VCS Spycar PCN Claimform - Broke down on Southend Airport service road ***Claim Discontinued***

[salackdad]

Thank you for reopening this thread Andy.

 

I mistakenly thought my case was to be heard in late November and realised yesterday that it is to be heard on 26th October 2021 by BTMeetMe.

 

VCS paid the court fee the day before it was due so I guess the hearing will go ahead.

 

It has been such a long time since this all began that I got the dates mixed up.

I note, with great interest, that since I was last on here both Tom Price and WoodDD have had good successes with Southend Airport cases.

 

My WS has to be filed by next Tuesday 12th October and I am currently putting it together using both of theirs for reference.

 

What I did note was that Tom Price received the WS from VCS well ahead of trial but as yet I have received nothing. It would have been useful to counter any points they made in my own one.

 

I know I will get told off for my extended absence and late return to the matter but I can only apologise, sincerely.

 

As soon as I get a WS together I will post up if that is ok?

 

 

[dx100uk]

sure.

strange its taken this long.

did it not get stayed ?

 

so you did n180 and received the n157?

 

[salackdad]

Yes, was allocated to small claims in February with a court date of 26th October. I imagine delay was Covid related.

 

Had both forms and returned them in January. Then fell in to the trap of thinking trial is a long way off and taking my eye off the ball.

 

I made a SAR with DVLA to request the basis on which VCS had been given my name etc from car reg and VCS have given the reason for enquiry as "Breach of terms and conditions of a private car park".

 

This is most interesting as the allegation they made was that the car was parked on a road where stopping is not permitted.

I can only imagine that is an abuse of process, not withstanding the fact that they have no authority to make enquiries about me at all.

[dx100uk]

Programmable Search Engine

CSE.GOOGLE.COM

 

and el21 thread

 

or no stopping threads

[lookinforinfo]

You could write back to the DVLA saying that VCS are misleading the DVLA since you were actually on a private road within the airport which you believe is covered by Bye Laws and thus not relevant land.

 

Carry on to say that VCS are losing many well defended cases in Court within all airports and you believe that your GDPR was breached by VCS applying for your data when the land was not relevant land .

 

 

Ask them if they are informed when the parking companies lose in court so as to cover the DVLA when breaches of GDPR occur . If not, shouldn't they be doing it if only to give them some semblance of reality when they say they  have a "robust" system in place to monitor the actions of the parking companies.

 

There is no reasonable cause for VCS taking the action they did in your case and it is time the DVLA stopped aiding and abetting certain parking companies from what amounts to fraudulent behaviour.

 

If VCS sure that yours was a valid case they would surely have given the DVLA the correct information about the position of your vehicle. You therefore would like an explanation for the discrepancy in the statement of VCS in order to get your data.

Edited October 8, 2021 by dx100uk
spacing

[salackdad]

Thank you lookinfor info. I seem to recall a figure of 750 pounds in relation to this but perhaps I am getting confused.

[FTMDave]

Yes, you could sue them for £750 for breach of GDPR .

 

However that's for after you've seen their claim off.

 

When you get a chance, post up a draft of your WS.

[salackdad]

Good evening all. I have attached a PDF of my first draught of my witness statement and would be grateful if anyone could have a glance for glaring errors.

Thank you in advance.

My Witness Statement Sent for Review.pdf

[dx100uk]

you must start with i am xyz the registered keeper of reg number

 

and end with the correct and current statement of truth

[FTMDave]

The individual points you've made are superb.

 

However, it's very higgledy piggledy, you jump from one argument to another and then back again.  So, trying to put them in a more logical order ...

 

(You repeated some of the numbers for the paragraphs - e.g. two number 12s, two number 13s, etc.  I've sorted that (see attachment).  My version will be carp with the layout knackered but please use it first to renumber your version.  After, as we now know which paragraphs we're talking about).

 

Sequence of events - 1, 2, 3

Locus standi - 6, 31

No keeper liability - 4, 14-17

Bye-laws - 5, 18-22

Prohibition - 32-35, 39, 40

Breach of Code of Practise - 8-13

Insufficient signage - 36-38

Double recovery - 7, 23-30

 

I think you should use the titles I've suggested to head the various sections, so the judge can see clearly which arguments you're making.

 

If you make these changes and reread it you'll see that some points are obviously repeated so can be cut out.

 

In (4) you need to explain how they have not followed POFA.

My Witness Statement Sent for Review(1).pdf

[FTMDave]

I've been doing some late-night reading and reckon you should create a new section "Frustration of Contract".

 

Put in the paragraph numbers

      2 (but be deliberately repetitive and also leave (2) in the sequence of events

      8

     34

and lay it on thick that even if VCS had locus standi (which they do not) and even if a contract had been formed (it had not, "no stopping" which is a prohibition cannot form a contract) the breakdown meant that the contract was frustrated.  The driver immediately brought the breakdown to the attention of VCS's patrol officer.  It was impossible to not stop given that the vehicle had broken down.  Describe all the stuff about your having to change the battery and give the details of the breaker's yard where you later changed the alternator.

 

Also add dx's changes.

[lookinforinfo]

 

FTMDave is right when he says that your WS is great but disjointed.  I have just looked up a case where our member one for the same reason as you at Southend airport. VCS lost because the contract they had did not have a valid contract with the land owner. VCS appealed but it deosn't appear to have gone ahead.

 

The court asked for a transcript of the case [which would have been a couple of hundred pounds] plus the cost of the appeal with no chance of getting their money back even if they won since the road is covered by Byelaws which outrank VCS and their ridiculous charge.

 

If your read his WS it may help with the layout of your own. 

https://www.consumeractiongroup.co.uk/topic/417985-vcs-spycar-pcn-paploc-now-claimform-no-stopping-london-southend-airportclaim-dismissed-now-vcs-asking-for-leave-to-appeal/

 

Do not be too quick to send off your WS as you may get the VCS one soon and they are absolute rubbish which can be torn apart. It would be helpful too if you could get a decent response from the DVLA though I wouldn't put my life on it. The DVLA give anodyne responses when they think they have made a mistake.

 

Please post up their WS whenever you get it including the contract etc.AND if you haven't received it by the time you have to send in yours, make a point of that to the Judge.

 

 

[salackdad]

Wow, thank you all so much, especially Dave. Had to go out for family function this evening so was desperate to get something posted up before that.

Will definitely take points on board and finish it first thing tomorrow.

Night all.

 

It is only now that I realise exactly how much work you put into this for me last night Dave. It has highlighted how absolutely rubbish I am with Office stuff.

Do I have to make an application for costs now as per woodDD WS 61,21.

 

I was directed to el21's thread by lookingforinfo where entry 110 mention a case VCS vs Ibbotson in which the judge reminds the advocate of VCS's need to mitigate loss  (from para 9). The patrol driver doesn't advise people they are "committing an offence" he just photographs them doing it...oooer.   Should I use this in my case?

 

I have added my WS that hopefully just needs exhibit details adding.

 

Thank you once again in anticipation.

MY WS CORRECT ORDER.pdf

 

Forgot, I will make refernce to Law Reform (Frustrated Contracts) Act 1943 in my last section on frustration.

 

 

Also forgot that there is a post box within the "no stopping" zone which Royal Mail collect from daily, the van being parked next to the box. This is an old google maps image but I checked it is still there yesterday. I should have stopped to take a photo myself!

Airport postbox.pdf

[brassnecked]

If you can get a photo wonder if VCS have invoiced Royal fail for stopping there?  The Frustration point is definitely worth a go.

[FTMDave]

That reads much, much better.

 

There is a bit of repetition - you can be damn sure nothing in comparison to VCS's which will say "there are loads of signs you know" about 5,698,412 times - but if you want to reduce it a bit ... (20) is included in (17) so (20) can go (there are two (20)s but you can easily see where the repetition is).  In (16) and (21) you refer to the same case.  These two points can be merged, shortened, and inserted after (17).  In (31), (32), (33) you've literally repeated the same words.  But none of this is vitally important.. 

 

In your first lines, as dx says, you need to add "I am the registered keeper of vehicle registration XXXXX".

 

In (1) cut out "or around".  Part of your case is that the PCN was sent too late.  Don't put anything that could cast doubt on the PCN arriving on 16.01.2020.

 

Expand (5) to say that the "offence" was on 19.12.2019 and you received the PCN on 16.01.2020, well outside the 14-day limit stated in POFA Schedule 4.  You might as well call VCS liars without using those exact words and state you do not believe that the PCN was really sent on 02.01.2020 as Royal Mail do not take a fortnight to deliver mail, but such cavalier regard to legal norms is typical of VCS.

 

Sort of repeat (30) in your BREACH OF CODE OF PRACTICE section, point out that lack of planning permission is a criminal offence, and VCS's CoP obliges them to obtain all legal permissions, which they have not done.

 

In (43) cut out anything that shows you knew the car had problems.  You can be sure that VCS's lawyer would use that against you.  I'm not saying to lie, just don't tell them what they don't need to know.  I suggest -

43. On the day in question when the car first ground to a halt on the service road it would not immediately restart. The driver attempted and just managed to get the car restarted after a 5-minute pause for the battery to recuperate. It was during this stop that the car was photographed by the VCS patrol vehicle who did not approach it at that time.

 

The driver then proceeded to attempt to leave the service road but the car again ground to a halt approx 150 yards further along the road. At this point the driver lifted the bonnet to begin the process of changing the battery for a fully charged one which was kept in the boot.

 

FRUSTRATION OF CONTRACT is one of your aces, so keep it as it is, but move it to earlier in your WS, I would suggest after PROHIBITION.  However, if other Caggers - I'm thinking BN or LFI who have much more experience than me with WSs - suggest to put the section elsewhere, take their advice!

 

I don't think you can use EL21's point of mitigation as in EL21's case it was possible to move the car, in yours it wasn't. 

 

Two questions.  Did you by chance get a letter from Simple Simon where he says he's representing himself and Elms Legal are no longer involved?

 

Did you get a letter from VCS where they lie and pretend they will try to get an extra £220 costs out of you at the hearing?  I ask as other Caggers have recently received these letters and they can be used against Simon.

 

I know the deadline is Tuesday but you're a Litigant in Person and are allowed some leniency, plus VCS can hardly complain that your WS is late if theirs is too! 

 

On Wednesday say, come onto the site and let us know if anything has turned up from VCS, and if not their contempt for the court's instructions can be added to the end of your WS.

[salackdad]

Thanks again Dave, Brassnecked.

 

Point noted about repeating in 31,32 but be fair....that section is about double recovery   (will correct it)

 

Other items adjusted as recommended.

 

For clarity, PCN arrived 04/01/20 day 16 after incident. The issue date,16/12/20 referred to much earlier in the thread is the issue date of my Claim Form N1SDT POC.

 

PCN arrived day 16 after incident.

 

Car issues only started that week. Spare battery was lent by mechanic after I got him out of bed early morning to get me going again.

Thought of keeping it brief but imagined I would be asked why I happened to have a spare fully charged battery in the boot.

 

E Shoreman-Lawson for Elms signed their POC. 

 

Last communication from Elms was March 2021 "without prejudice save as to costs" letter telling me that cost of the claim had now increased to £235, but to me for cash call it £135 and we'll say no more about it. I didn't honour it with a reply.

 

Not the highest amount as I had an earlier LBC from them in October last year telling me the estimated total was £272.

 

principal debt     £160

interest                £ 12

court/hearing fees   £50

solicitors costs         £50

 

Thanks also for info on timings, slightly more breathing space.

 

 

 

 

BTW, may be of interest, the details I obtained from VCS in my SAR state:

 

Review - sent Non-PoFa, keeper appeal. Appellant states he denies any contractual liability agreement and there will be no admissions as to who was driving and no assumptions can be drawn. Footage shows vehicle stationed for over 30 seconds. Decision: RoR under reasonable assumption, unreasonable time, signs.

 

Then,

 

Marked - Footage shows vehicle stationary for 38s. Driver and passenger out of vehicle - ROR reasonable assumption, UNREASONABLE TIME, grace period, signs, emailed AMa for image pack.

 

Then,

 

Send LBA

 

 

May be of no interest but might. Interesting they mention passenger as driver had no passengers. Also my capitals to emphasise unreasonable time, 38s! And interesting that they then mention grace period.

 

 

 

 

[FTMDave]

Apologies, I obviously got the dates mixed up.  So of course don't put anything in about the Royal Mail taking a fortnight to deliver the letter!  Do point out though that it arrived after the 14-day POFA window.  Also in their SAR they admit "Non-PoFa" so include that in your WS.

 

Point taken about the battery, I was thinking the same thing, just I don't think you should admit to knowing the car had problems, unless forced to, otherwise they will use it against you and say the breakdown was your own fault.

[salackdad]

Can anyone point me to a copy of Elliott v. Loake please? I am under the impression it is for the claimant to prove who the driver was but can the judge do their work for them and just ask the defendant, who is under oath, who was driving? I appreciate that E v L was a criminal case but just wondered about civil.

[FTMDave]

I've done a load of Googling and can't find a typescript of Elliott v Loake, sorry.

 

Yes, it is up to VCS to prove who the driver was, you simply don't tell them.  They have a law to transfer liability to the keeper, yes admit themselves in the SAR that they haven't used it.

 

I can't remember a judge asking a defendant who was driving.

[dx100uk]

loake is on here somewhere - they've used it loads of times, might be old though poss in an ericsbrother post.

[salackdad]

Oh dear, despite almost everyone quoting VCS v Davies, case No. FTQZ4W28, I cannot find the judgement anywhere. Surely people can't continue to quote it without the judgement?

 

If I cannot locate either this or Loake should I just leave them in the WS but not add exhibit numbers?

I am continuing to search for both.

 

Also I've added the following section in DOUBLE RECOVERY

 

"38. Since the incident the defendant has received numerous communications from the Claimant and their representative with inflated figures quoted, as high as £272 in the Letter Before Claim from their representative Elms legal(EXHIBIT). As can be seen on the original NTK, the reminder(exhibit XX) and the final demand from the claimant (exhibit) the emphasis has always been on a threatening tone and references to the damaging effect of CCJ's on the defendants credit rating, current employment and future employment prospects and even raising the prospect of the placement of a restriction or charge on his property. The Claimant contends that such tactics are purely, albeit cleverly, designed to intimidate, distress and confuse the defendant in the hope that he might be cajoled into capitulation at the sign of red print and threats. POFA Schedule 4 Para 4 (5) (exhibit XX) expressly entitles a private parking company to claim only the amount specified in the Notice to Keeper, irrespective of the terms and conditions on the signage, when claiming from the Defendant as the Keeper of the vehicle and not the driver, since an absentee keeper could not be a party to any contract. The Defendant suggests that the vast majority of falsely issued NTK/NTDs are eventually paid before action by drivers and keepers who cave in to these threats. This then creates a tidy profit for the Claimant for the cost of a few letters. A profitable but dubious business model for sure business for sure....if only it were legal." 

I am wondering if the last 3 sentences  are a bit strong, although truthful,  but would be grateful for any comments.

 

BTW by my calculation Claimants WS should have been with me today but still nothing received.

Edited October 12, 2021 by salackdad

[Gick]

I think that you mean The Defendant contends etc and not  The Claimant contends that such tactics are purely,

[FTMDave]

Just refer to the cases then and don't use exhibits.  After all, VCS do the same.

 

If yet again a WS doesn't arrive tomorrow, then send yours off but add a paragraph that VCS have not complied with the court's instructions and have not sent you a WS by the court's deadline.

 

Nothing wrong with your paragraph above.  The people who write their WSs never appear in court because they don't want to be questioned about their lies.  In the VCS v Ibbotsen case the judge threatened VCS's rep with prison.  They have contempt for the law and you can certainly underline that.

[salackdad]

Thank you gents.

 

[lookinforinfo]

Although I could not find the transcript I did find Parking Cowboys rebut the argument that the keeper was the driver if there was no contrary evidence. The Judge in the Elliot case did have a number of pointers that indicated that the keeper was the driver.

Keeper liability – Rebutting the Elliot Vs Loake argument

WWW.PARKINGCOWBOYS.CO.UK

---

Here we discuss the Elliot Vs Loake case of 1982 and why it does not set a legal precedent for holding the keeper liable for an unpaid parking charge