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In summary a PCN/Notice to Driver was placed on my car (I was not the driver). Six days later I received a Notice to Keep/PCN. After numerous letters from them and them ignoring my (late) appeal, although they did record it as an appeal in the SAR, they are taking me to court as the Keeper. In my original defence I was not aware fully of the POFA (2012) requirement for them to wait 28 days before accessing my data through DVLA so didn't put that in my original defence. However, I did state a number of other reasons it was unenforceable as detailed below too.
Fast forward to today, court approaching fast, I have prepared a witness statement which hinges first and foremost on the POFA stipulations mentioned above. I have also included other factors for which I believe they have no claim to retrieve this sum of money.
Please could someone glance over my witness statement and let me know if there are any glaringly bad points. I have taken out identifying information. The number formatting has come out wrong but In the version I intend to submit it is all set out correctly. I feel a bit frazzled by the whole thing and it feels I could read other cases forever and still feel I need to do more reading. Sadly I can't as I need to submit witness statement in the next few days!
Thanks in advance.
In the County Court at XX
Claim No. XX
Between
Vehicle Control Services Limited (Claimant)
and
XX (Defendant)
--------------------------------------------------------------------------------------------------------------------------
XX
--------------------------------------------------------------------------------------------------------------------------
Enclosed herewith are key statements in support of my defence against the imposed Parking Charge Notice dated XX
3. The facts in this statement come from my personal knowledge, as the Registered Keeper of the vehicle. Where they are not within my own knowledge, they are true to the best of my information and belief.
4. The vehicle was allegedly parked in a car park that is located on the site of XX between 21:22hrs and 21:26hrs on 24.11.18. At this time a “Notice to Driver/Parking Charge Notice (PCN)” was attached to the windscreen by an agent of the Claimant.
BREACH OF PROTECTION OF FREEDOMS ACT (2012)
5. I received a ‘Parking Charge Notice/Notice to Keeper’ from the Claimant dated 30.11.18 stating a charge of £100 was being pursued for ‘parking in a restricted/prohibited area’. This was received 6 days after the ‘contravention’ date of 24.11.18. The timing of VCS access to my personal data is a breach of the Protection of Freedoms Act (POFA, 2012) Schedule 4 and as such, I, as the registered keeper of the vehicle cannot be held liable for the parking charge notice.
6. The Driving and Vehicle Licensing Authority (DVLA), via which VCS gained my personal details, clearly states POFA (2012) legislation in their document “Release of Information from DVLA Registers” namely that “Companies that issue windscreen notices to drivers can only apply for keeper information after 28 days if the parking charge remains unpaid. Companies have a further 28 days to contact the keeper. If these timescales are not met, the keeper liability powers do not apply”. As a result of VCS accessing my personal data within 6 days of the ‘Notice to Driver’ they have rendered their pursuit of me as the Registered Keeper invalid.
7. Further, this access to my personal information is also a breach of the Independent Parking Community Accredited Operator Scheme Code of Practice (IPC, 2017, V.6). VCS are noted to be accredited by the IPC. VCS are in breach of a number of processes in the Code of Practice, namely Part C, Point 2.1 (g) “The Notice to Driver must…….explain that if the full amount of the charge is not paid within 28 days an application will be made to DVLA for the keeper’s details to enable the charge to be enforced”.As stated in this Witness Statement the alleged contravention date (date car was photographed) was 24.11.2018 and as evidenced in VCS Subject Access Request my personal data was accessed through the DVLA on 30.11.2018. This is further evidence that VCS have not followed due process.
BREACH OF INTERNATIONAL PARKING COMMITTEE APPEALS PROCESS
8. At the time of receiving the letter dated 30.11.19 I was unsure if this was a scam or phishing letter as I had not received such a letter before. I therefore sought advice from someone with legal experience. I was advised to appeal this parking charge to avoid aggressive and threatening correspondence, despite the stated appeal window having passed. I was directed to the IPC Code of Practice (Point 6.1 [e]) stating that the parking company should “allow for appeals to be made outside of the period which is usually allowed where you consider there to be exceptional circumstances for not lodging the appeal within the normal time allowed”.
9. I replied to the letter from VCS dated 30.11.19, on 4th January 2019 (see Exhibit JL1 Subject Access Request bundle) appealing the Parking Charge due to a lack of appropriate signage, the unclear definition of ‘XX Parking Only’ and the availability of parking permits. I also appealed the disproportionate charge as not being an appropriate estimate of loss. At the time of appeal, I was not fully aware of the POFA (2012) legislation and therefore did not direct VCS to their breach.
10. In my later dated 04.01.19 I advised that I would not respond to further letters from the Claimant unless the points raised in my letter were addressed. I received no communication back as to whether the appeal had been upheld or rejected and no information of how to appeal to an independent body. This is in breach of the IPC’s Code of Practice (Part B, 6.2) allowing individuals access to the Independent Appeals Service (IAS).
11. I received a further letter dated 16.01.19 stating ‘DEMAND FOR PAYMENT’. This letter stated that it had added ‘debt collection costs’ of £60, taking the total demand for payment to £160. This additional fee added within 21 days of the appeal being lodged is in breach of the IPC’s Code of Practice (Part B, 6.2) allowing individuals access to the Independent Appeals Service (IAS) and allowing “a further 21 days” within which VCS “cannot add on any additional fees for non-payment”
ABUSE OF PROCESS
12. In addition to Point 11 above, debt recovery proceedings had not taken place therefore the £60 ‘debt collection costs’ have not actually been incurred by the Claimant and are artificially invented figures in an attempt to circumvent the Small Claims costs and is an attempt at double recovery.
13. The Protection of Freedoms Act 2012, 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, in this case £100. The claim includes an additional £60 for ‘debt recover costs’, for which no calculation or explanation is given and which appears to be an attempt at double recovery. This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts.
14. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
15. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport [IOW] County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member Claimant (Britannia) and an IPC member Claimant (UKCPM) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: “It is ordered that the claim is struck out as an abuse of process. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
16. The above case is not an isolated judgment striking a parking claim out for adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: “Upon it being recorded that Distract Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued [he] would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process”
LEGITIMATE COMMERICAL INTEREST
17. In their letter dated 16.01.19 VCS made reference to ‘ParkingEye Limited v Beavis (2015) UKSC 67’ stating that “the Supreme Court held that parking charges serve a legitimate commercial interest and are neither extravagant not unconscionable”. I would like to point out that according to their parking sign this parking area does not offer a free parking period, so the ParkingEye v Beavis case does not apply in this case.
18. The Claimant is stating that they had a legitimate interest to set the charge. However, the time of the alleged contravention was on a Saturday evening at 21:22hrs, as is shown from the pictures provided to me by the Claimant. There is no legitimate interest that is being protected as XX XX (the only business covered by VCS) was not operating at that time having closed at 18:00hrs, so it is unclear what legitimate interest is being protected at that time.
INABILITY TO FORM CONTRACT - NON-COMPLIANT SIGNAGE
19. I visited the site during daytime hours to photograph the signage (Exhibit XX2). I also visited during dark hours to assess the appropriateness of the signage based on the IPC Code of Practice Part E, Schedule 1. Schedule 1 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”.
20. The photo taken after dark (Exhibit XX3) demonstrates the lack of appropriate illumination to make the signs visible. This means that, if VCS had followed POFA (2012) and were able to pursue me as the registered keeper of the vehicle, they would not be able to assert that a contract had been entered into by the ‘driver of the vehicle’. I also submit a video as evidence at the following link to confirm the lack of illuminate signage: XXXLINKXXX (Exhibit XX4). I reassert - no contract could legitimately be formed between the landowner/VCS and the driver or registered keep of the vehicle XX. If no contract could be formed, there is no breach of contract or parking conditions and no basis for legally pursing the sum of £185 plus interest.
21. On the photo taken by the agent of VCS at the time of the contravention (contained with the Subject Access Request, SAR) it can be seen that the camera flash has illuminated the signage. On another photo, within the SAR, a sign cannot be seen near to my vehicle due to a lack of appropriate lighting. Therefore, without access to additional lighting it would be impossible for someone to see the signs displayed. In addition, a sign placed very near to where the vehicle was photographed is placed on a council owned street lamp outside the boundary wall of XX on a public pavement (Exhibit XX5).
22. The IPC Code of Practice Point Part E, Schedule 1 also states that a sign should be displayed as a driver enters the car park to alert them to entering private land. The site does not contain a sign on entry to the car park (Exhibit XX6). As seen in Exhibit XX5 there is, in daylight hours, a sign not clearly displayed on the side of the building amongst other advertising signage. However, this is not placed clearly at the entrance. When entering this area from the XX Road you are entering from a fast roundabout, this sign does not give adequate notice to the driver that they are entering private land. At night this sign is not illuminated or under sufficient other illuminations to make the sign noticeable to drivers of vehicles.
23. Upon reading the signage as displayed in Exhibit 1, I noted that parking is allowed for “XX Customer Parking Only”. There is no indication of the parameters of this statement. I assume this would mean that being a customer of XX would qualify someone to utilise this car park. Therefore, if the signage had been visible and someone had proof of having been a customer of XX this would mean parking at any time of day would be abiding by the VCS Terms and Conditions. As a customer of XX (Exhibit XX7) I would assume this would enable me if I were the driver to park on this car park for short periods of time.
GRACE PERIODS
24. The IPC Code of Practice (2017), Part B, 15.1 state that “Drivers should be allowed a sufficient amount of time to park and read any signs, so they may make an informed decision as to whether or not to remain on the site”. The times stated on the photographs supplied in the Subject Access Request suggest the car was parked between the hours of 21:22 and 21:25. This amounts to 3 minutes and is not considered an appropriate amount of time as a ‘grace period’.
25. Further, the IPC code of Practice states in Part B at 15.2. that “Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired”and in 15.3 “The reference to 10 minutes in 15.2 above shall not apply where the period of pre-paid or permitted parking does not exceed 1 hour providing that the signage on the site makes it clear to the motorist, in a prominent font, that no grace period applies on that land.” VCS signage does not state that a grace period does not apply, therefore, presumable it does apply and the vehicle was parked for a period less than the grace period. Again, this confirms that a contract was not formed between the landowner/VCS and the driver of the vehicle.
IMPOSSIBILITY OF PERFORMANCE
26. As can be seen in Exhibit 1 the signage also states that “if a valid permit/ticket is required, the permit/ticket must be clearly displayed (with all details clearly visible) inside the front windscreen of the vehicle at all times”. I spoke to the staff at XX XX following the letter received from VCS on 16.01.19 and enquired about a permit or ticket. I was informed that no permits exist for customers.However, the wording on the signage suggests parking by permit. At the time of the alleged contravention a permit could not have been gained due to the shop being closed even if permits had been in existence. A contract in this case could not have been formed and therefore has failed by doctrine of ‘impossibility of performance’.
27. In the case PACE vs Lengyel (Claim Number C7GF6E3R) in the County Court of Manchester the claim was struck out for similar reasons in point 24 above, with District Judge Iyer stating: “It must have been obvious to the claimant that if it erected a sign stating that it was a term of the contract that the driver of any parked vehicle displays a permit, it must have known in advance that many drivers would simply be unable to do this. Therefore, insofar as there was any contract between the parties, it was invalid under the doctrine of impossibility of performance.”
PROPRIETARY INTEREST
28. The Claimant, VCS is not the lawful occupier of the land. 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 in a written contract to issue parking charge notices, and to pursue payment by means of litigation. In summary, I the Defendant believes that the Claimant has no right to enforce a Parking Charge Notice against me as the Registered Keeper of the vehicle XX. This is due to a failure to follow procedure under the Protection of Freedoms Act (2012) Schedule 4.
In summary, I the Defendant believes that the Claimant has no right to enforce a Parking Charge Notice against me as the Registered Keeper of the vehicle XX. This is due to a failure to follow procedure under the Protection of Freedoms Act (2012) Schedule 4.
If the Claimant had followed procedure and was entitled to pursue me for the parking charge, I have outlined above why the ‘breach of contract’ grounds to which the Claimant appears to be basing their case has no merit in a court of law. Namely, that no contract was entered into by the defendant due to a breach of a number of points in the IPC Code of Practice and points in contract law (for example ‘impossibility of performance). The IPC Code of Practice is a set of standards that VCS must comply with to be able to claim accreditation as an operator. Failure to comply with these standards renders VCS liable to be suspended from operating until they can prove issues of non-compliance have been corrected (IPC, 2017, Part E; and IPC, 2019, Schedule 4).
I believe the contents of this witness statement to be true
Date:
Signed
Fast forward to today, court approaching fast, I have prepared a witness statement which hinges first and foremost on the POFA stipulations mentioned above. I have also included other factors for which I believe they have no claim to retrieve this sum of money.
Please could someone glance over my witness statement and let me know if there are any glaringly bad points. I have taken out identifying information. The number formatting has come out wrong but In the version I intend to submit it is all set out correctly. I feel a bit frazzled by the whole thing and it feels I could read other cases forever and still feel I need to do more reading. Sadly I can't as I need to submit witness statement in the next few days!
Thanks in advance.
In the County Court at XX
Claim No. XX
Between
Vehicle Control Services Limited (Claimant)
and
XX (Defendant)
--------------------------------------------------------------------------------------------------------------------------
XX
--------------------------------------------------------------------------------------------------------------------------
Enclosed herewith are key statements in support of my defence against the imposed Parking Charge Notice dated XX
- 1. I, XX, am the defendant in this case. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.
3. The facts in this statement come from my personal knowledge, as the Registered Keeper of the vehicle. Where they are not within my own knowledge, they are true to the best of my information and belief.
4. The vehicle was allegedly parked in a car park that is located on the site of XX between 21:22hrs and 21:26hrs on 24.11.18. At this time a “Notice to Driver/Parking Charge Notice (PCN)” was attached to the windscreen by an agent of the Claimant.
BREACH OF PROTECTION OF FREEDOMS ACT (2012)
5. I received a ‘Parking Charge Notice/Notice to Keeper’ from the Claimant dated 30.11.18 stating a charge of £100 was being pursued for ‘parking in a restricted/prohibited area’. This was received 6 days after the ‘contravention’ date of 24.11.18. The timing of VCS access to my personal data is a breach of the Protection of Freedoms Act (POFA, 2012) Schedule 4 and as such, I, as the registered keeper of the vehicle cannot be held liable for the parking charge notice.
6. The Driving and Vehicle Licensing Authority (DVLA), via which VCS gained my personal details, clearly states POFA (2012) legislation in their document “Release of Information from DVLA Registers” namely that “Companies that issue windscreen notices to drivers can only apply for keeper information after 28 days if the parking charge remains unpaid. Companies have a further 28 days to contact the keeper. If these timescales are not met, the keeper liability powers do not apply”. As a result of VCS accessing my personal data within 6 days of the ‘Notice to Driver’ they have rendered their pursuit of me as the Registered Keeper invalid.
7. Further, this access to my personal information is also a breach of the Independent Parking Community Accredited Operator Scheme Code of Practice (IPC, 2017, V.6). VCS are noted to be accredited by the IPC. VCS are in breach of a number of processes in the Code of Practice, namely Part C, Point 2.1 (g) “The Notice to Driver must…….explain that if the full amount of the charge is not paid within 28 days an application will be made to DVLA for the keeper’s details to enable the charge to be enforced”.As stated in this Witness Statement the alleged contravention date (date car was photographed) was 24.11.2018 and as evidenced in VCS Subject Access Request my personal data was accessed through the DVLA on 30.11.2018. This is further evidence that VCS have not followed due process.
BREACH OF INTERNATIONAL PARKING COMMITTEE APPEALS PROCESS
8. At the time of receiving the letter dated 30.11.19 I was unsure if this was a scam or phishing letter as I had not received such a letter before. I therefore sought advice from someone with legal experience. I was advised to appeal this parking charge to avoid aggressive and threatening correspondence, despite the stated appeal window having passed. I was directed to the IPC Code of Practice (Point 6.1 [e]) stating that the parking company should “allow for appeals to be made outside of the period which is usually allowed where you consider there to be exceptional circumstances for not lodging the appeal within the normal time allowed”.
9. I replied to the letter from VCS dated 30.11.19, on 4th January 2019 (see Exhibit JL1 Subject Access Request bundle) appealing the Parking Charge due to a lack of appropriate signage, the unclear definition of ‘XX Parking Only’ and the availability of parking permits. I also appealed the disproportionate charge as not being an appropriate estimate of loss. At the time of appeal, I was not fully aware of the POFA (2012) legislation and therefore did not direct VCS to their breach.
10. In my later dated 04.01.19 I advised that I would not respond to further letters from the Claimant unless the points raised in my letter were addressed. I received no communication back as to whether the appeal had been upheld or rejected and no information of how to appeal to an independent body. This is in breach of the IPC’s Code of Practice (Part B, 6.2) allowing individuals access to the Independent Appeals Service (IAS).
11. I received a further letter dated 16.01.19 stating ‘DEMAND FOR PAYMENT’. This letter stated that it had added ‘debt collection costs’ of £60, taking the total demand for payment to £160. This additional fee added within 21 days of the appeal being lodged is in breach of the IPC’s Code of Practice (Part B, 6.2) allowing individuals access to the Independent Appeals Service (IAS) and allowing “a further 21 days” within which VCS “cannot add on any additional fees for non-payment”
ABUSE OF PROCESS
12. In addition to Point 11 above, debt recovery proceedings had not taken place therefore the £60 ‘debt collection costs’ have not actually been incurred by the Claimant and are artificially invented figures in an attempt to circumvent the Small Claims costs and is an attempt at double recovery.
13. The Protection of Freedoms Act 2012, 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, in this case £100. The claim includes an additional £60 for ‘debt recover costs’, for which no calculation or explanation is given and which appears to be an attempt at double recovery. This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts.
14. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
15. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport [IOW] County Court in 2018 and 2019) has struck out several parking firms claims. These include a BPA member Claimant (Britannia) and an IPC member Claimant (UKCPM) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: “It is ordered that the claim is struck out as an abuse of process. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
16. The above case is not an isolated judgment striking a parking claim out for adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: “Upon it being recorded that Distract Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued [he] would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process”
LEGITIMATE COMMERICAL INTEREST
17. In their letter dated 16.01.19 VCS made reference to ‘ParkingEye Limited v Beavis (2015) UKSC 67’ stating that “the Supreme Court held that parking charges serve a legitimate commercial interest and are neither extravagant not unconscionable”. I would like to point out that according to their parking sign this parking area does not offer a free parking period, so the ParkingEye v Beavis case does not apply in this case.
18. The Claimant is stating that they had a legitimate interest to set the charge. However, the time of the alleged contravention was on a Saturday evening at 21:22hrs, as is shown from the pictures provided to me by the Claimant. There is no legitimate interest that is being protected as XX XX (the only business covered by VCS) was not operating at that time having closed at 18:00hrs, so it is unclear what legitimate interest is being protected at that time.
INABILITY TO FORM CONTRACT - NON-COMPLIANT SIGNAGE
19. I visited the site during daytime hours to photograph the signage (Exhibit XX2). I also visited during dark hours to assess the appropriateness of the signage based on the IPC Code of Practice Part E, Schedule 1. Schedule 1 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”.
20. The photo taken after dark (Exhibit XX3) demonstrates the lack of appropriate illumination to make the signs visible. This means that, if VCS had followed POFA (2012) and were able to pursue me as the registered keeper of the vehicle, they would not be able to assert that a contract had been entered into by the ‘driver of the vehicle’. I also submit a video as evidence at the following link to confirm the lack of illuminate signage: XXXLINKXXX (Exhibit XX4). I reassert - no contract could legitimately be formed between the landowner/VCS and the driver or registered keep of the vehicle XX. If no contract could be formed, there is no breach of contract or parking conditions and no basis for legally pursing the sum of £185 plus interest.
21. On the photo taken by the agent of VCS at the time of the contravention (contained with the Subject Access Request, SAR) it can be seen that the camera flash has illuminated the signage. On another photo, within the SAR, a sign cannot be seen near to my vehicle due to a lack of appropriate lighting. Therefore, without access to additional lighting it would be impossible for someone to see the signs displayed. In addition, a sign placed very near to where the vehicle was photographed is placed on a council owned street lamp outside the boundary wall of XX on a public pavement (Exhibit XX5).
22. The IPC Code of Practice Point Part E, Schedule 1 also states that a sign should be displayed as a driver enters the car park to alert them to entering private land. The site does not contain a sign on entry to the car park (Exhibit XX6). As seen in Exhibit XX5 there is, in daylight hours, a sign not clearly displayed on the side of the building amongst other advertising signage. However, this is not placed clearly at the entrance. When entering this area from the XX Road you are entering from a fast roundabout, this sign does not give adequate notice to the driver that they are entering private land. At night this sign is not illuminated or under sufficient other illuminations to make the sign noticeable to drivers of vehicles.
23. Upon reading the signage as displayed in Exhibit 1, I noted that parking is allowed for “XX Customer Parking Only”. There is no indication of the parameters of this statement. I assume this would mean that being a customer of XX would qualify someone to utilise this car park. Therefore, if the signage had been visible and someone had proof of having been a customer of XX this would mean parking at any time of day would be abiding by the VCS Terms and Conditions. As a customer of XX (Exhibit XX7) I would assume this would enable me if I were the driver to park on this car park for short periods of time.
GRACE PERIODS
24. The IPC Code of Practice (2017), Part B, 15.1 state that “Drivers should be allowed a sufficient amount of time to park and read any signs, so they may make an informed decision as to whether or not to remain on the site”. The times stated on the photographs supplied in the Subject Access Request suggest the car was parked between the hours of 21:22 and 21:25. This amounts to 3 minutes and is not considered an appropriate amount of time as a ‘grace period’.
25. Further, the IPC code of Practice states in Part B at 15.2. that “Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired”and in 15.3 “The reference to 10 minutes in 15.2 above shall not apply where the period of pre-paid or permitted parking does not exceed 1 hour providing that the signage on the site makes it clear to the motorist, in a prominent font, that no grace period applies on that land.” VCS signage does not state that a grace period does not apply, therefore, presumable it does apply and the vehicle was parked for a period less than the grace period. Again, this confirms that a contract was not formed between the landowner/VCS and the driver of the vehicle.
IMPOSSIBILITY OF PERFORMANCE
26. As can be seen in Exhibit 1 the signage also states that “if a valid permit/ticket is required, the permit/ticket must be clearly displayed (with all details clearly visible) inside the front windscreen of the vehicle at all times”. I spoke to the staff at XX XX following the letter received from VCS on 16.01.19 and enquired about a permit or ticket. I was informed that no permits exist for customers.However, the wording on the signage suggests parking by permit. At the time of the alleged contravention a permit could not have been gained due to the shop being closed even if permits had been in existence. A contract in this case could not have been formed and therefore has failed by doctrine of ‘impossibility of performance’.
27. In the case PACE vs Lengyel (Claim Number C7GF6E3R) in the County Court of Manchester the claim was struck out for similar reasons in point 24 above, with District Judge Iyer stating: “It must have been obvious to the claimant that if it erected a sign stating that it was a term of the contract that the driver of any parked vehicle displays a permit, it must have known in advance that many drivers would simply be unable to do this. Therefore, insofar as there was any contract between the parties, it was invalid under the doctrine of impossibility of performance.”
PROPRIETARY INTEREST
28. The Claimant, VCS is not the lawful occupier of the land. 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 in a written contract to issue parking charge notices, and to pursue payment by means of litigation. In summary, I the Defendant believes that the Claimant has no right to enforce a Parking Charge Notice against me as the Registered Keeper of the vehicle XX. This is due to a failure to follow procedure under the Protection of Freedoms Act (2012) Schedule 4.
In summary, I the Defendant believes that the Claimant has no right to enforce a Parking Charge Notice against me as the Registered Keeper of the vehicle XX. This is due to a failure to follow procedure under the Protection of Freedoms Act (2012) Schedule 4.
If the Claimant had followed procedure and was entitled to pursue me for the parking charge, I have outlined above why the ‘breach of contract’ grounds to which the Claimant appears to be basing their case has no merit in a court of law. Namely, that no contract was entered into by the defendant due to a breach of a number of points in the IPC Code of Practice and points in contract law (for example ‘impossibility of performance). The IPC Code of Practice is a set of standards that VCS must comply with to be able to claim accreditation as an operator. Failure to comply with these standards renders VCS liable to be suspended from operating until they can prove issues of non-compliance have been corrected (IPC, 2017, Part E; and IPC, 2019, Schedule 4).
I believe the contents of this witness statement to be true
Date:
Signed
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