VCS/BW Claimform - PCN St Marys Gate retail park in Sheffield overstay **WON+COSTS**

[dx100uk]

CPR is for them to supply details not you

 

You can investigate things yourself mind

[ericsbrother]

yes,

you can change the one line skeleton to

 

" the claimant has not offerd a contract so there cannot be a breach of contract claim for the defendant to consider"

 

this is based on their signage being so rubbish that it cannot be said to be a contractual offer.

Read it carefully and you will see that it fails on almost every level.

[pawilso]

Ok thanks guys!

 

One last question at this point.

 

Because there are 2 tickets and the defence cases (at least as I understand) for both will be dfferent in so far as they dont have authority to ticket my own parking space and the second ticket at the retail park because the signage hasn't offered a contract,

 

would it be better to use both sentences suggested above?

 

Also is it worth grouping the tickets and defence statement together or addressing each one separately?

[pawilso]

Guys just before i press the send button is this ok??

 

The Defendant denies the allegations in the particulars of claim.*

The Claimant does not have the authority to enter in to contracts*

so there has been no breach of contract by the defendant and

The Claimant has not offered a contract so there cannot be a*

breach of contract claim for the defendant to consider.

 

Thanks

[ericsbrother]

As you will go into great detail in your witness statement almost whatever you say here, as long as it is understandable will do

 

Say the claimant does not have the authority to enter into contracts at this site or with the defendant though to make it clearer that it is more specific tham just an assertion.

 

 

For the second part the "sigange at the site does not create a contractual obligation upon the defendant so no breach can have occurred" is clearer

[pawilso]

Ok thanks very much!

[pawilso]

Hi guys so im preparing my defence this weekend, i've got to submit my case to court and vcs by Wednesday.

I would appreciate any feedback.

 

So to recap i'm being charged for 2 separate tickets.

The first is for an overstay in a retail park by 16 minutes. (1 hr free parking) This is the one i'm uncertain of defending. I believe i have the necessary supporting evidence and case law to defend the residential parking charge. So regarding the overstay, so far i've got the following arguments:

 

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

 

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.

2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.

2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.

2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.

2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]

 

- The Claimant has provided no proof of assignment from the landlord to create contracts and make claims in their own name.

 

- The Claimant has no planning permission or advertising consent granted for signage etc under the Town and Country Planning Act 2007. They are therefore acting illegally.

 

- They also fail to meet the code of practice of the private parking regulatory bodies.

BPA rules for signage 18.4 states signs should, "follow any applicable government signage regulations."

- The IPC code of practice 2.42 states they must be "compliant with all necessary legislation.

 

 

Some points i'm unsure:

 

Firstly in one of the previous comments someone said the sign refers to another sign so there was no contract offered. Could anyone expand on how i could use this argument?

 

Secondly, is it worth mentioning the sum claimed is an unfair/excessive penalty anymore in view that council charges are £30?

I know the ppc's use the argument of commercial justification but the retail park has closed one of the stores and more than adequate space. Is it worth using this in my defence with any supporting evidence? On a typical Saturday afternoon there are around 35/40 free spaces.

 

In addition i believe i need to put in my defence that they didnt send the cpr31.14 as i requested. How should i use this? I believe i may also have to explain to the judge why i ignored their initial correspondence and why i thought it was junk mail too.

 

Thanks for any help!

[dx100uk]

IMHO I would not be going into anything that does directly relate to their vague generic POC

 

 

the two line defence widely available on most PPC CLaimform threads here is ALL you need at this stage

the rest of what you indicate is for disclosure stage later on.

[pawilso]

Sorry if I was unclear

I'm at the stage now where I have to submit my case for defence.

I'm in court on the 26th of this month

[dx100uk]

you mean witness statement

[ericsbrother]

WS and all other paperwork to be sent to the court and the claimant by the 12th.

 

 

VCS/BW will file late so they get a chance to read your statement and adjust their claim to fit the arguments.

 

First thing you do when you get to court is complain that you havent had enough time to consider the late paperwork and request that their submission is either thrown out for abuse of process or an adjournemnt is made to give you time to consider it and offer a rebuttal.

 

 

The judge will hate to have their court time wasted so they wont be keen on an adjournment and if the papers were very late they may well agree that they are not considered as evidence. usually, it is so flawed that the judge will decide to ignore and carry on anyway as the result goes your way.

 

tell us what you intend to rely on and we will suggest other things to go with.

For example, make sure you have a copy of the POFA so you can quote it and copies of all the other similar claims that are mentioned on palces like the Parking pranksters blogspot.

This will save the judge a lot of effort in looking for precedents.

 

You will need picture of the signage,

entrance from the public highway,

copy of the relevant planning law re signage

(they will claim deemed consent but the deemed consent list what is allowed and they are outside that, it is not just about size of signs, there are 19 different categories of sign to consider so amke sure that you say what their falls under and why).

 

 

If you dont know come back here pronto and we will point you in the right direction

[pawilso]

ok great thanks for the tips!

 

Regards the category for signage laws it looks like it fits either of these under deemed consent but fails to meet their conditions and limitations.

 

Class 2 Miscellaneous advertisements relating to the premises on which they are displayed

Description

2A. An advertisement displayed for the purpose of identification, direction or warning, with respect to the land or building on which it is displayed.

 

Conditions and Limitations

2A. —

 

(1) No advertisement may exceed 0.3 square metre in area.

(2) Illumination is not permitted.

(3) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control.

(4) No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.

Description

2B. An advertisement relating to any person, partnership or company separately carrying on a profession, business or trade at the premises where it is displayed.

 

Conditions and Limitations

2B. —

 

(1) No advertisement may exceed 0.3 square metre in area.

(2) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control.

(3) No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.

 

Im gona get on the case with it tonight and tomorrow. Ill post my defence on here tomorrow so any more tips would be a great help. Oh 1 more question how may case law examples should i use and does it require the transcript of the court case? I've got Pace vs Mr N and the Jopson cases to support my residential parking ticket. There's reference to others on the parking cowboys site such as Link Parking vs Mrs P but i can't find the transcripts online. Is it worth referencing other cases if i don't have the transcripts?

[dx100uk]

it is NOT A DEFENCE

 

its a witness statement

 

you filed your defence WEEKS ago.

 

it supports and expands the points rasied in your defence

and it their WS

[pawilso]

Ok yes sorry my witness statement. I've actually received theirs already.

[dx100uk]

good scan it up lets pull it apart

 

when yours got to be with the court

[pawilso]

D Day is Wednesday

[dx100uk]

14 days before the hearing date yes.

[ericsbrother]

you are readingn the wrong part of the act. That is what they are hoping for. Essentailly you have fallen for the trap that the sign is informational rather than purely an advertisement. It is advertising a contract, not giving you information about soemthing, like a bus stop or fire escape. The sign will fulfil waht you ahve picked out because you ahvent read all of the optuions.

 

ok great thanks for the tips!

 

Regards the category for signage laws it looks like it fits either of these under deemed consent but fails to meet their conditions and limitations.

 

Class 2 Miscellaneous advertisements relating to the premises on which they are displayed

Description

2A. An advertisement displayed for the purpose of identification, direction or warning, with respect to the land or building on which it is displayed.

 

Conditions and Limitations

2A. —

 

(1) No advertisement may exceed 0.3 square metre in area.

(2) Illumination is not permitted.

(3) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control.

(4) No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.

Description

2B. An advertisement relating to any person, partnership or company separately carrying on a profession, business or trade at the premises where it is displayed.

 

Conditions and Limitations

2B. —

 

(1) No advertisement may exceed 0.3 square metre in area.

(2) No character or symbol on the advertisement may be more than 0.75 metre in height, or 0.3 metre in an area of special control.

(3) No part of the advertisement may be more than 4.6 metres above ground level, or 3.6 metres in an area of special control.

 

Im gona get on the case with it tonight and tomorrow. Ill post my defence on here tomorrow so any more tips would be a great help. Oh 1 more question how may case law examples should i use and does it require the transcript of the court case? I've got Pace vs Mr N and the Jopson cases to support my residential parking ticket. There's reference to others on the parking cowboys site such as Link Parking vs Mrs P but i can't find the transcripts online. Is it worth referencing other cases if i don't have the transcripts?

[pawilso]

IN THE COUNTY COURT IN SHEFFIELD CLAIM NUMBER:…………………

 

PARTIES: VEHICLE CONTROL SERVICES LTD CLAIMANT

V

DEFENDANT ………………. DEFENDANT

 

WITNESS STATEMENT

 

I ………… am the Defendant in this case. The facts in this case come from my personal knowledge.

 

Preliminary Matters.

 

(1) The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

1. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,

2. those which are incoherent and make no sense,

3. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

 

(3). I made a CPR 31.14 request on the 16/12/16 and received no correspondence back from the Claimant. On the basis of the above, i request the court strike out the claim for want of a cause of action.

 

St Marys gate retail park ticket

(4) The Claimant does not have the authority to enter into contracts so there has been no breach of contract by the Defendant.

 

(5) The Claimant has provided no proof of assignment from the landlord to create contracts and make claims in their own name.

 

(6) The Claimant has no advertising permission granted for signage etc under the Town and Country Planning Act 2007.

See Exhibits … (email from council planning stating they require planning & planning documents if necessary???)

According to advertising consent laws advertising, there are 3 categories of advertising consent. The signs of the Claimant need ‘Express consent’ which is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is a criminal offence to display an advertisement without consent.

 

(7) The conditions and limitations are not met in so far as the Claimant has 9 signs in St Mary’s Gate Retail Park which are 120cm x 60 cm. No advertisement may exceed 0.3 square metre in area. Therefore i am being charged for an alleged breach of contract from an illegal sign.

 

(8)This also goes against the codes of conduct set out by the British Parking Association which states in signage rules 18.4 “that signage must follow any applicable government signage regulations,” and the rules of the International Parking Community (to which the Claimant belongs) under Conditions 2.42 that the Claimant,”should be compliant with all necessary legislation.”

 

(9) The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

 

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.

2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.

2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.

2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.

2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. This is not indicated by the signage

 

(10) Amount £100 for 16 minute overstay??????????? Unenforceable penalty???????

 

Jet Centro Mary Street Car park tickets

(11) I deny these Claims as the Claimant has no authority to enter into contracts so there has been no breach of contract by the Defendant.

 

(12) As a resident of ….. Jet Centro Apartments, my tenancy agreement grants me the right to park in Space….. of the Jet Centro Mary street car park. See exhibits (tenancy agreement) (title deeds showing parking space) and (email confirming from letting agent)

 

(13) It is asserted that signage on the property cannot replace the contract formed by Lease, as found in CS038 Jopson vs Homeguard (2016) 9GF0A9E. In that case Judge Harris QC ruled: “the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease” (See Exhibit jopson transcript)

 

(14) In Pace Recovery vs Mr N (2016) the Judge ruled, “I have to deal with this on the evidence that is before me now. I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that. It has got to be the other contracting party, Affinity Sutton, which amends the terms of the tenancy agreement to restrict the right to park on a place in circumstances in which a permit is displayed but that is not in this tenancy agreement and you as a third party cannot unilaterally alter the terms of the tenancy agreement.” See Exhibit (transcript)

 

(15) My tenancy agreement has been in place since December 2009 (see letter from letting agent) and the Claimant has been managing the car park since 2013. Exhibit(email confirming this from the property management company) I assert the Claimant has made no attempt to amend the terms of Lease or to have them amended by the management company, …………..

 

(16) The case law in this regard is strong: the terms of a tenancy agreement cannot be amended by the displaying of a sign.

 

(17) In the case of Saeed vs Plustrade Ltd (2001) EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well known and well established principle that ‘a grantor shall not derogate from his grant’.

 

(18) There can be ‘no legitimate interest’ in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is unconscionable, contrary to the requirement of good faith and ‘out of all proportion to any legitimate interest’ to fine residents or their visitors for using the parking spaces provided.

 

(19) The Claimant has ignored my correspondence (Exhibit letter threatening action) which informed them that i held the lease for the parking space and as such they had no right to pursue their claims and in fact that i would pursue a counter claim if they continued in their claims.

 

(20) The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold. This is evidenced further by Exhibit… which clearly shows a ticket placed in clear view of the parking pass. In the Claimant’s evidence they show all angles of the vehicle except where the ticket was placed.

 

(21) The Claimant doesn’t have proof of a chain of contracts leading from the landowner to the Claimant which show that they have the right to unilaterally remove or interfere with the overriding rights of my lease.

 

(22) Alternatively, even if a contract could be established, the provision requiring payment of £100 per ticket is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015 and the Unfair Terms in Consumer Contracts Regulations 2008

 

Thats what i've got so far.. i've amended the classification of advert re ericsbrother's comment above.

Should i enclose all planning documents as an exhibit or is it up to them to prove they have planning permission?

 

Also i've left 10 blank. Is it worth using the argument of breaching the UTCCR and it being an unenforceable penalty, differentiating against Beavis by mentioning :

1. The location- 1 of the shops on the retail park is closed and space is always plentiful

2. The charge of £85 against Beavis was for an overstay of 56 minutes. Mine is £100 for 16 minutes. council charges being £60 reduced to £30 i think.

[ericsbrother]

very quickly,

when you quote legislation like the 2007 advertising regs make sure you take a copy of the regs to court as the judge wont have one to hand.

Ditto the consumer contract regs.

 

on point 6,

it would be entering into a criminal contract and you cannot do that even if you wanted to.

Again, plenty of legal commentary on this so make copies for claimant and court so you can refer to them.

 

point 10

you must point out that Beavis doesn't apply to this case

( reason given in a judgement on the Parking Pranksters blog some time late last year.

 

The parking co have no financial interest in the place,

they don't pay a rent unlike the Beavis claim

and there is no alternative for payment like a ticket machine, again unlike Beavis

the amount is not a loss but an unenforceable penalty.

 

You will have to spell it out though because a judge isn't going to do your research.

 

take copies of anything and everything that may possibly get raised as you cant guess the judges train of thought.

(ie you quote Saeed V Plustrade so take a copy of the judgement along,

no real need to copy this to the defendant as it is quoted in your WS

but have the full version to hand)

 

You may raise something in passing that they decide is the clincher or they may latch onto something that the claimant says and challenge you to disprove it,

even though this is not how the law is supposed to work.

[pawilso]

Awesome thanks! I'll crack on with that now.

 

Just looking at the Beavis arguments..

with my original defence statement being ,

 

"The Claimant does not have the authority to enter into contracts so there has been no breach of contract by the Defendant and the Claimant has not offered a contract so there can be no breach of contract claim for the Defendant to consider,"

 

can i also bring into my defence about unfair penalties?

[ericsbrother]

you can raise anything and everything.

 

 

As alrady said, Beavis was about a P&D car park where the signs were clear and PE paid £10k a month to be there so there was a commercial justification for their claims.

 

 

There isnt here, the bandits will be signed up by the managaing agents, who dont have the authority to do that.

 

 

So, even if there was some sort of obligation then the amount would be a penalty rather than having any commercial justification.

Again, you need to pick out the relevant sections of Beavis where this is gone into in detail and take it with you.

 

the parking co's use that Beavis decision as a carte blanche to charge what they like anywhere rather than considering the limits of the decision to that car park where thre was an alternative contract for paying if you stay beyond the free time.

 

In your case there isnt a P&D alternative, the parking coa rent paying a commercail rent to be there, they dont have the authority of the landowner, you have supremacy of contract etc.

Edited April 11, 2017 by dx100uk

[pawilso]

Sorry for the late reply but had a hectic few days. Just wanted to say thanks for all the help

[pawilso]

The court hearing in April got adjourned until today.

 

 

VCS hadn't received my witness statement and passed it to their solicitor

(even though they had signed for it via recorded delivery)

and the judge deemed that it should be adjourned.

He didn't award me court costs for that day because he deemed my witness statement to be my actual defence.

 

He did highlight however that in the terms of VCS's contract with the landowner there was an agreement that there should be 30 minutes grace after the hour overstay.

 

today a new judge was in court to hear the case.

He initially stated that he felt the 2 tickets issued for parking in my own bay were in his opinion going to be difficult to justify

 

 

after hearing the VCS argument that my agreement with the letting agent wasn't valid because the property management company was in charge of the car park area, he was quite quick to dismiss them.

 

 

Even though my tenancy agreement makes no reference to having an allocated parking space,

the fact that i had an email from the letting agent stating that the space came with the property as well as the deeds which also showed this, was sufficient enough.

 

He then went onto the overstay,

saying he felt this would be hard for me to defend in light of Beavis's supreme court ruling.

Vcs had addressed my point about no planning consent for their signs in their defence,

countering that argument by highlighting part 5 Miscellanous, schedule 1 classes of advertisement to which parts 2 and 3 do not apply (of the town and country planning regulations 2007. Class A an advertisement displayed on enclosed land.

 

My defence was cut down to the VCS contract with the landowner and the grace period.

 

VCS argued that the contract with me was based on the signage and not related to their agreement with the landowner,

but the judge dismissed that saying they were allowed to ticket only after a grace period of 30 min.

That is what they were bound by and they could not make up there own rules.

 

Case dismissed and costs awarded to myself.

 

I thought i would leave some detail in case any of this helps anyone else going forward and to say thanks again to everyone who helped me!

[dx100uk]

good win

 

 

dx

 

 

 

 

 

 

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