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  • FIRST POST
    • fadeinout
    • By fadeinout 31st May 17, 9:17 AM
    • 113Posts
    • 41Thanks
    fadeinout
    PCN Wrong registration number entered on ticket machine
    • #1
    • 31st May 17, 9:17 AM
    PCN Wrong registration number entered on ticket machine 31st May 17 at 9:17 AM
    Hi

    Got a PCN NTK letter through the post last week.

    What happened was my partner used my car that morning and when she paid for the ticket, without thinking, she entered her registration number, instead of the registration number of my car which she was driving. Fortunately, she has kept the ticket proving this.
    I have explained all this in my appeal to myparkingcharge but they are insisting I name her and give them her details.
    Are they entitled to do this?

    Thanks in advance for any input
Page 8
    • IamEmanresu
    • By IamEmanresu 11th Aug 18, 10:21 AM
    • 3,582 Posts
    • 5,934 Thanks
    IamEmanresu
    NO evidence of tickets purchased through their machine at time of alleged offence
    Perhaps you should reference that Skipton case where they were found to have amended the records.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • fadeinout
    • By fadeinout 11th Aug 18, 10:36 AM
    • 113 Posts
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    fadeinout
    Perhaps you should reference that Skipton case where they were found to have amended the records.
    Originally posted by IamEmanresu
    Upon further inspection I've just noticed that the vrn entered in error is there. Its half redacted which made me think it wasnt there. I will amend

    apologies and thanks
    Last edited by fadeinout; 11-08-2018 at 10:42 AM.
    • fadeinout
    • By fadeinout 11th Aug 18, 11:02 AM
    • 113 Posts
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    fadeinout
    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?
    • fadeinout
    • By fadeinout 11th Aug 18, 6:56 PM
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    fadeinout
    Do I need to send a copy of my skeleton argument to the claimant?
    • KeithP
    • By KeithP 11th Aug 18, 7:01 PM
    • 9,741 Posts
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    KeithP
    Yes you do.
    .
    • fadeinout
    • By fadeinout 11th Aug 18, 7:06 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Yes you do.
    Originally posted by KeithP
    Cheers Keith. Am right in saying this is the last step before my day in court?
    • KeithP
    • By KeithP 11th Aug 18, 7:19 PM
    • 9,741 Posts
    • 10,095 Thanks
    KeithP
    Are you following the guidance in the NEWBIES post #2 under the heading:

    IMPORTANT - KNOW WHAT YOU MUST DO AND BY WHEN!
    .
    • fadeinout
    • By fadeinout 11th Aug 18, 7:24 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Are you following the guidance in the NEWBIES post #2 under the heading:

    IMPORTANT - KNOW WHAT YOU MUST DO AND BY WHEN!
    Originally posted by KeithP

    Yes I've followed all instructions and met all deadlines. I was merely asking for confirmation if the Skelton Argument is my final obligation
    • KeithP
    • By KeithP 11th Aug 18, 11:28 PM
    • 9,741 Posts
    • 10,095 Thanks
    KeithP
    Without looking back through the thread, have you done a costs schedule?
    .
    • fadeinout
    • By fadeinout 11th Aug 18, 11:38 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Without looking back through the thread, have you done a costs schedule?
    Originally posted by KeithP
    Thanks for the reply, Keith.

    I included a schedule of ordinary costs and a schedule of costs under CPR 27.14(2)(g) along with my ws and bundle.
    I've spent the whole day picking apart their ws in my skeleton. Its obviously a robo claim ws that vcs and excel use, but they've forgot to amend it so it refers to both vcs and excel in the ws.
    I will post a draft of my skeleton tomorrow and hopefully one of you kind souls could read through it if you get a few minutes. Its quite long but concise.

    Thanks again
    • fadeinout
    • By fadeinout 12th Aug 18, 12:24 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Skeleton Argument
    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
    Last edited by fadeinout; 12-08-2018 at 2:55 PM. Reason: Removal of smart punctuation
    • Le_Kirk
    • By Le_Kirk 12th Aug 18, 2:06 PM
    • 3,285 Posts
    • 2,229 Thanks
    Le_Kirk
    Para 5 (g) and Para 40, you have said breached of contract, surely you mean breach. Para 7 you say photos were induced, perhaps you mean introduced (unless induced is a technical law term). Also you need to remove all the extraneous exclamation marks and numbers which is due to having SMART punctuation turned on.
    • fadeinout
    • By fadeinout 12th Aug 18, 2:14 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Para 5 (g) and Para 40, you have said breached of contract, surely you mean breach. Para 7 you say photos were induced, perhaps you mean introduced (unless induced is a technical law term). Also you need to remove all the extraneous exclamation marks and numbers which is due to having SMART punctuation turned on.
    Originally posted by Le_Kirk

    Thanks for the reply.

    I will correct the points you raise.

    As for the smart punctuation, it's turned off on my iPhone, and the SA was posted from my windows pc. I will look into how to remove them on Windows
    • fadeinout
    • By fadeinout 14th Aug 18, 7:21 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Para 5 (g) and Para 40, you have said breached of contract, surely you mean breach. Para 7 you say photos were induced, perhaps you mean introduced (unless induced is a technical law term). Also you need to remove all the extraneous exclamation marks and numbers which is due to having SMART punctuation turned on.
    Originally posted by Le_Kirk

    Iíve got absolutely no idea what I meant by induced

    Iím going to post a copy of my SA off in the morning

    Today was the deadline for VCS to file their WS with the court. They hadnít filed a copy when I rang the court on Friday...
    • fadeinout
    • By fadeinout 24th Aug 18, 9:18 AM
    • 113 Posts
    • 41 Thanks
    fadeinout
    Update
    The hearing fee was due on 22nd of this month (Tuesday)

    Phoned the court the last few days and no payment has been made according to them.

    I told them under CPR 3.7 that the case should have been automatically struck out on the 22nd without further order and my costs be allowed.

    Their reply was to send an email to them asking for it to be struck out, which I have done.

    CPR 3.7 states automatically stuck out yet this doesn't seem automatic at all
    Last edited by fadeinout; 24-08-2018 at 9:20 AM.
    • nosferatu1001
    • By nosferatu1001 24th Aug 18, 9:43 AM
    • 3,626 Posts
    • 4,484 Thanks
    nosferatu1001
    It is automatic in the sense that they would have to apply for relief from this sanction, but not automatic in that it happens without human intervention.
    • fadeinout
    • By fadeinout 24th Aug 18, 9:50 AM
    • 113 Posts
    • 41 Thanks
    fadeinout
    It is automatic in the sense that they would have to apply for relief from this sanction, but not automatic in that it happens without human intervention.
    Originally posted by nosferatu1001
    Thank You. I will chase it up again with the court before the end of the day. If payment is made today, where does that leave the situation?
    • nosferatu1001
    • By nosferatu1001 24th Aug 18, 10:45 AM
    • 3,626 Posts
    • 4,484 Thanks
    nosferatu1001
    You could apply to the court (£100) that, absent a request for relief from sanction (having the claim struck) the late hearing fee should not be allowed and the claim struck out still. That fee woudl then go on your costs.
    • fadeinout
    • By fadeinout 24th Aug 18, 3:01 PM
    • 113 Posts
    • 41 Thanks
    fadeinout
    You could apply to the court (£100) that, absent a request for relief from sanction (having the claim struck) the late hearing fee should not be allowed and the claim struck out still. That fee woudl then go on your costs.
    Originally posted by nosferatu1001
    Spoken with the court again. They have printed off my email noting the case should be struck out due to the failure of the Claimant to pay the hearing fee by the required date. Judge is now going to look at this and decide. Probably too late today so will be Tuesday at the earliest given it's a bank holiday weekend. The wait continues...
    • nosferatu1001
    • By nosferatu1001 24th Aug 18, 3:23 PM
    • 3,626 Posts
    • 4,484 Thanks
    nosferatu1001
    Yep but similarly too late for them to have sent the fee in. It wont be looked at unti after they court opens, and your request came first...
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