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  • FIRST POST
    • Djdamo
    • By Djdamo 17th Mar 18, 10:47 AM
    • 36Posts
    • 17Thanks
    Djdamo
    BW Legal for VCS county court claim
    • #1
    • 17th Mar 18, 10:47 AM
    BW Legal for VCS county court claim 17th Mar 18 at 10:47 AM
    Hi,


    Back in 2016 the keeper received a NTK through the post dated 06/08/2016 for a PCN that Vehicle Control Services claim was issued to the car registration for breaching the terms and conditions of a privately owned car park on 05/06/2016. The reason for the breach was parked in a restricted area of the car park. The keeper nor the driver have never parked in the car park.

    The keeper sent an appeal letter using a template obtained from these forums via email to VCS on 17/06/2016.


    VCS replied via a letter dated 20/09/2016 acknowledging the appeal and stated they were evaluating the correspondence and were unable to give a decision at the present time however they expected to have their reply by 10/12/2016. They never answered any of the points raised in the appeal nor provided any evidence of the keepers car in their car park.

    The keeper then received another letter from VCS dated 08/02/2017 where they said they were unable to process the appeal as it was not submitted in time.


    There was no further correspondence by either party until the keeper received a claim form from a county court from BW Legal dated 13/03/2018 for 247.88 giving 14 days to respond.

    The keeper was not the driver on that day and the car was not parked in their car at all on that day.


    The keeper intends to defend this claim, what is the best method to do so?




    Thanks
    Last edited by Djdamo; 17-03-2018 at 2:23 PM.
Page 3
    • Johnersh
    • By Johnersh 10th Apr 18, 6:57 PM
    • 1,152 Posts
    • 2,186 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.
    Fair enough. Worth flagging the point just in case.

    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.

    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.
    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).

    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.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Castle
    • By Castle 10th Apr 18, 7:26 PM
    • 1,868 Posts
    • 2,536 Thanks
    Castle

    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.
    Originally posted by Djdamo
    Using GSV and time travel, there are VCS signs still up in July 2016:-
    https://www.google.co.uk/maps/@51.6205095,-3.9302418,3a,75y,48.63h,89t/data=!3m7!1e1!3m5!1sDDac_eQEcUc0M8fz2WO8Qg!2e0!5s2 0160701T000000!7i13312!8i6656
    • Djdamo
    • By Djdamo 10th Apr 18, 7:35 PM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Yes thanks, I was a little concerned myself when I 1st read the details but once I had spoken with someone at Highway Management they helped explain where the TRO ended and started again.

    Is para 11 relevant at all then?

    The signs were more than likely there at the time but it's likely the driver didn't see them.
    • Djdamo
    • By Djdamo 10th Apr 18, 7:38 PM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Thanks Castle, didn't think of looking at GSV.
    • Castle
    • By Castle 10th Apr 18, 7:53 PM
    • 1,868 Posts
    • 2,536 Thanks
    Castle
    Well the July 2016 signs say no parking or waiting, so clearly they are forbidding, (they can't offer the driver a contract)... which also means the bus stop can't be used by Buses.
    • Johnersh
    • By Johnersh 10th Apr 18, 8:03 PM
    • 1,152 Posts
    • 2,186 Thanks
    Johnersh
    Reworked into more paragraphs. Ensure the numbering is sequential when you splice it in and add to or amend it. Remember the Defence is YOURS not mine. Don't just blindly spam it all in - it may contain errors or irrelevancy.

    11. The Claimant has failed to comply with the relevant practice directions at CPR Part 16 and, in particular, the relevant practice directions, prejudicing his ability to prepare a full and detailed defence. The Defendant reserves the right to add to or amend to his Defence if further information and/or a re-pleading of the Claimant's case occurs becomes available only after the statements of case are finalised.

    XX. Whilst PD7C Para 1.4(3A) exempts the Claimant is not required to serve a separate contract with the Particulars of Claim (as would normally be required in accordance with PD16 7.3), the Defendant contends that there is no proper basis for failing to set out the terms of any parking contract within the Particulars of Claim. The written parking contract is, presumably, limited to the limited wording that existed on any signage. This information is required in order that the claim can be properly understood.

    XX. PD16 Para 7.5 provides that 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. The Claimant has failed to do so. This is critical in understanding whether the Claimant seeks to bring claims under the Protection of Freedoms Act 2012 (Schedule 4) or against the driver and the standards of proof which the Claimant will need to meet. The Particulars as drawn are vague and non specific.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Johnersh
    • By Johnersh 10th Apr 18, 8:06 PM
    • 1,152 Posts
    • 2,186 Thanks
    Johnersh
    @Castle the TMO contains exemptions for buses, taxis, pick ups and put downs - so actually the signage (strictly speaking) may not reflect the correct position as to the status as a "clearway" in any event.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Djdamo
    • By Djdamo 10th Apr 18, 8:48 PM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Thank you Johnersh. Ive reworked the defence so it now reads as below. I believe that para 10 should now be removed?

    In the County Court Business Centre
    Claim Number: E8DP25C4
    BETWEEN:
    Vehicle Control Services Ltd (Claimant)
    vs
    Djdamo (Defendant)

    __________________________________________________ _________________________

    DEFENCE
    __________________________________________________ _________________________


    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 Defendant's 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 Traffic Regulation 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. 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.

    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 is 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 has failed to comply with the relevant practice directions at CPR Part 16 and, in particular, the relevant practice directions, prejudicing his ability to prepare a full and detailed defence. The Defendant reserves the right to add to or amend to his Defence if further information and/or a re-pleading of the Claimant's case occurs becomes available only after the statements of case are finalised.

    12. Whilst PD7C Para 1.4(3A) exempts the Claimant is not required to serve a separate contract with the Particulars of Claim (as would normally be required in accordance with PD16 7.3), the Defendant contends that there is no proper basis for failing to set out the terms of any parking contract within the Particulars of Claim. The written parking contract is, presumably, limited to the limited wording that existed on any signage. This information is required in order that the claim can be properly understood.

    13. PD16 Para 7.5 provides that 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. The Claimant has failed to do so. This is critical in understanding whether the Claimant seeks to bring claims under the Protection of Freedoms Act 2012 (Schedule 4) or against the driver and the standards of proof which the Claimant will need to meet. The Particulars as drawn are vague and non specific.

    The facts stated in this defence are true, to the best of my knowledge and belief.

    Signed,

    Djdamo
    10/04/2018
    • Castle
    • By Castle 10th Apr 18, 8:56 PM
    • 1,868 Posts
    • 2,536 Thanks
    Castle
    @Castle the TMO contains exemptions for buses, taxis, pick ups and put downs - so actually the signage (strictly speaking) may not reflect the correct position as to the status as a "clearway" in any event.
    Originally posted by Johnersh
    I agree as I was referring to VCS signs, which of course provide no such exemptions.
    • Johnersh
    • By Johnersh 10th Apr 18, 10:44 PM
    • 1,152 Posts
    • 2,186 Thanks
    Johnersh
    Delete 10.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Coupon-mad
    • By Coupon-mad 10th Apr 18, 11:04 PM
    • 60,110 Posts
    • 73,244 Thanks
    Coupon-mad
    Should there be a word here*, maybe 'who'?

    12. Whilst PD7C Para 1.4(3A) exempts the Claimant * is not required to serve a separate contract
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Johnersh
    • By Johnersh 10th Apr 18, 11:23 PM
    • 1,152 Posts
    • 2,186 Thanks
    Johnersh
    Whilst etc etc exempts the claimant from having to serve a separate contract....

    Thanks for proof reading!
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Djdamo
    • By Djdamo 11th Apr 18, 6:52 AM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Thanks very much guys. I'll get it printed and sent off today.
    • nosferatu1001
    • By nosferatu1001 11th Apr 18, 11:07 AM
    • 3,115 Posts
    • 3,834 Thanks
    nosferatu1001
    Printed signed scanned to PDF and emailed?
    • Djdamo
    • By Djdamo 11th Apr 18, 2:58 PM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Is recorded delivery not ok?

    I can get it signed and scanned if that's preferable?
    • Djdamo
    • By Djdamo 12th Apr 18, 7:07 AM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Is this the correct email address to send the defence please?

    ccbc@hmcts.gsi.gov.uk
    • KeithP
    • By KeithP 12th Apr 18, 12:53 PM
    • 8,684 Posts
    • 8,599 Thanks
    KeithP
    No.

    Use ccbcaq@hmcts.gsi.gov.uk
    .
    • nosferatu1001
    • By nosferatu1001 12th Apr 18, 1:01 PM
    • 3,115 Posts
    • 3,834 Thanks
    nosferatu1001
    Email arrives same day and is significantly more reliable than the post. Cheaper as well.
    • Djdamo
    • By Djdamo 12th Apr 18, 5:49 PM
    • 36 Posts
    • 17 Thanks
    Djdamo
    Thanks, email sent.

    Now it's just a case of waiting for the Directions Questionnaire to be sent out?

    Is there a method to check progress or just a waiting game for the next stage?
    • nosferatu1001
    • By nosferatu1001 12th Apr 18, 6:33 PM
    • 3,115 Posts
    • 3,834 Thanks
    nosferatu1001
    Check mcol, as it tells you to.
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