Vehicle Control / BW Legal Court Case

Woo-Ha

Hi everyone,

I have a claim form from Northampton courts relating to a PCN issued in November 2015. I have read the forum regularly and have corresponded with Parking Control Services and initially Wright Hassall Solicitors to refute their claim. Unfortunately letters kept arriving from a succession of debt collection agencies and more recently BW Legal. After ignoring these I now have a claim from the county court which I have acknowledged.

Some key points are:
I am the keeper of the vehicle concerned but have not identified the driver.
I don't dispute parking at the location in question but the appearance of the car park on the night in question was dereliction awaiting redevelopment with no lighting or relevant signage.

I do not mind attending court to argue the case on this one and have drafted the defense below. Having read the stickies, the letter of claim from BW legal also seems scant in that it does not specify the type of claim or evidence which BW will attempt to rely on so there is potential to raise that as well.

Defence so far:

In The County Court

Defense

Claim No. XXXXXXX

The names of the parties are XXXXXX where is the XXXX Claimant and XXXX is the Defendant,

1. I am XXXX, the defendant in this matter and litigant in person.

2. I deny any liability in this claim, and any debt is denied in its entirety.

3. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

4. I have previously explained my defence in correspondence with both Vehicle Control Services and their legal representatives. My representations have been largely ignored and a series of debt collection agencies and purported legal firms have harassed me since November 2015.

5. The key fact in my defence is that Schedule 4 of the Protection of Freedoms Act 2012 requires “adequate notice” to be provided to drivers explaining parking charges which apply on relevant land.

6. A PCN was to my vehicle issued by Vehicle Control Services at Media City on 03/11/2015. Vehicle Control Services state that they are an accredited operator and member of the Independent Parking Committee (IPC).

7. The IPC code of practice places conditions on car park signage in order to provide adequate notice to a driver. The IPC code states:

“Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”

If parking enforcement takes place outside of daylight hours you should ensure that signs are illuminated or there is sufficient other lighting. You will need to ensure all signs are readable during the hours of enforcement as they form the legal basis of any charge.

Repeater Signs. You are required to provide a sufficient number of signs on each site commensurate with its size and other characteristics to ensure that any parking conditions are adequately brought to the attention of the motorist.

Signage Materials. Signs should be constructed from material that is sufficiently robust to withstand normal external conditions. Signs must be professionally made and not hand-written so it is immediately apparent to the motorist that they convey important information regarding the site upon which they are placed.

Other Signs.
You must adequately display any signs intended to form the basis of contract between the creditor and the driver. Such signs must; 1) Identify yourself as ‘the Creditor’; 2) Identify the amount of any charge and explain when it becomes payable; 3) Advise drivers that if a charge remains unpaid for a period of 28 days after issue then an application will be made for the Keeper’s details from DVLA; 4) Be clearly legible and placed in such a position (or positions) such that a driver of a vehicle is able to see them clearly upon entering the site or parking a vehicle within the site; 5) Have clear and intelligible wording and be designed such that it is clear to the reasonable driver that he is entering into a contract with the creditor or committing a trespass as the case may be; 6) Contain text appropriate to the position of the sign and the relative position of the person who it is aimed at. 7) Be of a colour scheme that provides good contrast between the background of the sign and the text upon it.

8. I have collected evidence and witness statements which will prove that the signage at the claimant’s site was inadequate in terms of the following:

8.1 No signage explaining suitable terms and conditions visible at the entrance to the car park.

8.2. No signage explaining suitable terms and conditions visible at the pedestrian exit routes from the car park.

8.3. Lack of illumination of the car park during the hours of darkness and consequent invisibility of any signage describing terms had they existed.

8.4. Confusing and conflicting signs, stating that vehicles would be towed away.

8.5. Inadequate positioning of signs, for example, at unsuitable heights.

8.6. The car park would have been in darkness at the time stated in the particulars.

8.7. The Claimant’s site had no illumination, nor did it benefit from light columns or other secondary sources within the car park. Additionally, as the car park is set back from the road, it did not even benefit from secondary lighting from street lights.

8.8 The only signs visible at the entrance to the car park on the evening of 03/11/2015 appeared to be home made, were close to the ground and stated “Public Notice, This Car Park is Closed. Should You Choose to Park Here You May Be Locked In Or Have Your Vehicle Removed.”

9. I submit that the signs on site at the time of the alleged event were wholly insufficient in terms, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice (CoP) of the Independent Parking Committee’s Accredited Operators Scheme. I therefore submit that the Claimant has no case and invite the court to strike the matter out.

10. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

11. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

12. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 ('the Beavis case') which was dependent upon an un-denied contract, formed by unusually clear, prominent signage forming an unambiguous offer with the parking charge itself in 'large lettering'. That case also turned on unique facts regarding the location and the interests of the landowner.

13. I submit that this charge is an unenforceable penalty with no commercial justification.

14. The Claimant is attempting to claim additional charges such as debt collection/legal fees of £54.00 and legal representative's costs of £50.00. The Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

15. The Claimant is put to strict proof of all his assertions.

16. In support of these arguments, the defendant has provided the specific correspondence between them and the claimants representatives in chronological order. Also supplied are photographs of the signs which were placed at the site and a statement from another occupant of the vehicle on the night in question.

17. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence are true

Name: Dr XXX XXXXX

Signed:

Date:

Coupon-mad

What's the actual alleged contravention and why? Small overstay after paid-for time? Permit not displayed?

Code of Practice (CoP) of the International Parking Community [STRIKE]Independent Parking Committee’[/STRIKE]s Accredited Operators Scheme.

Woo-Ha

Thanks Coupon-Mad.


The contravention was parking without valid permit or ticket although there were no ticket machines and no method of getting a permit.


I believe the car park was a disused business car park that was being re-developed. When I parked there the signage (which was on laminated A4!) said that my vehicle would potentially be towed away or locked in. I knew that this was unlawful and decided to park as I was short of time and there were no other options.

Loadsofchildren123

I think you are better off here saying you were the driver.

The reason is that you don't need to hide behind PIFA as you already have a solid defence to any POC-driver contract having been created. And if there was one it's frustrated by their fundamental breach by not making available any method to pay/obtain a permit.

There also seems to be an element of entrapment.

The trouble with denying being the driver is it makes it difficult for you to put in all this good evidence about the state of the carpark and the signs. And unless you can demonstrate that others were using your car/entitled to use it then a judge may make a finding that you were driving. Often the judge will ask you direct if you were. You then either admit it or lie (if you were)

I just don't see the point trying to hide behind keeper liability where you have a good driver defence and where it may be pretty obvious you were in fact the driver.

Loadsofchildren123

Just to add to my post - you would hide behind keeper liability at POPLA stage (if your PPC is a BPA member) but I'm talking about court proceedings.

Woo-Ha

Hi,
I own the car and so all the responses I've sent have been in my name, however that night my husband was driving and I was the passenger. I'd be prepared to identify him as the driver, but I'm also happy to defend our joint decision to park where we did as the owner of the vehicle.

At what point do we have to decide who goes in front of the judge?

Thanks!

Woo-Ha

Also, I feel there was definitely entrapment! There was a football match nearby and many people had parked on the land.

Loadsofchildren123

Ok. So in your defence you need to formally admit that you are the RK and deny that you were the driver. Do this as new para 2. "The D admits she is the RK of vehicle xxxx but denies that she was the driver."

We need to know a bit more to advise you further.
When was the RK served? Is it valid as per POFA?

The key defence is not adequate notice under POFA. I don't think POFA says that at all, that's the IPC CoP.

Your key defence is that the NtK is not valid under POFA and so you cannot be held liable as keeper.

Your second key defence is that no contract can have been created between the Claimant and driver because of inadequate and misleading signage. To the extent that the signage was capable of forming a contract (although this is denied) the Claimant is in breach of its CoP which, pursuant to Beavis is fundamental in whether or not the charge should be treated as a penalty.

Loadsofchildren123

You can add in about entrapment and that you know the d of the driver but will not I'd them and are not obliged to do so by any statutory or other provision.

Loadsofchildren123

It's not a case of deciding who will defend. They will sue you as RK and ask the court to make a finding you were the driver.
You can "out" your H as the driver later, if you decide that's the right thing. We have debated that on another thread recently. But they could then sue your H afterwards (but may well not bother if the judge is in favour of your no contract arguments - although if you simply win on the RK point then the argument may not get this far).

If this happens then your H defends on the signage points.

Have you taken photos?

Loadsofchildren123

If you want to deal with your case simply, you put in a defence saying I wasn't the driver, but I am the RK. I cannot be held liable as RK because the NtK is not valid under POFA. You then put in a statement from your H admitting he was the driver.


PPC then sues H, he relies on all the good defences re signage.


I think it's dangerous to do this because lots of judges misinterpret POFA - quite how this happens I don't know because it is perfectly clear. However, if you get one of those judges you have to be ready to argue that even if you are liable as RK, there can have been no contract.


If you win on RK point, PPC may pursue H later. If you lose on RK point, but win on contract point, they can't pursue H.


If the first, then obviously there has been no judicial finding on the contract point, although judges often make comments (eg. "I don't fancy the PPC's chances pursuing H, this looks like a good defence") - so you'd hope that the PPC won't pursue H and if they do you make a meal of the DJ having said this.


An option we've been debating on another thread is the driver identifying himself but not providing his address. However, in your case it's a spouse and so I think his address would be pretty obvious to the PPC. And it may not wash with a judge, who may say that the witness must reveal his address.