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VCS County Claim form received, Probably need some help with DEFENCE and other bits
Lape
post Thu, 3 May 2018 - 18:23
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Hello everyone,

More than a year ago, my partner received a letter 'FINAL REMINDER', for parking and not paying on Albert Street, Birmingham B5 5JH. We checked it on googlemaps, and it's a small street with only 4 parking spaces for disabled. He swore, he never even stopped there. We checked VCS provided link for evidence, and the system couldn't find any. So we decided it's a scam and binned the letter.
9 MONTHS later, he received LBC form VCS. We wrote the letter back, denying he was a driver, asking why he never received PCN, requesting for photos and the detailed explanation were exactly the car breached the laws. Reply came a week after. They told us they have sent the PCN, added it's 'copy' and photos, but did't explained where was the place of the 'crime'.
After spending some time on googlemaps, I have realized that Albert street and the the given post code doesn't match. The problem is, there is an actual Albert Street parking, NCP Albert Street car park, and car park that comes under name Albert Street car park, but on internet the last one is showed as Excel, and instead of postcode B5 5JH it comes under address Freeman Street B5 5HT and falls out of the area of the postcode indicated in the letter. It took me a while to find out the ends...
So we came back after holiday and found the Country Claim form and the Particulars of Claim .
* I would like to ask you, would it be possible to win, proving that the Site Name stated in letters from VCS as 'Albert Street Birmingham B5 5JH' is unclear and misleading, because it doesn't say that it's a car park in first place, there is no street address indicated, and the site doesn't belong to that post code?
* One more thing, it's said that the contravention day is 26/04 and issue date of NTK 10/05, which means it's already 15 days gap + days of service. Does it mean they can't legally pursue my partner as a keeper?

This post has been edited by southpaw82: Wed, 30 May 2018 - 20:49
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post Thu, 3 May 2018 - 18:23
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Lape
post Thu, 17 May 2018 - 18:16
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I have updated my DEFENCE. I hope it's the final version of it, and that nothing is missing. Could you all just help me a bit with 2 parts of it before sending it and concentrating on the Skeleton Argument and WS?

It is acknowledged that the Defendant is the registered keeper of the vehicle in question.

1. The Defendant has the reasonable belief that the Claimant is abusing the Court process by using the threat of action and the threat of damaging the Defendants credit rating to alarm the Defendant into making a payment that is not owed.

2. The Claimant alleges that a Parking Charge Notice was issued on 26/04/2017. I bring the court's attention to ParkingEye v Beavis in that, "the Secretary of State is empowered to make available particulars in the vehicle register to anyone who “has reasonable cause for wanting the particulars to be made available to him”. The photographs of the vehicle which form the Claimant's claim do not show a vehicle which is parked. It shows a vehicle entering a car park, and leaving. A moving vehicle is not parked, it can take time both to locate and park in a parking space, and also to exit the parking space and car park. The Defendant puts the Claimant to strict proof that the vehicle was in fact parked on the land as alleged. I would like to rely on this case, could you please help me with the beginning that could lead into citing it http://parking-prankster.blogspot.co.uk/20...ts-for.html?m=1

3. The Claimant has no cause of action against the Defendant on the following grounds:-
(a) The Protection of Freedoms Act 2012 (PoFA 2012) is the only legislation currently available allowing a private parking firm to hold a registered keeper liable, however, there is no evidence to show that the registered keeper was the driver, PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015). It is unreasonable for the Defender to remember who may have been driving on the relevant date 9 month ago.
(b) Claimants Notice to Keeper (received only after the Defendant asked for copies of documents which would substantiate the claim and/or support a cause of action) is not compliant with Schedule 4, 9 (5) of the Protection of Freedoms Act 2012, “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”, and thus the Claimant cannot pursuit the Defendant as the Keeper
© Claimants Notice to Keeper fails on 9(2)(a) of PoFA because it fails to adequately identify the relevant land:
(i) “ breaching the Terms and Conditions situated at Albert Street, Birmingham, B5 5JH”. The location has no mention it to be a car park that this Claimant runs, nor has an exact address indicated, thus it’s not clear which out of three ‘Albert Street’ parking locations it is: Albert Street Parking, NCP Albert Street or Albert Street Car Park.
(ii) The Claimant’s car park official address of Albert Street car park is “Freeman Street, Birmingham, B5 5HT”, not as stated Albert Street, Birmingham, B5 5JH.
(iii) The post code B5 5JH indicated in the Letter Before Claim is incorrect, as it belongs to the Park Street according Google.co.uk, Parkopedia.co.uk postcodearea.co.uk and getthedata.com sources, and has no common land borders with Albert Street.
(iv) None of documents The Claimant provided the Defendant defined the location. This included Notice to Keeper, Particulars of Claim, as well as the photographs from the ANPR system.

4. 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 under paragraph 8(2)© or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). However, in addition to the original ‘parking charge’, believed to be £100, for which liability is denied, additional unsubstantiated charges have been added to the sum claimed.

5. It is denied that any "parking charge notice" costs as stated on the Particulars of claim are owed and any debt is denied in its entirety. The date of the alleged incident is 26/04/2017 as per the particulars of claim which is over 9 months before the first correspondence from the Claimant. It is perplexing as to why the Claimant waited until now to bring proceedings.

6. The claim form itself is vague and lacks pertinent information as to the grounds for the Claimant’s case. The particulars of claim fail to meet CRP16.4 and PD16 7.3-7.5 and merely provide some basic information and an "amount" consisting of a completely unsubstantiated three-figure sum, adduced by the Claimant's solicitors. Because of this, the Defendant has had to cover all eventualities in defending such a 'copy & paste' claim which has caused significant distress and has denied him a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person the Defendant respectfully asks that he be permitted to amend and/or supplement this defence as may be required following a fuller disclosure of the Claimant's case.

7. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner, the official operator Excel Parking Services Ltd. to Vehicle Control Services LTD.
(a) Vehicle Control Services Ltd are not the lawful occupier of the land, nor the operator. It’s unclear if entering the land (which is denied) The Defendant would create contract with Excel or with the Claimant VCS.
(b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, The Defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim. I would like to put in Consumer Rights Act 2015 S.69,Contract terms that may have different meanings:(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.' but I don't know how to formulate the beginning for it

8. In the pre court stage the Claimant did not send a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information:
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which the Defendant intends to rely.
c) How the “principal debt + initial legal costs” of 160 pounds has been calculated and justified.

9. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste’ is the closest a human, legally trained or not, came to the information transmitted from Claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This Claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply made up numbers, and are an attempt at double recovery by the Claimant.

12. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

13. The Defendant requests the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to the template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the Court process by using the threat of action and the threat of damaging the Defendants credit rating to alarm the Defendant into making a payment that is not owed.
Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


This post has been edited by Lape: Thu, 17 May 2018 - 18:18
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nosferatu1001
post Fri, 18 May 2018 - 08:25
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OK your defence is muddled

iN 2, you allege the notice was issued on Y date, but the following sentence says absolutley nothing about dates, and why the issue date is important, and then instead talks about whether this was parking or not. Meaning you are disputing there being no cause of action (as theyve never shown the vehicle parke) which should surely go under 3?

5) What is meant by parking charge costs here? You cant just deny anything is owed and then not really explain why 9 months is important.

6) Shouldnt this be in 2? You cant explain why youre defending on all grounds after you have defended....it doesnt make sense

7) So there are signs saying Excel yet the claim is from VCS? Any reason why you havent averred that the proper claimant, if any, would be Ecxcel as that is who any driver would have contracted with, if a contract actually exists? Wha do the signs show - Excel or VCS? Who do they say you are contracting with vs the size of any company logos? Can you not see that its bloody strange to have Excel allegedly contract yet VCS is claiming you owe them? If you paid VCS there woul dbe nothing stopping Excel from then chasing you - theyre two different companies!

Think of the defence as having a structure, a flow through the claim agsint you and why it fails> First up you point out issues with the claim itself - no cause of action, for example. Then you go into the events that suppsoedly gave rise, and why they dont apply, etc.

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Lape
post Fri, 18 May 2018 - 09:49
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Ok, got it! Thank you a lot for reading it all! There is no mention about Excel in any of letters, but there is a massive logo of the company on the boards, to compare to small VCS name mentioned in the carpark rules. As well the named operator is Excel on their official mobileapp. Its easy to say it in simple english, but I just cant work my head how to tell it in clever English.

This post has been edited by Lape: Fri, 18 May 2018 - 09:55
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nosferatu1001
post Fri, 18 May 2018 - 10:02
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It doesnt have to be clever. Just state that the entity any driver would believe they are contracting with is Excel, not VCS, and so VCS are a stranger. It is at best ambigupous to use both companies - in which case under the Consumer Rights Act 2015 the interpretation most favourable to the consumer has to be used, which is the obvious one that the driver could not be sure who they were contracting with, therefore there ius uncertaiunty of contract and thus no contract can be formed. At worst, their conduct is misleading.
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Lape
post Mon, 21 May 2018 - 04:40
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QUOTE (nosferatu1001 @ Fri, 18 May 2018 - 09:25) *
Think of the defence as having a structure, a flow through the claim agsint you and why it fails> First up you point out issues with the claim itself - no cause of action, for example. Then you go into the events that supposedly gave rise, and why they dont apply, etc.

I've found a very good example that I've tried to use for my case. I hope it looks better and more understandable?

DEFENCE STATEMENT

Preliminary
1. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”
2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

“ 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

3. The Claimant has not provided enough details in the particulars of claim to file a full defence;
3.1. The Claimant has disclosed no cause of action to give rise to any debt.
3.2. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
3.3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “unpaid charges” which does not give any indication of on what basis the claim is brought.
The particulars of claim are incompetent in disclosing no cause of action.

Background
4. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark ****** which is the subject of these proceedings.
5. It is not admitted that on ******* the Defendant's vehicle was parked at ********.
5.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle was indeed parked. The photographs of the vehicle which form the Claimant's claim do not show a vehicle which is parked. It shows a vehicle entering a car park, and leaving. A moving vehicle is not parked, it can take time both to locate and park in a parking space, and also to exit the parking space and car park. The Defendant puts the Claimant to strict proof that the vehicle was in fact parked for 28 minutes on the land as alleged.
6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
6.3 Claimants Notice to Keeper (received only after the Defendant asked for copies of documents which would substantiate the claim and/or support a cause of action) is not compliant with Schedule 4, 9 (5) of the Protection of Freedoms Act 2012, “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”, and thus the Claimant cannot pursuit the Defendant as the Keeper.
6.3.1 To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
7. Claimants Notice to Keeper fails on 9(2)(a) of PoFA because it fails to adequately identify the relevant land:
1. “ breaching the Terms and Conditions situated at Albert Street, Birmingham, B5 5JH”. The location has no mention it to be a car park that this Claimant runs, nor has an exact address indicated, thus it’s not clear which out of three ‘Albert Street’ parking locations it is: Albert Street Parking, NCP Albert Street or Albert Street Car Park.
2. Claimant’s car park official address of Albert Street car park is “Freeman Street, Birmingham, B5 5HT”, not as stated Albert Street, Birmingham, B5 5JH.
3. The post code B5 5JH indicated in the Letter Before Claim is incorrect, as it belongs to Park Street according Google.co.uk, Parkopedia.co.uk postcodearea.co.uk and getthedata.com sources, and has no common land borders with Albert Street.
4. None of documents the Claimant provided the Defendant defined the location. This included Notice to Keeper, Particulars of Claim, as well as the photographs from the ANPR system.
7.1 The defendant wrote to the claimant on ******* asking to identify the relevant land.
The Claimant has not responded with this information.
The Claimant deals with private parking issues every single day of the week there can be no excuse for this omission.
8. The Claimant is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
8.1. The Claimant is not the landowner and its role is perplexing:
1. Excel Parking Services logo could be found on the signage boards present on the alleged site.
2. RingGO is the official cashless payment provider for Albert Street car park Freeman Street, Birmingham, B5 5HT.
2.2 According to RingGo the official operator of the car park mentioned above is Excel Parking Services.
The entity any driver would believe they are contracting with is Excel Parking Services, not VCS, and so VCS are a stranger. It is at best ambiguous to use both companies - in which case under the Consumer Rights Act 2015 the interpretation most favourable to the consumer has to be used, which is the obvious one that the driver could not be sure who they were contracting with, therefore there is uncertainty of contract and thus no contract can be formed. At worst, their conduct is misleading.
8.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
8.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf.
9. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
9.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
9.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
Wholly unreasonable and vexatious claim
12. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).
13. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.
14. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Name - Signed - Date


This post has been edited by Lape: Mon, 21 May 2018 - 04:44
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nosferatu1001
post Mon, 21 May 2018 - 08:03
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Are you really denying the vehicle was ever parked, and using that as your first actual defence argument?

Why do people keep finding the word "statement"? it doesnt exist. its just a defence.

VCS dont even try to use POFA, do they? So why are you detailing the areas they have failed it, when they dont claiumn this right? Just simply state the claimant hsa chosen not to rely on POFA.

You get to 8 before you actually talk about the confusion.
You havent actually shown that the locaiton on the PoC doesnt exist

Please, go back to your first one rather than copying wholesale and in a hoorrible font with no para spacing, stuff whic his mostly not relevant

Just do work on this.
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Lape
post Mon, 21 May 2018 - 08:29
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I just wanted it to look better. And it was one of the examples how the defence should look like on MSE forum for newbies.
So what should be my first argument? That they failed to send a NtK in 14 days term, o that the failed to locate the land and so it was impossible to understand what car park they had in mind, as we didnt know that excel and vcs are together?
Should i just make a citation about location description from PoC?

This post has been edited by Lape: Mon, 21 May 2018 - 08:31
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nosferatu1001
post Mon, 21 May 2018 - 08:53
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I gave yo a big hint: a defence starts at the start and ends at the end. Here the start is an error with the claim itself: the PoC do not specify any place that exists (from memory that is true isnt it?)_ Or it fails to actually specify a single place - but rather a few. Whatever is the issue. So how can you be liable for a place that doesnt exist, or how can you defend "United Kingdom" as the car park locaiton (for an extreme example) when they shoul dhave specified a place?

You also KEEP PON MISSING THE POINT about POFA

IF VCS have CHOSEN not to use POFA, then NOTHING ABOUT POFA FAILURTES IS RELEVANT. NOTHING. It is ONLY if they claim the right to pursure the keeper BECAUSE of POFA that you then talk about how they have not met POFA. 14 days is a POFA requirement> if they CHOOSE not to use POFA, then you simply point this oiut, and state the D is keepr of the vehilce, and VCS have never acuired the right to pursue the keeper of the vehicle as they chose not to use POFA.

NONE of the detailed "they didnt meet POFA2 stuff is relevant if the Claimant has never claimed to use POFA in the first place. It is a complete irrelevancy
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Lape
post Mon, 21 May 2018 - 09:54
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So it means, that they have no rights to pursue me, because technically there was no crime done? The land is non existing, they lost rights to pursue me as a keeper because they didnt chose POPLA.
Do I need then all the things about contract with landowner, fuss with excel, and the points that they didnt provide us photos with parked car? Or my defence can be just straight forward based on imaginary land and non existing POPLA?
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nosferatu1001
post Mon, 21 May 2018 - 10:05
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There wasnt a "crime", ever. this is purely civil.

Do NOT confuse terms> POPLA is an appeals service. POFA2012 is a law.

I never said to go in with just one defence point. Never have I said that. it is just the FIRST point because it is obivously FIRST when you think about a claim: the claim form details supposedly WHAT you are liable for and WHY. If the locaiton specifeid doesnt exist, or is not actually specific (I forget which - please clarify) then how can there be liability?

They didnt LOSe any rights, they never GAINED them. That is a fundamental shift you have to realise: in order to pursue the keeper, they had to choose to use the POFA2012 law to do so. they chose not to. Therefore the keeper was never liable, only the driver.

So do as told. Go back to your defence. Edit it. insert *templates* only if they help you. You cannot just ocpy and paste and hope - you have to understand what it is you are copying.
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Redivi
post Mon, 21 May 2018 - 10:16
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You seem determined to snatch defeat from out of the jaws of victory

A judge is perfectly entitled to conclude that, on the balance of probabilities (better than 50:50), you were the driver and that the name on the entrance sign identifies the car park, not its postal address
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Lape
post Mon, 21 May 2018 - 12:22
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You know, no wonder why so many people just choose to pay =) before I'll start tonight, just want to be sure that's the correct order : No cause of action:
1. Misleading car park name and failure to to identify the land
2.VCS questionable role when issuing the claims, if the operator is excel
3.Can't pursuit me as a keeper
4.Didnt show any proofs I was a driver
5.Even if I was a driver, there are no proofs from the side of VCS that car was parked for 28 minutes.
6.VCS send PoC that lacks of information
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nosferatu1001
post Mon, 21 May 2018 - 13:05
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2) no noone has used that term
confusion over who the driver eever entered a contract with, given the Excel company logo is the largetst and some signs say Excel is the contracting party and some VCS (if true)
If the contract was with Excel, VCS has no part. If there was confusion over who you are contracting with, then the most favourable is the more obvious one - Excel.
3 and 4) are the same;. Never acquierd the right to chase the Keeper and has failed to provide proof of the drivers identity, which cannot be assumed to be the keeper.
5) What do you assert the vehicle was doing for 28 minutes then? Because to anyone reaosnable there is a good chance it was parked. Ive asked this before, you cant just rasie things without thinking it through.
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Lape
post Mon, 21 May 2018 - 18:57
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just deleted silly question. Nevermind

This post has been edited by Lape: Mon, 21 May 2018 - 19:10
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SchoolRunMum
post Mon, 21 May 2018 - 22:45
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Here's a recent defence where VCS and Excel signs muddy the waters about any contract offered;

https://forums.moneysavingexpert.com/showth...73#post74312173

Just don't go calling it a 'DEFENCE SKELETON ARGUMENT' as you can see from the comments underneath, that MUST just say 'DEFENCE' and it needs a Statement of truth and signature/date of course, like your first draft did.
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Lape
post Tue, 22 May 2018 - 05:13
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Thank you I've already read that case....and a lot of others form this forum and MSE. I've came back to my first form, put the arguments from the most important to less important,and if the case will be lost just because they are not in a particular order to someones taste, let it be. I just would like to add somewhere that we never received the original Notice to Keeper, but unsure if it's needed, and I'm confused because I dont know how to number it clearly...
I need to send it by tomorrow evening, as I'm going away, and I'll not have an access to laptop.

DEFENCE (it's in Times New Roman 12 1.5 spacing on my laptop)

1. The Defendant was the registered keeper of the vehicle at the time in question, no. XXXX XXX

2. The Claim relates to an unwarranted penalty sum arising from the vehicle having been allegedly parked at Albert Street, Birmingham on 26/04/2017.

3. The Claimant stated in the Particulars of Claim ‘The cause of action is a breach of contract for failing to adhere Terms and Conditions of entering private land’.

4. The Defendant believes that the Claimant has no cause of action against the Defendant, and that there was no breach of contract on the following grounds:-

1.Claimants Notice to Keeper fails on 9(2) (a) of PoFA because it fails to adequately identify the relevant land:

1.1 “breaching the Terms and Conditions situated at Albert Street, Birmingham, B5 5JH”. The location has no mention it to be a car park that this Claimant runs, nor has an exact address indicated, thus it’s not clear which out of three ‘Albert Street’ parking locations it is: Albert Street Parking, NCP Albert Street or Albert Street Car Park.

1.2 Claimant’s car park official address of Albert Street car park is “Freeman Street, Birmingham, B5 5HT”, not as stated Albert Street, Birmingham, B5 5JH.

1.3 The post code B5 5JH indicated in the Letter before Claim identifies a different land and street (Park Street), with different car parks and various businesses located in there, and has no common land borders with Albert Street.

1.4 None of documents the Claimant provided the Defendant defines the alleged car park location. This includes Notice to Keeper, Particulars of Claim, as well as the photographs from the ANPR system.

1.5 The defendant wrote to the claimant on 02/18 asking to identify the relevant land, or to give more details about car park location.

The Claimant has not responded with this information.

The Claimant deals with private parking issues every single day of the week there can be no excuse for this omission.

2. The driver has not been identified by the Claimant, who appear to be pursuing the Defendant as the registered keeper of the vehicle, yet without using the only applicable statute which would have enabled a parking firm to rely on 'keeper liability'.

2.1 It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

2.2 To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

3. The Claimant is not the landowner and its capacity to bring the claim to the Court is perplexing:

3.1 Excel Parking Services logo could be found on the majority of the signage boards present on the alleged site.

3.2 Helpline telephone number, provided on the signage boards belong to Excel Parking Services.

3.3 RingGO is the official cashless payment provider for Albert Street car park Freeman Street, Birmingham, B5 5HT.

3.4 According to RingGo the official operator of the car park mentioned above is Excel Parking Services.
The entity any driver would believe they are contracting with is Excel Parking Services, not VCS, and so VCS are a stranger. It is at best ambiguous to use both companies - in which case under the Consumer Rights Act 2015 the interpretation most favourable to the consumer has to be used, which is the obvious one that the driver could not be sure who they were contracting with, therefore there is uncertainty of contract and thus no contract can be formed. At worst, their conduct is misleading.

4. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf.

5. In the pre court stage the Claimant did not send a Letter before Claim that complied with the Practice direction on pre-action conduct. The Letter before Claim can be seen to miss the following information:

1. A clear summary of facts on which the claim is based.

2. A list of the relevant documents on which the Defendant intends to rely.

3. How the “principal debt + initial legal costs” of 160 pounds has been calculated and justified.

6. The claim form itself is vague and lacks pertinent information as to the grounds for the Claimant’s case. The particulars of claim fail to meet CRP16.4 and PD16 7.3-7.5 and merely provide some basic information and an "amount" consisting of a completely unsubstantiated three-figure sum, adduced by the Claimant's solicitors. Because of this, the Defendant has had to cover all eventualities in defending such a 'copy & paste' claim which has caused significant distress and has denied him a fair chance to defend this claim in an informed way. Therefore, as an unrepresented litigant-in-person the Defendant respectfully asks that he be permitted to amend and/or supplement this defence as may be required following a fuller disclosure of the Claimant's case.

7. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

7.1 The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1

8. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste’ is the closest a human, legally trained or not, came to the information transmitted from Claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

9. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This Claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

10. The Defendant has the reasonable belief that the Claimant is abusing the Court process by using the threat of action and the threat of damaging the Defendants credit rating to alarm the Defendant into making a payment that is not owed.

11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

12. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

This post has been edited by Lape: Tue, 22 May 2018 - 05:16
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SchoolRunMum
post Wed, 23 May 2018 - 00:51
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If the NTK was never received, change this:

QUOTE
4. The Defendant believes that the Claimant has no cause of action against the Defendant, and that there was no breach of contract on the following grounds:-

1. The Defendant received no 'Notice to Keeper' from the Claimant, at all. Despite this fact, the Claimant has provided a 'copy' or mock-up of a purported Notice to Keeper which, in any event, fails on 9(2) (a) of PoFA because it fails to adequately identify the relevant land:
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Lape
post Wed, 23 May 2018 - 04:52
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Thank you! =)

This post has been edited by Lape: Thu, 24 May 2018 - 05:06
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Lape
post Thu, 24 May 2018 - 05:11
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Just a quick one, where do I send the defence? I've sent it to CCBCAQ@justice.gov.uk but I see that they indicate ccbcaq@hmcts.gsi.gov.uk ?

This post has been edited by Lape: Thu, 24 May 2018 - 05:12
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ostell
post Thu, 24 May 2018 - 07:02
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Send it to the address they indicate. You should get an acknowledgement.
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