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VCS Windscreen PCN Claim form - Topps Tiles, Ings road Customer Cark park
wakeyshakey
post Sun, 19 Aug 2018 - 19:48
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Hello All

I hope you are well. I need some urgent assistance please in putting together a Witness Statement for a Haring on the 6th of September.
VCS are taking me to court for a fee of £160 for my vehicle being parked on Topps Tiles' part of the parking area which is on the same estate as the gym that I go to.
I am now at the stage where I am putting together a Witness statement which needs to be in the post in the next couple of days.
I requested some assistance from another forum but everyone seems to be away today so hence why I am messaging and do hope you can assist.
Any/all help will be very much appreciated so it can get this posted ASAP

Thanks WS
_______________________________

WITNESS STATEMENT

In the County Court Business Centre
Claim Number: ___

Between:

Vehicle Control Service Limited (Claimant)

v

___(defendant's name) (Defendant)

DEFENCE

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 Claimant’s contractual authority to operate at the time in which the charge notice was issued on 13th July 2017. Instead, a contract valid for a period of 12 months from 31st December 2013 was provided which is irrelevant and no longer valid.
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). Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:
3) A CPR 31.14 request was sent to the Claimant on 23/05/18 and received no correspondence back from the Claimant. On the basis of the above, I request the court strike out the claim for want of a cause of action.

Background

4) It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.

5) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated.

6) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.
6.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:

6.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and

6.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and

6.2.3. 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. To the extent that the Claimant may seek to allege that any such presumption exists, 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) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

8) It is denied that the Claimant has standing to bring any claim in the absence of a valid and up to date contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.
9) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

10) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.
11) This operation at this location is predatory, with hidden/small signage designed not to be seen, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.
12) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

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.

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


Signed...........................


Date.....................





CPR 31.14 Request
.
On (date) I received the claim formicon in this case issued by you out of the (Name) county courticon.
.
I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.
.
Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:
.
1. the contract between [parking company name] and the landowner that assigns the right to enter into contracts with the public and make claims in their own name,.
.
2.proof of planning permission granted for signage etc under the Town and Country Planning Act 2007
.
3.copies of the notice to driver, notice to keeper and any other correspondence from VCS }to the defendant that they intend to rely upon in court.
.
You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are disclosed at your earliest convenience..
.
Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.
.
Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.
.
Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.
.
In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.
.
If you are unable to comply with this request within 14 days and believe that you will never be able to comply with this request please confirm in your response.
.
You are reminded that as this case is yet to be allocated to a track, CPR31:14 does apply, a refusal to comply because you 'think' at this stage you dont have too will be used against you in any filed defence.




PARTICULARS OF CLAIM

The claimant is a national car park operator that provides car park management on behalf of its clients as a number of car parks across Britain. This includes monitoring compliance with the Terms and Conditions of the car parking outlined within the signage present on each site and issuing charges to motorists who breach these terms and conditions.

The claimant manages a parking scheme and regularly inspects the development in accordance with their appointment. The claimants’ role is to erect signs within the development explaining the terms and conditions associated with parking in order to regulate parking. Any vehicles identified in breach of the terms and conditions issued with a charge notice.

The Defendant has been issued with a charge notice relating to a (Make, model of car) bearing the registration number(s) XXX XXX, for failure to adhere to the advertised Terms and conditions at a development(S) known as Topps Tiles, Ings Road Customer Car Park. Wakefield WF1 1RN [‘The Development’] on 13 July 2017.

The offer advertised by way of the Terms and conditions was accepted by conduct. As reiterated a Charge notice was issued by the claimant which allowed the defendant the opportunity to either pay, appeal or transfer liability.

The claimant issued this claim against the defendant for payment of unpaid charges, in the sum of £160, arising from the above vehicle as to which the Defendant is responsible for either as the driver and/or the registered keeper of the vehicle on the material date and time. For the avoidance of doubt, the sum claimed included the £100 charge notice plus debt collectionicon charge of £60.

The cause of action is a breach of contract for failing to adhere to the Terms and Conditions of entering private land. The terms and Conditions are displayed in prominent locations around the development and ought to have been known by any motorists or to an objective observer who would consider that someone has had the opportunity to have read the prominent terms but have chosen to not read them.

The claimant is also entitled to claim statutory interest at the rate of 8% pursuant to s69 of the County Courts Act 1984 and Fixed costs pursuant to CPR 27.14. Ths includes thefixed costs payable under Part 45, namely the appropriate court fee or fees paid by the claimant.

Despite demand having been made, the Defendant has failed to settle the outstanding liability. The claimant had no alternative other than to bring action against the Defendant and seek final determination by bringing legal proceedings against the Defendant.

This post has been edited by wakeyshakey: Sun, 19 Aug 2018 - 19:51
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post Sun, 19 Aug 2018 - 19:48
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Jlc
post Sun, 19 Aug 2018 - 20:21
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So you've filed the defence as per above?

The Witness Statement should only contain facts and not argument.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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wakeyshakey
post Mon, 20 Aug 2018 - 06:09
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QUOTE (Jlc @ Sun, 19 Aug 2018 - 21:21) *
So you've filed the defence as per above?

The Witness Statement should only contain facts and not argument.


Hi

Yes I have done the defence. only Witness statement remains.
Based on what I have posted, can you please advise on what to remove/add?

Many thanks
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nosferatu1001
post Mon, 20 Aug 2018 - 08:05
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Do you understand the difference betwen defence and WS?

Your defence contains your ARGUMENTS
Your WS contains your FACTS and referecne to EVIDENCE which supports your defence.

What WItness Statements have youfound to look at the content?
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wakeyshakey
post Mon, 20 Aug 2018 - 18:28
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QUOTE (nosferatu1001 @ Mon, 20 Aug 2018 - 09:05) *
Do you understand the difference betwen defence and WS?

Your defence contains your ARGUMENTS
Your WS contains your FACTS and referecne to EVIDENCE which supports your defence.

What WItness Statements have youfound to look at the content?


Hi Nosferatu

I am a bit overwhelmed by all this and not very clear on what needs to be included in my witness statement and what shouldn't.
I am also a bit rushed so have likely put things in that are irrelevant, hence why I am seeking assistance.
I suppose my Defence should be deleted in its entirety and I should focus on rest of the document?

Thanks in advance
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wakeyshakey
post Mon, 20 Aug 2018 - 21:48
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Hi all

I have made some changes. Can someone please help me as I only have 24hrs before it needs to be in the post for next day delivery.

Thanks in advance

-------------

In the County Court Business Centre
Claim Number: ___

Between:

Vehicle Control Service Limited (Claimant)

v

___(defendant's name) (Defendant)


I, ************** am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief

2) I am the registered keeper of this vehicle, (make, model).
3) The claimant advised in the Particulars of Claim that “The cause of action is a breach of contract for failing to adhere to the Terms and Conditions of entering private land”. The claimant produced an old contract which showed a valid date of 31st December 2013 for a period of 1 year. The PCN was issued on xx July 2017 which renders this document out of date. There can not be a breach of contract if there is no valid contract in place.
3) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.
3.1I aver that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:

3.2.1. There was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and

3.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and

3.2.3. 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.
3.3. To the extent that the Claimant may seek to allege that any such presumption exists, 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.
4) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

5) It is denied that the Claimant has standing to bring any claim in the absence of a valid and up to date contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.
6) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

7) I aver that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.
8) The operation at this location is predatory, with hidden/small signage designed not to be seen, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.
9) I deny that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

10) I deny 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.

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


Signed...........................


Date.....................

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nosferatu1001
post Mon, 20 Aug 2018 - 22:22
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Again
You're arguing

I'm not liable because... is an argument
I was not present on the material date and location but instead was at happy holiday home, 50 miles away, and here is my receipt to prove it - is a fact

3.1 on is an argument.

You need to concentrate on facts
You are not reciting your defence. Why do that? They HAVE your defence already!
You're telling YIUR story , exactly as you would do in court.

We get you're rushed but, sorry, that's YOUR lack of planning , not ours
We're helping where we can but we cannot write your witness statement for you

Given you're overwhelmed. , WHAT WITNESS STATEMENTS HAVE YOU ALREADY READ? There's a big hint that "none" is not a great answer.
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busman
post Tue, 21 Aug 2018 - 01:36
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WakeyShakey has also shared this post over on Consumer Action Group.Is he /she not satisfied with the replies over on CAG?
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wakeyshakey
post Tue, 21 Aug 2018 - 05:59
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Hi Nosferatu

Yes It is entirely my fault that I have left it so late to do this. I will plan better if such a situation happens again... Hope it doesnt.
I have read a few witness statements on different forums and thought I was doing the right thing.
I will make changes and repost on here. I'm just struggling to put together any more day past point 2.
I'm struggling to find what previous cases would apply that might bolster my witness statement

Busman.. I posted on here as well because I wasn't getting a response from CAG. As its summer time, I feared people were away and I am a bit rushed to get this in the post hopefully today
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nosferatu1001
post Tue, 21 Aug 2018 - 09:04
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Case law doesnt go in a WS
What you do is go through your defence, and post any FACTS you have that SUPPORT your defence.
Thats it
A WS is quite easy, as it is knowledge YOU HAVE.
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wakeyshakey
post Tue, 21 Aug 2018 - 18:03
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QUOTE (nosferatu1001 @ Tue, 21 Aug 2018 - 10:04) *
Case law doesnt go in a WS
What you do is go through your defence, and post any FACTS you have that SUPPORT your defence.
Thats it
A WS is quite easy, as it is knowledge YOU HAVE.


I have read a few already and they are quite detailed. Not something I have found to be easy...

I would like to ask a question though. The below is stated in the copied contract sent to me by VCS, does this mean that the contract would still be valid in July 2017?

contract signed on 31st Dec 2013
Clause 6.4 states:
That this agreement shall be extended immediately following the expiration of the term and will continue to roll for a further fixed period equal to the length of the term. ("the extended term") unless the client gives notice of termination in writing in accordance with clause 6.3
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nosferatu1001
post Wed, 22 Aug 2018 - 07:49
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Yes, standard rolling contract.
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wakeyshakey
post Wed, 22 Aug 2018 - 08:07
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QUOTE (nosferatu1001 @ Wed, 22 Aug 2018 - 08:49) *
Yes, standard rolling contract.


Wouldnt they have to show proof that the contract is still in place and has not been valid?
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nosferatu1001
post Wed, 22 Aug 2018 - 08:38
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No

Otherwise youre asking them to prove a negative. That the client HAS NOT asked them to terminate.

This post has been edited by nosferatu1001: Wed, 22 Aug 2018 - 08:38
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