VCS/ELMS Spy car 2*PCN PAPLOC Now Claimform for 1 of them - 'NO STOPPING' BP Station East Midlands airport

[bolmgsr]

Thanks for the advice everyone.

 lookingforinfo does this need to go under a contract heading? FTM Dave has kindly set things out for me and I don’t want to mess things up but I’m guessing it needs to go at the top of the WS somewhere if it has the potential to win the case and can I just copy and paste it or do I need to construct something out of the advice you have given me.

Thanks again

[FTMDave]

@bolmgsrlookinforinfo's work can be added to para (7) or put in a new paragraph immediately after (7).  Split the bye-laws from para (6) and give them their own section, the bye-laws are one of your aces.

 

@brassneckedI've never seen a case where someone has sued to get the money back they'd paid on a PCN.  They fact they had agreed to pay would be problematic, although it could be argued that they had been conned by Simon pretending he had authority to manage the area.  Another area of attack could be GDPR, because here Simon has issued a PCN stating the OP was in a place they clearly weren't, even by Simon's photos, and VCS have told lie after lie about the petrol station while knowing all the while there was no basis to the PCN.  I suppose we'll have to see if the OP wins and the reasons the judge gives.

[brassnecked]

The GDPR route likely best way, easier to get the redress that way, and mention the first case that was paid as obviously constituting a breach along with Invoice two perhaps.  Main thing is to see Simon off with the current claim

[bolmgsr]

Ok thanks everyone, I’ve made the relevant changes just need to get all the exhibits together then send copies to court and VCS.

Thanks for all your help and I’ll keep you posted on what happens.

[lookinforinfo]

Bolmsgr   

if it was me I would put it first as if the contract is invalid and if the Judge agrees, then you win the case. 

 

Indeed, it may be that VCS would not even turn up in at the Hearing or withdraw which would be the ideal situation. However this is your case and FTMDave has worked hard with you to help on your WS.

 

Whatever you decide to put it I have modified what I said in my previous post so that you can copy it.

 

Definition of "Relevant contract”  from PoFA 2  [1] means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

 

(a)the owner or occupier of the land; or 

(b) authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land.

 

According to https://www.legislation.gov.uk/ukpga/2006/46/section/44 

 

a contract to be valid requires a director from each company to sign and then two independent witnesses must confirm those signatures. The fact that no witness signatures are present means the deed has not been validly executed. Therefore there can be no contract established between VCS and the motorist. And even if "no stopping" could form a contract [which it cannot], it is immaterial. There is no valid contract end of.

 

Surely VCS a company that signs innumerable contracts must be aware that no contract exists at the East Midlands Airport. Two points arise from that.

 

The first is that by issuing many PCNs at EMA with knowingly not having a valid contract is bordering on fraudulent.

 

Second, VCS in order  to gain access to DVLA data VCS have averred that they have complied in their CoP that they have complied with all the legal necessities, which appears patently untrue.

 

As Lord Neuberger said in the famous Parking Eye v Beavis  at the Supreme Court [2015] UKSC 67-"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.

 

In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced". The Noble Lord is correct and should call into question the right of VCS to obtain information from the DVLA.

 

You may have noticed that in the second paragraph of this post the words "relevant land" cropped up which would be a good follow on for bringing up the Bye Laws and streets covered by the Road Traffic Act in case the Judge did not accept the contract argument.

 

Edited June 24, 2021 by lookinforinfo

[bolmgsr]

Just for your info

 

Ive just received VCS WS the whole file was too big to upload so I've just picked out the statement. 

 

Claimants WS.pdf

[brassnecked]

Stopping in a restricted zone can never be a Parking Event, as its a prohibition, so cannot give rise to a contract to breach, More CTRL C CTRL V in there, misinterpretation of Beavis again

[FTMDave]

So Ambreen is back, at least she repeats herself less than Wally.

 

Superb, she makes the mistake about the petrol station too.  So at the end of your section "The Parking Charge Notice" add a new paragraph -

 

"In paragraphs 5 and 16 of the Claimant's Witness Statement, the Claimant states that I entered the fuel station.  This is simply untrue".

 

After your current para 19 add a new paragraph -

 

"The Claimant employs at least two paralegals, Ambreen Ashad as shown in paragraph 1 of the Claimant's Witness Statement, and Mohammed Wali.  It is presumably the normal daily work of these employees to deal with legal matters".

 

Plus in any of the paperwork Simon sent you, is there mention of a Legal Department or a Litigation Department?

 

When you get time please post up a revised version of your WS with these little tweaks and all the great work lookinforinfo has done.

[FTMDave]

Reading the whole lot, I see Simon is not going after you for the usual generic no stopping at the airport, but specifically for the fuel station, indeed he includes the contract for "managing" parking specifically at the fuel station.  The vast majority of his photographs simply show the car, there is just one that shows the car near the fuel station but it's ambiguous as to whether you were in or out.  I think in your WS you should include the diagram where you showed where you actually stopped to make it clear to the judge.

 

 

 

 

[bolmgsr]

My Final WS edited 

The only reference you can go by is the post with the sign on it you can also see to the left of the picture the road that goes up to the carparks I more or less did a 3 point turn there and drove out I have the video showing this as well

 

MY WITNESS STATEMENT (A).pdf

[FTMDave]

That is great work.  Well done.

 

If you have a video, mention it, and on the day ask the judge for permission to play it.

 

If I'm being really, really, really pernickety the numbering could be improved, lookinforinfo's section in particular isn't numbered. 

 

You've left in the inverted commas in 13a & 19a. 

 

In 13 & 13a, 13a is pasted in the middle of 13.

 

In 16 you haven't assigned an exhibit number. 

 

You might want to rephrase "Second, VCS in order to gain access to DVLA data VCS have averred that they have complied in their CoP that they have complied with all the legalnecessities, which appears patently untrue".

 

7 is already covered in lookinforinfo's section.

 

These points are not really important though and certainly won't save Simon!

 

 

[bolmgsr]

Hi, date for VCS to pay the £25 as requested by county court passed on the 20/7/21, I’ve not heard whether it was paid or not is this normal.

Thanks

Edited August 26, 2021 by dx100uk
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[dx100uk]

MCOL doesn't show that 

can't hurt to ring the court and ask.

 

dx

 

[bolmgsr]

Had a telephone hearing with judge Davis and representing VCS was a mr Nixon moss.

 

To cut a long story short the judge dismissed all the points on my witness statement except for the extra £60 added to the fine which he said I didn’t have to pay.

 

It all came down to whether or not I was in the fuel station or not and the judge decided from looking at the photo (which I think is still inconclusive) that I was in the fuel station which meant it wasn’t covered by the bylaws.

 

I can’t remember the exact reason the other points were dismissed, he said something about the contract that had not been witnessed was not the sort of contract that needed to have the witness signatures.

 I was ordered to pay the £100 fine and £100 court costs Nixon moss tried to claim expenses but the judge said that he had summarised everything and that was all I had to pay.

 

Thanks for your help I’m glad I fought It, think the judge had some sympathy with me but in the end ruled in favour of VCS.

Edited August 26, 2021 by dx100uk
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[dx100uk]

Judge lottery...it is not a fine.

[FTMDave]

Sorry to hear the result - seems like you lost on the toss of a coin.

 

I know it's not much consolation but

   - you'll have learnt a great deal from the experience which can be used in any future cases

   - at least Simon didn't get his Unicorn Food Tax (and I think the judge didn't allow interest either)

   - Simon will have spent much more than £200 on Mr Nixon Moss and on preparing the case.

[brassnecked]

Sadly was Judge lottery, but at least another DJ might now be looking more closely at Simon's roboclaims.

[FruitSalad1010]

A disappointing result no doubt.

 

For the benefit of others in future, could more have been made of the requirement for offer and consideration when forming a contract? Turning around and/or stopping in a petrol station for a period of time under 5 minutes is unlikely to afford someone the opportunity to consider and accept the terms of a contract they are then sued for breaching.

It may not have made a difference in this case but could form another string to the bow in future.

Edited August 29, 2021 by FruitSalad1010

[lookinforinfo]

I am amazed you lost. Did you mention that EMA are not the land owners? And the Judge was wrong about the agreement not requiring witnesses. If they are not going for witnesses they need two directors from each ompany to sign the agreement. And that would include for a single parking space

https://www.wonder.legal/uk/modele/parking-space-rental-agreement

 

Further proof is from the OPS v Ms W at Lewes Court with DDJ Harvey 24April 2020 case  FOHM9E9Z where the Judge stated that a deed needs to comply with Law of Property Act [miscellaneuos provisions ]  1989 section 1 [3]

(3)An instrument is validly executed as a deed by an individual if, and only if—

(a)it is signed—

(i)by him in the presence of a witness who attests the signature; or

(ii)at his direction and in his presence and the presence of two witnesses who each attest the signature; and

(b)it is delivered as a deed 

 

[bolmgsr]

Judge mentioned section 43 of companies act 2006 as the reason the contract didn’t need to be witnessed.

I’m not really qualified to argue legal matters I was hoping my witness statement would explain it all.

[brassnecked]

Need to look at S43 Companies Act then to see where it can apply in Airport cases, in fact any case regarding ownership and/or right to do things. like sue .