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

[R0b]

Hi Andy, sorry I am not usually around here on weekends.

The £25 fee does not need to be paid now as it is for the hearing fee - as no date for the hearing has been allocated yet which would have to be paid for by VCS then you just wait from the court. You can pay it over the phone when it comes to that or by cheque but I would suggest the phone and get an authorisation code from them.

In terms of you omitting a large part of your defence, what I meant was that I didn't see you add much to what I already revised. If you are happy with it then that's fine, I just thought I should point that out. Ultimately, if you think you've got everything covered then that's fine and the ball is now in VCS' court as they will now need to file a defence or risk having default judgment entered against them. I don't think they will put in any detailed defence on the counterclaim and will probably be a couple paragraphs at best referring back to the Particulars of Claim as a counterclaim for harassment might not be something they are used to receiving.

[NewbieAndy]

Great thanks Rob.

I have emailed as a PDF attachment but not recieved an automated email to confirm receipt.

Or should i just be emailing them the response within the email and not as an attachment? as i assume sometimes they may block attached docs by email but again i have never done this before so not sure if thats ok.

Thanks,

NewbieAndy

[R0b]

Hi Andy,

Perhaps I was mistaken thinking you get an automatic email but it seems the auto receipt is only when you send an email to CCBC@hmcts.gsi.gov.uk and you would get a response like the attached photo as well as the word document on where to send things.

[NewbieAndy]

Hi Rob,

Thanks for your help.

I emailed it in and called the helpline to check they had recieved it.

They had confirmed they had recieved my email response and i have now paid my £25 claim fee.

I am sending a copy to VCS and will wait to see what happens.

Fingers crossed i win.

Will keep you all posted.

Thanks for all your help.

Thanks,

NewbieAndy

[NewbieAndy]

Hi Rob,

So since i filed a counter claim VCS have submitted a defense attached is a copy.

They have also filled in the form to confirm they would like to offer mediation instead of going to court whiich i have also indicated i am willing from the court forms.

I have noticed that they haven't acknowledged anything around my proof that i had indeed paid for a ticket making their claim of breach of parking contract null and void.

Is there anything in there defense i need to be particularly worried about? and if we do use the county court mediation service to try and settle out of court should i be going for the full or half the counter claim i went for? (£300) or should i accept an offer of simply voiding the fine?

Any advice would be great.

Thanks,

Andy

[R0b]

Hi Andy,

I would have expected them to file a defence to the counterclaim, very poorly worded by Mr Burgess in all respects. Aboslutely no idea why he chose to refer to VCS as Counter-Defendant and Counter-Claimant as we all know who the Claimant / Defendant is and he has titled the document as "Defence to Counterclaim". Anyway, hey ho.

No harm in ticking the box to go to mediation, personally small claims mediation is crap but they might be willing to offer something such as drop hands which means you both walk away and bear your own costs. Or they may try and say to you that they are going to pursue you for the money. Worst case scenario you have to wait a little longer to go to court.

I agree Mr Burgess has not properly dealt with your counterclaim and strangely, he has decided to ramble on in his own little way rather than specifically deal with allegations paragraph by paragraph. It is the case that where someone fails to deal with an allegation they will be deemed to have admitted it, however, where the defence deals with the issue in a roundabout way, then it is considered a non-admission and the burden is on your to prove, and if you do prove it, then shall be taken to be admitted. The relevant points in the CPR are 16.5 paragraphs 3 to 5 but I would suspect a judge is going to say he's answered it generally - worth a shot though as you never know what a judge will say.

Mr Burgess, has, however, referred to the relevant sub-section in the PHA 1997 but that does not automatically mean that because they're relying on POFA, that the case is frivilous - he still has to prove that VCS does actually have the right to pursue you for a legitimate debt claim. As you have highlighted in your defence, you will refer to a bank statement that proves you paid your money. I'm not sure if you managed to speak to your bank and get an authorisation code from them but that would be further evidence that you paid up. And if you are referring to a bank statement I would suggest you get the original or copy of it on the off chance VCS question its authenticity.

Ultimately, it all boils down to whether the judge believes you to have paid or not paid. If the judge accepts your bank statement as evidence that you paid on the day then you have a legitimate claim for harassment because they have pursued you, knowing that you paid up (particularly as you raised this in your appeal to them).

I am also wondering whether you should make a subject access request to VCS and get them to hand over a copy of your appeal and all other relevant documents they hold about you. If you did indeed raise the payment in your appeal but they sent you the standard and generic rejection without actually explaining detailed reasons why, that will help in your favour that they've failed to address a really important piece of information which, had they considered and addressed at the time, would mean that it wouldn't have got to court.

If VCS do offer something as a settlement, it is down to you as to what you should accept but do factor the payment of £25 for your counterclaim. Your claim for £300 is really what you consider to be a fair and reasonable amount. Damages for harassment have started at least from £1,000 to £2,000 going into the tens of thousands on some occasions, so there is no hard and fast rule about how much you should claim and harassment claims are difficult to quantify anyway, so its really just saying that in these specific circumstances, that amount represents a reasonable sum of money for the distress caused by VCS.

I also see that they are trying to claim costs for unreasonable conduct, though I am not sure how your conduct has been unreasonable. As above, you have a genuine reason to claim harassment because you can prove via your bank statement that you paid up. VCS have not actually addressed in their defence that no monies had been received (which you could argue to the judge that by failing to address that point, they are deemed to have admitted it and boom, easy win!).

Even if you did lose for whatever reason, it does not mean you have been unreasonable. There was a recent Court of Appeal case on the issue of unreasonable conduct under small claims cases (Dammerman v Lanyon Bowdler LLP 2017). The Court referred to an older case Ridehalgh v Horsefield in which they said that conduct is not unreasonable simply because another lawyer would have advised their client to take a different route or because the conduct leads to an unsuccessful result. Rather, the "acid" test is whether the conduct permits of a reasonable explanation and if so, the course adopted may be regarded as optimistic but it is not unreasonable.

Apologies for the long post, waffled a bit!

[NewbieAndy]

Hi Rob,

This has been really helpful.

I haven't contacted my bank as of yet for an authorisation code for the payment i made on the date in question, but i'll look to do that as soon as possible.

In regards to subject access request to CVS, i can't see any harm in trying to get this as well. How would i go about doing this?

I'll await to hear from the court mediation team in regards to setting up a time for a call to discuss, ultimately i feel i want to press ahead with my counterclaim (the max for a £25 fee is £300 claim) as i feel they shouldn't get away with trying to harass innocent people into paying parking fines when they were never in the wrong despite making them aware.

If they get away scot free its just more encouragement for them to continue pushing other people into paying as their potential losses is limited if everyone who could counterclaim chooses not to against them.

Thanks,

Andy

[NewbieAndy]

Hi Rob,

Been a while since i last updated.

So we have scheduled in a court date hearing for this in small claims court.

It will be 3rd August 2018.

apparently i have to submit all documents i intend to use in the session 2 weeks prior to the court date (i also have to send copies to the claimant VCS and i guess they have to do the same Vice Versa) and can last 2 hours in court.

So i was looking for some advice on how i best present my defense.

In terms of documents i will look to take:

- Bank statement (to prove i had purchased a ticket on date in question - i asked halifax for an authorisation code for that transaction, but they said they only keep authorisation codes while the transaction is pending. Once the money is taken the authorisation code is deleted, which i guess is further evidence to say i had made the payment on date in question)

- Copies of the various chasing letters from VCS

- Email confirmation of them receiving my defense but no confirmation on why this was not evidence enough to suggest i had paid

- Email confirmation that they wanted to see payment from the dashboard of 'parkonomy' the provider they used to collect parking fee's

For court appearance in front of judge.

how best should i present my case? any pointers will be great as at the moment i would just wing it at the court room. :/

Thanks in advance.

NewbieAndy

[R0b]

I have a few things that might help but I'll have to post these up later as they are at home.

[ostell]

You will be expected to submit a witness statement to the court, that is the stroy from your point of view, with dates etc, and referencing your documents that you are using as exhibits referenced using XY001, XY002 etc where XY are your initials. This will be in numbered paragraphs and printed with at least 1 1/2 lines spacing. Pages numbered and titles on the page,

[R0b]

Evening Andy,

First and foremost, if I were you I would contact the bank and get them to confirm by email what they explained to you about the authorisation code. You can then use that to explain to the judge that your statement shows it as paid, there is no auth code for XYZ reason and here is a statement from the bank to confirm that position.

As for the preparation of your defence, it is not something that takes a couple of hours and can in fact take a lot of time and effort if done right. As the usual saying goes, you only get out what you put in.

Witness Statement
I'm assuming the directions order also includes you having to prepare your witness statement which will need to be exchanged at the same time? As Ostell has said, the witness statement will be a chronology of facts leading up to the present although you do not need to include every bit of detail, just the key facts. There's plenty of witness statement examples on here if you do a search for them or there is an example witness statement in my list of templates if you click here (its near the bottom of the list but a witness statement for setting aside a parking ticket).

The first three paragraphs will by and large always be the same, you just fill in the gaps. You then go on to give some background to your case and make reference to the evidence you have gathered known as exhibits. Subheadings are not absolutely necessary but they do certainly help the reading, including the judge to easily follow your story. If you wanted to use sub-headings in your case, you make sure they are relevant, for example:

1. The car park at [address].
2. The alleged breach of contract
3. The Claimant's conduct
4. Conclusion

Point number 3 is optional but if VCS have failed to comply with the Civil Procedure Rules or ignored you or you believe their conduct overall is unexplainable, you could briefly mention this in your witness statement.

Your bundle of documents
In terms of your bundle of documents, one of the key successes to winning at court is by making sure you have your evidence in order. You can do this by sorting them into different categories of documents and paginating them. It is also recommended that you put your documents in a folder which are either tabbed up or have tabbed dividers so they are easily accessible. I've attached a Trial Bundle Index which you can use to go on the front of your folder and see how it ought to be set out. Finally, courts always seem to lose documents and bundles which is quite embarrassing so I would recommend taking 3 copies: VCS, the judge and yourself. Also, you don't need to include every bit of evidence if you aren't going to rely on it, but if you are unsure, then better safe than sorry and include it.

Although not strictly necessary to do all of the above, it shows you are well prepared and a judge would also be impressed, compared to some parking companies and low-level debt litigation solicitors. Never forget that presentation makes all the difference when in front of a judge.

Attending the trial
I've also attached a very quick short guide to representing yourself in court which sets out some of they key things you should know. It's difficult to explain everything but it's a starting point. You should not read from a script as judges don't like that but you should have at least some kind of plan with bullet points that you can refer to from time to time - I've attached what I call a 'submissions plan' which is very basic but should hopefully help you to stay on point as it can be very easy to stray off track or miss something out. There is some example text in there to show how you might set the plan out but feel free to do it whatever way suits you best.

Other than what I've attached and said here, I should expand on a couple more important things you need to be aware of.

1. The Judge will generally do the introductions for you and set the scene and then ask the claimant to present their case followed by yourself. When its your turn to speak, you should give a very short introduction as to how many submissions (these are reasons) you will be making which is based on what you put in your defence and always go with your strongest arguments first. For example, you might say:

"Sir, I have 3 submissions to make in respect of the Claimant's claim. They are (1) there was no breach of contract as I had paid for a ticket (2) If a breach did occur, then ..."

This helps the judge know what arguments you will be making and he/she will be making notes on these points to help decide the case at the end. Always gauge the Judge by their pen and what I mean by that is if they are still writing about something you've just said, don't rush on to the next point straight away, give yourself a little pause and time for the judge to catch up.

This also applies when you are referring the judge to your bundle of documents. when you want to refer to evidence to back up what you have just said, something like the following will suffice:

"Sir, if I may refer you to Tab A of my bundle and then to page 63 which refers to ..."

Wait for the judge to get to that point before making the point you want to make - they will tend to mumble "yes" when they are ready. When you are finished each submission, make it clear to the judge that is the end of your first submission and unless he/she has further questions you would like to move on to your next submission which is XYZ..

When you've come to the end of your submissions, tell the judge that is the end of your submissions and you would like to very briefly summarise your submissions. This is helpful because it reminds the judge as to the reasons why the claim should fail and be dismissed. Do not repeat everything but highlight key points that support your defence in the bets way possible, probably a few sentences on each would normally suffice.

Hope that helps but any problems feel free to post back.

[NewbieAndy]

Hi Rob,

This is exactly what i needed and this is amazing help!

My court date is Actually 31st August so i have some time to get all this together.

I'll certainly look to create a draft version of my witness statement and post this back up here for an initial review just to make sure it seems all in order or any pointers to make it better.

I can't thank you enough for this help and certainly at the same time feel aggrieved that i have to go through this because VCS has failed to acknowledge my honesty and pursued this to court so i will certainly hope too win and ensure they pay as a deterrent for future as well as compensation for the amount of time i have had to use in defending this.

Thanks,

NewvieAndy

[R0b]

Small claims does not allow recovery of costs generally unless the conduct has been unreasonable and that can be difficult to prove with Judges in the County Courts. However, if you are successful, you can recover up to £95 for loss of earnings or loss of leave due to attendance of the hearing (plus parking tickets costs) and you should make sure you raise this with the judge at the end, otherwise it won't be contained in the order - it's your job to raise it not the court.

You can find this information at the following link under paragraph 7.3 (click here)

[NewbieAndy]

Hi Rob,

i was about to start my witness statement but i noticed the witness statement example link you provided link below:

https://app.box.com/s/5c4qbfyvr4htyq2xbfvkgtbsssscpz0t

It seems to go to a witness statement for someone whom has CCJ's.

Can you provide the link to the witness statement for parking tickets?

Thanks for your help.

NewbieAndy

[R0b]

Hi NewbieAndy

I don't have a witness statement for parking tickets but the one I linked to is an example of how to set it out. In your case, you will need to explain the series of events which led to the parking ticket include dates and references to evidence.

The purpose of a witness statement is to set out in your own words what happened i.e. facts. The trouble you may have with copying other people's is that it probably doesn't relate to your situation so you are best drafting your own version of events and if you need feedback then post it on here.

To start you off, you may want to set out your witness statement as follows:

27 Jul 2018 - the parking event

1. I decided to drive to X retail park because I was intending to purchase XYZ.

2. Upon arrival, I parked my vehicle within the white lines and proceeded to pay for a ticket etc.

31 July 2018 - Letter from XYZ

3. I received a letter from [parking co.] stating that I had failed to purchase a ticket and in doing so, I was liable to pay them the sum set out in the penalty charge notice etc.

4 August - appeal to [parking co.]

4. I had written to parking co. to appeal the penalty charge notice on the grounds that etc.

Conclusion

5. In light of the above circumstances, I do not believe that parking co. has any legitimate claim against me for the amount as set out in its claim.

6. The evidence set out in this witness statement quite clearly shows that a valid ticket and period of time was paid for yet parking co. continues to pursue me.

and so on and so forth but do remember only stick to key points and try to keep it factual.