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County Court letter received, VCS
D33
post Thu, 27 Jun 2019 - 21:55
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Hi - just looking for some help and advice.

In Dec 2015 (as the registered keeper) I received a parking charge notice following my car being parked in an access road. The PCN was issued by VCS Ltd and has contravention 81 'Parked in a restricted area of a car park' (it wasn't - it was in the access road).

I appealed and sent letters to VCS with the (at the time) current PePiPoo advice. This was ignored and I then received letters from VCS, ZZPS, Wright Hassall Solicitors, and finally DCBL Ltd. I cooresponded with these at each time setting out the same requests that I had sent to VCS.

I appealed to BPA who told me that VCS were not part of their approved operator scheme.

I also sent letters to the Canal and Rivers trust who established that they had leased the land next to the access road on a freehold 999 lease so they had no interest. I contacted the land owner and building contractor who also replied back by post and email and confirmed that they did not want to progress any claim for loss of earnings etc.

I took pictures of the scene which I still have which shows one sign at the entrance to the building site and it is not clear at all. There is a previous history of parking on the access road without any issue until VCS were employed, and the signage was inadequate. Also the infraction occurred at night and the sign is not illuminated.

I actually got a response from Wright Hassall who stated that they were suspending the case and finally a confirmation email from DCBL that they were closing their file and returning it to VCS as they would not pursue the matter. At this point I believed that matter had been dropped.

You can imagine my surprise that today I received County Court Business Centre claim forms for the matter that occurred in 2015, having been informed it had been closed in June 2016 by the agents working for VCS.

I fully intend to refute it and appeal and thankfully I have the pictures, email, letters and all correspondence as decided above.

I have also found an appeal to POPLA that occurred a little time before mine at the same location (detailed on this site) and that was overturned by POPLA.

Finally - I do not have this car any more and have moved house since selling yet on the Conty Court paper work they have my current address but my name spelt incorrectly (a typo on my initials?). I assume this is yet another application to the DVLA completed since I updated my DL.

Any help gratefully received as this has come at the worst possible time for other reasons and is causing significant stress to n already stressed household.

Thanks
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post Thu, 27 Jun 2019 - 21:55
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Redivi
post Thu, 27 Jun 2019 - 22:13
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Follow the instructions to acknowledge service

This gives you an extra 14 days to prepare and send the defence

Do you have the original Notice to Keeper ?
If not, contact VCS and ask for copies of all the documents and photographs that they intend to rely on

From what I recall, VCS Notices from this period failed to contain the content that the Protection of Freedoms Act requires to recover payment from the keeper if it doesn't know who was driving

What this means is that, unless VCS can persuade a judge that you were driving, the claim must fail
Even the Notice did comply with POFA, the maximum that VCS can recover is the original parking charge
It can't recover any ZZPS/DCBL/Wright Hassall additions
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D33
post Fri, 28 Jun 2019 - 07:41
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I have the notice the original ticket, a letter notice to keeper and all the original paperwork and letters sent to and from.

They never responded to me so I will ask what photos they have they intend to use but they never once responded before so I willl not hold my breath. I am the keeper but was not the driver.

Thanks for the reply - I will sort it this weekend.
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D33
post Sun, 30 Jun 2019 - 22:50
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Okay so I have done the Acknowledgement of service. I intend to defend all this claim etc.

The defence section - is that where I set out my defence as to why I feel this is an unfair claim against me? I have looked at the forums and threads and I am confused between the defence and when you submit the witness statement. I now have gone through all the correspondence I sent back in 2016 and have 30 odd exhibits (email, letters and pictures etc).

In essence, I was told by DCBL and Wright Hassall that the matter had been closed in Sept 2016. I am a bit lost as to why this has suddenly resurfaced after so long and no further contact since that point in time. Do I set this all out in the defence section of the county court business centre papers?

Any help and advice gratefully received. Thanks
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Sheffield Dave
post Mon, 1 Jul 2019 - 07:39
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QUOTE (D33 @ Sun, 30 Jun 2019 - 23:50) *
In essence, I was told by DCBL and Wright Hassall that the matter had been closed in Sept 2016. I am a bit lost as to why this has suddenly resurfaced after so long and no further contact since that point in time. Do I set this all out in the defence section of the county court business centre papers?


From your earlier description it sounds like the various debt collectors gave up trying to collect the debt on behalf of their client (VCS), not that VCS conceded that the case was closed.

Anything like that goes in your witness statement - your defence is a series of admit/deny/not-in-my-knowlege replies to every point in their claim
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nosferatu1001
post Mon, 1 Jul 2019 - 11:10
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Defence- thats what you do now. You do not use the MCOL form. You use word, attach a sig, and convert to PDF. You then EMAIL this to the CCBC.

WItness statement - this is the story, plus exhibits referenced within, of the claim. Not a defence. Utterly different. You submit that when told to serve documents by the court.
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D33
post Wed, 10 Jul 2019 - 21:39
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OK so I have drafted my defence reply. If I anonymise it and post here can anyone offer me some advice?
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nosferatu1001
post Thu, 11 Jul 2019 - 09:36
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You can post it here, and we can try our best to review. If youve cribbed from another defence, include a link so we know what youve copied

Please make sure your defence is CONCISE - no waffle. ANd check that it actually makes sense when read as a document. No random paragraphs, jumps in story, muddling of subjects inside one para, etc.
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D33
post Sat, 13 Jul 2019 - 19:26
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Here we go.

IN THE COUNTY COURT

CLAIM No: XXX

BETWEEN:

Vehicle Control Services Limited (Claimant)

-and-

XXX

DEFENCE



Background

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXX.

2. The Defendant was not the driver of the vehicle at the time of the alleged contravention.

3. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'. for the lawful conduct described below.

4. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

5. The facts are that the vehicle, registration XXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on a public accessed road, namely XXX and parked in a ‘restricted area of the car park’.


Premature claim - no Letter before Claim, and sparse Particulars

6. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later in January 2016) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim which has arrived some 4 years after the alleged breach of contract, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

7. The defendant has made significant efforts to enter into arbitration with the claimant regarding the alleged parking charge between December 2015 and September 2016 to which only an automated reply was ever received from VCS Ltd. A number of other companies contacted the defendant between March and June of 2016 purporting to be engaged by different companies all related to this alleged breach. All were contacted by the defendant, with the matter being appealed which concluded with written confirmation from them that the matter against the defendant had been dropped and closed as of September 2016 ‘on the instructions of their client’. No further correspondence has ever been received by the defendant since September of 2016 in relation to this matter and therefore the entirely reasonable conclusion that the matter had been concluded in full was adopted.

8. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

9. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

10. The particulars of claim are vague and lack suitable information as to the grounds for the Claimant’s case. The alleged contravention is not detailed, and so does not indicate what contravention has deemed to have occurred. Thus, the claim fails to comply with Civil Procedure Rule 16.4, 1(a) which states that the claim must include ‘a concise statement of the facts on which the claimant relies’

11. The Defendant has sent a subject access request (SAR) to the Claimant, for response during July 2019, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


Denial of contract and denial of any breach, or liability

12. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

13. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

14. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The two small signs affixed to the entrance gates of the building site does not state clearly what aspect of the road is private and is not clear to read as it is obscured by the much larger signage directing traffic and offering health and safety advice to anyone entering the building site. All of these combine to make this initial sign easily missed.

15. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. It is believed that the signage that is attached to a gate reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

16. There are only two signs affixed to the site entrances which appear to indicate that passing the gated entrance is to enter onto private land, as bounded by high safety fencing. Vehicle registration XXX has not at any point entered past the gated access to the building site whereby the two small signs are fixed and therefore it is argued has not entered into a contract with Vehicle Control Services.

17. The signage is not illuminated and the alleged incident occurred at 20:45hrs during the hours of darkness. The claimant is put to proof that this signage (two small signs) were visible to anyone at the location at the material time. If they were not then it is argued that it is impossible for a driver to make an informed decision or enter into any contract with XXX.

18. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

19. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available; there is no licence to park.

20. Having visited the site in question it was apparent that the signs that were present are not illuminated at all. Therefore if the alleged parking terms are in force 24 hours a day, outside of daylight hours they will not conform to the IPC Accredited Operator Scheme Code of Practice Part E, under subheading ‘Contrast and illumination’ which states that ‘If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge’. As the AOS Code of Practice is designed to ensure transparency and fairness, the Defendant claims that the inadequacy of the signage does not adhere to this premise, and therefore VCS Ltd have not acted with transparency and fairness in this instance.

21. Notwithstanding the above, there were inadequate signs (at the time of the offence) incapable of binding the driver into the contract - this distinguishes this case from the Beavis case. There are NO signs at the entrance to the area in which the car was parked. The two small signs that do exist are small and inconspicuous, and not located in the immediate area in which the car was parked. The two signs are attached to a perimeter fence of a building site and located amongst many other warning and information signs relating to the building site entrance. These cannot be easily seen in contrast to the other signage, thus not bringing the information to the attention of any driver. This does not conform to the IPC Accredited Operator Scheme Code of Practice Part E which states that the signage should ‘Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site’.

22. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. For all intents and purposes this is a continuation of the public highway leading to the public amenities and other buildings located at this location. There is no indication that the public highway ended and become a private road, at either approach end of the road. Nor is there any visual gateway, approach designation or other visual indication to show that the public highway has ended and become private land, that would be easily spotted by a motorist. It is a reasonable assumption that this location is, for all intents and purposes an extension of the public highway which has no parking restrictions identified by any road marking or clearly visible signage that a motorist would recognise as prohibiting parking.

No standing or authority to form contracts and/or litigate

23. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of XXX. The defendant has made significant efforts to contact the landowner and has written confirmation from them stating no interest to pursue the defendant for any financial compensation.

No 'legitimate interest' or commercial justification - Beavis is distinguished

24. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the location of the offence is established given it makes mention of a private road (XXX) and the offence of ‘parked in a restricted area of a car park’. The car park is not land under the control of VCS Ltd and the access road if as identified as private land, is not a car park. The signs/terms are not prominent, nor clearly visible as relating to the immediate location. Finally, the PCN was sent very late with a 'parking charge' that bears no resemblance to any loss exposed to the land owner from someone parking on an unrestricted road, at night when accessing the services of the public amenities at the location. Therefore, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

25. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''


Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

26. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' is not established in any of the signage, ‘charge notice’ or notice to keeper received. Therefore, there is no financial agreement to park entered into and any loss the landowner may have suffered has not been established.

27. Instead, this Claimant is operating a punitive unjustified and aggressive system to their own ends, which is not transparent to consumers. A hidden 'parking charge' when there is no cost, nor requirement to pay to park in the immediately adjacent carpark unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') for parking on the unrestricted, unmarked public highway which is the approach road to the carpark and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

28. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a nominal amount or a clear indication that parking is fully prohibited at all time. There was ample opportunity to either fairly collect and transparently advertise this, on the material day and this has not occurred.

29. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

30. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

31. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

32. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be nothing as it appears that the road is not subject to any parking restrictions at the material time, and the adjacent car park which is not under the control of VCS Ltd is entirely free to park at. The access road therefore could be viewed as either an extension of the free car park and not subject to charges, or nothing to do with the car park and simply a road without any apparent restrictions. Either would be a perfectly understandable and reasonable assumption to be made by any normal member of the public and neither drawing any cost or charges. Added to the signage not being visible at night due to the complete lack of any adequate illumination, it can be argued that no contract has knowingly been entered into as the signs could not be seen.

33. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

34. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £60, which I submit have not actually been incurred by the Claimant.

35. Whilst £60 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, VCS Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

36. Additionally, the defendant avers that they have written correspondence relating to this matter that will demonstrate that correspondence regarding this matter was entered into during the period between January 2016 and June 2016 and this matter was documented as concluded. The claimant is put to strict proof to demonstrate why this matter has been reopened after a period of almost 4 years without any contact at all, as this seems speculative and punitive in nature.

37. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

38. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £100 can be claimed in this case, but either way, the additional sum of £60 on top, appears to be a disingenuous attempt at double recovery.

39. The Defendant refutes any liability for the claimants claim. It is denied that any driver of the vehicle entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. In addition to this, the seemingly absent attempt by VCS Ltd to enter into any form of arbitration or correspondence for many years with the defendant, the absence of any response to or acknowledgement of the Defendants SAR request, the scarceness and lack of sufficient detail of the particulars of claim and the inadequate signage at the site, all add to the solidarity of defendant’s defence in this case.

40. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


I believe the facts contained in this Defence are true.


The defence is based on the guidance docs and an appeal at the same location that was submitted to POPLA and was successful. I don't want to post the link as it will identify the location. I don't think I can go down this route can I? (given we are at CCBC stage). The rest is based me researching and reading the other posted defences on this site and applying what I think is relevant, but I will take all advice given. Thanks

(Submission date is the end of the month)

This post has been edited by D33: Sun, 14 Jul 2019 - 19:22
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nosferatu1001
post Mon, 15 Jul 2019 - 08:05
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It is very lengthy.

Have you had a look at the MSE Forum NEWBIES thread, POST 2, which gives an example of a *concise* defence?
A defence and a POPLA appeal are nto the same being.
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D33
post Mon, 15 Jul 2019 - 16:40
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Yes - this is based on the two defences that were on MSE around this topic. I can condense it down if you think it is too much. As long as there is no glaring issues within it I will simplify it.

Another question but do I need to post this as a thread on MSE as well? Or do you experts on here cover both sites? If I need to stick it on MSE I will do so as well. Thanks
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nosferatu1001
post Wed, 17 Jul 2019 - 08:14
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Not everyone covers both sites, obviously.
Posting in both places, with a link to the opposite numbers threads, will help.

Concise is helpful. You want to make it easy for a judge to follow.
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D33
post Fri, 19 Jul 2019 - 13:34
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No probs and thank you.

MSE Post is https://forums.moneysavingexpert.com/showth...92#post76055192

Very helpful advice and I have posted an amended defence there based on their advice and will post here when finished and submitted.
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D33
post Mon, 22 Jul 2019 - 20:14
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Defence submitted. I will keep you posted on developments. Good advice from MSE bods
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D33
post Wed, 24 Jul 2019 - 19:02
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OK - so checked with CCBC and they have received my defence and I have had a letter this morning "Noticed of proposed allocation to the small claims track".

I have until the 8th Aug to complete the small claims directions questionnaire and file with CCBC and serve on the other parties.

Question - do I enter into mediation with them? The lady at CCBC informed me that VCS Ltd have been entering into mediation on a lot of their claims. I am still not in possession of any more information on what they intend to use in court (no SAR and nothing further from them beyond the scant details on the CCBC notification of claim. So I am inclined to say no, but that seems to be a wasted opportunity to resolve this? The advice on MSE certainly is NO, don't bother.

I will sk for a hearing close to me as the CCBC involved is miles away.

I will have to take a day off work at least to go to the hearing no matter where it is - which will incur costs on my part.
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ostell
post Wed, 24 Jul 2019 - 20:05
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The directions questionaire will ask you for your choice of court. The ccbc is only a clearing centre for claims and transfers them to local courts. As a private individual your choice takes preference.

When you win you can claim your costs, though capped. Take a wage slip with you.

This post has been edited by ostell: Wed, 24 Jul 2019 - 20:06
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D33
post Wed, 24 Jul 2019 - 21:31
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Thanks submitted by email and in the post. I will keep you posted.
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