VCS/BW Legal - writing defence

Loadsofchildren123

I had sent another email this morning. Will re-send tomorrow.

MadHatter752

Just doing some labels to stick on my pages of my Exhibit... Is it best to write "Page 1 of R*1", "Page 2 of R*1" etc. I might be obsessing but just want to get it right and get it done while I am waiting for comments on the final parts of my WS

Loadsofchildren123

Normally I'd just write a number.
however, your WS will eventually be in a bundle for the final hearing which will contain everything - so each page of the exhibit will have 2 numbers, your number and the page number of the bundle (eg page 2 of RH1 might become page 73 of the big composite bundle).
So in one sense your suggestion, whilst a royal pain, might actually be helpful.
the problem is of course overcome by you numbering in the middle of the page at the bottom and the C can number in the bottom right corner when they come to make a trial bundle.


Don't overthink it!

MadHatter752

thanks LoC. I am happy with going for the Page 2 of RH1 in the middle... it shouldnt be too much of a pain if i use the dymo ;-)

C numbers and bundles will be something new for me to learn soon!

thanks as ever.

MadHatter752

Hi All

Still on WS..... Writing up breaches of IPC CoP (the 2014 CoP is the relevant one).

Here is IPC Cop 2014 http://conkaisecurity.co.uk/codeofpractice.pdf

This is what I have so far, with help from LoC123. Should I add further comment, any suggestions on said comments?

24.6.1. In relation to signage in general:
“Where the basis of your parking charges is based in the law of contract that will usually be by way of the driver of a vehicle agreeing to contractual terms which are identified by signage in and around a controlled zone. It is therefore of fundamental importance that the
signage meets the minimum standards under this Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.

Signs must conform to the requirements as set out in a schedule 1 to this code.”

24.6.2. In relation to entrance signage:
“You should include a minimum of one phrase from Group A (but no more than 3). Group A text should be before and more prominent than the Group B text. The signs must direct motorists to the more detailed
signs which display the full terms and conditions. This is important as it is these terms and conditions that will provide the legal foundation to any charge.

Group A
Pay and display [free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit Holders Only

Group B
Charges apply [after this]
Private land
Terms and Conditions Apply
See the notice [in car park] for conditions”

“Text size
The height of the capital letters in the text from Group A will be dependent on the anticipated approach speed of traffic. You should have reference to the table below in calculating the text size.
Group B text should be at least 50% of the size of Group A text. All other text should be smaller than 50% of the text from Group A. The name of the site and a welcome message can also be displayed on the sign but should not detract from the prevalence of the Group A and Group B text.”

(For those who can't see this image (i cant!!) it is this https://www.dropbox.com/s/23kb1nvy76s505d/text%20size.png?dl=0)

“The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead. Any text on the sign which is not intended to be read from a moving vehicle can be of a much smaller size.”

The Claimant failed to make the entrance sign readable from a moving car entering the car park from a 30mph road.

24.6.3. In relation to interior signage/signage in general:
“Such signs must
4) Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle must be able to see them clearly upon entering the site or parking a vehicle within the site.

6) Contain text that is appropriate to the position of the sign and the relative position of the person who it is aimed at. So, if a sign is at an entrance of a site and the vehicle is likely to be moving, it must be sufficiently large so as to be clear from within the vehicle having regard to the likely speed that the vehicle will be travelling at that point.

7) Be of a colour scheme that provides good contrast between the background of the sign and the text upon it.”

“Contrast and illumination
The colours used on signage should be such that the contrast between the background and the text makes the wording on the sign clearly legible. Black text on a white background or white text on a black background will provide a suitable contrast. Other colour combinations can be adopted at your discretion but you should avoid combinations which might cause difficulties for the visually impaired such as blue and yellow.”

“You need to ensure that all signs are readable during the hours of enforcement as they form the legal basis of any charge. If signs cannot be read then resulting charges that depend upon their content will not be enforceable.”


The signs within the carpark do not comply with these paragraphs.




The signs we are talking about there are
Interior signs https://www.dropbox.com/s/j03bpextfdrioyf/VCS%20sign%20wording.JPG?dl=0

Entrance sign https://www.dropbox.com/s/jm5516c4gzywruj/IMG_7399.JPG?dl=0

MadHatter752

On another point in my WS... LoC123 has helped me extensively but neither of us are convinced that the signage is forbidding. LoC123 thought my signage was quite similar to Beavis

Below is what is included in the WS currently but we both would like to put these paragraphs our to you, along with the signs to see whether you think they are forbidding and whether the paragraphs below in the WS need amending or removing.

Signage links again for assistance

Interior signs https://www.dropbox.com/s/j03bpextfdrioyf/VCS%20sign%20wording.JPG?dl=0

Entrance sign https://www.dropbox.com/s/jm5516c4gzywruj/IMG_7399.JPG?dl=0

and Beavis sign... i know most of you know this like the back of your hand but just in case https://www.dropbox.com/s/63s6hol6isvvbpd/Beavis%20case%20Parking%20sign_001.jpg?dl=0

2. Acceptance:
It must follow that for any offer to be capable of acceptance, and to have been accepted, all of its terms must be clear and they must actually be adequately communicated to the offeree. So even if it is held that the wording on the signs was capable of making an offer, such offer was not communicated, adequately or at all, because it was impossible for a driver to have seen and read the terms being offered – particularly the term concerning the £100 charge for any contravention of the previous terms, which was hidden in illegible small print in white on a blue background, displayed high off the ground and inadequately lit. Therefore any terms offered cannot have been accepted. I repeat the matters set out in paragraph [23] above.

3. As an example of signage which has been held capable of offering a contract, I refer to page x of RH1, which is a copy of a sign in the Beavis case, which the Claimant’s solicitors themselves brought to my attention - the difference between this sign and the Claimant’s signs in this case can clearly be seen.

4. As an example of signage which has been held incapable of offering a contract because its wording is ‘forbidding’ I refer to pages x and x of RH1 which is a copy of the signs in the case of PCMUK vs Bull et al and UKPC vs Masterson (Ex. **) where it was ruled such signs offer no contract a driver can accept.

Timothea

The (current) entrance sign doesn't mention VCS or any private parking company. It appears that the car park is managed by Birmingham City Council or WMCA (West Midlands Combined Authority). The terms and conditions mentioned on the entrance sign must therefore be BCC's or WMCA's terms and conditions. On this basis, VCS clearly fails on the requirement (in the CoP and in Beavis) to have entrance signage.

The (current) internal VCS signage states that any parking charge is payable by the driver (only). It goes on to say that the registered keeper's details may be obtained from DVLA to trace the responsible driver. This is the only purpose given, so any other use of the registered keeper's details (such as pursuing payment from the registered keeper) would be a breach of the Data Protection Act.

Neither sign makes a clear contractual offer, but this is also the case with the Beavis sign. The Supreme Court judges took the Beavis sign to be an offer of a licence to park free of charge on condition that the driver would pay £85 for breaching any of the terms.

Loadsofchildren123

Good point by Timothea - after the section where you say no contract offered, say that, in the alternative, if a contract is offered then by the wording it is offered only to the driver. The terms of an offer must be clear and according to the contra preferentum rule (as quoted today in the Pace v Lengyel) any ambiguity or uncertainty must be resolved in the Defendant's favour.


The entrance signs go against the CoP, this point is already made in the WS. The Lengyel judgment also says something useful and succinct about the fairness of a contract - the principle of fairness requires the PPC to comply with its CoP, as referred to in Beavis.


On that issue with the planning (I posted about this on the planning thread here https://forums.moneysavingexpert.com/discussion/5631029) I think that you should include reference to this email, but in the paragraph where you say the signage is forbidding. Perhaps say this:




"In my defence, I argued that I believed the signage was unlawful because no advertisement consent had been given and therefore the Claimant was committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). I have contacted the local council, and a copy of their email to me is at page x of RH1. The court will note that the council has determined that the signs have deemed planning consent because they amount to “a means of information, warning or direction”. Sweet and Maxwell on Planning states that “These can include the number or name of a dwelling house, a sign on a field gate, for example, “Please Shut the Gate” or signs or warnings such as “Beware of the Dog”, “Trespassers will be Prosecuted” or “Police Notice, No Parking”......”


This decision by the Local Planning Authority is effectively a determination by it that the signage is forbidding and makes no offer - otherwise it would not come under the exception. This is wholly incompatible with the Claimant’s assertion that the signage makes an offer of a contract. Put simply, the Claimant cannot have it both ways - either its position must be that the signage is lawful because as an information/warning/direction it is forbidding, or it must be that it offers a contract, in which case it is not exempt from advertisement consent and the Claimant is committing a criminal offence (upon which it should not be allowed to bring a pursuant to the doctrine ex dolo malo non oritur actio"


I agree that you have other points to make, but I actually quite like this point. A weak judge looking for reasons to find in your favour will like it. Other judges will think it irrelevant.


See what others think. I'll be going dark next week as off on holiday!

Timothea

Loadsofchildren123 wrote: »

Good point by Timothea - after the section where you say no contract offered, say that, in the alternative, if a contract is offered then by the wording it is offered only to the driver. The terms of an offer must be clear and according to the contra preferentum rule (as quoted today in the Pace v Lengyel) any ambiguity or uncertainty must be resolved in the Defendant's favour.

This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: any ambiguity or uncertainty must be resolved in the consumer's favour.

Loadsofchildren123 wrote: »

The entrance signs go against the CoP, this point is already made in the WS. The Lengyel judgment also says something useful and succinct about the fairness of a contract - the principle of fairness requires the PPC to comply with its CoP, as referred to in Beavis.

This is also covered in the Unfair Terms in Consumer Contracts Regulations 1999: consumer contract terms must be fair and transparent; traders cannot enforce unfair or unclear terms.

Loadsofchildren123 wrote: »

On that issue with the planning (I posted about this on the planning thread here https://forums.moneysavingexpert.com/discussion/5631029) I think that you should include reference to this email, but in the paragraph where you say the signage is forbidding. Perhaps say this:

"In my defence, I argued that I believed the signage was unlawful because no advertisement consent had been given and therefore the Claimant was committing a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (as amended). I have contacted the local council, and a copy of their email to me is at page x of RH1. The court will note that the council has determined that the signs have deemed planning consent because they amount to “a means of information, warning or direction”. Sweet and Maxwell on Planning states that “These can include the number or name of a dwelling house, a sign on a field gate, for example, “Please Shut the Gate” or signs or warnings such as “Beware of the Dog”, “Trespassers will be Prosecuted” or “Police Notice, No Parking”......”

This decision by the Local Planning Authority is effectively a determination by it that the signage is forbidding and makes no offer - otherwise it would not come under the exception. This is wholly incompatible with the Claimant’s assertion that the signage makes an offer of a contract. Put simply, the Claimant cannot have it both ways - either its position must be that the signage is lawful because as an information/warning/direction it is forbidding, or it must be that it offers a contract, in which case it is not exempt from advertisement consent and the Claimant is committing a criminal offence (upon which it should not be allowed to bring a pursuant to the doctrine ex dolo malo non oritur actio."

I agree that you have other points to make, but I actually quite like this point. A weak judge looking for reasons to find in your favour will like it. Other judges will think it irrelevant.

I like this argument too. You could add that breaching the Data Protection Act 1999 is also a crime (s.55).

Going back to the entrance sign, you could argue that VCS is just an agent of BCC/WMCA who has been engaged to issue PCNs and does not have a right to pursue drivers in its own name.

MadHatter752

I will have a little play around with the wording but, as LoC123 knows, writing is not my strong point and I will be lost without her expertise!!

the other point i meant to mention was to double check we are on the right tack regarding the byelaws....

here are the current byelaw related paragraphs from my WS.... are we on the right lines?



4.1. Paragraphs 2(a), 5, 6 and 7: The car park is covered by the Railway Byelaws 2015 (“the Byelaws”) which, inter alia, concern the parking of vehicles. That being the case, any parking contravention was a matter only for the Railways/Train Operating Company (in this case Transport for West Midlands/ Centro) to bring before Magistrates Court within 6 months of the event (Byelaw 14). There is no provision for the byelaws to be overridden or circumvented with a civil claim for breach of contract. This aspect of my defence “absolute” - the mere fact that the land is covered by the Byelaws means that this claim has no basis and it should be struck out.

The remainder of my defences apply only if 4.1 is rejected. Whilst I am confident that the Byelaws apply and that this claim is ill-conceived, for completeness I deal with my other defences (although the court may wish to disregard them if it dismisses the claim on the basis that the Byelaws apply).



The Byelaws

5. Exhibited at pages x to x of RH1 are the following documents:
5.1. Centro Report dated 28 April 2014 – Car Park Management (pages x to x)
5.2. Centro Report dated 5 June 2014 – Car Park Enforcement (pages x to x)
5.3. The result of a Freedom of Information Act request addressed to West Midlands Passenger Transport Executive dated 29 September 2016 (page x to x)

6. Transport for West Midlands (previously CENTRO) state in the document at page [clause 10.5- put in page no.] of RH1 (which I have highlighted for convenience) that they are aware that charges issued in car parks which fall under the Byelaws cannot be enforced by a private parking firm like the Claimant, and can only be a matter for CENTRO to enforce within 6 months, and only by way of proceedings in the Magistrates court.

7. Transport for West Midlands also state in the document at page [] of RH1 (relevant section highlighted for convenience): 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations” .

8. Transport for West Midlands further state in the document at page [] of RH1 (relevant section highlighted for convenience – I have added bold to the text below in order to emphasise the relevant wording):

“Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.”

The car park in question is clearly a railway (as opposed to non-railway) park and ride site, as identified in the signage present at the entrance to the site and within the site (I refer to the signage further below).

9. At page x of RH1 from is the published result of a Freedom of Information Act request regarding Railway Byelaws at Sandwell and Dudley Railway station, operated also by West Midlands Combined Authority/Transport for West Midlands. (Source https://www.whatdotheyknow.com). I refer to point 2 from the West Midlands Passenger Transport Executive:

“2. There are no car parks at this location to which WMCA believe the byelaws do not apply.”

10. It is clear therefore that the Byelaws apply to the car park and that this claim has been improperly brought. The Byelaws apply throughout the West Midlands Combined Authority/Transport for West Midlands network as indicated in the tender that was issued when outsourcing the parking contract.

11. From extensive research I have carried out since being served with these proceedings, into the issuing of parking charge notices on land to which the Byelaws apply, it appears that the Claimant is not an experienced operator at rail station car parks – it is only contracted by Centro/West Midlands. Other private parking companies, such as NCP, Indigo and APCOA, are employed widely by other train operating companies, and are not in the habit of issuing civil claims because they are well aware that they are unable to do so because the Byelaws apply.

12. It is not open to the Claimant to attempt to morph a Byelaws matter into a 'breach of contract' claim. The Claimant has no prospects of success in bringing to the small claims court a statute-barred claim in respect of a station car park which is under statutory control and is governed by the Byelaws, more than two years after the event. The claim should be struck out on this basis.

13. In case the Claimant asserts that the Byelaws no longer apply to the car park, I will dispute this. In the same way that the Byelaws (like all other byelaws) can only be enacted by way of formal legislation, neither can they be removed or amended other than by way of such formal legislation (by way of Statutory Instrument, as was the case with the 2005 amendments to the Byelaws), and such removal/amendments can be made only by those with the power to do so (ie the Secretary of State, not private parking companies such as the Claimant, or train operating companies). The train operating company in this case has in any event confirmed that the Byelaws are a) still in operation and b) haven't been removed by the Secretary of State.

is this good to go or does anything need adding/amending?

thanks

Once I have made the above adjustments I will attach the entire WS for eager/eagle eyes.

It has to be in Court Tuesday morning so I am running out of time!