Liverpool business park PCN - We won!

KeithP

The Defendant must attend any court hearing.

You can attend and do most of the speaking on his behalf.

Of course both the Claimant and the Judge can ask questions directly of the Defendant and he must answer.

Nothing needs to be arranged in advance - just both turn up on the day and tell the usher what's going on.

Tinyteague

Nosferatu, I’m quite interested in this you posted, do you happen to know where this is cited?

“POFA is only concerned with Car Parking. Stopping on a Roadway cannot be classed as "parking" and isnt in a "car park" - so there can never be keeper liability
On a roadway fully accessible to the public, the RTA APPLY WITHOUT ANY QUESTION - meaning there is statutory control and the land CANNOT be relvant land. SO again, no possibility of keeper liability.”

I’m also thinking signage is going to be the biggest part of the defence, the particulars of claim appear to cover everything; They specify the reg, date, location, reason, and have a line in there stating that it is a breach of contract: “outstanding Charge Notice for breaching the Terms and Conditions relating to the use of private land,”. The only silver lining I see in the particulars is the fact that the addressee is not identified as the driver and/or the registered keeper.

I have been down to the site and taken a video. The signage is poor. There is one large sign to the side of the road where the area begins, this road itself is on a roundabout. There are repeater signs of much smaller size every so often. The location of contravention is then immediately to the right after entering the zone, in a dead end portion of road. Only 1 sign could of potentially been seen, and that sign is contending for the drivers attention against a roundabout. It also appears to be grossly inadequate if using the “Traffic Signs Manual 1982” used by the DfT as a guide (Is there a more definitive guide on signage?).

I'm also unsure on how the no stopping restriction works in this situation, the side road appears to have a give way sign on it to join the main road, and in their video of proof (and in one of their photo captures) there does appear to be cars on the main road. So which sign takes precedence, the Give way or the no stopping, as they are mutually exclusive when there is traffic on the main road?

Am I right in thinking the defence should lay out all my points and later on the witness statement/skeletal argument would fill in the gaps and provide evidence?

Tinyteague

Realised the above was a wall of text so I've condensed the questions down:

Does anyone know where the quote in the above post is cited?

Is there a more definitive guide on signage other than "“Traffic Signs Manual 1982” ( used by the DfT ) that will be accepted by the court, or is that the one?

Which sign takes precedence, the Give way or the no stopping, as they are mutually exclusive when there is traffic on the main road?

Am I right in thinking the defence should lay out all my points and later on the witness statement/skeletal argument would fill in the gaps and provide evidence?

Cheers.

Coupon-mad

Does anyone know where the quote in the above post is cited?

It's not, it's considered opinion based on what we know.

The concept of 'parking' as opposed to a brief stop for another reason without intending to leave the car there, is defined in Jopson v Homeguard.

For that transcript to read - and it's a good one - see the Parking Prankster's case law pages (albeit the case is not ''case law'' - not a precedent but it was an appeal, so one step higher than your own case and heard by a Senior Circuit Judge).

As for the fact that Airport roads are not 'relevant land' (we would argue) it's because the statutory control of the public highway, plus the fact the Airport itself has byelaws, means that it is one of the types of land defined in Schedule 4 of the POFA as NOT covered by the right to keeper liability.

Only helps you if you defend as keeper and do not say who was driving (or even better, if you the keeper, were not the driver).

It also appears to be grossly inadequate if using the “Traffic Signs Manual 1982” used by the DfT as a guide (Is there a more definitive guide on signage?).

Nope, except the parking firm's own Code of Practice (BPA or IPC).

Which sign takes precedence, the Give way or the no stopping, as they are mutually exclusive when there is traffic on the main road?

Neither, and this is good as you can argue the signs as drafted and placed by the Claimant are confusing and void for impossibility, and ambiguous in that the rules can be interpreted two ways and you can't win.

Thus, the interpretation that most favours the consumer must prevail (citation - the Consumer Rights Act 2015). Ambiguous terms...

Am I right in thinking the defence should lay out all my points and later on the witness statement/skeletal argument would fill in the gaps and provide evidence?

Yes.

Tinyteague

Cheers Coupon.

I read the Jopson Vs Homeguard transcript. The ambiguity surrounding parking vs stopping didn't feel definitive and they had to resort to dictionary entries. Probably not going to be enough to stop keeper liability under POFA, but I'll include it. I can cite the case in the defence despite not being a precedent?

Unfortunately this land is close but not the airport, and don't believe it is under the same byelaws.

I'll read up on consumer rights act 2015.

Thanks.

Tinyteague

If anyone could give the below a quick glance over, I'd appreciate it. Its based on bargepoles defence. I have not referenced Beavis anywhere, should I throw in a paragraph surrounding that?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

3(i) the driver has not been evidenced on any occasion.

3(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
***Attempt to contend that parking and stopping are not the same, and POFA specifically states parking.

4. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
***Although there is a line in the LBC saying it is regarding breach of T&C’s alongside the reason, I’ve left this in, as 7.5 also requires the who, when and where of the conduct.

5. Due to the sparseness of the Particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide management services and is not capable of entering into a contract with the Defendant on its own account, as the land is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.
*** Maybe the first sentence of section 5 should be deleted, as they do specify a breach of T&Cs.

6(i) Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6(ii). The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
***Plan to back this up with the “Traffic Signs Manual 1982” in the witness statement

6(iii) The placement of contradictory signage creates confusion and ambiguity surrounding the rules and therefore the interpretation that most favours the consumer must prevail.
*** I cannot find the exact section of Consumer rights act to back this up, the unfair terms appears to be based on the actual contract?

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Coupon-mad

The sign is the actual contract. So more than one instruction or term, that cause ambiguity, create an unfair or misleading contract where the interpretation that most favours the consumer, must prevail.

I can cite the case in the defence despite not being a precedent?

Yes, search the forum for Jopson defence true and you will find plenty, where the full details, claim number and Judge's name are cited.

Was the car only briefly stopped? If so then mention grace periods and the IPC Code of Practice, and if the car was only shown as briefly stopped, in their photos (if you've seen any) say that this was a brief stop and not parking.

Tinyteague

Coupon-mad wrote: »

The sign is the actual contract. So more than one instruction or term, that cause ambiguity, create an unfair or misleading contract where the interpretation that most favours the consumer, must prevail.

Right, but we're arguing that the give way is causing confusion when used in conjunction with the no stopping sign that is considered the contract. Does this still apply?

Yes, search the forum for Jopson defence true and you will find plenty, where the full details, claim number and Judge's name are cited.

I'll get right on that and add it.

Was the car only briefly stopped? If so then mention grace periods and the IPC Code of Practice, and if the car was only shown as briefly stopped, in their photos (if you've seen any) say that this was a brief stop and not parking.

Yes, 34 seconds (There is both photos and a video). Found the reference (IPC Code of practice, section 15). I'll add that.

Do you have any guidance on whether you agree with the red sections in the defence?

Thanks again Coupon-mad, I appreciate it.

Tinyteague

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2(i) Photos received from the claimant show the the driver stopped briefly for less than a minute. The Independent parking committee (IPC), of which the claimant is an operator, details a grace period in their code of practice (Part B, section 15). Part B, Section 15.1 states “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”

2(ii) The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (case number: B9GF0A9E) (2016) in regards to distinguishing stopping from parking.

3. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

4(i) the driver has not been evidenced on any occasion.

4(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
***Attempt to contend that parking and stopping are not the same, and POFA specifically states parking.

5. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
***Although there is a line in the LBC saying it is regarding breach of T&C’s alongside the reason, I’ve left this in, as 7.5 also requires the who, when and where of the conduct.

6. Due to the sparseness of the Particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide management services and is not capable of entering into a contract with the Defendant on its own account, as the land is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.
*** Maybe the first sentence of section 5 should be deleted, as they do specify a breach of T&Cs.

7(i) Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

7(ii). The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
***Plan to back this up with the “Traffic Signs Manual 1982” in the witness statement

7(iii) The placement of contradictory signage creates confusion and ambiguity surrounding the rules and therefore the interpretation that most favours the consumer must prevail.
*** I cannot find the exact section of Consumer rights act to back this up, the unfair terms appears to be based on the actual contract?

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

9. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Tinyteague

Just giving this a quick bump. Defence is due on Monday. Any advice on the above, especially regarding the red sections would be greatly appreciated.