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Mr_Superlegend

VCS ANPR PCN Claimform - Overstay - St Marys Gate Retail Park Sheffield

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Hi,

 

I have now reached the county court stage and the details are as follows:

 

Issue date: 05/08/19

 

AOS: Sent and acknowledged on 08/08/19

 

A SAR was sent to VCS on 07/08/19

 

The CPR 31.14 Request will be posted tomorrow.

 

The history is as follows.

"Contravention" occurred on 07/08/16 and the issue date for the PCN was 31/08/16.

This was an overstay of 22 minutes, the car park is free for one hour.

 

This went through the IAS in December 2016 and obviously failed.

I sent the standard letter for them to leave me alone and now we are here.

 

At no point did I name a driver,

they stated in the IAS

"we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question and we support this by the knowledge the appellant has in relation to the circumstances ("events of the day") in relation to this Parking Charge Notice."

 

now my defence begins...

 

I have taken some very recent information from this site for the same car park who have provided the following defence:

 

1. The Claimant has failed to show, upon request under CPR 31.14, any authority or agency to enter into contracts with the public by way of an assignment from the proprietor to do the same and to make civil claims in their own name. The Defendant contends that the Claimant has no authority or agency to do such therefore there can be no claim.

 

2. The Claimant has failed to show, upon request under CPR 31.14, any evidence of planning permission for installation of cameras and signage under the Town and Country Planning Act 2007. The Defendant contends that such permission was never sought nor granted therefore there can be no claim.

 

I would obviously like to add something around POFA 2012 but also want to keep this fairly simple. Any thoughts from the parking wizards out there very much appreciated...

 

I've done some more research and inclined to go with a more details defence as follows....

 

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

1) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. 

 

2) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

 

3) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

 

4) Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

5) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

 

6) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.

 

7) 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 to issue parking charge notices, and to pursue payment by means of litigation.

 

😎 Further and in the alternative, it is denied that the Claimant’s signage is capable of creating a legally binding contract. 

 

9) A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the full Terms & Conditions signs located throughout the car park’. Signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘Entry to or use of this privately operated and managed car park is subject to the current terms and conditions of vehicle control services ltd. Motorists/persons utilising this car park hereby accept in full the terms and conditions.’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

 

10) For all Pay and Display parking facilities owned by Sheffield City Council, including many on-road spaces in the vicinity of the car park in this case, the charges for overstay are initially £25 compared to the Claimant's £100. As the Claimant’s charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal facility it clearly disproportionate for the area.

 

11) 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 plus interest, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.


12) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

 

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Hello and welcome to CAG. I expect the guys in the know will be along later with advice for you.

 

We don't normally suggest long defences and your second post reads more like a witness statement. It could come in handy later, obviously.

 

Please wait for comments from the experts before you submit your paperwork. When do you need to get the defence in?

 

Best, HB


Illegitimi non carborundum

 

 

 

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Thanks for the reply,

if my calculations are correct I have until 09/09/19 so plenty of time,

I certainly won't be sending anything without having the pros see to it.

 

I feel a little clueless about what to include and what to omit.

There is a mountain of information about this online.

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well certainly noting more than the std 2 or 3 line defence

 

however, your research let you down....

you should never have appealed.

 

https://cse.google.com/cse?cx=partner-pub-8889411648654839:3134625398&q=St Marys Gate Retail Park&oq=St Marys Gate Retail Park&gs_l=partner-generic.12...41635.41635.0.42740.1.1.0.0.0.0.70.70.1.1.0.gsnos%2Cn%3D13...0.0...2.34.partner-generic..1.0.0.V1j26avqnSM

 

this is an ANPR captures

their PCN was out of time more than 14 days after the event.

 

dx

 

 

 


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Posted (edited)

You should be able to win this easily enough on keeper liability

Edited by Browntrout

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dont forget, this is only the opening round and you can add a lot more detail to your defence later.

What you cant do is change it to a different reason for denying the claim.

that is why a briefer simple denial of a contractual liability is often better because it allows you to hang a lot more on it later.

 

Also, these tend not to get read at Northampton but only after they have been allocated to your local county court and whether the staff put this in front of a judge or use their own powers to make orders varies a lot so dont expect to get the claim chucked out any time soon.

 

What may well happen is VCS get ordered to produce a proper POC or the matter will get binned but that will be when someone is looking at allocating the matter court time so after the next 2 rounds of paperwork.

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Ericsbrother i agree a defence does not need to be war and peace but a two line defence like that would most likely have got struck out after allocation

 

They have at least put in a more detailed defence now so can only wish them well.

Cases that are read at Northampton are those where jurisdiction is challenged and a £100 fee is payable for a paper hearing

 

 

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Nothing submitted as yet. I can see I need to hit some middle ground of having enough detail but leaving some scope to build on a defence at this stage.

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not seen any to date has had that happen here following CAG's 2 or 3 line defence submittal 

anyone would soon scream at CAG if that had been so.

 

pers less is more

don't bring up things they don't, it only gives them a greater understanding of what you know..

keep your cards hidden till then time comes to play them.

 

 


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Posted (edited)
7 minutes ago, dx100uk said:

not seen any to date has had that happen here following CAG's 2 or 3 line defence submittal 

anyone would soon scream at CAG if that had been so.

 

pers less is more

don't bring up things they don't, it only gives them a greater understanding of what you know..

keep your cards hidden till then time comes to play them.

 

 

 

Sorry that simply doesnt make sense.  You cant leave things out of a defence for "it only gives them a greater understanding of what you know.." that really is not true at all.  You cant hijack claimants or defendants (although you can subtly expand on a defence in a witness statement)

Dx100 people with actual court experience and legally qualified posters on other forums (so either Cilex members or actual solicitors) would completely disagree with you on the above

 

It is all very well putting very simply defences together on here but it is another to present them in a court in front of a judge who will rip it apart in no time.  Even though a defence such as the above may be based on keeper liability you should not put your eggs into one basket and this applies to every case.  

 

Remember what you miss out now you cant add later.  Better to have a judge dismiss those points then not have them in there at all.

 

 

Edited by Browntrout

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Also, you use the phrases seen on other sites such as " it is admitted that I am the kpper" etc. Totally unneccessary. If you are using a lack of keeper liability then say that the claimant ahs failed to create a keeper liability  or somehting similar but stating an obvious but irrelevant poitn in language used by lawyers to the exclusion of all other mortals makes things look daft. Plain english written in the third person ( to avoid confusion  between who is who rather than for any other reason) best unless you are using an exact quote or legal term like "locus staindi" rather than no authority or right in this case to be here.

 

I would advise leaving out the quotes of the IAS as they carry no weight and actually  lead peope, away from the point you are wanting to make. All of that can be used in your evidnece at the hearing as an annexe to your WS.

If yu want to use the pot on inadequate signage then by all menas do so, it doesnt identify the driver at the time but agin save the detail for when you ahve suitable pictures to go with the statement in your WS. Just use the bulet poitn for the moment

 

I have seen claims torn to shreds by judges but not defences where an outline on the paper is properly expanded upon in the witness statement.

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:rockon::rockon:


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Thank you all for your input so far. I have now received a letter back from my CPR 31.14 stating 'CPR 31.14 is not relevant to small claims matter, pursuant to cpr 27.2......we are under no obligation to disclose the documentation at this stage.'

I assume this response is expected?

 

I have reworded my defence and made it more succinct, I'm not sure what else I could add?

 

1. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

2. It is admitted that the Defendant was the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

 

3. Signage at the site is not sufficient. A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the full Terms & Conditions signs located throughout the car park’. Signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘Entry to or use of this privately operated and managed car park is subject to the current terms and conditions of vehicle control services ltd. Motorists/persons utilising this car park hereby accept in full the terms and conditions.’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

 

4. The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in parking eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. 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 

 

In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4. 

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3 minutes ago, Browntrout said:

When didnt you do a SAR ..

 

 

Sar(email to VCS) went on 07/08/19 and CPR letter went on 14/08/19 to dcb legal.

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Sorry I should have seen that. Vcs always reply to SARS at the very last minute 

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Far too much

sar is pointless

thats what cpr is for.

 

 


PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

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No your defence looks pretty much ok .  Please do not be tempted to remove stuff in it. Not far to much at at.  Its all very well saying put a tiny defence in on here but its another actually presenting that in the court as a D or a lay rep.

 

A sar is far from pointless and should be done when ever a letter before claim is received (if required)

Maybe dx would like to explain why a sar is pointless......

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