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    • frostop
    • By frostop 7th Sep 18, 12:15 AM
    • 8Posts
    • 2Thanks
    frostop
    Letter of Claim Defence - help needed
    • #1
    • 7th Sep 18, 12:15 AM
    Letter of Claim Defence - help needed 7th Sep 18 at 12:15 AM
    Any advice is much appreciated. Thank you in advance.

    I parked at Manchester Airport Pub and Grill car park and had a meal with two other people and I did not see the signage for parking charges. After receiving PCN / NTK from Vehicle Control Services Ltd I saw on Google Street View there are signs, but I missed them on entering the carpark as I was concentrating on traffic. I parked in the middle of the carpark near the pub entrance, and as all other signs appear to be on the outskirts of the carpark, and the ticket machine appears to be round the side of the building, I did not notice them either. I am not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park otherwise I might have been mindful to look. That said, yes, I should have seen them, but as this forum advises I should not have to pay the extortionate amounts demanded. Also as the pub's responses to the many angry reviews on Trip Advisor their reason for the charges are "Due to the proximity of the venue to the airport we do have to charge for use of the car park as without this we would have no space for our guests." Well I was a guest. Not that I believe this matters as I contacted the pub and was told that matters with the carpark are not to do with them and I should contact the parking company.

    I followed MSE advice and appealed to the PCN / NTK using the template provided at the time, adding that the NTK failed to comply with the Protection of Freedoms Act 2012 (POFA) for being late and Vehicle Control Services Limited failed to act in time for keeper liability to apply. In this letter I asked for information relating to the landowner and whether charges were based on damages for breach of contract etc; all this information has not been provided, they said "We will only answer pertinent points at this stage" in their response to my appeal.

    The rest of the advice was to ignore the subsequent ‘fear-mongering’ letters’, which I did. Which brings me to a letter of claim from county court asking for £185, which of course increased from the initial £100. I acknowledged the letter spent time researching, and have another few days until the deadline to submit the defence.

    I have drafted the below defence. I am not optimistic, but I am so angry at potentially having to pay £185. More importantly I cannot risk jeopardising credit rating and being able to apply for a mortgage. Is there any hope, or should I just swallow the pill and pay?


    __________________________________________________ __



    “IN THE COUNTY COURT

    CLAIM No: EXXXXXXX

    BETWEEN:

    VEHICLE CONTROL SERVICES LIMITED (Claimant)
    2 EUROPA COURT
    SHEFFIELD BUSINESS PARK
    SHEFFIELD
    S9 1XE

    -and-

    XXXXXXXXXXXXXX (Defendant)


    DEFENCE

    1. It is admitted that the Defendant was the authorised registered keeper of the vehicle and the driver of the vehicle in question at the time of the alleged incident.

    2. The Defendant denies entering into any contract with the Claimant.

    2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. No agreement of terms/no contract

    2.2. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.

    The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

    Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.

    3. The Defendant denies they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    4. Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA) and the IPC Code of Conduct. Under schedule 4, paragraph 4 of the Protection of Freedom Act (POFA) 2012, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. Vehicle Control Services Limited have failed to fulfil the conditions which state that the keeper must be given notice “within the relevant period”. Paragraph 9 (5) defines a relevant period as “the period of 14 days beginning with the day after that on which the specified period of parking ended’’. The IPC Code of Conduct states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is xxxxxxx and the ‘Contravention Date’ is xxxxxx. Therefore, this serves to highlight that the Claimant has failed to act in time for keeper liability to apply. As a result, the Defendant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the POFA and, per the IPC Code of Conduct, where you are otherwise unable to utilise the provisions within the Protection of Freedoms Act 2012 you must not infer that Keeper Liability under those provisions exists.

    5. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on xxxxxx to £160 on subsequent correspondence. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

    5.1 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    6. No offer of an independent ADR.
    Following an unsuccessful appeal to the Claimant, The Defendant researched the matter online and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which in fact is run by the same two Directors who also operate the Independent Appeals Service (IAS), which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. The independence of this body has however been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

    The Defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

    The Defendant believes the facts stated in this defence are true.
    Last edited by frostop; 07-09-2018 at 12:24 AM.
Page 1
    • Coupon-mad
    • By Coupon-mad 7th Sep 18, 12:26 AM
    • 65,485 Posts
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    Coupon-mad
    • #2
    • 7th Sep 18, 12:26 AM
    • #2
    • 7th Sep 18, 12:26 AM
    Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.
    Eh? What indirect discrimination issue?

    Beware of cut & pasting defences where words do not make sense for your case.

    More importantly I cannot risk jeopardising credit rating and being able to apply for a mortgage. Is there any hope, or should I just swallow the pill and pay?
    Luckily, defending a claim does not jeopardise anyone's credit rating, not even if you lose. That's why we tell people to fight. We would not put your credit rating at risk!

    You would be given 30 days to pay from the Judge's decision at the hearing, and no CCJ would remain at all (not even one marked 'satisfied') on your record. Nada. NOTHING BAD AT ALL.

    And yes, we win 99% of defended cases here where people stick around and tweak their defence to make sense (your first job) and then come back for Witness Statement and evidence stage and to prep for the hearing, and almost certainly win. If not, that is the point when the fat lady sings and you pay maybe £150 (£100 PCN and £50 court fees, + maybe a few quid interest).

    Anyway back to your defence. I didn't see near the start, a defence point saying 'The facts are' and talking about this:

    the ticket machine appears to be round the side of the building,
    Was it Winter, was it dark?
    Last edited by Coupon-mad; 07-09-2018 at 12:28 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • IamEmanresu
    • By IamEmanresu 7th Sep 18, 6:15 AM
    • 3,789 Posts
    • 6,256 Thanks
    IamEmanresu
    • #3
    • 7th Sep 18, 6:15 AM
    • #3
    • 7th Sep 18, 6:15 AM
    I am not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park otherwise I might have been mindful to look.
    This is a useful argument - the reasonable man. The context for the judge typically is what "normal" people do. You can argue Dennings Red Hand rule that if the signs are "out of context" there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space. You can even quote the VCS favourite back at them - Vine v Waltham Forest which was the same issue.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to RTFM - the Civil Procedure Rules
    2. Failing to Acknowledge or Defend- See #1
    3. Failing to RTFCL - the Court letters
    4. Template defences that say nothing - See #1
    5. Forgetting about the Witness Statement - See #3
    • frostop
    • By frostop 8th Sep 18, 1:30 AM
    • 8 Posts
    • 2 Thanks
    frostop
    • #4
    • 8th Sep 18, 1:30 AM
    • #4
    • 8th Sep 18, 1:30 AM
    Thank you both Coupon-mad and IamEmanresu for your message. I really appreciate it. I have made a new draft using your advice:

    The facts are:

    1. The Defendant was the authorised registered keeper of the vehicle and the driver of the vehicle in question at the time of the alleged incident. The defendant parked the vehicle in the middle of the car park near the front entrance to the pub / restaurant building, where the alleged incident took place.

    2. Signage out of context. The defendant would like to draw the court’s attention to Denning’s Red Hand Rule whereby in this context it is reasonable to assume that a pub / restaurant carpark would not charge for parking, and that there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space.

    3. Insufficient signage. Since receiving a PCN / NTK the defendant has found that all signage relating to parking charges appear to be positioned on the outskirts of the carpark, and were not seen by the defendant. The defendant has also found that ticket machines appear to have been positioned around the sides of the building and not in clear sight, and were also not seen by the defendant. No signage or ticket machines appear to be present in front of the building.

    4. The Defendant denies they would have consented to any charge for a contravention of the notices had they been seen and understood. The defendant would like to draw the court’s attention to the ‘Vine v Waltham Forest’ case whereby in this context it relates as such: although it might reasonably be inferred that a motorist will see and understand the signs as a result of their numbers, size and location it is insufficient that he or she has simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to any charge if they parked in contravention to the notices. In addition, if the fee is exorbitant then consent to its payment can not be implied.

    5. The Defendant denies entering into any contract with the Claimant.
    The claim is denied in its entirety except where explicitly admitted. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. No agreement of terms / contract were established.

    6. The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

    7. Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA) and the IPC Code of Conduct. Under schedule 4, paragraph 4 of the Protection of Freedom Act (POFA) 2012, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. Vehicle Control Services Limited have failed to fulfil the conditions which state that the keeper must be given notice “within the relevant period”. Paragraph 9 (5) defines a relevant period as “the period of 14 days beginning with the day after that on which the specified period of parking ended’’. The IPC Code of Conduct states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is xxxxxxx and the ‘Contravention Date’ is xxxxxx. Therefore, this serves to highlight that the Claimant has failed to act in time for keeper liability to apply. As a result, the Defendant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the POFA and, per the IPC Code of Conduct, where you are otherwise unable to utilise the provisions within the Protection of Freedoms Act 2012 you must not infer that Keeper Liability under those provisions exists.

    8. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on xxxxxx to £160 on subsequent correspondence. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    9. No offer of an independent ADR. Following an unsuccessful appeal to the Claimant, the Defendant researched the matter online and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which in fact is run by the same two Directors who also operate the Independent Appeals Service (IAS), which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. The independence of this body has however been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

    Given the facts, this Claimant's claim must fail and the court is invited to strike it out.

    I believe the facts stated in this defence are true.
    • KeithP
    • By KeithP 8th Sep 18, 1:29 PM
    • 12,024 Posts
    • 12,715 Thanks
    KeithP
    • #5
    • 8th Sep 18, 1:29 PM
    • #5
    • 8th Sep 18, 1:29 PM
    What is the Date of Issue on your Claim Form?
    When did you do the Acknowledgement of Service?
    .
    • frostop
    • By frostop 14th Sep 18, 5:48 PM
    • 8 Posts
    • 2 Thanks
    frostop
    • #6
    • 14th Sep 18, 5:48 PM
    • #6
    • 14th Sep 18, 5:48 PM
    What is the Date of Issue on your Claim Form?
    When did you do the Acknowledgement of Service?
    Hi - Date of issue 13th August. Acknowledgement of Service was done 20th August.

    Also have already received the Directions Questionnaire form, so I'll complete and post that soon.
    • KeithP
    • By KeithP 14th Sep 18, 7:13 PM
    • 12,024 Posts
    • 12,715 Thanks
    KeithP
    • #7
    • 14th Sep 18, 7:13 PM
    • #7
    • 14th Sep 18, 7:13 PM
    Also have already received the Directions Questionnaire form, so I'll complete and post that soon.
    Originally posted by frostop
    Surely not?

    The Directions Questionnaire does not get sent out by the CCBC until after a Defence has been filed and the Claimant has indicated to the court their intention to continue.

    We need to think again about your Claim Form.

    Did you put anything at all in the 'Defence and Counterclaim' box when doing the Acknowledgement of Service?

    Or has the DQ that you have received come from the Claimant rather than the CCBC?

    Log into MCOL NOW to see if the Claim is marked "defended".




    Putting that aside for a moment...

    With a Claim Issue Date of 13th August, and having done the AoS in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

    This is becoming urgent.


    When you are happy with the content, your Defence should be filed via email as described here:

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for the Directions Questionnaire and come back here.
    Last edited by KeithP; 14-09-2018 at 7:55 PM.
    .
    • frostop
    • By frostop 16th Sep 18, 5:53 PM
    • 8 Posts
    • 2 Thanks
    frostop
    • #8
    • 16th Sep 18, 5:53 PM
    • #8
    • 16th Sep 18, 5:53 PM
    Thanks Keith - sorry I skipped that - I had submitted the defence as above on 12th September, as per your instructions above that I had seen on other recent posts. I had done the acknowledgement of service and marked I will be defending.
    • Quentin
    • By Quentin 16th Sep 18, 6:14 PM
    • 38,036 Posts
    • 22,132 Thanks
    Quentin
    • #9
    • 16th Sep 18, 6:14 PM
    • #9
    • 16th Sep 18, 6:14 PM
    Nevertheless are you sure this DQ you have received is from court??


    The timescale you have given makes it impossible for you to have received it from Court following submission of your defence just 1/2 days prior to receipt of the DQ!
    • frostop
    • By frostop 16th Sep 18, 9:17 PM
    • 8 Posts
    • 2 Thanks
    frostop
    Nevertheless are you sure this DQ you have received is from court??
    The timescale you have given makes it impossible for you to have received it from Court following submission of your defence just 1/2 days prior to receipt of the DQ!
    Originally posted by Quentin
    Hi Quentin - it appears so. I can't upload a picture of it but it's headed "Notice of Proposed Allocation to the Small Claims Track", and says to complete and file it with the court office (address CCBC 4th Floor St Katherine's Houses... Northampton).

    I am ticking "no" to agreeing to the case to be referred to the Small Claims Mediation Service.
    • Coupon-mad
    • By Coupon-mad 17th Sep 18, 2:54 AM
    • 65,485 Posts
    • 78,020 Thanks
    Coupon-mad
    And it's a N180 from the court themselves?

    Not a N159 (no hearing version! eeek!) sent by VCS is it?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • frostop
    • By frostop 17th Sep 18, 4:49 PM
    • 8 Posts
    • 2 Thanks
    frostop
    And it's a N180 from the court themselves?
    Not a N159 (no hearing version! eeek!) sent by VCS is it?
    Hi Coupon-mad. It is a N180, yes.. this is headed "Directions Questionnaire (Small Claims Track)" and the footer says
    "N180 Directions Questionnaire (Small Claims Track) (04.14)"

    accompanied with another sheet attached headed "Notice of proposed allocation to the Small Claims Track" and the footer of this sheet says
    "N149A Notice of proposed allocation to the Small Claims Track"

    It's not the 159 version so this definitely sounds like a good thing... but is there anything I should be aware of here, or is this good to go?
    • frostop
    • By frostop 18th Dec 18, 8:28 PM
    • 8 Posts
    • 2 Thanks
    frostop
    witness statement
    Hi all - to update, I received notification of allocation to court with a scheduled court date, and I also received a copy of VCS's witness statement. So i have prepared a witness statement and evidence. I am aware of the 14 day deadline and to provide a copy to vcs, court and to take a copy myself on the day. the URLs have been taken out as it won't allow me to add them.

    Any comments, advice and help is much appreciated. Thanks in advance.

    Incidentally, I have discovered that the car park in question is no longer managed by VCS, but by Parking Eye. Does this matter?

    Evidence:
    • Bank Statement showing transaction of food and drink at the pub
    • Photos and stills of video showing no signs or ticket machines on front of building or entrance, and view towards the edge of the carpark illustrating inconspicuous signage
    • Defence
    • Appeal
    • IPC Code Of Practice
    • Documents in support of IAS as a kangaroo court
    • Documents relating to Vine v Waltham Forest
    • Article from ParkingCowboys.co.uk – ‘Excel and VCS tickets’
    • Parking Code of Practice Bill
    • ParkingEye v Beavis [2015] UKSC 67

    IN THE COUNTY COURT

    CLAIM No: xxxxxx

    BETWEEN:

    VEHICLE CONTROL SERVICES LIMITED (Claimant)
    2 EUROPA COURT
    SHEFFIELD BUSINESS PARK
    SHEFFIELD
    S9 1XE

    -and-

    xxxxxxxx (Defendant)


    WITNESS STATEMENT

    Introduction

    1. I, xxxxxxxx of xxxxxx, will say as follows:

    2. I am the Defendant in this matter. Attached to this statement is a paginated bundle of documents marked xxxx to which I will refer.

    3. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, which I will go in to detail:

    a) Insufficient signage.
    b) Signage out of context
    c) No Contract
    d) No offer of independent Alternative Dispute Resolution (ADR)
    e) Claimant failed to adhere to the International Parking Community Code of Conduct
    f) The charge of £100 is a penalty and unfair consumer charge

    Background

    4. I visited Manchester Airport Pub and Grill on xxxxx 2017 and had a meal, before picking up a friend from the airport. I parked in a space in front of the pub building near the entrance. There were no signs nearby pertaining to parking charges, and no signs in front of the pub building or entrance pertaining to parking charges. There were no ticket machines in front of the building.

    5. I subsequently received a Notice to Keeper from the Claimant, alleging that a charge of £100 was due to them.

    My response to the NTK / PCN

    6. In my response to the NTK / PNC I requested evidence as to signage:

    “Please provide photos of the signs that you say were on site, which you contend formed a contract with the driver.”

    This request was refused, as worded in a response letter dated xxxxxx 2017 in relation to this request:

    “we will only answer pertinent points at this stage.”

    7. The Claimant has used its witness statement to provide photographs of the car park which should have been disclosed much earlier. The claimant has deliberately avoided and delayed this evidence. It is evidence that was and is pertinent, and serves to highlight the lack of signage and ticket machines on the entire front of the pub building, and the inconspicuousness of the signage and ticket machines from the viewpoint of where I parked.

    8. Further, I asked for information relating to the landowner and whether charges were based on damages for breach of contract. This information was not provided.

    Appeals and the Independent Appeals Service

    9. Following an unsuccessful appeal to the Claimant via myparkingcharge, I did not send a further appeal to the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the Independent Parking Committee (IPC). This was for the following reasons:

    a) My research revealed that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which was set up and run by the same two Directors who also operate the Independent Appeals Service (IAS), (URL) which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. the individuals in question being John Davies, and William Hurley. The independence of this body has been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

    b) Excel and VCS are members of the IPC’s AOS, second stage appeals must go to the Independent Appeals Service (IAS). Unlike the BPA’s POPLA service which is relatively open and transparent, there are concerns that the IAS is a ‘kangaroo court’ where normal legal principles are not followed (e.g. showing all of the claimants evidence to the appellant, and placing the burden of proof on the claimant). As such, anecdotal evidence shows very few appeals are upheld.
    (URL)

    c) Further findings shows that the IAS is widely regarded as a kangaroo court.
    • (URL)
    “Unlike the BPA’s POPLA service which is relatively open and transparent, there are concerns that the IAS is a ‘kangaroo court’ where normal legal principles are not followed (e.g. showing all of the claimants evidence to the appellant, and placing the burden of proof on the claimant). As such, anecdotal evidence shows very few appeals are upheld.”

    d) Due to the above conflict of interests the Claimant does not come to this matter with clean hands and I decided I would prefer a truly independent court to hear this defence and there was no reason to engage with anonymous assessors chosen by Mr Hurley and Mr Davies.

    c) Further research uncovered a very negative reputation of the Claimant and the industry in which it operates.

    d) Below are some of the comments made by MPs in Parliament concerning the private parking industry (Feb 2018). The private parking industry's 'outrageous scam' (Hansard) was condemned unanimously by MPs in Parliament in the private parking Code of Practice Bill debate, where the IPC and IAS were named and shamed.

    (URL)

    ''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

    Insufficient signage.

    10. I strongly contest that there was sufficient signage to consider an agreement to pay for a parking ticket.

    11. There is legitimate grounds for not reading terms, as the existence of those terms was not reasonably advertised.

    12. I rely on photographic evidence which shows:

    a) No signage or pay and display machines were present on the entire front of the pub building and entrance.

    b) Ticket machines pictured in evidence are on the sides of the pub building, and not visible from the front of the pub where the defendant was parked.

    c) Ticket machines are obscured from view in the presence of people and cars on entering the car park.

    d) Signs at the edge of the carpark are illegible from the viewpoint of the area in which the defendant parked.

    e) Signs at the entrance of the car park did not display any information pointing in to the car park, only outward in to the road. On entering the carpark my full concentration was on traffic and entering the carpark safely. There was a car close behind me attempting to overtake as I turned in to the car park. Another car was coming out of the exit of the car park at the same time. It is unreasonable to assume that I would be able to give any attention to peripheral signage in this circumstance.

    13. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

    Signage out of context

    14. I am not familiar with this pub and is not somewhere I habitually visit. I am also not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park. I argue that the signage is out of context.

    15. It is reasonable to assume that a pub / restaurant carpark would not charge for parking, and that there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space. The defendant would like to draw the court’s attention to Denning’s Red Hand Rule which supports this context.

    No Contract

    16. I deny entering into any contract with the Claimant, and I deny any breach of contract, as there was no consideration, consent, acceptance and therefore no agreement to any terms and conditions. There being a contract relies on being able to see any signs dotted around the car park displaying their terms and conditions, and therefore signing up to the terms and conditions displayed. The claim for any charges for a breach of contract cannot bear any weight if the contract relies on signage which is not reasonable in order to be noticed.

    17. I deny that I would have consented to any charge for a contravention of the notices had they been seen and understood.

    18. The defendant relies upon ‘Vine v Waltham Forest’ case whereby in this context it relates as such:

    “although it might reasonably be inferred that a motorist will see and understand the signs as a result of their numbers, size and location it is insufficient that he or she has simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to any charge if they parked in contravention to the notices. In addition, if the fee is exorbitant then consent to its payment cannot be implied.”

    19. The claimant has failed to adhere to the International Parking Community Code of Conduct, which VCS is a member. Part 5.1(m) states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is 02/10/2017 and the ‘Contravention Date’ is 10/09/2017. Therefore, this serves to highlight that Vehicle Control Services Limited have failed to act in time for keeper liability to apply. As a result, I am not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the IPC Code of Conduct. Further, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.

    20. The charge of £100 is a penalty and unfair consumer charge. The leading case on this matter is ParkingEye v Beavis [2015] UKSC 67. In that case it was ruled that the penalties rule was engaged but the charge was not unfair because the motorist had the bargain of 2 hours of valuable free parking in exchange for the risk of paying £100 for overstaying. The risk was clearly brought to the attention of the consumer in a huge font. Here, there is no valuable consideration on offer and no bargain for the consumer, and the charge is hidden in small print. It is submitted that no motorist would agree to pay £100 instantly on stopping and this is therefore and unfair consumer term in breach of the Consumer Rights Act 2015.

    21. In addition to the £100 ‘parking charge’, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding costs of £60 which I submit has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report VCS to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

    22. The Court is invited to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

    Statement of Truth

    I believe that the facts stated in this Witness Statement are true.


    [Signed]






    Date: 18/12/2018
    • frostop
    • By frostop 4th Jan 19, 9:25 AM
    • 8 Posts
    • 2 Thanks
    frostop
    Hi - can anyone tell me if this has any effect on my case - if the carpark management company taking me to court no longer manages the carpark in question in this case?
    Thanks
    • Umkomaas
    • By Umkomaas 4th Jan 19, 9:58 AM
    • 21,281 Posts
    • 33,503 Thanks
    Umkomaas
    Hi - can anyone tell me if this has any effect on my case - if the carpark management company taking me to court no longer manages the carpark in question in this case?
    Thanks
    Originally posted by frostop
    Very little at all. If there's any 'dirt' around why they have lost the contract it might be worth mentioning at the hearing - but only if it helps your case.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
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