Grounds for appeal - Vehicle Control Services, no parking no waiting Options

[Yes lad]

I have received a parking charge form VCS for contravention of code 46 Stopping in a zone where stopping is prohibited. the sign on the private road states no parking no waiting.

The driver stopped on this road to pick up passenger, passenger was there an got in the car straight away the driver of the vehicle did not leave the vehicle therefore no parking and no waiting took place. the letter has photographs of passenger entering the vehicle between picture 1 to picture 3 there is less than 30 seconds.

as no parking and no waiting took place is that grounds to have the charges dropped?

the driver didnt realise the signs where there all though there are number of the signs along the side of the road none of which are facing the oncoming traffic all face the road head on so if your driving down the road you would not be able to read them without stopping to and looking to your right.

This post has been edited by Yes lad: Sun, 20 Aug 2017 - 19:13

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[nosferatu1001]

Do VCS attempt to use pofa?
If not, then yiu don't explain what's needed to use pofa. You just state the C has chosen not to use OOFA so is limited to claiming from the driver. The C is put to strict proof

STILL not seeing the 16 seconds listed?! Shouldn't this be in the background?
Which seems far too long. You don't need all that. Mention deficiencies and move on. No need for a long winded explanation.

Finally seen thus at 23. Why so far down? You're still referring to evidence. Just state the ARGUMENT that a vehicle stoping for 16 seconds, as stated on the C correspondence, cannot give raise to a contract or obligation on a driver.

Try again

You're creating a SET OF ARGUMENTS. So, write out your arguments first
not liableas keeper because...
No contract because...
And do on. Structure this much, much better.

[Yes lad]

4th go....sorry to be a pain i'm just not that great at this kind of thing. any pointers greatly appreciated.


1. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. <insert vehicle details here>

2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the defendant was the driver of the vehicle at the time of the alleged incident.

3. The claimant has chosen not to use Protection of Freedoms Act 2012 (POFA 2012) so is limited to claiming from the driver. The claimant is put to strict proof on this matter.

4. The argument that a vehicle stopping for 16 seconds as on previous correspondence, cannot give raise to a contract or obligation on a driver.

5. It is stated to the court that a mere 16 seconds is not a sufficient amount of time for any reasonable person to consent to contractual obligations fully and capably.

6. The signs on this site are illegible from a moving vehicle for which the speed on this road is 25 miles per hour.

7. The keeper of the vehicle is not liable for the charge, as no contract was formed with the driver, the driver was not parked on this site and the signs are illegible from a moving vehicle.

8. The defendant has since returned to the vast location for which the claimant is indicating the offence took place, and it is noted that neither the sign at the entrance or throughout this roadway state No stopping.

9. The road signs within this vast location are all facing outward to the road and are not facing the oncoming traffic as you would expect from a road sign which pertains important contractual information, in which the signs are illegible from a moving a car let alone a car travelling at 25 miles per hour.

10. It is impossible for a driver to read these road signs whilst keeping his or her eyes on the road ahead. Without doing so would not only endanger their own life but would also endanger the life of others.

11. The Particulars of Claim which the claimant is looking to rely upon in court lack specificity and Direction. The claimant (Vehicle Control Services Ltd) has not provided sufficient details in the particulars of claim to file a full defence. In addition, the claim which has been raised appears to be very generic in nature and the letter sent to the defendant reads like a stock letter which is sent to all potential defendants. The generic nature of the claim is apparent to the defendant as the text explaining the alleged incident has not been tailored to this claim or the defendant directly.

12. The Claimant has failed to disclose the exact time when the alleged incident has occurred. Secondly the claimant has failed to state the duration of the alleged incident which is being brought before the court. Furthermore the Claimant has failed to inform the defendant of the exact location where the alleged conduct occurred. It should be known to the court that the location in question is very vast.

13. The claimant has failed to explain or stipulate what specific conduct (allegedly performed by the defendant) has occurred.

14. The Claimant stated that “the terms and conditions was accepted by way of conduct.”

15. Due to the non specific nature of the claim provided it is not clear to the defendant and subsequently to the court what that supposed conduct is and how the undertaken conduct (if any) has caused a breach to the terms and conditions.

16. The defendant reserves the right to seek from the court permission to serve an amended defence should the Claimant add to or expand his particulars at a later stage of these proceedings.

17. The defendant requests the court to limit the Claimant only to the unevidenced allegations in the Particulars. The Particulars of Claim sent by the claimant fail to refer to the material terms of any contract. Without the defendant and the court having any knowledge of the full material terms of the contract, it is sufficiently clear that the claimant fails to provide a satisfactory particulars of claim document which comply with the Civil Procedure Rules 16. The claimant has failed to provide an honest and accurate claim in respect of statements of case, and has failed to adhere to the relevant conduct required by the court set out in the practice direction with specific regard to claims formed by contract or conduct.

18. In order to avoid court proceedings, the defendant as the registered keeper of the vehicle responded to the claimants initial parking charge notice of 15/08/17 advising the claimant that the registered keeper was perfectly prepared to submit to alternative dispute resolution through a competent body that substantially meets the provisions of The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. The Ombudsman Service and POPLA are two such organisations in which the defendant would engage with.

19. The claimant was not prepared to appeal through either of the suggested competent bodies and is behaving unreasonably towards the defendant

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

[SchoolRunMum]

The claimant has failed to explain or stipulate what specific conduct (allegedly performed by the defendant) has occurred.

I would suggest instead:

The claimant has failed to explain or stipulate what specific conduct (allegedly performed by the unidentified driver) has occurred.

You could add, as a separate numbered point just under the point about them choosing not to use the POFA:

- The Defendant expects this copy & paste robo-claim will proceed with a template, disingenuous Witness Statement from a person who was not a witness at all, attempting to rely upon the cases of Elliott v Loake (an irrelevant criminal case) and or Combined Parking Solutions v AJH Films (an irrelevant employee/employer commercial liability issue). This despite the Claimant and their Solicitors knowing that these cases have never been reported as persuasive or even applicable to any robustly-defended private parking case.

- It will be common ground that all parties will be aware of several recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, including Excel v Mr C C8DP37F1 Stockport 31/10/2016, and Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. Further, Excel v Lamoureux at Skipton C3DP56Q5 involved three unreasonable claims in which DJ Skalskyj-Reynolds examined the Parking Operator's Notice to Keeper (NTK) and found that it did not comply with the POFA. The claimant was warned not to bring further baseless non-POFA cases to that Court and were forced to discontinue the final vexatious claim.

- Transcripts of relevant cases (including one heard on appeal, Excel v Smith where a mistake by a County Court Judge was put right by HHJ Smith at Manchester, as a persuasive opinion, debunking the above cases once and for all in his circuit) will be adduced in evidence in the defence, and the court's attention is drawn to the fact that Excel Parking Services are the sister company to this Claimant and the acting Solicitors at all times in all cases listed above, were BW Legal. Since a solicitor's first duty is to the Court, any move to now suggest that a registered keeper can be held liable by presumption alone - outwith the POFA/Schedule 4 - will be indicative of an attempt to mislead the court.

[Yes lad]

really appreciate all the help everyone has given me, so thank you for the responses. Away for a couple of wks now so will be submitting my response around mid June, I submitted the AOS so no rush in replying. if anyone has any other pointers or advice then all greatly appreciated. Thanks again

[Yes lad]

Hi so I've now received a witness statement from vehicle control services Ltd. ahead of my courr dare. do i now need to provide a defence witness statement in the same fashion? do i address points on their witness statement? or do I address the points raised in court? one of the points raised states; any vehicles identified parked, stopped or waiting on the roadways will be deemed parked.
As the signs states no parking or waiting they are implying stopping is deemed parking!! so I believe the sign is not clear to the driver. a number of other points I will also be challenging.
if I refer to a caselaw do i need to provide the transcript for the judge, e.g. beavis not being relevant in my case.
any help as always appreciated.

[nosferatu1001]

You should not be asking this!

IN the last 3 months what research on court process have you done/ Have you read the excellent guide on Post 2 of the MSE FORUM NEWBIES thread (google it) which explains exactly what you must do and when?

Your court hearing letter willl give you an EXACT date by whcih the court AND CLAIMANT must have recieved your WS. I fear you have missed this date already.

Dont sleep walk!
Come back when youve confirmed you have read and understood this.

[Yes lad]

I have until the 10/10/18 to provide my witness statement so it will need to be posted by monday at the lastest. Any pointer greatly appreciated. this is my starting attempt.


1. It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings. xxx xxxxxxx.

2. The Claimant failed to provide evidence (in pre-action correspondence or otherwise) that the defendant was the driver at the time of the alleged incident.

3. In order to avoid court proceedings, the defendant as the registered keeper of the vehicle responded to the claimants initial parking charge notice of xxxxxx advising the claimant that the registered keeper was perfectly prepared to submit to alternative dispute resolution through a competent body that substantially meets the provisions of The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. The Ombudsman Service and POPLA are two such organisations in which the defendant would engage with.

4. The claimant was not prepared to appeal through either of the suggested competent bodies and is behaving unreasonably towards the defendant.

5. The Particulars of Claim which the claimant previously provided lacked both specificity and Direction. The claimant (Vehicle Control Services Ltd) had not provided sufficient details in the particulars of claim to file a full defence. In addition, the claim which has been raised appeared to be very generic in nature and the letter sent to the defendant reads like a stock letter which is sent to all potential defendants. The generic nature of the claim is apparent to the defendant as the text explaining the alleged incident has not been tailored to this claim or the defendant directly.

6. The defendant requests the court to limit the Claimant only to the unevidenced allegations in the Particulars. The Particulars of Claim sent by the claimant fail to refer to the material terms of any contract. Without the defendant and the court having any knowledge of the full material terms of the contract, it is sufficiently clear that the claimant fails to provide a satisfactory particulars of claim document which comply with the Civil Procedure Rules 16. The claimant has failed to provide an honest and accurate claim in respect of statements of case, and has failed to adhere to the relevant conduct required by the court set out in the practice direction with specific regard to claims formed by contract or conduct.

7. The claimant has now provided a full witness statement detailing the claimed breach of terms and conditions.

8. The witness statement was provided to the claimant on xxxxxxx, just 4 working days before the required documents were required by the court.

9. The defendant has now, at short notice had to redraft his defence taking in to account the points raised.

10. The alleged offence is for the driver of the vehicle stopping to load a passenger with the time of the offence taking 11 seconds as illustrated in the parking charge notice of xxxxxx. At no point was vehicle xxxxxx parked on this site therefore the claimant cannot rely upon schedule 4 of the protection of freedoms act 2012.

11. 7. The initial parking charge notice received from Vehicle control services notes the contravention code as 46) stopping in a zone where stopping is prohibited.

12. The signs throughout this site state no parking, no waiting they do not state stopping is prohibited.

13. If stopping is prohibited the signs throughout this site should clearly state no stopping. If as claimed stopping is in fact prohibited then the signs throughout this site mislead any would be motorist as it advises of no parking, no waiting only.

14. The entrance to this site in question is off a very busy roundabout on xxxxx known locally as xxxx.

15. The vehicle control services road signs within this vast location are all facing outward to the road and are not facing the oncoming traffic as you would expect from a road sign which pertains important contractual information, in which the signs are illegible from a moving car let alone a car travelling at 25 miles per hour.

16. It is almost impossible for a driver to read these road signs whilst keeping his or her eyes on the road ahead. Without doing so would not only endanger their own life but would also endanger the life of others. In order for the claimant to read the terms and conditions within the awkwardly placed road signs for which there is a lot of information. The claimant would need to read the signs whilst driving at 25 miles per hour as per the speed limit, rotate his or her head 90 degrees, as stopping the vehicle to consider the terms and conditions would be in breach as noted by the claimant of the terms and conditions within this site.

17. It is also notes the offence which has been captured by the claimant from picture 1 to picture 3 as per the first parking charge notice of xxxxxnotes a time difference of 11 seconds, the defendant would suggest 11 seconds would not even enable the driver to read the very detailed sign post.

18. In order to form a contract there must be an offer, a consideration and acceptance of the offer. As the road signs are unreadable whilst driving, the 11 seconds for the noted offence, is insufficient time for the defendant to read the very wordy sign posts, consider the offer and then decide if he or she is to accept the offer.

19. The argument that a vehicle stopping for 11 seconds cannot give raise to a contract or obligation on a driver.

20. It is stated to the court that a mere 11 seconds is not a sufficient amount of time for any reasonable person to consent to contractual obligations fully and capably.

21. The road sign also states, Vehicles are left on this car park at the drivers/keepers risk and Vehicle Control Services Ltd will not be liable for any loss of or damage to vehicles or personal possession. So is this a car park or a road? The defendant would suggest this is a road, the sign refers to this as a car park therefore would imply you can park a car which the sign forbids!!

22. Please also see the attached case of Parking Control Management UK v Christopher Bull
Claim No. B4GF26K6. With reference to paragraph 18 which I believe is also relevant in this case. I have attached the full judgment for your reference.

I am afraid that in my judgment that analysis just does not work in this case. It does not work for this reason. If the notice had said no more than if you park on this
roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.

23. Therefore this would suggest as the claimant forbids somebody to do something they are not offering a contract at all. The sign states No parking then goes on to state by parking…..therefore contradicting itself.

Summary

24. The claimant provided a not fit for purpose particulars of claim due to its generic nature.

25. The driver of the vehicle is not known and as the claimant cannot rely upon schedule 4 of the protection of freedoms act 2012 the keeper cannot be liable.

26. The road signs within this site are illegible from a moving vehicle.

27. The offence is for stopping and loading a passenger however the road signs do not state no stopping, if no stopping is in breach of the terms and conditions then the signs within this site are misleading.

28. The stopping offence of a mere 11 seconds is insufficient to read the signs let alone consider and decide to agree or reject any offer of a contract.

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

[nosferatu1001]

Do they try to rely on POFA anyway?
You shouldnt be redrafting your defence here, as the court SHOULD require you to make an applicaiton to do so
Did you tell them you would use POPLA or te ombudsman? That looks like a copied paragraph
You should not be making arguments, as that is a defence. Make sure you have facts and evidence to back up those facts.

[Yes lad]

They are now with the amended witness statement they have submitted. Within this pack they have sent they have provided all correspondence sent and have listed a number of arguments as the claimant. I've done the witness statement as best as I could as a none legal person. I've probably gone off track but I'm going to send it off and go to court and see what happens.

I did advise in my first correspondence to VHS that I was willing to appeal through ombudsmen and popla everything noted is factual. I know my witness statement probably isn't right but my wife's just had a baby and I have got the neither the time nor patience to continue messing about.

Will just cross my fingers the judge is lenient and recognises my none legal back ground which I'm sure in cases of this nature they see all the time.

[nosferatu1001]

In which case you point out they cant amend their claim at this late stage; ke it clear that their PoC makes no claim under POFA, they cannot now do so.

[Yes lad]

ah right thank you for this. much appreciated.

[Yes lad]

Hi just thought I'd let you all know I've just received a letter from VCS with a notice of discontinuance with regards to their claim ahead of my date in court next week. Made up thanks to everyone for their contributions. Happy days 😀

[ostell]

Check with the court that they have received the same letter.

Perhaps a letter to the court claiming your costs for their unreasonable behaviour in discontinuing so late? Your time at £19 ph and paper, printing and postage.

[nosferatu1001]

Inded
YOu will have to point out the Claimant has a history of discontinuing claims they know they have no hope of winning, and they will have known this before they even filed a claim. Nothing in your defence would have been new to them.

[Yes lad]

just got round to drafting a letter to claim expenses do you think this is sufficient.

Claim for Expenses

I write with regards to the recently discontinued case of...........

It is noted the claimant has a history of discontinuing cases at this stage for cases that they had no chance of winning and would not contest in court. They were already in receipt of my particulars of claim which was not too dissimilar from my full defence.

I can therefore only assume they’re using the small claims court as a way in which to put pressure on a defendant to pay their unfairly issued parking fine notices.

Throughout this claim the claimant has acted in an unreasonable manner to myself, as the defendant, passing on my personal details to two different debt collecting agencies. Which I have attached for your reference and they are therefore possibly in breach of data protection.

I therefore seek to claim back my expenditure from the claimant for;

3 x 1st class stamps 65p
12 x photographs printed £3
Petrol to and from the site in question to gather evidence £5
Ink used from my father in laws printer for witness statements
My time, not only to draft responses to the initial parking charge notice but also in replying to both the particular of claim and filing a full defence statement.
The full defence statement which I provided was drafted 06/10/18 at a time my wife had just given birth to my newly born son on 25/09/18. Therefore this precious time when I was off work on paternity leave should of been spent with my family rather than fretting over drafting responses to claimant witness statements.

I therefore seek to claim 8 hours at a rate of £21.24 which is my Sunday hourly rate. I had no option but to compile my full defence on a Sunday at a time when I should of been attending to my 12 day old child.

[ManxRed]

Not my area of expertise, but I think you would possibly need to highlight areas where they have behaved unreasonably, and then cite the relevant area of the Pre-Action Protocol which allows for additional costs to be awarded on the basis of them behaving unreasonably (I believe it's CPR27.14(2)(g)), which would include the hours spent preparing, which I believe is £19 per hour (litigant in person rate), and not £21.24.

See what others suggest.

This post has been edited by ManxRed: Mon, 5 Nov 2018 - 14:57

[kommando]

passing on my personal details to two different debt collecting agencies

They are allowed to do that.

[Ollyfrog]

Should HAVE been attending - not should of.

Sorry I can't help otherwise.

[nosferatu1001]

1) not expenses, it's costs, as you've been told
2) I've no idea what you mean about them having "your" particulars of claim. That's nonsense. THEY filed the claim, they wrote the particulars. YOU filed a defence and that IS your full and only defence.
3) the court won't care about DPA. Not at all. That's because it has NOTHING to do with the claimants *claim*. They've not done anything wrong in sending to debt collectors
4) as pointed out you need to say you know costs aren't usually recoverable but that under cpr27.14)2)(g) can be IF one party has behaved unreasonably
You believe the claimant has so behaved in the following BULLET POINTS only..