VCS Spycar PCN PAPLOC now Claimform - No Stopping - Bristol Airport **CLAIM DISMISSED**

[FTMDave]

You're right, Ambreen has produced the usual copy & paste tripe.

 

Some changes immediately come to mind.  New 5.4 -

 

5.4  The vehicle is on a fleet policy with more than 20 drivers.  The Claimant has just assumed that I was the driver during the incident in question without any proof.

 

Obviously change for accuracy.

 

in your section 9, cut out all the points up to and including 9.3 and substitute with -

 

9. The Claimant seeks recovery of the original £100 charge plus an additional £70 described as “debt collection costs”.  No further justification or breakdown has been provided as required under the Civil Procedure Rule 16.4.

 

9.1  In paras 36 and 37 of her Witness Statement, the Claimant's paralegal makes great play of the fact that the trade association the Claimant belongs to allows a debt recovery charge and that "the sum must not exceed £60".  The Claimant has added £70 so on their own admittance has broken their trade association code of practice.

 

9.2.  In reality is it legislation, not the Claimant's trade association, which decides what is reasonable and lawful.  Section 9 of the new government Code of Practice, published on 7 February 2022, and based on the Parking (Code of Practice) Act 2019 regulates the matter of recovery costs:

 

"The Parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued".

9.2.1  Section 5.3 of the new Code of Practice states the following:“The provisions of Schedule 4 of the Protection of Freedoms Act 2012 relate specifically to the parking of vehicles on relevant land and the recovery of parking charges – they arose from the need to respect landowner’s interests given the prohibition on wheel clamping, and so largely envisage circumstances where a wheel-clamp may otherwise have been applied i.e to a stationary, generally unoccupied, vehicle.  However, this Code also applies to instances where the prohibition on stopping arises from a clear security concern e.g within airports.  Parking operators must only pursue parking charges in instances that could be interpreted as stopping if they have explicit consent to do so on evidenced security or safety grounds from their conformity assessment body, following audit of the adequacy of the signs and surface markings in place to inform drivers of the restrictions in place“.

9.2.2.  Section 7.2 of the new CoP, defines explicitly, when photographic evidence should be used to serve notice: "Care must be taken to ensure that photographic evidence from camera vehicles is only used to serve a notice of
parking charge in respect of parked vehicles, not vehicles whose drivers have momentarily stopped e.g. to check directions or an address within a business park”.

9.2.3.  The publication of this Code therefore marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible.  The Code will then come into full force before 2024, when the single appeals service is expected to be in operation.  This indicates that the new CoP should be adhered to now, where possible, but clearly VCS are choosing to ignore these new rules, and continuing to go about their business as normal, regardless of the law.

9.3.  Even before publication of the government's Code of Practice, Parliament intended that private parking companies could not invent extra charges.  The Protection of Freedoms Act 2012, Schedule 4, paragraph 4(5) states that "The maximum sum which may be recovered from the keeper is the amount specified in the Notice to Keeper" - so in this case £100.

 

All your points from 9.4. are fine as they are.

 

More later.  Work calls.

[FTMDave]

If you want a laugh - and to plant in the judge's mind that they are liars - stick in two new paragraphs between FRUSTRATION OF CONTRACT and CONCLUSION.

 

11.  Ambreen Arshad is being rather disingenuous (Claimant's Witness Statement para 40) when she says she "may" not be able to attend the hearing.  I have researched scores of VCS cases and neither she nor Mr Mohammed Wali (the other paralegal employed by VCS to write their Witness Statements) have ever appeared in court.  This is particularly striking as during the pandemic hearings were on the telephone or on-line with no travelling involved.  In no circumstances do VCS want their Witness Statement authors to appear in a person at a hearing where they could be questioned.

 

12.  In a number of recent cases VCS have claimed to have not received the Defendant's Witness Statement, although the Defendant had proof of posting.  I fully expect this trick to be tried in my case.

[Lazy farmer]

Wow, thanks. All points have been incorporated.

I'm not great with MS Word so the numbering & pagination will need tidying once the draft is complete.

[Lazy farmer]

i notice they are quoting Parking Eye Ltd V Beavis (2016) AC1172 to legitimise a contract being in place.

My copied defence also lists Parking Eye v Beavis 2015 - is this a bad idea?

[FTMDave]

2 hours ago, Lazy farmer said:

I'm not great with MS Word so the numbering & pagination will need tidying once the draft is complete.

No worries, we'll help out.

 

2 hours ago, Lazy farmer said:

My copied defence also lists Parking Eye v Beavis 2015 - is this a bad idea?

Are you sure?  Didn't you file the standard short defence?

[Lazy farmer]

Sorry FTMDave, I meant my witness statement quotes Parking Eye v Beavis and was concerned that both vcs & I were relying on the same test case.

[honeybee13]

Why are you using the Beavis case please? That will help us understand what you're trying to do.

 

HB

[Lazy farmer]

I copied from another WS, if you look at my first draft WS its section 9.4 and seeks to clarify that the £100 charge notice is sufficient to cover letters/debt collection costs without adding a separate £60/£70 debt collection charge.

The VCS WS also posted above seems to use the same case to justify that entering the site constituted acceptance of the terms & conditions.

 

My concern is, am I quoting a case that has a verdict that goes against part of my argument?

[FTMDave]

It's not a problem at all as you & Simon are using different parts of the judgement.

 

VCS are saying that the judge found that a contract had been entered into and that the £85 (now £100) was payable.

 

You're saying the judge said the £85 (now £100) was the maximum that could be charged.

 

You're both right about different parts of the judgement.

[FTMDave]

If you want to make it crystal clear that you understand the judgement and are using it in its entirety, unlike Simon, then change your paragraph to -

 

9.4. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery.  In para 24 of their Witness Statement the Claimant quotes Parking Eye Ltd vs Beavis (2015) UKSC 67 and the fact that the judge held that the parking invoice of £85 was payable.  They omit that Beavis is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.  It is indisputable that an alleged ”parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District 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."

Edited July 16, 2022 by FTMDave
Layout improved

[Lazy farmer]

Superb, thanks 

[Lazy farmer]

Here's my second attempt WS:

VCS WS second draft 16.07.22.pdf

[brassnecked]

Looking good, i like the inclusion of the £220 threatogram from simon  his minionmight have difficulty batting that one away.

 

At 10 under Frustration of Contract, maybe change offence to alleged parking incident? sure FTMDave and LFI will look it over soon.

[FTMDave]

That is a cracking WS.  Well done.  I wouldn't change a single word.

 

What might be an idea though is to swap ABUSE OF PROCESS and FRUSTRATION OF CONTRACT round. 

 

FRUSTRATION OF CONTRACT is IMO more important, if accepted their whole claim goes in the bin.

 

Whereas ABUSE OF PROCESS is quibbling about how much you would have to pay were you bang to rights.

[FTMDave]

https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice#annex-f-exempt-vehicle-cases-no-stopping-zones-and-appeals

 

Scroll down to Annex F, F1, g. 

 

I reckon you could use that to beef up FRUSTRATION OF CONTRACT.  if you do so mention it is Annex F, F1, g of the government Code of Practice introduced in February this year under the Parking (Code of Practice) Act 2019.

 

The current legal situation is that the Code is temporarily withdrawn because the fleecers are legally challenging (a) the amount of their invoices allowed and (b) debt collection charges, they are not challenging Annex F.  In any case as VCS act like the CoP doesn't exist they are hardly likely to bring up this technicality.

[Lazy farmer]

Great, ive swapped the headers & added the Annex F, F1, g.

I noticed d - which might also apply:

d) a vehicle that has been driven onto controlled land due to an instruction to the driver by a member of the emergency services, or an invitation or instruction from the landholder(s) or parking operator; (My vehicle was pre-booked into on site parking)

Finally, from copying Maximus WS I have listed the airport byelaws as an exhibit but am not sure if they help my case, should i have listed Schedule 4 of POFA instead? Byelaws attached

Bristol Airport Byelaws 11062018.pdf

[FTMDave]

Well spotted. 

 

By all means include this extra clause and link it your pre-booking.  Can't harm you.  The judge may well agree, but even if the judge disagrees then you've lost nothing by trying.

 

The bye-laws are a good idea too.  These are the laws that cover the airport, not something made up by a grubby private parking company.  Had you done something wrong - of course you didn't - but had you then it should be the police involved and a fine in a magistrates' court.

 

Thanks for uploading the bye-laws, this will be very useful for others in the same position.

[Lazy farmer]

Thanks, i'm now all good to go. 

 

Will email the court tomorrow & post to VCS on Wednesday with proof of postage.

 

Will revise & make sure I understand the points i'm making.

 

Will update as to how it goes.

[honeybee13]

Well done. Yes, please keep us posted, we'll be following how you get on.

 

HB

[FTMDave]

1 hour ago, Lazy farmer said:

Great, ive swapped the headers

I fear I might have expressed myself badly.

 

I didn't mean just the headers.

 

I meant that point 10 (with header FRUSTRATION OF CONTRACT) should go before points 9 to 9.8 (with header ABUSE OF PROCESS).

[Lazy farmer]

All sorted!

[FTMDave]

[Lazy farmer]

I can't see where to email the court so may just post both.

It says I may be able to email by using the Money Claims On Line service that I am registered for but i cant see any option to email in my WS

[FTMDave]

Which is the court?

[AndyOrch]

27 minutes ago, Lazy farmer said:

I can't see where to email the court so may just post both.

It says I may be able to email by using the Money Claims On Line service that I am registered for but i cant see any option to email in my WS

Should be on your Notice of Allocation N157......the one you didn't upload