PCN for showing expired Blue Badge in error

Fruitcake

Snakes_Belly wrote: »

It is classed as unreasonable behaviour to not comply with the Protocol. If a Claimant takes a case to court knowing that they have not got authority from the landowner that is unreasonable behaviour and could impact on the costs paid to the defendant.

It is also fraud in my opinion. It is in effect demanding money with menaces.

Snakes_Belly

I took a look at the VCS website and noticed this. If the car park in question is subject to railway byelaws then does this put a different slant on the matter?

Any vehicle which is found to be parked in contravention of the car park terms and conditions will be issued with a Parking Charge Notice in accordance with the advertised parking policy and may be subject to further action pursuant to Railway Byelaw 14 made under S.219 of the Transport Act 2000 (which shall include any amendment or re-enactment thereof).

Snakes_Belly

Excel and VCS are separate entities but owned by the same person/persons. In 2014 Excel was BPA (POPLA) and VCS was IPC (IAS). IAS appeal system is more favourable to the PPC than POPLA.

Parking Prankster describes this as the Excel/VCS switcheroo in his blog.

As the contract with the West Midlands Transport Network was taken out circa 2014 it's possible that the contract was with Excel but the signs are saying VCS. It would not be the first time that they have done this.

Snakes_Belly

https://www.whatdotheyknow.com I think that you can email an address from this link and ask whether the car park in question is subject to railway byelaws. They may be trying to morph a penalty under railway byelaws into a contract. This company think that they are above the law.

Coupon-mad

claire07 wrote: »

I have received a response to my SAR to Vehicle Control Services
and they have included the photograph of the sign saying Disabled Parking Only and my current Blue Badge.

I am probably over-thinking this but as the email sending the paperwork came from Excel (and ended up in my spam!) despite my request being to VCS and all the signs and physical paperwork naming VCS why would they do this and is it something I should query?

Reply to the email and ask:

Who are Excel Parking Services and why are you replying to a SAR sent to another company, and why does the SAR omit this detail and reason as to why VCS shared my personal data with you?

I intend to report this breach to the ICO so kindly explain, and ask VCS to explain as well. You are not the same company, I have checked on the Companies House website, so you can't just pass data around a shared office.

claire07

Many thanks Snakes Belly and Coupon-Mad. I will send the email to Excel as suggested and pursue the landowner authority.


I initially thought the station car park would be subject to byelaws as they are mentioned on the main sign but then the Park & Ride section is attached.


The train company have not responded to any of my complaints and I don't think I've read too many posts where people have had a train company cancel whereas other landowners seem to have been willing to do this.

Snakes_Belly

There is another case that relates to the train company and the poster sent for a FOI from the link in my post above. It would be useful to clarify if the land was subject to railway byelaws. Do VCS manage both the main station car park and the park and ride?

claire07

I've been reading those posts and that was for Sandwell Park and Ride.


Northfield has a main Network West Midlands sign saying users are to comply with the Railway Byelaws 2005 but then immediately there are Park & Ride signs with VCS T&Cs (no mention of Excel).

Coupon-mad

Did you read this one as well?

https://forums.moneysavingexpert.com/discussion/comment/75797223#Comment_75797223

People can use/adapt that defence or work it into a Skeleton Argument.

claire07

I tried to put together a concise defence but have probably ended putting in too much as I was worried by the statement that I couldn’t mention anything in court that hadn’t been included previously. I was hoping to include the Equality Act and/or de minimis but wasn’t sure where.

I would appreciate any help completing this as I feel for my stress levels I need this over asap even though I have another 10 days or so before the deadline.

I have asked Excel why they have my details when it is VCS I am dealing with and have also complained again to the train company about their hypocrisy on disabilities but so far no responses.

I apologise in advance if I have missed any of the points needing including and many thanks for your patience!




XXXXXXX (Defendant)
____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date, which the Claimant has stated was 20 July, 2018. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2 The facts of the matter are that as an occupant of the car possessed a Blue Badge the Defendant parked in a bay with the sign Disabled Parking Only at Northfield Railway Station and placed the Badge correctly. It was only when returning to find a Red and Black This is not a Parking Charge Notice it was found the recently expired Badge had been displayed instead of the current one.

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

3. 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.

4.Upon receiving a Notice to Keeper as an attachment via email from a company named Excel with the Notice to Keeper from Vehicle Control Services an appeal letter attaching the current Blue Badge and Disabled Parking Only sign was sent but rejected.
The location is subject to statutory control and the parking charge is statute barred

5. The facts regarding this location – Centro Northfield Park & Ride car park - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').

6. The current national Railway Byelaws ('RB2005') apply to this land::
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf
The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.

7. Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.

8. Therefore the Claimant is in difficulty regarding their claim, due to these facts:
(i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event. That period has long since expired and is statute barred.
(ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005.
(iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.
(iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''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. [...] 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.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.
(v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on or before April 2018, and not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro.
Liability cannot be transferred to the registered keeper

9. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2017 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.

10. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2017.

11. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.

12. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.

13. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

14. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

Unclear signs & contractual terms
15. The Defendant is aware from visiting the site as a result of this claim, that the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, mentions Railway Byelaws and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by VCS are considerably less prominent, and indeed entirely unreadable by the driver of a moving vehicle.

16. There appears to be a small, non-prominent VCS sign advising of the rules of the car park, with a lack of white space/large lettering. Regarding the £100 (described not as a contractual charge but as a 'penalty' by the WMCA on their website) there is a minuscule small print paragraph at the foot of the sign, in the smallest of the fonts used. It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.

17. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

18. There would not have been an informed decision to risk or agree to paying £100 to use the local 'park and ride' when parking on street and/or getting a taxi instead would have cost ten times less. Thus the Defendant avers that there was a lack of transparent consumer contract terms and information capable of binding a driver, and the elements of a contract did not exist.

No standing
19. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).

20. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.

ParkingEye Ltd v Beavis [/I][2015] UKSC 67 is fully distinguished
21. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:
(i) The land, as mentioned previously, is covered by byelaws
(ii) The driver has not been identified
(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.
(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.
Added costs - disproportionate and unrecoverable

22. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 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, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.

Summary - the claim discloses no legal basis or cause of action.
23. The Defendant invites the court to dismiss the claim as having no prospect of success.

24. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and/or to attend a preliminary hearing regarding the fundamental matter of keeper liability. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name
Signature
Date