn your mind to is "was it there when the car was parked and could the driver have seen it?" No signage = no contract terms to agree. Signage = potential contract (subject to what you say about forbidding wording).There was signage up at one time all along Langdon Road however I'm unsure as to when this was removed, its not there now.
Para 5 - an absolute denial (you can prove they don't own the land) coupled with a requirement for them to prove both that they have a parking contract and that it overrides the council control.
It is denied that the Claimant has any entitlement to enforce a parking charge notice against the Defendant (or at all) where they are not the owner or occupier of any land around the SA1 development. If the Claimant alleges that there is a legal entitlement to issue parking charge notices at the development, they are put to strict proof both as to the existence of that document and as to whether it is enforceable in light of the applicable statutory regime at paragraph 1 aforesaid.0
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