County Court Claim - PCN - Vehicle Control Services v Zimgrant

[zimgrant]

Hello - I have been issued with a County Court Claim with the below wording on 16/07/18

I acknowledged the claim on 19/07/18 stating I wish to defend it.

I would be very grateful if someone would be kind enough to assist me in constructing a defence and witness statement?

Particulars of Claim

The Claimant's claim is for the sum of 160 being monies due from the Defendant to the

Claimant in respect of a Charge Notice (CN) issued on 30/08/2017 (Issue Date) at St Mary's Gate Retail Park Car Park, Sheffield, S1 4QZ.

The CN relates to a Audi AS S LINE TDI

QUATTRO under registration *****. The terms of the CN allowed the Defendant 28 days from

the Issue Date to pay the CN, but the Defendant failed to do so. Despite demand having been made the Defendant has failed to settle their outstanding liability.

The Claimant seeks the recovery of the CN and interest under section 69 of the County Courts Act

1984 at the rate of 8% at the same rate up to the date of Judgment or earlier payment.

[zimgrant]

If there is anyone with the appropriate experience who would be interested in assisting me with the above I would be very grateful.

[R0b]

Hello

All you have done is supplied the documents but no background information as to how or why this claim has arisen. Unless you can give us all of the relevant background information and what you have or have not done will help us to assist you - I'm afraid you can't expect us to help you with a defence if you have given us nothing to work with.

1. Was it a pay and display site, and if so did the driver pay for the ticket? Any reasons why the driver was over the agreed time?
2. Did you make any appeal and if so what was the result of that? If you didn't appeal, why not?
3. At any time did you name yourself to VCS as the driver of the vehicle.

As parking companies monitor these forums, you should refer to the 'driver' at all times.

I've tagged ostell who may be able to give more specifics but as I understand, if the driver wasn't name then they could only pursue you for the outstanding balance as the registered keeper only if they comply with the criteria under the Protection of Freedoms Act 2012. I can see that they have referred to a 'contravention time' but under the POFA criteria, it states that the PCN must show the 'period of parking' which might be relevant depending on whether the car park was free or pay and display.

Anyhow, I am sure ostell can comment further on it.

[ostell]

It would help to have the original Notice to keeper. The one that is posted is a reminder. Please leave in dates.

[zimgrant]

Thanks Ostell..... See attached FYI

[zimgrant]

Hello

All you have done is supplied the documents but no background information as to how or why this claim has arisen. Unless you can give us all of the relevant background information and what you have or have not done will help us to assist you - I'm afraid you can't expect us to help you with a defence if you have given us nothing to work with.

1. Was it a pay and display site, and if so did the driver pay for the ticket? Any reasons why the driver was over the agreed time?
2. Did you make any appeal and if so what was the result of that? If you didn't appeal, why not?
3. At any time did you name yourself to VCS as the driver of the vehicle.

As parking companies monitor these forums, you should refer to the 'driver' at all times.

I've tagged ostell who may be able to give more specifics but as I understand, if the driver wasn't name then they could only pursue you for the outstanding balance as the registered keeper only if they comply with the criteria under the Protection of Freedoms Act 2012. I can see that they have referred to a 'contravention time' but under the POFA criteria, it states that the PCN must show the 'period of parking' which might be relevant depending on whether the car park was free or pay and display.

Anyhow, I am sure ostell can comment further on it.

HI Rob -

1. It was not a Pay and Display site. See attached image of 'Parking Terms and Conditions'
2. No appeal was made as as I was unsure as to the validity of such a claim
3. No driver was named at the time

The car park was free for an hour as I understand it.

Kind regards,

[ostell]

Take down that PCN and repost it with your personal details and the PCN number etc redacted.

Glad you posted that original PCN. They have failed to comply with the requirements of POFA (9) (4) in that they have failed to get the notice to keeper to you within the prescribed period of 14 days and therefore cannot transfer liability from the driver to the keeper. As long as they do not know the identity of the driver, and you are not under any obligation to tell the, then they are going nowhere.

I assume that the driver has not been identified.

Your defence will point out:

• The embarrassing Particulars of claim that does not say why they have the claim against you.
• They have failed to comply with the requirements of the Schedule 4 of The Protection of Freedoms Act 2012 to be able to hold the keeper liable.
• The claim includes an additional unexplained amount of £60. The keeper cannot be held liable for more than the original NTK, POFA 4 (5)
• The unclear signs that impose conditions that could not possibly meet as the terms are read after the claimant has said the conditions apply, a time previous to the agreement of the alleged contract.

Look up other defences and add to that last, though keeping the POFA failure high on the list.

Since you have ignored all correspondence write to VCS, AS THE KEEPER, point out that their NTK fails to comply with the requirements of POFA and when you prevail you will ask for your full costs because of their unreasonable behaviour in claiming keeper liability when they know they did not have that right because of the delay past 14 days in issuing the Notice to Keeper. Suggest that they consider a drop hands offer and discontinue the claim. They have blundered on with this as they have not heard from you and therefore they were looking to a default win.

[zimgrant]

Thanks Ostell!!

[zimgrant]

Thanks Ostell!!

The driver has not been identified @ostell....

They were written to further to receipt of the attached letter before claim. See the attached which may be of interest to the case

[zimgrant]

@ostell - Please would you be kind enough to clarify what you mean by this point - 'The unclear signs that impose conditions that could not possibly meet as the terms are read after the claimant has said the conditions apply, a time previous to the agreement of the alleged contract.'

[ostell]

They are saying that any driver entering is agreeing to the conditions. As the driver has not read the conditions as they enter there can be no contract in existence at that time.

They cannot have any possible claim against you as they have failed to comply with POFA and therefore they cannot transfer liabitly form the driver to you. The proper defendant is the unknown driver.

[zimgrant]

@ostell - Thoughts on the below defence would be appreciated?

Defence VCS v Keeper

• The embarrassing Particulars of claim that does not state the reason for the claim against the defendant
• The Claimant has failed to comply with the requirements of the Schedule 4 of The Protection of Freedoms Act 2012 to be able to hold the keeper liable inasmuch as the Notice To Keeper was issued after the required 14 day period.
• Given the Claimants failure to comply with POFA, therefore rendering them unable to transfer liability from the driver to the Keeper, the Keeper will be defending the Claim vigorously and when the Keeper prevails will be asking for full costs because of the Claimants unreasonable behaviour in claiming keeper liability when they were well aware they did not have that right because of the delay past 14 days in issuing the Notice to Keeper.
• The claim includes an additional unexplained amount of £60. The keeper cannot be held liable for more than the original Notice To Keeper, POFA 4 (5)
• The unclear signs that impose conditions that could not possibly be met as the terms are read after the claimant has said the conditions apply; a time previous to the agreement of the alleged contract.
• The Claimant have failed to adhere to the BPA code of practice. i.e The charges are penalties. The charges are represented as an overstay. £100 is clearly not proportionate to a stay in a car park in which the vehicle was allowed to park for free. Neither is it commercially justified because it would make no sense and in any event in was only ruled so in Parking Eye v Beavis in a car park where the operator paid £1000 per week, a case which in any event is being appealed to the supreme court. It is also noted that the judge in Beavis did rule it was a penalty although in that particular car park it was commercially justified due to the £1000 per week paid by the operator. £100 is clearly a penalty. The £100 is not a genuine pre estimate of loss and is extravagant and unconscionable. It is a penalty. It is not an attempt to claim liquidated damages, which should be a genuine pre estimate of loss. According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner allows free parking for shoppers then there is no loss. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

[ostell]

2nd para define POFA for the rest of the document ,,,Schedule 4 of The Protection of Freedoms Act 2012 (POFA) and then define the 14 day failure POFA 9 (4)

Claiming for full costs is not a part of the defence.

You are getting into a difficult area when you quote Beavis and it is a free car park. This is the conditions in Beavis and a judge seeing no genuine preestimate of loos may just say "Beavis!!! " and find against you. As it is a retail park then there is a good reason for limiting the stay to get a good turnover of customers, the argument that was used successfully in Beavis.


Wait for others to comment.

[zimgrant]

Defence VCS v Keeper

• The embarrassing Particulars of claim that does not state the reason for the claim against the defendant
• In laying out the Defence the Defendant refers to The Protection of Freedoms Act that was introduced in 2012. The Act made a number of changes to the law related to parking on private land providing private landholders with additional powers to pursue the registered keeper of a vehicle for unpaid parking charges providing certain conditions are met.
• The Notice to Keeper (NTK) the Claimant is basing its claim on is not compliant with the Protection of Freedoms Act 2012 (POFA). Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12. The Claimant has failed to fulfil the required conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline:- ’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’ The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’ In this case, the NTK sent to the Defendant (Registered Keeper) was issued on 20/09/2017, when the actual date of event is recorded as 30/08/2017, 39 days from the day after the specified period of parking ended. For this reason the Claimant failed to act in time for Keeper Liability to apply so the Claim has no legal standing.
• The Claim includes an additional unexplained amount of £60. The keeper cannot be held liable for more than the original Notice To Keeper, POFA 4 (5)
• The unclear signs that impose conditions that could not possibly be met as the terms are read after the claimant has said the conditions apply; a time previous to the agreement of the alleged contract.

[zimgrant]

@ostell

I emailed VCS as per your suggestion with the wording below and have received the following response:-


'Having assessed the claim you have bought against me as the keeper of the vehicle, I would like to point out that your Notice To Keeper (NTK) fails to comply with the requirements of POFA. You have failed to comply with the requirements of POFA (9) (4) in that you failed to present the notice to keeper within the prescribed period of 14 days and therefore you cannot transfer liability from the driver to the keeper.

I will be pointing this out within my rigorous defence of the claim and when I prevail, will ask for full costs in light of your unreasonable behaviour in claiming keeper liability when you are well aware that you do not have that right because of the delay past 14 days in issuing the Notice to Keeper.

Despite the above, I am willing to suggest that you consider a drop hands offer and that you discontinue the claim immediately.

Kind regards,'

Their response:-


'Good Morning,



We are in receipt of your email in regards to the claim against yourself.




We are satisfied that the case is strong and have at no point stated that we are relying on POFA and are confident enough to proceed with our actions.

We will seek to rely on the Law of Agency, which deals with contractual relationships that involve a person, called the agent, that is authorized to act on behalf of another, called the principle, to create legal relations with a third party.


Applying the legal principle to your case, any other driver must have had your authority to drive the vehicle and therefore make you liable for any parking charges incurred whilst doing so.


Therefore we shall decline your offer to discontinue the claim.


Yours Faithfully,'

Your thoughts appreciated....