VCS PCN Claimform - Broomfield Developements Broomspring Close. S37XA ***Claim Dismissed***

[shamrocker]

I'm pretty sure they're referring to POFA, and have gone to great length to demonstrate their compliance in their WS.

[zydeco]

Hmm, that contract states it is for a fixed period of 36months starting 1st May 2012. 

Isn't this claim for an incident after May 2015?

[dx100uk]

21-06-2015 the POC says.

 

contract out of date unless theres proof of a payment by the land owners to extend the contract.

[Geocyper]

Hi, it’s also claims that the company will be able to clamp and tow vehicles.  I believe that clamping and towing on private land was illegal.

[dx100uk]

when that contract started in 2012 clamping was still allowed

later that year it was outlawed

[Geocyper]

Hi dx100uk,

 

Is it still enforceable by having this clauses in it?

 

Thanks.

 

Hi, dx100uk,

 

what do do you mean “contract out of date unless theres proof of a payment by the land owners to extend the contract.” ?I missed that when I looked at it?

 

Thanks.

 

[dx100uk]

if a contract exist , there must be proof of payment from the landowners or their rep to the claimant else they can't prove their case the contract signed for xxx yrs is either current now nor has latterly been extended to cover the date  your ticket was issued on.. I see no evidence of such in their exhibits. gameover.

[shamrocker]

Good spot with the agreement term.

 

As DX rightly states, if they have not introduced other evidence in support of the expired agreement which renders it valid during the time the driver entered the land and parked the vehicle, then they are relying solely on an expired agreement, so have no right to bring a claim against anyone.

 

They are also in breach of their operator Code of Practice.

 

Of course, you'll only drop this on them of this at the hearing.

 

Have either you or they submitted copies of POFA and the Code of Practice as part of witness statements?

[Geocyper]

Hi, dx100uk,

 

what do do you mean “contract out of date unless theres proof of a payment by the land owners to extend the contract.” ?I missed that when I looked at it?

 

Thanks.

 

 

Hi shamrocker,

 

i have until the 10/10/2019 to put my witness statement in.  I will have already mentioned the two things mentioned.  They are in the IPC now but we’re part of the BPA. IN 2012.  I will look out the IPC code of conduct.  It’s a bloody contradiction in terms to identify these cowboys with a “Code of Conduct”

 

Thanks.

[shamrocker]

Their position as of the date of the parking charge is all you need to consider.

IPC CoP - Part B, 1.1 is where you'll see the bit about the agreement with landowner/occupier.

Would you be able to scan up their full WS (or at least everything excluding exhibits)?

[Geocyper]

Hi All here is their WS, sorry longtime 

 

 

Hi sorry I missed that Boundary diagram, it was stuck to another sheet.  I you notice on the contract it states that it was made on the 28/2/2012, but the boundary diagram id signed 29 March 2012.

 

Also if you look at their witness statement second page, 9.  "This states that they have the authority to implement a parking scheme sine 1 May 2012".

 

Im a layman but it all seems a bit messy to me, but don't know if this point matters

 

 

claimants_WS).pdf

[shamrocker]

 

So, your WS not due for another week, and you have not, therefore, told them that you were present when the parking event took place? Is that correct?

[Geocyper]

shamrocker, cant go into to much detail,  but it is not my Blue Badge in front screen of car. 

 

What done is done Im afraid.

 

Some advice please, all the points I wish to raise about the contents of their Witness Statement is this better to be done in my statement, or wait until we are in the hearing.

 

i have also looked at their authorities, most seem not relevant to the present situation, am I correct in this assumption?

 

Tanks 

 

Hi I have just re read shamrocker reply to me, to drop it in on the date of the hearing., sorry for any confusion.

 

[shamrocker]

I'm not getting what you're saying, sorry. You implied that your WS  has not been submitted yet, so how have you "done" anything at this stage?

 

Please explain how/where you've already admitted being present when the vehicle was parked and received the charge?

 

There's no real need to refer directly to their WS or attack parts of it in your own WS. What you can do is outline your arguments, but then as part of what you present at the hearing, refer to their WS - e.g. "see landowner agreement - exhibit A in Claimant's witness statement". That type of thing.

Post up a concise list of that you feel are your primary arguments for us to see.

[Geocyper]

Hi I have just re read shamrocker reply to me, to drop it in on the date of the hearing., sorry for any confusion.

 

 

Hi shamrocker, the parking company have no idea,

 

1. I was there.

2. Who I am

3. I was passenger in car, may need Driver as witness.  Also do I have to comment on their authorities, ie, refute them?

 

thanks.

 

Hope this helps.

 

They obviously know that I am registered keeper, nothing else.  They are presuming  I was the driver.

 

They also state in their WS that’s it “the defendant Vehicle “.

 

i do not own the car.

  

 

Hi would it be possible for me to include my reservations about their Particulars of claim.  I have typed this up.

 

8. Particular of Claim. 

10. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s).

These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 

 

11. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16,20.21. paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of 22. Practice Direction 16 7.5, as there is nothing that specifies how the terms were breached 

 

12. The driver has not been evidenced on any occasion there is no presumption in law that the keeper was the driver.

The keeper is not obliged to name the driver to a private-parking firm, which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade. 

14. when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4. See Index Pages 
 

 

[shamrocker]

10 hours ago, Geocyper said:

the parking company have no idea,

 

1. I was there.

2. Who I am

3. I was passenger in car, may need Driver as witness.  Also do I have to comment on their authorities, ie, refute them?

 

In that case, you'd be best advised to not mention anything about being there. Keep yourself as totally uninvolved with the parking event. It was the Driver who received the ticket. Therefore, to pursue the Driver, they should prove that individual was you.

 

To pursue you as the Keeper, they need to rely on POFA. To my mind, that's pretty clearly what they're doing. There may be holes in their pleaded compliance, but I've only skimmed over the facts. Nevertheless, you should include that POFA only entitles the Claimant to the amount stated on the notices - not the extra £60 they try to [problem] us for on top.

 

10 hours ago, Geocyper said:

Hi would it be possible for me to include my reservations about their Particulars of claim.  I have typed this up.

 

You can by all means attack the lack of clarity as to the capacity in which they're claiming against you. I would use this to clearly define the difference between Driver and Keeper and what this means insofar as the context of the claim.

 

You have two very obvious points of defence - the main one being the lack of authority; and the other being prohibitive signage meaning there cannot have been a contract created with the Driver. You can build any other points in around this then, but if you can get those two arguments across strongly then they should see you over the line with this.

 

Post a draft of your WS up before sending it off.

Edited October 5, 2019 by shamrocker

[Geocyper]

Hi shamrocker,  thanks for your input, I will post up points in witness statement, just completing it this weekend.

 

cheers.

 

Hi have a look now see earlier post WS.

 

[shamrocker]

Your WS is a bit loose and lacks focus in some areas. Attached is an example one that I used recently when helping someone defend a fairly similar case. I have no doubt it's far from perfect, but the key information is in there - you'll need to adapt to suit you and also omit anything irrelevant.

 

Also, just to point out - you seem to be pressing the case for the claimant not being compliant with POFA. I think you're a bit off the mark here, having read their WS - but, you should always state clear examples to back up your points and use credible sources to support your arguments.

 

Anyway, I don't think you'll go too far wrong by using chunks out of what I've attached, should you choose to use it.

Example WS.pdf

[lookinforinfo]

Wow that was quite a WS from them. looks as if they are trying to scare you or drive the Judge to sleep while reading it. to be honest there was too much for me to read it all, however I picked up a couple of things.

 

Their point 57 claims that you have failed to prove that you were not driving the car at the time of their alleged offence.

It is their job to prove that you were the driver. And they should know -

http://nebula.wsimg.com/ba23da00fdbf49863b82719de49e2d6c?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

 

Point 68. The Office of Fair Trading ruled many years ago that people in debt were not liable to pay such charges since there was no contract between the motorist and the debt collector. And according to POFA even if there were included in the signage that there would be an extra charge for non payment, that would only apply to the driver since they were the one who read the signs.

https://webarchive.nationalarchives.gov.uk/20060716004337/http://www.oft.gov.uk/NR/rdonlyres/50F06527-9FC5-4610-B385-999D6E2A8950/0/oft664.pdf   [see paragraph 2.10]

 

It has already been pointed out that the contract is out of date.

Also as you were not showing their permit you were a trespasser and VCS cannot sue for that-only the land owner can.

I can see no evidence that they had permission to erect the signage under the Town and Country [advertisement ]Regulations which was fairly normal by the parking companies in those days.

It is illegal not to have that permission and if they haven't, it follows that the signs should not be there and motorists cannot be held liable for an illegal contract.

 

This lack of permission leads me on to their early statement [no. 5] where they make great play on how their membership of the ATA meant that they fully complied with the code of practice which is seriously misleading the Court.

 

I had hoped to find several examples of VCS losing in Court because they had not complied with the Code of Conduct.

I am sure there are hundreds but I would certainly make the point that their WS has gone overboard citing the Beavis case several times and it has absolutely no comparison with your case.

Same with Loake that they mention.

 

Point out to the Judge that they keep referring to both cases in their WS usually totally irrelevant but designed to intimidate the motorist into paying which is an abuse of process.

 

I did find this one where they had the wrong land owner signing the contract.

Don't know whether the land owner had changed since the contract was signed or whether it was a made up name to fool the Court which is not unknown with parking companies.

 

https://www.harrogateadvertiser.co.uk/business/hundreds-encouraged-to-seek-repayment-for-unlawful-knaresborough-parking-fines-1-8722440

 

Here is another one where they got their contract wrong

https://www.parkingcowboys.co.uk/2019-07-vcs/

 

here is another one -also a contract  problem-VCS did not have Wickes agreement to pursue parking charges.

 

Renshaw -Smith has been ordered back to Court next month to explain why he pursued the motorist when the company had no lawful authority to do so.

https://www.dailymail.co.uk/news/article-2150551/Thousands-beat-parking-fines-judge-tackles-766k-Mr-Clampit-landmark-penalty-claim-case.html

 

it is interesting that the same person was in Court for the same reason and I thought that he won it then. Strange that VCS would be so stupid as to go back to Court considering they knew they had no authority leaving themselves open to GDPR breaches and loads of motorists asking for their money back now. Definitely one to watch.The original below goes back to 2012

http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)

 

Be good if someone knew the story of why it took so long for the second case  to come to Court.

[lookinforinfo]

I have had another look at the WS and make another point.

 

Point 54 is misleading.

It states that the NTK must be posted within 14 days after the day of the offence when what Schedule 4   

[9.4 ]says is that the letter must be delivered WITHIN 14 days from the day after the offence which is what the WS confirms but then misses off the crucial wording  "relevant date" on [9.5  ] so it reads as if the NTK can be sent off any time within 14 days which is wrong.

 

It then says the NTK was sent before the 14 days.

But that may not have complied with Schedule 4 as if the NTK had been sent on the 14th day it  would have arrived too late.

So the WS was misleading again.

 

This calls into question the accuracy and veracity of the WS which is what you want to get the Judge to disregard it.

 

[Geocyper]

I would like to thank everyone for there comments and advice.  
 

Shamrocker,  Ive looked at your WS copy, I wii modify it.

 
i am a bit unwell at present so hope to comment fully in next day or two, this is getting me down, but I need to challenge it because it is not righ.

 

Thanks again.

 

 

 

 

 

 

 

 

[Geocyper]

Good Morning,

 

Just got letter from VCS offering reduced payment, from £160 to £125, not accepting.

 

They have gave me 14 days to accept offer (Case listed to be heard in 13 days).  They say "Under CPR rules rules litigants are expected to try and resolve their disputes wherever possible".  If I do not settle then they will bring this to the courts attention, costs.  Are the allowed to do this?

 

Thanks.

 

 

[dx100uk]

doesn't matter at all.

just another begging letter

 

dx

 

[Geocyper]

ok dx100uk, Thanks.

[shamrocker]

Final throw of the dice before they admit defeat, maybe.

 

Did you do the witness statement?