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  • FIRST POST
    • Lawpmany1
    • By Lawpmany1 9th Jan 20, 10:45 PM
    • 18Posts
    • 3Thanks
    Lawpmany1
    Witness Statement VCS
    • #1
    • 9th Jan 20, 10:45 PM
    Witness Statement VCS 9th Jan 20 at 10:45 PM
    Please help, I have to submit my witness statement by Monday.
    A bit of back ground info

    On 29 November 2018, a parking charge was left on my car ( i wasnt the driver at the time). On 8/1/19 I received notice to keeper, appealed under POFA SCHEDULE 4 and it was dismissed and I did not do anything until I received a court claim.

    Here is the draft:

    IN THE COUNTY COURT AT XXXXXXXXX CLAIM NUMBER: XXXXXX

    BETWEEN

    xxxxxxxxxxxx (CLAIMANT)
    VS
    XXXXXXXXXX (DEFENDANT)


    WITNESS STATEMENT

    1. I XXXXXXXXX am the Defendant in this matter.
    3. The Defendant was the registered keeper of the vehicle xxxx xxx at the time of the alleged incident. The Defendant was not the driver of said vehicle on the alleged date and time and the Claimant has been advised of this responds in the appeal letter dated 30/01/2019 and furthermore in the letter dated 29/11/2019 (Appendix 1). The Defendant any liability to the Claimant either as alleged in the Particulars of Claim or at all.
    3. The Particulars of Claim state that the ‘Defendant was the registered keeper and/or the driver’ of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
    4. The Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. The date of the alleged Parking Charge Notice was 29/11/2018; to comply the latest date of which the Notice to Keeper should have been sent was 12/12/2018. This was received by Defendant on 08/01/2019. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect. The Claimant has chosen not to rely on POFA as they are aware, they have no legal claim against the Defendant under Law.
    5. The Claimant failed to identify the driver and indicated they are not relying on the strict rules of Protection of Freedoms Act 2012 Schedule 4 which makes provisions for liability to be transferred from driver to keeper. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: either the Claimant could prove the defendant was the driver, which they could not; or the Claimant could comply with POFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
    ‘However, keeper information is obtained, 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. Further, 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. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’
    6. Schedule 4 paragraphs 8 and 9 of the POFA stipulate the mandatory information that must be included in the Notice to Keeper. If all this information is not present, then the Notice to Keeper is invalid.
    7. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
    (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
    (Where no notice to driver has been served (e.g. ANPR is used)) Not later than 14 days after the vehicle was parked
    8. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms. As the Defendant had to provide defence covering all areas. A contract was never formed with the Defendant as she was not the driver of the vehicle at the specified date and time. The Defendant believe there were no signage on the location advising of the alleged contract with the Claimant as highlighted in the photographs Appendix 3. The Defendant has since visited the Location to understand the Claimant’s claim since receiving the Notice to Keeper. The Defendant visited the location on 27/01/2019 and obtained photographs of the location prior to the date of the alleged contravention indicating no signage.
    9. The Defendant has reasonable belief that the Claimant ha did not incur the £60 costs to pursue the alleged £100 debt. The Protection of Freedom Act 2012, schedule 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.
    10. The Defendant invites the court to strike out the claim for the above grounds.
    Statement of Truth
    11. I believe that the facts stated in this Witness Statement are true.

    Dated xxxxxxxxxx
Page 2
    • Lawpmany1
    • By Lawpmany1 14th Jan 20, 1:20 PM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Thank you again Coupmad, will finish drafting it tonight after work and post for critic.

    'point to it to explain why a red card followed by a premature NTK in the post', the red card in mine was on the 29/11/2018 and the NTK was on 08/01/2019, so mine would not have been compliant with POFA as the NTK needs to be issued within 14days. So I'm not sure if this was issued pre-maturely or out of timescales set out in the POFA.

    Thank you.
    • Lawpmany1
    • By Lawpmany1 15th Jan 20, 12:05 AM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Final Draft Witness Statement - please help critic thank you.
    IN THE COUNTY COURT AT XXXXXXXXX
    CLAIM NUMBER: XXXXXX

    BETWEEN

    xxxxxxxxxxxx (CLAIMANT)
    VS
    XXXXXXXXXX (DEFENDANT)


    WITNESS STATEMENT
    1. I XXXXXXXXX of xxxxxxxx will say as follows:
    Introduction
    2. I am the Defendant in this matter and the registered keeper of the vehicle in question, a xxxx. I will be defending this claim as keeper of the vehicle only. I am insured to drive the vehicle and have let close family and friends drive my vehicle third party on their insurance (appendix 1).
    3. The contents of this witness statement are based on my own experiences and matters witnessed and within my knowledge, all true.
    4. Along with this statement is a bundle of documents to which I will refer. This Witness statement is prepared for the hearing at XXXX County Court, on XXXXX February 2020 in support of my own defence against the claimant.
    Background

    5. On the xxx November 2018, a ‘This is not a Parking Charge Notice’ card was attached to the windscreen of vehicle xxxxx which I am the registered keeper, at xxxx.
    6. On the xxxxxxx January 2019 VCS limited sent a Parking Charge Notice (PCN)/ Notice to keeper (NTK) Letter addressed to me as the registered keeper.
    7. On the xxx January 2019, I appealed the PCN/NTK pointing out, they failed to comply with Schedule 4 of the POFA 2012 and insufficient signage.
    8. Xx February 2019, letter issued from VCS indicating they were unable to accept the appeal.
    9. XX July 2019, County Court Claim issued to my old address.
    Points of Contention
    This Is Not A Parking Charge Notice
    10. Vehicle Control Services are known to flaunt Protection of Freedoms Act 2012 (POFA) Regulations and IPC code of practice by issuing “This is not a parking charge notice” red card onto car windows.
    11. POFA Regulations, and IPC code of practice state that if issuing a PCN to the vehicle at the time of the contravention, (this will double up as a Notice to Driver (NTD)) then the PPC would have to wait 28 days under POFA Regulations before they can request Registered Keeper details from the DVLA.
    12. The Claimant try to get out of this by claiming the PCN or NTD they left on the vehicle, is not a PCN, to completely bypass any legal duration or time period required under POFA Regulation and gain the registered keeper details immediately.
    13. There are many points in POFA regulations, IPC wording and even the Claimants own witness statement, that back up and imply that the “This Is Not A Parking Charge Notice” does serve the purpose of a PCN, and many judges at county court level have also found this to be the case.
    14. The original affixed card to the windscreen of the vehicle is dated the day of the recorded contravention and states a serial number pertaining to that contravention. It cannot be denied that, even though the 'ticket' affixed to the windscreen is stated not to be a Parking Charge Notice, the myparkingcharge website, to which the driver is directed, clearly states 'To access the recorded contravention details, please enter the following information from the Notification received', thus indeed stating that it is a notification that was affixed to the windscreen.
    15. Furthermore, by entering the serial number and registration details on the afore mentioned website, the applicant, in this case the driver, is presented with all the details of the contraventions and invited to pay a charge. This then can only amount to the driver being issued a parking charge notice, by definition.
    16. While the notice in itself does not conform to the regulations regarding a Notice to Driver, in accordance with POFA schedule 4 paragraph 7, the invitation to log on to the website (myparkingcharge), must mean that it is indeed a NTD, since it is the person in charge of the vehicle, therefore the driver and not necessarily the Registered Keeper, that is being authorised and invited to log on, in order to gain details of the contravention in question and even pay the parking charge accordingly.
    17. It is therefore undeniable that a notice to driver has been issued in this case, as it is the driver who is invited to log on to myparkingcharge and pay the invoice for the contravention stated. If that is to be countered then, by default, there has been no parking charge issued on the date recorded that the driver can be held accountable for or expected to pay since it would then have to be logically argued that no notice had been given. If there was no parking charge notice of a contravention issued then firstly the very invitation to log on to a website to view a recorded contravention would be illogical, and/or the view is being taken, in this instance, that the registered keeper is undoubtedly the driver, counter what IPC code of practice clearly state.
    18. 'You must not imply that the registered keeper can be held responsible for the parking charge under the Protection of Freedoms Act 2012 unless the relevant time limits within the Act have been met. As demonstrated by this argument it is clear that such regulations are not being adhered to, nor the POFA being met.
    19. Moreover, this windscreen notification, if viewed as being a PCN, which by the definition above it must be, fails to conform to either the POFA or IPC code of practice. Should it be that the argument is put forth that by not conforming or adhering to the POFA or IPC requirements that the NTD is in fact not a NTD based on the fact that it does not conform to those standards, then I would like to draw your attention to the 'PCN Ref No' (xxxx) as detailed on the subsequently issued Notice to Keeper. The serial number that appears on the windscreen notice is the same as that detailed as the PCN on the NTK (Appendix X)
    20. Thus, by definition, the serial number on the windscreen notice is in fact the PCN Reference Number, which must therefore mean that they are one and the same and as a result the Ref No. and the serial number, being one and the same, must both refer to the parking charge. The result of which is that the windscreen notice must indeed be a reference to a parking charge. Therefore as a notice must, by definition, be a parking charge notice.
    21. While it is understood that it is not mandatory for private parking firms to issue tickets using the POFA it is a requirement that the POFA act be followed in order to invoke keeper liability. It can only logically follow that as the POFA Act of 2012 is not being followed then the act of not following the Act would result in keeper liability being unable to be sought. If VCS assert, they are not issuing this ticket as per the POFA then there are no grounds for recovering the parking charge from the keeper, since there is no keeper liability.
    22. Clearly a Notice left on the windscreen for the driver which allows them to pay or appeal, is a Notice to Driver.
    Notice to keeper and not conforming to the Protection of Freedoms Act 2012 (POFA)
    23. The PCN /NTK document received with an issue date of 8th January 2019 has failed to follow POFA regulations, which is statute in law and therefore does not follow the IPC code of practice which heavily relies of POFA. Therefore the VCS doesn’t legally have the right to transfer liability for the contravention from the driver to the registered keeper.
    24. VCS are attempting to recover more than the initial involved price, also as double recovery for costs they did not incur. This is forbidden in POFA regulations, SCHEDULE 4, paragraph 4 -5. “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper”.
    25. Furthermore - POFA Regulations SCHEDULE 4, paragraph 9 - 12: stipulates The notice must—“(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates” . The NTK gives only a time of contravention, and no period of parking, again another reason a none POFA compliant NTK has been issued.
    26. Following from that, if no period of parking was determined, how can VCS or the issuing officer be sure that a sufficient grace period was given as is a requirement in part B, paragraph 15 of the IPC code of practice.
    27. VCS has not provided evidence that proves how long the vehicle was parked and how long of a grace period was allowed before issuing of the ‘This is not a parking Charge notice’.
    28. In order to proceed with a claim against either driver or keeper a notice (compliant with Protection of Freedoms Act (POFA) 2012) to keeper must be served to the keeper within 14 days of the date of the alleged contravention.
    29. The date of the alleged contravention was 29/11/2018; to comply with the Act the latest date of which the Notice to Keeper should have been issued was 13/12/2018. This was received by Defendant on 08/01/2019 (Appendix 1).Therefore the Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. As such, the Defendant has no liability in law and the Court is invited to strike out this claim.
    30. The Claimant failed to identify the driver or adhere to the strict rules of Protection of Freedoms Act 2012 Schedule 4 which makes provisions for liability to be transferred from driver to keeper. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. POFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: either the Claimant could prove the defendant was the driver, which they could not; or the Claimant could comply with POFA to pursue the defendant as the keeper, which was proved the Claimant did not.
    31. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
    32. ‘However, keeper information is obtained, 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. Further, 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. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’ Further, 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.”
    33. I also draw the Court’s attention to VCS v Quayle 2017, where the judge concluded that VCS had not, on the balance of probabilities provided any evidence to prove Miss Quayle was the driver of the vehicle. On top of that, because they had not followed POFA, the judge stated VCS had no right to transfer liability to the registered keeper.
    34. The Judgement stated, “She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”
    35. “POFA SCHEDULE 4, paragraph 9 -2 (f) - warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii)the creditor does not know both the name of the driver and a current address for service for the driver”
    36. I refer to the case of Excel Parking Services v Smith (appeal) Stockport, (included in evidence bundle) In which it was found that a person is not liable in law for the actions of somebody when they have allowed somebody else to use their property. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.
    37. Excel and BW Legal tried to convince the court that this was not the case. Although they succeeded at first, their scheme came unstuck when the motorist appealed. Their greed cost Excel two lots of advocate fees and resulted in a persuasive appeal decision which can now be used against them.
    38. All the inaccuracies listed above, and further throughout this witness statement mean by law, the issuing of the NTK fails POFA regulations and thus can’t be used to transfer liability to the registered keeper.
    Signage
    39. Having been to the site following receipt of NTK and the start of court proceedings, it is evident there is lack of clear signage on the site of the alleged contravention.
    40. I include my own photos and other photos to show the general appearance and view of the car park, giving an idea of the same view the driver would have had when leaving the car at the time of the alleged contravention.
    41. The images obtained by the defendant and those from google earth (Appendix X) indicates there is no signage on the entrance to the car park informing the driver of the contract being formed with the Claimant. Clearly the images of the site do not indicate the claimed clear signage in seven areas of the car park including the entrance as claimed in the Claimant’s witness statement and the provided site map.
    42. As can be seen in the photographs there is insufficient signage on the general car park to adequately warn any driver that their entering into a contract on the disused children’s centre.
    43. As VCS appears to have installed signage after the driver had already parked the car, clearly they can not hold the driver or keeper liable for their poor practice. (I am not sure how to word this, the driver informed when they parked the car there we no signs and on return to find the ‘not PCN’ card attached to the car, they noticed VCS had installed new signage after car was parked already).
    44. The claimant is relying on the signage at the site to establish a contract with the driver. In order to create a contract, the signage must comply with, amongst other things, IPC Code of Practice (to which the claimant is signed).
    45. On the day of the alleged contravention the signage at the site fell woefully short of the standards required in: PART B - 2. Signs -2.2; “Signs must conform to the requirements as set out in a schedule 1 to the Code.”
    46. Part E Schedule 1 – Signage.
    47. I won’t go through the whole section, as the code of practice is included, but Points of note here are; “Signs should, where practicable, be placed at the entrance to a site”. In this case there is no signage at the entrance. The Claimant has not provided written agreement from the IPC that they did not require entrance signage or that it could be omitted?
    48. IPC code of practice also states that the signage MUST “Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA;” Looking at the copies of the signage the claimant has supplied, whilst they do state they may request details of the vehicle’s Registered Keeper from the DVLA, they fail to include the time period of 28 days, which is not only against IPC Code of practice but also against POFA regulations .

    49. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and accessible, thus the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    50. VCS are citing Thornton v Shoe Lane 1971 in the context that the contract is formed at the point of entry to the car park. The car park in the Shoe Lane case is a barrier car park with an entry lane and with a sign which would be quite visible on entry. In the Shoe Lane case Thornton would also have to stop at the barrier to take a ticket, which stated that the terms and conditions were clearly stated on sign in the car park. The motorist, in this case was claiming injury in the car park, so this case really cannot be used in comparison due to significant differences.
    51. The Claimant also references Vine V Waltham Forest, but does the claimant realise that this case was won by Ms Vine at appeal? I feel if anything, Ms Vines case strengthens my case more than harms it. Whilst this case was centred on the act of clamping a vehicle, and whether by reading the signs, the owner consented to her car being clamped, the judge at retrial felt that although Ms Vine had seen the signage, he concluded that just seeing a sign didn’t necessarily give her the opportunity to read and understand the sign. In my case, I am claiming there were unreadable, old and dated signage at XXXX, no driver can see, read or understand the signage and enter into a contract. ‘As indicated above the Claimant put signs up after car was parked to support their bogus claim’.
    52. Beavis signage is distinguished in this case. In the Beavis case, judgment found that signage was sufficient way to form a contract, and there could be no doubt of the £85 charge. But that is not the debate here. Whilst in the Beavis case, the signage was unusually clear for a PPC, so Mr Beavis could enter contract with the PPC, in my case, the signage is far from clear, obvious and readable, and in no way adequate for a driver to agree the terms and conditions of a contract.
    53. Also included are images from Google maps of the parking space entrance from the road, from two angles, over 3 time periods, August 2018, May 2017 and 2014 to show that the signage has always been this poor and there ca not be any claims that it has ever been better than I have stated. This also shows how a driver from the road would see this, and the clear lack of signage.
    Communications with VCS
    54. After receiving NTK, I logged my appeal with VCS indicating I was not the driver and that they had failed to comply with schedule 4 of the POFA and also the lack of sufficient and clear signs on the site. This was dated XXXX 2019 and submitted online on the same day.
    55. Pointed out in my defence that I was not the driver and that VCS did not comply with POFA and further more writing to them highlighting I was not the driver on XXXX (Appendix X).
    56. VCS has provided copies of various letters as evidence along with their witness statement, VCS have failed to provide the Defendant with any letters that they send to old address when they have been requested.
    57. Mediation held on XXXX offered to pay £25 hands down which they declined and I later contacted them by phone on XXXX offered to pay £50 and stop wasting court time and they declined the offer.
    58. I send a letter requesting copies of all documents/letters they send me as they continued to send letters to my previous address despite being notified of my new address and they ignored my request and when I called to follow up they lied they did not receive the letter despite having copy of the letter in their court bundle.
    59. I contacted VCS on XXXX and offered to pay £100 to end the claim as it was clearly affecting my mental health and they declined.
    60. Whist it is not something I can prove in a court of law, a quick internet search would back up suggestion about the way VCS ignore and lie about communication they claim to have sent or claim they have not received

    VCS Witness Statement
    61. There are various issues and inaccuracies with the VCS witness statement. Their Witness statement is clearly a template. I have viewed near enough the exact same witness statement several times online, with only minimal changes that are specific to my case. Below I address or reply to points raised in the VCS witness statement. I have referenced which VCS paragraph I am addressing in bold. E.g. VCS Paragraph 1.
    62. VCS Paragraph 1 - If he/she has been working for VCS since November 2019, this is almost a year after the alleged contravention occurred. None of the information in the Witness Statement is in his/her own knowledge. What is their link to this case? They have no first-hand knowledge about the site, signs, or parking event. Surely this makes them an unreliable witness to this case as they are clearly just re-hashing information given to them from others and using readymade templates from within their business. On top of this, 90% of the VCS witness statement is a generic template, with little genuine evidence referring to this case. Surely this could be misleading a judge as it is not their knowledge to give.
    63. VCS Paragraph 5 -The Code of practice, from the IPC who VCS are a member does not merely comprise of 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance to the IPC code of conduct has to be followed to obtain DVLA data.
    64. VCS Paragraph 7 - This paragraph claims the defendant, myself, was identified as the registered keeper whilst the vehicle was in the development. If this was the case, it would be a serious breach of POFA and IPC rules. On top of that it would mean a notice to driver was given at the time, something which VCS deny. More likely a poorly worded sentence due to their Witness Statement being a template and not being edited correctly to reflect this case.
    65. VCS Paragraph 8 - Only minimal and poor signage was erected, leaving drivers unable to agree to terms and conditions. ‘VCS erected the signs after the car was already parked’
    66. VCS Paragraph 9 – VCS have produced a contract claiming to allow them to issue Parking Charge Notices for parking violations at the site in question since the 11th October 2018. VCS admit in their own witness statement that they are issuing Parking charge notices, despite claiming that the ‘This Is Not A Parking Charge Notice’ cards they are leaving on vehicles are not parking charge notices. Nowhere in the contract does it address the use of hybrid ‘This is not a parking charge notice’ cards being left on vehicles. Does the landowner know VCS are using this potentially illegal method in to manage their parking spaces?
    67. VCS Paragraph 10 - VCS are claiming when a vehicle is in breach of the terms and conditions, the motorist would be issued a PCN. Note the word motorist, rather than registered keeper. A motorist is the driver, and the reason this is important, is because once again, they are admitting to giving PCN’s to drivers meaning that leaving a ‘This is not a parking charge notice’ is in fact issuing PCN’s or NTD (notice to driver) at the time of the alleged contraventions.
    68. VCS Paragraph 12 - VCS are again admitting their Parking Officers issue PCN’s to vehicles. More of their own evidence verifying the ‘This is not a Parking Charge Notice’ is in fact and has always been a PCN / NTD.
    69. VCS Paragraph 14 - VCS are stating signs are visible on entry to the car park. There is not a sign on there at all, at the entry of the car park.
    • Lawpmany1
    • By Lawpmany1 15th Jan 20, 12:07 AM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    I have submitted in 2 parts as it is too long - thanks
    0. VCS Paragraph 15 - More evidence of a PCN being issued whilst the vehicle was in the parking area. There is irrefutable evidence in VCS’ own witness statement that the ‘This Is Not a parking charge Notice’ cards left on cars, are in fact PCN /NTD, clearly showing how they break POFA regulations and IPC code of conduct.
    71. VCS Paragraph 16 - Again, inaccuracies from the VCS witness, as even their own photos and evidence show no signage at entrance of car park on the date of the alleged contravention, yet another paragraph in their witness statement claiming there is.
    72. VCS Paragraphs 18 and 19 - More admissions that VCS issued a card notice to the driver on the day NTD, then pretended this is not a PCN after all to get the DVLA data early, in breach of POFA and IPC.
    73. VCS Paragraph 20 - Thousands of other car parks do not issue PCN’s in this way, and do not flaunt POFA rules, So to say this is the only practical way is slightly farcical.
    74. VCS Paragraph 21 - Again stating they fixed a card to the windscreen of the car. Thus, informing the driver, in other words, a notice to driver NTD or PCN.
    75. VCS Paragraph 22 - Here VCS are implying the driver is the defendant, knowing fully well the defendant is the registered keeper, which is totally against POFA regulations. The card is addressed to ‘The person in charge of the vehicle’, who at the time would have to be the driver. So, at no point was the card made out to the registered keeper as claimed by VCS.
    76. Again, after seeing evidence of these cards, it provides a unique reference number which ironically is the same reference number as the PCN / NTK that arrived later. Once you enter the reference number online, you see all the details of the alleged contravention, dates, time, location, images where applicable. So, whilst the delivery of this information might not be a classic PCN, once one has logged online with this card, the information presented is that of a PCN. If the card is just to inform a driver a contravention MAY have occurred, as VCS claim, then why is there an option, and encouragement to pay this fee immediately. Surely if this was not a NTD, or PCN, there would be no need to offer payment details.
    77. VCS Paragraph 23 - This is where the hybrid system is being used to really catch people out. The information detailed in this paragraph is the practice normally in place for Automatic number plate recognition (ANPR) car parks. Where a camera is located on entrance and or exit, the contravention would not normally have occurred until the driver is leaving the car park. DVLA will provide registered keeper details in these cases. But because, and it is pretty clear above, that NTD and PCN’s are being issues at this location, VCS are not allowed to apply for registered keeper details until 28 days after the day after the driver has received the PCN.
    78. VCS Paragraph 24 and 25 - There is no 'adjudicator' within this parking firm's 'Appeals Dept'. No such person, no such Dept, no such thing.
    79. VCS Paragraph 26 Similar to above, The IAS is made up of IPC members, so in no way is it independent. It’s basically Private Parking Companies deciding on appeals against themselves.
    80. VCS Paragraph 30 Thornton vs Shoe Lane Parking is irrelevant, merely showing that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later. Also addressed previously in witness statement.
    81. VCS Paragraph 32 Vine v Waltham Firest LBC is misquoted/out of context. The court goes on to note that the signage was insufficient in the Vine case. It is in fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the judgment from Roch LJ, where Miss Vine WON! Again, also addressed previously in this witness statement.
    82. VCS Paragraph 33 and 34 - This is a template paragraph from VCS seen many times in their witness statements. VCS is NOT entitled to pursue the registered keeper because VCS have never used the POFA on their Notice to Keeper as it was clearly not compliant with POFA schedule 4 as previously indicated in this witness statement.
    83. VCS Paragraph 38 and 39 – VCS claim, ‘the onus is on the motorist to familiarise with the terms and conditions of the car park’ and in this case the driver is being referred to not the registered keeper. The Claimant claims signage is audited and approved by IPC and capable of creating legally binding contract with motorist entering the car park’. Again, there is no signage whatsoever at the entrance to the site that is compliant with IPC Code of Practice and no evidence of this has been provided by VCS on the day of the alleged contravention.
    84. VCS Paragraph 41 - VCS states they have not relied on POFA for pursuing the claim as they are aware they are in breach of the IPC Code of Contact and POFA 2012 as already established in the witness statement. Strict requirements of POFA Schedule 4 were not adhered and the Claimant chose to be selective on the on the guidelines, and requirements they wish to use to suite their claim.
    85. VCS Paragraph 55 - The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turnover and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking and chose to challenge based on the monetary value to the car park operator of overstaying the allowed time. In my case, there were no clear signs for a driver to enter a contract with VCS.
    86. VCS Paragraph 53- VCS’s own photos of the alleged contravention show how bad the signs were. The photos of indicated the vehicle parked with its back towards what appears to be a very small and unreadable sign from the position of the driver. There are no photographs of the entry on the date of the alleged contravention showing the claimed signs at the entry to the car park. Claimant claims signage is audited by IPC. Please can client provide documentation or evidence of last signage audit carried out by IPC, as their signage clearly does not appear to meet the IPC code of practice.
    87. No contract was entered, and terms and conditions were not and could not be accepted. VCS are stating the defendant did not display a permit, when they know the defendant is the registered keeper. Liability cannot be transferred from driver to registered keeper as they have failed to follow POFA rules and IPC code of practice.
    88. VCS Paragraph 54 VCS are claiming 'The defendant could not have been in any doubt, at worst, after the issue of the first PCN''. I’m not sure which document they are calling the first PCN, but this argument is shot down by their own evidence - Thornton v Shoe Lane that they adduced earlier, which established that ONLY terms known and agreed before the payment was made at the PDT machine are enforceable.
    89. VCS Paragraph 55 - Again, this is untrue. In a permit holders car park, the decision making and facts in Beavis do not apply, and in fact this case supports the defence, based on the fact this sort of PCN is a punishment of a driver, and not an 'understandable ingredient of a scheme serving legitimate interests' and the Beavis case is fully distinguished.
    90. VCS Paragraph 58 - Again, the Beavis case established that a parking firm CANNOT seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms. Whereas parking charges are capped by POFA regulations / will of Parliament, at the sum on any Notice to Keeper, and not higher (and the Beavis case confirmed this by only allowing £85 in that case).
    91. 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
    92. I believe that the facts stated in this Witness Statement are true.

    Signature of Defendant:
    Name:
    Date:

    Evidence Bundle
    Appendix 1 car park
    Excel Parking Services v Smith (appeal) Stockport (Appendix 2)
    NTK
    This is not a PCN card
    VCS v Quayle 2017
    Beavis
    POFA
    IPC Code of Contact
    Car insurance certificate
    • Coupon-mad
    • By Coupon-mad 15th Jan 20, 3:05 AM
    • 80,775 Posts
    • 95,427 Thanks
    Coupon-mad
    'The PPC' means nothing to anyone, it is a forum acronym.

    Also, you are NOT ALLOWED to talk about Mediation, or ANY offers!

    Your WS argues the case back to front by saying (as in Adam Buzz14's case which had a PREMATURE NTK) that the red card 'WAS a PCN'. In fact in your case the opposite is true! You need to argue that it WAS NOT and I am now thinking that you should not adduce Adambuzz14's transcript at all, but at least reading it helped you see that a red card is not a POFA compliant method of ticketing.

    So because your argument was taking the wrong side, I'd change #5 - #22 (inclusive) to this, which reads better from a keeper's POV, hits the fact that soft ticketing is banned sharp practice, and it doesn't say much about the red card (after all, it was a nullity!).

    This version ALSO INCORPORATES YOUR #54 - #60 AS PART OF THE BACKGROUND (so delete your #54 - #60 and renumber the ones below it!):


    Background: 'soft ticketing' = sharp practice prohibited by the DVLA
    5. In January 2019, the Claimant 'VCS' sent to me, as registered keeper of the car, a Parking Charge Notice (PCN)/ a document that the Claimant wishes the court to believe was a Notice to Keeper (NTK) as defined in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA'). The Claimant had obtained my data from the DVLA.

    6. This purported NTK adduced the POFA improperly and under false pretences, because there had been no 'Notice to Driver' served first and the parking event referenced was from almost two months earlier. Neither paragraph 8 nor paragraph 9 of the POFA was met, so the NTK was not properly 'given' under the applicable law and I could not, and cannot, be held liable.

    7. Regarding the facts of the documentation it is clear that the Claimant has tried to muddy the waters in their template Witness Statement, which is an almost exact replica of those reported by victim Defendants many times before, and it is not specific to my case.

    8. In fact, it now transpires that what this Claimant was doing at the material time, was placing highly ambiguous 'red card' notes on cars, a now-banned practice known as 'soft ticketing'.

    9. VCS' template Witness Statement has glossed over this, calling it a 'CN' as if that is some sort of windscreen 'parking charge notice' ('PCN') from which keeper liability can flow under paragraph 8 of the POFA. Complicit in allowing this short-lived practice was their Trade Body, the IPC, who are on record as pretending these 'soft ticket' red cards (issued almost exclusively by VCS until the DVLA stopped them) were 'valuable' as a 'reminder' painting the practice as if it gave 'fair warning' instead of ticketing, in first time contraventions.

    10. In fact, VCS followed these red cards with a non-compliant postal parking charge (either premature or late, depending on one's interpretation as to whether the recipient is supposed to be looking at paragraph 8 or paragraph 9 of the POFA).

    11. In my case, the NTK arrived far too late to meet the 14 day deadline but VCS still cited the POFA legislation, something the DVLA does not allow for late NTKs. Thus, the Claimant is in breach of the 'KADOE' (Keeper At the Date of Event) DVLA data release regulations and has tried to mislead me on a strict point of law and liablity.

    12. This attitude from VCS and their self-serving Trade Body demonstrates an ignorance - or perhaps a deliberate/negligent disregard - of the Consumer Rights Act 2015 ('the CRA 2015') and the trite law doctrines of 'fair and open dealing' and 'transparency' in consumer contracts.

    13. Thankfully, in 2019 the DVLA took the matter up with VCS after many consumer complaints, and this sharp practice was banned. Indeed, the British Parking Association (of which this Claimant is a corporate member) after meetings with the DVLA, stated in January 2020: ''the process known as 'soft ticketing' is expressly forbidden. To confirm, 'soft ticketing' occurs where operators place a 'notice' on a vehicle which asks the motorist to check online or by telephone to see if their vehicle has committed a parking contravention.''

    14. The problems with this practice included ambiguity and confusion for motorists who were tricked into appealing something that was never a Notice to Driver at all. The IPC appear to be silent about the ban on soft ticketing but protested in an official document in Autumn 2019 where they tried to defend the practice, that: ''our research shows that where this process is used there are 22% less DVLA requests compared to a process where only a postal PCN is sent.'' So nearly a quarter of people were fooled by a misleading 'false instrument' and their fee-paying AOS members saved money by confusing people into futilely 'appealing' - thereby handing over their personal data early - and VCS processed data and payments from parties who could never be liable.

    15. In this case, I was not driving but am aware that a red card note proclaiming ''This is not a Parking Charge Notice'' was found on the windscreen at some point in November 2018 but it was such a confusing document that those family members who drive this car had no idea why it was there or what it meant, and quite rightly, no 'appeal' was made and the driver was not identified.

    16. It is denied that there was any contravention but in the absence of any properly served windscreen 'Notice to Driver', VCS only had a strict 14 days to serve a postal NTK to me if they were to utilise the POFA in establishing 'keeper liability'. VCS failed, because their NTK arrived some two months later. I appealed, and as expected, VCS rejected the appeal, despite knowing that they could not hold me liable as keeper of the car.

    The Claimant knows I was not the driver, and cannot hold me liable
    17. After receiving the postal NTK, I logged my appeal with VCS indicating I was not the driver and that they had failed to comply with Schedule 4 of the POFA and also the lack of sufficient and clear signs on the site.

    18. I have consistently shown VCS that they have no cause of action in this regard and subsequently, many hours have been spent trying to fight this meritless claim which would have been better spent with my family, or working, or going about my daily life free of this unwarranted harassment. I have also pointed out in my defence that I was not the driver and that VCS did not comply with POFA and furthermore, I also wrote to them highlighting I was not the driver on XXXX (Appendix X) and I tried Court Mediation. All my efforts were fruitless because VCS' clear interests lie in the pursuit of victims who might give up before a hearing and pay far more than is lawfully recoverable.

    19. In a further demonstration of their vexatious and unlawful conduct in this case, VCS has provided copies of various letters as evidence along with their witness statement. However, VCS have failed to provide the Defendant with any letters that they appear to have sent to an incorrect old address when these were requested under my Subject Access Request rights flowing from the GDPR and Data Protection Act 2018.

    20. I sent a letter requesting copies of all documents/letters regarding my data, because VCS had continued to send letters to my previous address (this was despite being notified of my new address). VCS ignored my request and when I called to follow up they stated that they did not receive my letter.

    21. The Court will note that a copy of that letter is in their court evidence bundle. The Court is invited to take note that a clear course of conduct has been established that (unusually in these cases) more than crosses the high bar for declaring the Claimant's conduct to be 'wholly unreasonable' in their pre-action and post-action dealings with myself, a litigant in person who has suffered significant distress and many sleepless nights. I ask the court to award my full costs in accordance with the CPRs, and my costs schedule filed and served with this statement lists my actual losses, and my time that can never be recovered.

    22. Added to this, it is averred by the driver (who will not be identified as I have no wish to inflict them with this level of intimidation and allow VCS to start all over again) noted that when they parked the car, there we no signs. On return, upon finding the 'This is not a PCN' card attached to the car, they noticed VCS had installed additional signs, after the car was parked. It is those new signs that the person issuing the red card, photographed. Terms that did not exist on prominent signage when the car was actually parked and left, cannot possibly form a contract and VCS is put to strict proof of when signage was placed at this location and where, and show their site records of any signage additions or changes made, and exactly when/why this was done.

    23....(etc. as per your version except remove 54 - 60).
    You also need a supplementary WS, with the words from post #14 of the Abuse of Process thread, and the CRA 2015 Schedule 2 with paragraphs 6, 10, 14 and 18 highlighted as breached. And a sheet with the Beavis quotes from paras 98, 193 and 198 on it, showing that a parking charge cannot have £60 added to it again, as that is double recovery of the same operational costs that the maximum £100 parking charge 'must' (according to the Supreme Court) represent.

    AND you need to include in this file now, your costs schedule like the examples you find when you search the forum, with a separate list of your ACTUAL losses and costs, such as your real loss of salary/leave (take your wage slip or proof of loss of leave/income with you on the hearing day).

    Include in your Costs Schedule now, your many hours spent on this, at your ACTUAL hourly rate of pay if it is higher than the usual £19 per hour LiP rate.

    Last edited by Coupon-mad; 15-01-2020 at 3:19 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
    • nosferatu1001
    • By nosferatu1001 15th Jan 20, 9:25 AM
    • 6,299 Posts
    • 8,355 Thanks
    nosferatu1001
    And we mean many hours
    list time spent
    writing defence
    completing the DQ
    wriitng WS
    Researching and obtaining evidnce

    This is many hours - 10 at least just from your posting on here alone.

    Lay it out with the breakdown as above. Looks FAR more convincing than a single figure does.
    • Lawpmany1
    • By Lawpmany1 16th Jan 20, 9:58 AM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Final Statement I am hoping to send by tomorrow.
    Thank you very much all for your valuable support in this and I genuinely appreciate your help and I feel a bit more confident with you help.
    Is there anything else I need to include? As evidence or on my statement.
    Also, what is PPC – what other word can I use instead of this.


    IN THE COUNTY COURT AT XXXXXXXXX
    CLAIM NUMBER: XXXXXX

    BETWEEN

    xxxxxxxxxxxx (CLAIMANT)
    VS
    XXXXXXXXXX (DEFENDANT)


    WITNESS STATEMENT
    1. I XXXXXXXXX of xxxxxxxx will say as follows:
    Introduction
    2. I am the Defendant in this matter and the registered keeper of the vehicle in question, a xxxx. I will be defending this claim as keeper of the vehicle only. I am insured to drive the vehicle and have let close family and friends drive my vehicle third party on their insurance (appendix 1).
    3. The contents of this witness statement are based on my own experiences and matters witnessed and within my knowledge, all true.
    4. Along with this statement is a bundle of documents to which I will refer. This Witness statement is prepared for the hearing at XXXX County Court, on XXXXX February 2020 in support of my own defence against the claimant.
    Background: 'soft ticketing' = sharp practice prohibited by the DVLA
    5. In January 2019, the Claimant 'VCS' sent to me, as registered keeper of the car, a Parking Charge Notice (PCN)/ a document that the Claimant wishes the court to believe was a Notice to Keeper (NTK) as defined in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA'). The Claimant had obtained my data from the DVLA.
    6. This purported NTK adduced the POFA improperly and under false pretences, because there had been no 'Notice to Driver' served first and the parking event referenced was from almost two months earlier. Neither paragraph 8 nor paragraph 9 of the POFA was met, so the NTK was not properly 'given' under the applicable law and I could not, and cannot, be held liable.
    7. Regarding the facts of the documentation it is clear that the Claimant has tried to muddy the waters in their template Witness Statement, which is an almost exact replica of those reported by victim Defendants many times before, and it is not specific to my case.
    8. In fact, it now transpires that what this Claimant was doing at the material time, was placing highly ambiguous 'red card' notes on cars, a now-banned practice known as 'soft ticketing'.
    9. VCS' template Witness Statement has glossed over this, calling it a 'PCN' as if that is some sort of windscreen 'parking charge notice' ('PCN') from which keeper liability can flow under paragraph 8 of the POFA. Complicit in allowing this short-lived practice was their Trade Body, the IPC, who are on record as pretending these 'soft ticket' red cards (issued almost exclusively by VCS until the DVLA stopped them) were 'valuable' as a 'reminder' painting the practice as if it gave 'fair warning' instead of ticketing, in first time contraventions.
    10. In fact, VCS followed these red cards with a non-compliant postal parking charge (either premature or late, depending on one's interpretation as to whether the recipient is supposed to be looking at paragraph 8 or paragraph 9 of the POFA).
    11. In my case, the NTK arrived far too late to meet the 14 day deadline but VCS still cited the POFA legislation, something the DVLA does not allow for late NTKs. Thus, the Claimant is in breach of the 'KADOE' (Keeper At the Date of Event) DVLA data release regulations and has tried to mislead me on a strict point of law and liability.
    12. This attitude from VCS and their self-serving Trade Body demonstrates an ignorance - or perhaps a deliberate/negligent disregard - of the Consumer Rights Act 2015 ('the CRA 2015') and the trite law doctrines of 'fair and open dealing' and 'transparency' in consumer contracts.
    13. Thankfully, in 2019 the DVLA took the matter up with VCS after many consumer complaints, and this sharp practice was banned. Indeed, the British Parking Association (of which this Claimant is a corporate member) after meetings with the DVLA, stated in January 2020: ''the process known as 'soft ticketing' is expressly forbidden. To confirm, 'soft ticketing' occurs where operators place a 'notice' on a vehicle which asks the motorist to check online or by telephone to see if their vehicle has committed a parking contravention.''
    14. The problems with this practice included ambiguity and confusion for motorists who were tricked into appealing something that was never a Notice to Driver at all. The IPC appear to be silent about the ban on soft ticketing but protested in an official document in Autumn 2019 where they tried to defend the practice, that: ''our research shows that where this process is used there are 22% less DVLA requests compared to a process where only a postal PCN is sent.'' So nearly a quarter of people were fooled by a misleading 'false instrument' and their fee-paying AOS members saved money by confusing people into futilely 'appealing' - thereby handing over their personal data early - and VCS processed data and payments from parties who could never be liable.
    15. In this case, I was not driving but am aware that a red card note proclaiming ''This is not a Parking Charge Notice'' was found on the windscreen at some point in November 2018 but it was such a confusing document that those family members who drove this car had no idea why it was there or what it meant, and quite rightly, no 'appeal' was made and the driver was not identified.
    16. It is denied that there was any contravention but in the absence of any properly served windscreen 'Notice to Driver', VCS only had a strict 14 days to serve a postal NTK to me if they were to utilise the POFA in establishing 'keeper liability'. VCS failed, because their NTK arrived some two months later. I appealed, and as expected, VCS rejected the appeal, despite knowing that they could not hold me liable as keeper of the car.
    The Claimant knows I was not the driver and cannot hold me liable
    17. After receiving the postal NTK, I logged my appeal with VCS indicating I was not the driver and that they had failed to comply with Schedule 4 of the POFA and also the lack of sufficient and clear signs on the site.
    18. I have consistently shown VCS that they have no cause of action in this regard and subsequently, many hours have been spent trying to fight this meritless claim which would have been better spent with my family, or working, or going about my daily life free of this unwarranted harassment. I have also pointed out in my defence that I was not the driver and that VCS did not comply with POFA and furthermore, I also wrote to them highlighting I was not the driver on XXXX (Appendix X) and I tried Court Mediation. All my efforts were fruitless because VCS' clear interests lie in the pursuit of victims who might give up before a hearing and pay far more than is lawfully recoverable.
    19. In a further demonstration of their vexatious and unlawful conduct in this case, VCS has provided copies of various letters as evidence along with their witness statement. However, VCS have failed to provide the Defendant with any letters that they appear to have sent to an incorrect old address when these were requested under my Subject Access Request rights flowing from the GDPR and Data Protection Act 2018.
    20. I sent a letter requesting copies of all documents/letters regarding my data, because VCS had continued to send letters to my previous address (this was despite being notified of my new address). VCS ignored my request and when I called to follow up they stated that they did not receive my letter.
    21. The Court will note that a copy of that letter is in their court evidence bundle. The Court is invited to take note that a clear course of conduct has been established that (unusually in these cases) more than crosses the high bar for declaring the Claimant's conduct to be 'wholly unreasonable' in their pre-action and post-action dealings with myself, a litigant in person who has suffered significant distress and many sleepless nights. I ask the court to award my full costs in accordance with the CPRs, and my costs schedule filed and served with this statement lists my actual losses, and my time that can never be recovered.
    22. Added to this, it is averred by the driver (who will not be identified as I have no wish to inflict them with this level of intimidation and allow VCS to start all over again) noted that when they parked the car, there were no signs. On return, upon finding the 'This is not a PCN' card attached to the car, they noticed VCS had installed additional signs, after the car was parked. It is those new signs that the person issuing the red card, photographed. Terms that did not exist on prominent signage when the car was actually parked and left, cannot possibly form a contract and VCS is put to strict proof of when signage was placed at this location and where, and show their site records of any signage additions or changes made, and exactly when/why this was done, and how it was on the alleged date of the contravention.
    Notice to keeper and not conforming to the Protection of Freedoms Act 2012 (POFA)
    23. The PCN /NTK document received with an issue date of 8th January 2019 has failed to follow POFA regulations, which is statute in law and therefore does not follow the IPC code of practice which heavily relies of POFA. Therefore the VCS doesn’t legally have the right to transfer liability for the contravention from the driver to the registered keeper.
    24. VCS are attempting to recover more than the initial involved price, also as double recovery for costs they did not incur. This is forbidden in POFA regulations, SCHEDULE 4, paragraph 4 -5. “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper”.
    25. Furthermore - POFA Regulations SCHEDULE 4, paragraph 9 - 12: stipulates The notice must—“(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates” . The NTK gives only a time of contravention, and no period of parking, again another reason a none POFA compliant NTK has been issued.
    26. Following from that, if no period of parking was determined, how can VCS or the issuing officer be sure that a sufficient grace period was given as is a requirement in part B, paragraph 15 of the IPC code of practice.
    27. VCS has not provided evidence that proves how long the vehicle was parked and how long of a grace period was allowed before issuing of the ‘This is not a parking Charge notice’.
    28. In order to proceed with a claim against either driver or keeper a notice (compliant with Protection of Freedoms Act (POFA) 2012) to keeper must be served to the keeper within 14 days of the date of the alleged contravention.
    29. The date of the alleged contravention was 29/11/2018; to comply with the Act the latest date of which the Notice to Keeper should have been issued was 13/12/2018. This was received by Defendant on 08/01/2019 (Appendix 1).Therefore the Claimant failed to comply with the procedural requirements of Protection of Freedoms Act (POFA) 2012. As such, the Defendant has no liability in law and the Court is invited to strike out this claim.
    30. The Claimant failed to identify the driver or adhere to the strict rules of Protection of Freedoms Act 2012 Schedule 4 which makes provisions for liability to be transferred from driver to keeper. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. POFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: either the Claimant could prove the defendant was the driver, which they could not; or the Claimant could comply with POFA to pursue the defendant as the keeper, which was proved the Claimant did not.
    31. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
    32. ‘However, keeper information is obtained, 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. Further, 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. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’ Further, 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.”
    33. I also draw the Court’s attention to VCS v Quayle 2017, where the judge concluded that VCS had not, on the balance of probabilities provided any evidence to prove Miss Quayle was the driver of the vehicle. On top of that, because they had not followed POFA, the judge stated VCS had no right to transfer liability to the registered keeper.
    34. The Judgement stated, “She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the claimant, the claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.”
    35. “POFA SCHEDULE 4, paragraph 9 -2 (f) - warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
    (i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
    (ii)the creditor does not know both the name of the driver and a current address for service for the driver”
    36. I refer to the case of Excel Parking Services v Smith (appeal) Stockport, (included in evidence bundle) In which it was found that a person is not liable in law for the actions of somebody when they have allowed somebody else to use their property. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.
    37. Excel and BW Legal tried to convince the court that this was not the case. Although they succeeded at first, their scheme came unstuck when the motorist appealed. Their greed cost Excel two lots of advocate fees and resulted in a persuasive appeal decision which can now be used against them.
    38. All the inaccuracies listed above, and further throughout this witness statement mean by law, the issuing of the NTK fails POFA regulations and thus can’t be used to transfer liability to the registered keeper.
    Signage
    39. Having been to the site following receipt of NTK and the start of court proceedings, it is evident there is lack of clear signage on the site of the alleged contravention.
    40. I include my own photos and other photos to show the general appearance and view of the car park, giving an idea of the same view the driver would have had when leaving the car at the time of the alleged contravention.
    41. The images obtained by the defendant and those from google earth (Appendix X) indicates there is no signage on the entrance to the car park informing the driver of the contract being formed with the Claimant. Clearly the images of the site do not indicate the claimed clear signage in seven areas of the car park including the entrance as claimed in the Claimant’s witness statement and the provided site map.
    42. As can be seen in the photographs there is insufficient signage on the general car park to adequately warn any driver that their entering into a contract on the disused children’s centre.
    43. As VCS appears to have installed signage after the driver had already parked the car, clearly they can not hold the driver or keeper liable for their poor practice.
    44. The claimant is relying on the signage at the site to establish a contract with the driver. In order to create a contract, the signage must comply with, amongst other things, IPC Code of Practice (to which the claimant is signed).
    45. On the day of the alleged contravention the signage at the site fell woefully short of the standards required in: PART B - 2. Signs -2.2; “Signs must conform to the requirements as set out in a schedule 1 to the Code.”
    46. Part E Schedule 1 – Signage. I won’t go through the whole section, as the code of practice is included, but Points of note here are; “Signs should, where practicable, be placed at the entrance to a site”. In this case there is no signage at the entrance. The Claimant has not provided written agreement from the IPC that they did not require entrance signage or that it could be omitted?
    47. IPC code of practice also states that the signage MUST “Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA;” Looking at the copies of the signage the claimant has supplied, whilst they do state they may request details of the vehicle’s Registered Keeper from the DVLA, they fail to include the time period of 28 days, which is not only against IPC Code of practice but also against POFA regulations .

    48. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and accessible, thus the driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
    49. VCS are citing Thornton v Shoe Lane 1971 in the context that the contract is formed at the point of entry to the car park. The car park in the Shoe Lane case is a barrier car park with an entry lane and with a sign which would be quite visible on entry. In the Shoe Lane case Thornton would also have to stop at the barrier to take a ticket, which stated that the terms and conditions were clearly stated on sign in the car park. The motorist, in this case was claiming injury in the car park, so this case really cannot be used in comparison due to significant differences.
    50. The Claimant also references Vine V Waltham Forest, but does the claimant realise that this case was won by Ms Vine at appeal? I feel if anything, Ms Vines case strengthens my case more than harms it. Whilst this case was centred on the act of clamping a vehicle, and whether by reading the signs, the owner consented to her car being clamped, the judge at retrial felt that although Ms Vine had seen the signage, he concluded that just seeing a sign didn’t necessarily give her the opportunity to read and understand the sign. In my case, I am claiming there were unreadable, old and dated signage at XXXX, no driver can see, read or understand the signage and enter into a contract.
    51. Beavis signage is distinguished in this case. In the Beavis case, judgment found that signage was sufficient way to form a contract, and there could be no doubt of the £85 charge. But that is not the debate here. Whilst in the Beavis case, the signage was unusually clear for PPC, so Mr Beavis could enter contract with the PPC, in my case, the signage is far from clear, obvious and readable, and in no way adequate for a driver to agree the terms and conditions of a contract.
    52. Also included are images from Google maps of the entrance to the car park from the road, over 3 time periods, August 2018, May 2017 and 2014 to show that the signage has always been poor and there cannot be any claims that it has ever been better than I have stated. This also shows how a driver from the road would see this, and the clear lack of signage.
    VCS Witness Statement
    53. There are various issues and inaccuracies with the VCS witness statement. Their Witness statement is clearly a template. I have viewed near enough the exact same witness statement several times online, with only minimal changes that are specific to my case. Below I address or reply to points raised in the VCS witness statement. I have referenced which VCS paragraph I am addressing in bold. E.g. VCS Paragraph 1.
    54. VCS Paragraph 1 - If he/she has been working for VCS since November 2019, this is almost a year after the alleged contravention occurred. None of the information in the Witness Statement is in his/her own knowledge. What is their link to this case? They have no first-hand knowledge about the site, signs, or parking event. Surely this makes them an unreliable witness to this case as they are clearly just re-hashing information given to them from others and using readymade templates from within their business. On top of this, 90% of the VCS witness statement is a generic template, with little genuine evidence referring to this case. Surely this could be misleading a judge as it is not their knowledge to give.
    55. VCS Paragraph 5 -The Code of practice, from the IPC who VCS are a member does not merely comprise of 'recommendations'. The Supreme Court found it was effectively 'regulatory' and full compliance to the IPC code of conduct has to be followed to obtain DVLA data.
    56. VCS Paragraph 7 - This paragraph claims the defendant, myself, was identified as the registered keeper whilst the vehicle was in the development. If this was the case, it would be a serious breach of POFA and IPC rules. On top of that it would mean a notice to driver was given at the time, something which VCS deny. More likely a poorly worded sentence due to their Witness Statement being a template and not being edited correctly to reflect this case.
    57. VCS Paragraph 8 - Only minimal and poor signage was erected, leaving drivers unable to agree to terms and conditions. VCS erected the signs after the car was already parked.
    58. VCS Paragraph 9 – VCS have produced a contract claiming to allow them to issue Parking Charge Notices for parking violations at the site in question since the 11th October 2018. VCS admit in their own witness statement that they are issuing Parking charge notices, despite claiming that the ‘This Is Not A Parking Charge Notice’ cards they are leaving on vehicles are not parking charge notices. Nowhere in the contract does it address the use of hybrid ‘This is not a parking charge notice’ cards being left on vehicles. Does the landowner know VCS are using this potentially illegal method in to manage their parking spaces?
    59. VCS Paragraph 10 - VCS are claiming when a vehicle is in breach of the terms and conditions, the motorist would be issued a PCN. Note the word motorist, rather than registered keeper. A motorist is the driver, and the reason this is important, is because once again, they are admitting to giving PCN’s to drivers meaning that leaving a ‘This is not a parking charge notice’ is in fact issuing PCN’s or NTD (notice to driver) at the time of the alleged contraventions.
    60. VCS Paragraph 12 - VCS are again admitting their Parking Officers issue PCN’s to vehicles. More of their own evidence verifying the ‘This is not a Parking Charge Notice’ is in fact and has always been a PCN / NTD, again breaching the IPC code of contact or the POFA regulations.
    61. VCS Paragraph 14 - VCS are stating signs are visible on entry to the car park. There is not a sign on there at all, at the entry of the car park.
    • Lawpmany1
    • By Lawpmany1 16th Jan 20, 10:00 AM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    ....Continued statement
    62. VCS Paragraph 15 - More evidence of a PCN being issued whilst the vehicle was in the parking area. There is irrefutable evidence in VCS’ own witness statement that the ‘This Is Not a parking charge Notice’ cards left on cars, are in fact PCN /NTD, clearly showing how they breach POFA regulations and IPC code of conduct.
    63. VCS Paragraph 16 - Again, inaccuracies from the VCS witness statement, as even their own photos and evidence show no signage at entrance of car park on the date of the alleged contravention, yet another paragraph in their witness statement claiming there is.
    64. VCS Paragraphs 18 and 19 - More admissions that VCS issued a card notice to the driver on the day NTD, then pretended this is not a PCN after all to get to pursue the registered keeper, in breach of POFA and IPC.
    65. VCS Paragraph 20 - Thousands of other car parks do not issue PCN’s in this way, and do not flaunt POFA rules, So to say this is the only practical way is slightly farcical.
    66. VCS Paragraph 21 - Again stating they fixed a card to the windscreen of the car. Thus, informing the driver, in other words, a notice to driver NTD or PCN.
    67. VCS Paragraph 22 - Here VCS are implying the driver is the defendant, knowing fully well the defendant is the registered keeper, which is totally against POFA regulations. The card is addressed to ‘The person in charge of the vehicle’, who at the time would have to been the driver. So, at no point was the card made out to the registered keeper as claimed by VCS.
    68. Again, after seeing evidence of these cards, it provides a unique reference number which ironically is the same reference number as the PCN / NTK that arrived later. Once you enter the reference number online, you see all the details of the alleged contravention, dates, time, location, images where applicable. So, whilst the delivery of this information might not be a classic PCN, once one has logged online with this card, the information presented is that of a PCN. If the card is just to inform a driver a contravention MAY have occurred, as VCS claim, then why is there an option, and encouragement to pay this fee immediately. Surely if this was not a NTD, or PCN, there would be no need to offer payment details.
    69. VCS Paragraph 23 - This is where the hybrid system is being used to really catch people out. The information detailed in this paragraph is the practice normally in place for Automatic number plate recognition (ANPR) car parks. Where a camera is located on entrance and or exit, the contravention would not normally have occurred until the driver is leaving the car park. DVLA will provide registered keeper details in these cases. But because, and it is pretty clear above, that NTD and PCN’s are being issued at this location, VCS are not allowed to apply for registered keeper details until 28 days after the day after the driver has received the PCN.
    70. VCS Paragraph 24 and 25 - There is no 'adjudicator' within this parking firm's 'Appeals Dept'. No such person, no such Dept, no such thing.
    71. VCS Paragraph 26 Similar to above, The IAS is made up of IPC members, so in no way is it independent. It’s basically Private Parking Companies deciding on appeals against themselves.
    72. VCS Paragraph 30 Thornton vs Shoe Lane Parking is irrelevant, merely showing that a person who bought a ticket can only be bound by terms known at that time, and that terms can't be added later. Also addressed previously in witness statement.
    73. VCS Paragraph 32 Vine v Waltham Firest LBC is misquoted/out of context. The court goes on to note that the signage was insufficient in the Vine case. It is in fact specific. The Claimant appears to be leading the Court to the Respondent's argument in Vine v London Borough of Waltham Forest and NOT the judgment from Roch LJ, where Miss Vine WON! Again, also addressed previously in this witness statement.
    74. VCS Paragraph 33 and 34 - This is a template paragraph from VCS seen many times in their witness statements. VCS is NOT entitled to pursue the registered keeper because VCS have never used the POFA on their Notice to Keeper as it was clearly not compliant with POFA schedule 4 as previously indicated in this witness statement.
    75. VCS Paragraph 38 and 39 – VCS claim, ‘the onus is on the motorist to familiarise with the terms and conditions of the car park’ and in this case the driver is being referred to not the registered keeper. The Claimant claims signage is audited and approved by IPC and capable of creating legally binding contract with motorist entering the car park’. Again, there is no signage whatsoever at the entrance to the site that is compliant with IPC Code of Practice and no evidence of this has been provided by VCS of the signs on the entrance on the day of the alleged contravention.
    76. VCS Paragraph 41 - VCS states they have not relied on POFA for pursuing the claim as they are aware, they are in breach of the IPC Code of Contact and POFA 2012 as already established in the witness statement. Strict requirements of POFA Schedule 4 were not adhered and the Claimant chose to be selective on the on the guidelines, and requirements they wish to use to suite their claim.
    77. VCS Paragraph 55 - The Beavis case is not relevant to support a penalty charge in a permit only car park. In fact, the Beavis judgment was clear that each case is in fact specific and that parking charges are unconscionable and unrecoverable if they are set to punish a driver, which this clearly is. The Beavis case was also judged to have a commercial justification, where the onsite businesses relied on the turnover and availability of free car parking spaces. Mr Beavis was fully aware of the terms and conditions upon parking and chose to challenge based on the monetary value to the car park operator of overstaying the allowed time. In my case, there are no clear signs for a driver to enter a contract with VCS.
    78. VCS Paragraph 53- VCS’s own photos of the alleged contravention show how bad the signs were. The photos indicated the vehicle parked with its back towards what appears to be a very small and unreadable sign from the position of the driver. There are no photographs of the entrance on the date of the alleged contravention showing the claimed signs at the entrance to the car park. Claimant claims signage is audited by IPC. Please can client provide documentation or evidence of last signage audit carried out by IPC, as their signage clearly does not appear to meet the IPC code of practice.
    79. No contract was entered, and terms and conditions were not and could not be accepted. VCS are stating the defendant did not display a permit, when they know the defendant is the registered keeper. Liability cannot be transferred from driver to registered keeper as they have failed to follow POFA rules and IPC code of practice.
    80. VCS Paragraph 54 VCS are claiming 'The defendant could not have been in any doubt, at worst, after the issue of the first PCN''. I’m not sure which document they are calling the first PCN, but this argument is shot down by their own evidence - Thornton v Shoe Lane that they adduced earlier, which established that ONLY terms known and agreed before the payment was made at the pay and display machine are enforceable. Furthermore, no PCN compliant with POFA regulations was received by the defendant.
    81. VCS Paragraph 55 - Again, this is untrue. In a permit holders car park, the decision making and facts in Beavis do not apply, and in fact this case supports the defence, based on the fact this sort of PCN is a punishment of a driver, and not an 'understandable ingredient of a scheme serving legitimate interests' and the Beavis case is fully distinguished.
    82. VCS Paragraph 58 - Again, the Beavis case established that a parking firm CANNOT seek or plead a sum in 'damages'. Chaplair v Kumari is also distinguished. Far from supporting this attempt at double recovery, Chaplair was a decision about contractual fees set in lease terms. Whereas parking charges are capped by POFA regulations / will of Parliament, at the sum on any Notice to Keeper, and not higher (and the Beavis case confirmed this by only allowing £85 in that case).
    83. 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
    84. I believe that the facts stated in this Witness Statement are true.

    Signature of Defendant:
    Name:
    Date:

    Evidence that will be provided with the Bundle
    Car Park signs taken by defendant – January 2019, December 2019 and January 2020.
    Google earth pictures – 2018,2017,2014
    Excel Parking Services v Smith (appeal) Stockport
    Beavis Case – Quotes 98, 193, 198
    CRA 2015 Schedule 2 paragraphs 6,10, 14 and 18
    Supplementary Witness statement – Abuse of Process thread
    Costs Schedule
    Notice to Keeper
    This is not a PCN card – Should I include this or it is irrelevant?
    VCS v Quayle 2017
    POFA
    IPC Code of Contact
    Car insurance certificate
    Court Orders
    Popla report 2015
    • Le_Kirk
    • By Le_Kirk 16th Jan 20, 10:00 AM
    • 8,027 Posts
    • 9,118 Thanks
    Le_Kirk
    PPC = Private Parking Company - Just name the parking company.
    Last edited by Le_Kirk; 16-01-2020 at 10:03 AM.
    • Lawpmany1
    • By Lawpmany1 16th Jan 20, 10:12 AM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    I have been searching for examples of the cost schedule or template with no joy.

    Is this the correct one I need to complete.

    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688587/n260-eng.pdf
    • Le_Kirk
    • By Le_Kirk 16th Jan 20, 10:21 AM
    • 8,027 Posts
    • 9,118 Thanks
    Le_Kirk
    Don't search the forum, go to the NEWBIE thread post # 2 and scroll down until you see: -
    Here is a costs schedule, you take this to the hearing and claim your costs for lost wages/leave, your travel, parking(!) etc. if you win:

    http://forums.moneysavingexpert.com/showthread.php?p=72079752#post72079752
    .. and follow the link.
    • Lawpmany1
    • By Lawpmany1 16th Jan 20, 1:27 PM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Hallo again, do you think this is good to go now and do I send them recorded delivery or normal post.

    Thank you
    • Le_Kirk
    • By Le_Kirk 16th Jan 20, 1:30 PM
    • 8,027 Posts
    • 9,118 Thanks
    Le_Kirk
    Don't use registered post (even though it doesn't exist any more) just post from a post office with a proof of posting certificate. If this is your WS and evidence then it is best handed in to the court. You can of course post to the claimants or by e-mail if permitted.
    • Coupon-mad
    • By Coupon-mad 16th Jan 20, 1:33 PM
    • 80,775 Posts
    • 95,427 Thanks
    Coupon-mad
    If it is a WS with evidence and a costs schedule, use a file and hand deliver to court, and just post the paperwork in a heap to VCS - no file, just a pile!

    Search the forum for ring binder to see this discussed a hundred times.
    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
    • Redx
    • By Redx 18th Jan 20, 5:52 PM
    • 26,806 Posts
    • 35,091 Thanks
    Redx
    Post the above into a new thread of your own , then edit the above , deleting the text and adding the word Ignore instead
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Itfits29
    • By Itfits29 18th Jan 20, 6:37 PM
    • 3 Posts
    • 0 Thanks
    Itfits29
    Oh ok. Thanks for the advice. I was only asking for someone else's opinion or input into the matter who may have dealt with something similar.
    • Redx
    • By Redx 18th Jan 20, 7:03 PM
    • 26,806 Posts
    • 35,091 Thanks
    Redx
    No problem , you will get plenty of opinions when you post your own thread , as per forum rules
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Lawpmany1
    • By Lawpmany1 21st Jan 20, 2:57 PM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Thank you
    All filed now, off to the post office and Court to hand deliver.

    Will update forum of the outcome.

    Thank you for the invaluable time you have put in supporting with drafting the WS.
    • Lawpmany1
    • By Lawpmany1 23rd Jan 20, 1:32 PM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    Good Afternoon

    I have rang the court to check if the file has been received as I hand delivered it on 21/01/2020 and they said it will take up to 10days before they are processed.

    I checked my claim on Moneyclaim online and there are no updates.

    Is there anything I need to do as I did not get a receipt from Court as evidence of delivery.
    • nosferatu1001
    • By nosferatu1001 23rd Jan 20, 2:09 PM
    • 6,299 Posts
    • 8,355 Thanks
    nosferatu1001
    MCOL will of course have no updates. Once it goes to a local court its out of their hands.

    WHy did you not get a receipt?
    You could file a certificate of service with the court, stating the date you hand delivered it.
    • Lawpmany1
    • By Lawpmany1 23rd Jan 20, 3:29 PM
    • 18 Posts
    • 3 Thanks
    Lawpmany1
    I was told to post the file through into the Postal port at the entrance to the Court and they informed all files will be collected at 12pm and 4pm each day.

    No receipts are issued.

    I am panicking now, is this not the normal practice/

    What do I need to do now to file certificate of service please.
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