** Won ** Advice on VCS parking charge and court papers filed

[NewbieAndy]

Hi Ostell,

I have written my defence via the online portal but i cant see where i am able to attach my evidence (bank statement showing payment)

Could you have a quick read of this defense and let me know if that looks fine?

The Defendent (XXXXXXXXX) accused by the claimant(Vehicle
Control Services) as the registered keeper of the vehicle XXXXXX
of not paying for a valid parking ticket on the date in question
09/03/2017 at Manston Business Centre car park, Melbourne Street,
Leeds LS2 7PS is wholly inaccurate.

I would like to confirm for you that there is no liability as the
payment for a valid parking ticket was made and i attach the bank
statement as evidence to prove that the claimant VCS and their
agent 'Parkonomy' (the service which was required to pay for a
valid parking ticket for any person wishing to park on this
location) had failed to record this payment correctly at their
side, but the bank statement evidence shows that the defendant had
made the payment on the date in question and the claimant had
received the funds for a valid parking ticket and therefore it
would be vexatious to continue with the claim when there is
absolutely no debt in
existence. Their unreasonable behaviour has caused great distress
and time wasted on my side as i had provided this evidence to the
claimant and was simply told this was not enough evidence to pove
that the defendant had indeed paid for a valid parking ticket .
The claimant are also required to give you 30 days before
commencing court action when sending a Letter Before claim, but
the claimant sent this letter on the 23/01/2018 and seem to have
forgotten that February had only 28 days and hence 30 days from
the date of the letter, 23 January, is not 22 February in which
the deadline was to pay before court proceedings.


Does this look ok? and where would i attach evidence in the online portal?

[ostell]

You do not use the online portal. You send it by email. The evidence will be included later with your witness statement and bundle

That is not really a defence, you should be giving reasons why you are not liable for the charge. Ie you paid for it, your back statement shows you did. You format it in numbered paragraphs. Here's a sample for reference. You do not need all that but it gives you some idea of the format.

[NewbieAndy]

Thanks for your help so far Ostell.

How does this look:
Claim Number: XXXX
BETWEEN:
Vehicle Control Services Limited (Claimant)
vs
XXXXX (Defendant)

__________________________________________________ _________________________

Defence Argument

I am XXXXXXXX, defendant in this matter.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

1. Defendant had paid for a parking ticket
2. Defendant has evidence to prove payment was made to the claimant for parking ticket
3. Claimant and payment collection agent had failed to record payment
4. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
5. The Claimant has no standing to bring a case

i. Defendant had paid for a parking ticket
1. The claimant accuses the defendant of not ‘paying for a valid parking ticket’
2. The claimant used an agent / web tool known as ‘Parkonomy’ at the parking location in question on the date in question 9/3/17 in order for any potential motorist parking at the said location (Manston Business Centre Car Park, Melbourne Street, Leeds, LS2 7PS) to pay for a valid parking ticket
3. Defendant had paid through the claimants preferred ticket collection tool as requested at the location ‘Parkonomy’
ii. Defendant has evidence to prove payment was made to the claimant for parking ticket

1.The defendant has evidence to prove payment via the claimants agent / web tool ‘Parknomy’
2. The evidence is a bank statement from the Defendants bank account which cleary states on the date in question 9/3/17 the defendant had made a payment to the Claimants agent ‘Parkonomy’ as there is a clear cash transfer to ‘Parkonomy’ on the date in question to confirm the defendant had indeed made a payment for a valid parking ticket

iii. Claimant and payment collection agent had failed to record payment

1. Claimant and their collection agent had failed to record the cash transfer the defendant had made
2. Claimant had still receieved and kept the cash transfer from the defendant
3. The claimant despite being paid still decided to pursue the defendant when the defendant had no liability or outstanding debt to the claimant

iv The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

1. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

1. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

1. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

1. The regulations define an on-premises contract as:

“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

1. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
   “distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

1. This is clearly an organised service-provision scheme (for parking)

The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

1. This is therefore a distance contract.

1. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

1. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.

v The Claimant has no standing to bring a case

1. The claim form states that the land is ‘managed by Vehicle Control Services Limited’. They are therefore acting as agents of the landowner.

1. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Vehicle Control Services is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.

1. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is free.

1. Although each case turns on its own facts, in all cases where Vehicle Control Services’s contract with the landowner has been fully disclosed, the charge for breach of contract is collected by Vehicle Control Services on behalf of the landowner. This is usually disclosed in paragraph 3.11. This further confirms Vehicle Control Services act as agent for the landowner.

1. Vehicle Control Services provide the landowner with a web interface where they can check parking charges issued and paid. This is usually disclosed in paragraph 8 of their contract with the landowner. It is further disclosed on their web site. Thus, Vehicle Control Services is acting as an agent of the landowner.

1. If Vehicle Control Services deny acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact (usually clauses 3.11 and 8) with the landowner.

1. Fairlie v Fenton establishes the situation regarding agency.

1. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
2. If the agent is acting on behalf of a named principal, they cannot sue
3. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

1. This case is clearly (c). The signage states Vehicle Control Services are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘Vehicle Control Services do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’

1. Vehicle Control Services therefore have no standing to bring this case. Only the landowner has the right to do this.

1. In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from the contract given to the judges. Therefore any judgment would not have been able to take these clauses into account.

Lastly, i havent been given an option to email my defense, it seems they have only given me 2 options which was send the form or via the online portal, how would i go about sending it via email?

Thanks,

Newbie Andy

[NewbieAndy]

Hi Ostell,

Any chance of a sense check soon? i need to submit by friday 6th April in order to be in time for the 33 day period.

Thanks for your help.

Newbie Andy

[Phaeton]

ostell des8 R0b
With it being Easter some members may not be around, but these may help if they are around

[R0b]

Hello,

Parking tickets not my specialty so can only give you some feedback on the drafting of the defence and my own experience. I can see Ostell has been assisting but I will have a look later today if there has been no reply.

I briefly scanned your defence and it says that you purchased the ticket and you can prove that so presumably there is no breach of contract? If that is so, have you considered a counterclaim against VCS for harassment? Yes it would cost you but nothing more than £25 if you were claiming up to £300.

Also, if the issue date of the claim form is 5 March 2018, then 33 days from that is Saturday 7 April 2018. Where the deadline for a defence falls on a weekend, the deadline is extended to the next available working day, which in this case would be Monday 9 April by 4pm.

[NewbieAndy]

Yeah i figured being easter holidays it would be difficult for people to come back to me.

Thanks again for the replies its really helpful.

Hopefully someone can have a quick look over my defence and let me know if this seems fine

rob yes i did purchase a ticket and i do have proof via my bank statement which shows that in the date they claim i didn't pay for a ticket, my bank statement clearly states they had taken the fee from my account on that date so i have undeniable proof of payment. The overriding reason to push ahead for a claim is due to their claim that the online pltform they use to collect payment 'Parkonomy' have no record of this payment in their system. But my bank statement clearly states 'Parkonomy' had taken the money from my account for a ticket on the date in question.

I haven't considered a counter claim as i fear it may drag the process out longer as i have no experience of this, but if i was to counter claim is it a case of it follows the same procedure but i am counter claiming and paying a £25 fee only and no additional work is required my side apart from submission of my defence statement and providing the evidence once requested?

Thanks,

Andy

[R0b]

The counterclaim would be attached to the end of your defence and it would be heard at the same time as the claim in the hearing. If you have provided them with the evidence of payment and they have still pursued you, then that would be grounds for claiming harassment when they knew or ought to have known from the evidence that a payment was made.

You could go one step further by finding out with the bank what the authorisation code was and incorporating that into your defence and or counterclaim. In terms of your defence, I have not had a great look at it but my opinion is that it could be better drafted though I appreciate you might not have experience of writing defences and setting them out. One thing to point out is that a defence should be in the third person not first.

Anyhow, I've attached a tidied up version (though incomplete and you will need to complete/amend as you think fit if not accurate) of your defence as well as elements of the counterclaim if you wish to include it. It would mean that VCS would have to file a defence to the counterclaim otherwise you could obtain default judgment yourself. It also means they can't squirm their way out of discontinuing after you spending so much time on your defence and preparation of documents. Again, a counterclaim would be optional so the choice is yours.

P.S. the headings in the defence/counterclaim are for assistance only and preference but you don't have to keep them in if you don't want to.

P.P.S I am not sure that the Consumer Contract Regs are applicable here. If I recall, the regulations extends the time for cancellation of the services but doesn't actually state that the contract is not binding/enforceable against the consumer, particularly if the contract has been concluded and the relevant services have now lapsed. I personally don't think this should be included but is entirely up to you as its your defence.

[R0b]

Deleted.

[NewbieAndy]

Hi Rob,

Thanks for the updated version i will review and update and look to utlise this.

I believe i will go for the counterclaim due to the amount of time i have had to use and stress i have had to endure to go through this process and feel they shouldn't get away with this.

Lastly, the online portal i have been given to submit this defence should i submit via the online portal or email my defense to the court? (although i haven't been given an email address i can email my defense to) and doesn't state anywhere in the online portal i have an option to email it to them as the only option's i have been given so far is the online portal or by post?

Lastly just to check, i do not submit my bank statement (evidence) until requested by the court? (as the online portal doesn't offer me the option to attach evidence)

Thanks,

Andy

[R0b]

https://courttribunalfinder.service....ss-centre-ccbc

In that link you will see a list of email addresses, its the first email address ccbcaq@hmcts.gsi.gov.uk for claims and responses you should be sending your defence to. Make sure to put in the subject line something like the following: Claimant v Defendant (Claim No. XXXXX) - Defence and then in the body just a cover note saying this is the defence. You should get an automatic acknowledgement email once you have sent it. The email does say somewhere in the text that if you have sent defence by email don't send it by post as well - its one or the other.

No evidence is submitted at this stage as all of that will go in your witness statement further down the line. You can however make reference (but don't submit) to any evidence you have in support of a point you are making - for example where I made the reference to the bank statement to support the contention that you actually paid for a parking ticket. The more logical and clearer your defence is, the more robust it will look and therefore put VCS on the back foot when a judge comes to reading the documents.

[NewbieAndy]

H Rob,

Thanks for this, you have been amazing.

I have updated the doc you have kindly supplied. (would it be ok if you can have a quick review and let me know if this looks fine in terms of filling in the blacks you left for me) it is redacted.

I have only 1 last question, in regards to the last point (17) i assume i am only claiming £300 (maximum for the £25 fee) so i place £300 here and delete point (b) and (c) as this would push the claim above the £300 threshold?

Other than that the rest is absolutely clear.

Thanks for you help so far.

Thanks,

Andy

[R0b]

If I remember, for counterclaims the hearing fee is based on the value of the counterclaim, not the interest and certainly not the costs (e.g. hearing fee, fixed costs etc.). A Claimant would pay fees on the value of the claim plus interest. However, if you want to be safe then you could look to claim £250 which would bring you under the £300 and still look to claim the hearing fee cost if you are successful as well as any fixed costs for attendng as a witness which I believe is capped at £70-80. Of course you will need to raise the costs issues with the judge at the end if you want it included in the order - don't assume it will be given.

In terms of arguing any claim for harassment there has to have been a 'course of conduct' which in plain English means that there must have been at least two occasions in which the conduct was carried out and that they are sufficiently connected.

VCS might argue a defence that it was reasonable for them to pursue you for not paying and should enforce their rights to recovery the outstanding amount. Of course your argument should be something along the lines that you appealed and they failed to give any specific reason (if that is the case and assuming its a generic template) why they did not accept your bank statement. At the point of receiving your statement, it ought to have become clear that you did in fact pay parkonomy and the issue lies between VCS and parkonomy to sort out. The fact that they have continued to demand payment for breach of terms and then further attempts by issuing proceedings (as well as debt collectors / solicitors) where a breach has not occurred, is therefore oppressive and unacceptable. You could probably go on to say that the issue has caused a great deal of stress and inconvenience and anxiety of the potential threat of a CCJ on your credit file.

That's about a basic argument, but of course be prepared for questions by the judge, though I can provide some relevant cases and guidance to help you nearer the time.

I've only scanned the defence and counterclaim but seems like you have omitted a large part of your defence. If you are happy with the contents then feel free to submit it, and I would probably suggest you also forward onto VCS too by email or post or both. Maybe you should sleep on it and then look to submit it tomorrow in case you want to add anything further to it.

[NewbieAndy]

Hi Rob this is all very helpful thanks!

I have included back in the Interest and costs and left the claim amount to £300 as i will leave it to the court to decide.

In terms of you feel i have omitted a large part of my defense, could you allude to what additionally i could add? as i would be more than happy to add anything else which will further push home my defense and further increase my chances to quickly win this case as i;m not sure how much further i can add in terms of the nuts and bolts from my point of view is:

- they are fining me for not paying a valid parking ticket at said location
- i did pay for the ticket and used their web portal parkonomy to pay for the ticket
- i have a bank statement that shows the money had left my account to said web portal parkonomy
- not sure why they are claiming i haven't paid even after showing them my bank statement

Lastly if i am submitting via email the defense and countercliam does the court simply get in touch for the £25 fee? or do i have to go to another portal to pay court fee for counter claim after i email my defense in,

Thanks,

Andy

[NewbieAndy]

Hi Rob,

Just as a quick nudge as im looking to submit today via email.

In terms of paying the £25 fee, i'm not sure how i pay as i don't have an option to online or do i normally wait to hear from the court to pay the £25 fee?

Thanks,

Andy