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VCS Doncaster Airport Defence
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ThatJoeSoap
Posts: 7 Forumite
This new thread is a follow on from the VCS double claim form thread 6027244 but is limited to the second defence for stopping on Doncaster airport approach road.
Having reviewed other defences, commentary and google maps the key defence is the signage on entry to the airport road is oblique to the driver view but was turned round after the date of the PCN. Hence the gist is the lack of signage, no offer only prohibition, therefore no contract along with other common themes of locus standi, abuse of process etc I have also added in the suggestion that the claimant prove the road is not 'highway' under council enforcement given the complete lack of demarcation and access to public for business units etc
Due to ongoing turmoil of dealing with the first claim in my wifes name and receipt of a default judgement from CCBC despite having email receipts for AOS and Defence (action now pending with CCBC to overturn) this defence has been delayed and is due by tomorrow before 4pm. Any comments gratefully received but not expected within the tineframe
DEFENCE
1. The Defendant was the driver of the vehicle registration number XXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. Any debt is denied in its entirety because there is no cause of action against the Defendant. The Claimant has failed to show locus standi, the defendant does not believe they have a right to bring an action. 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. In failing to provide such a contract or other document constituting such an agreement the claimant has failed to comply with the requirements of Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no right to bring any action regarding this claim.
3. Due to the lack of Particulars of Claim, it is difficult for the Defendant to understand the cause of action, given that the Claimant does not own the land in question. If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.
4. In ParkingEye Ltd v Barry Beavis (2015) UKSC 67 it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye could not have recovered monies for unauthorised parking/trespass. It was only because they were able to offer something of value (a parking space) and that the charge was part of that contractual licence, that ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.
5. If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if (as suspected) the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.
6. It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name. The Claimant is put to strict proof of their locus and cause and right of action in their own name and to disclose the unredacted contract with the Airport, before any hearing.
7. The Particulars of Claim state the terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The Defendant denies that any such signage was in place at the time of the alleged breach of contract and has verifiable photographic evidence confirming the Claimants signage was not clearly visible on approach to the airport road. The Defendant will show that the single small scale sign was at an oblique angle to the driver view on joining the adopted highway roundabout that provides access to the airport road, nestled amongst much bigger commercial signs. No additional signage or road makings were provided to distinguish the airport road from the public highway with both appearing identical. Consequently, the Defendant avers that signage does not meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a contract would have had to have been extremely clear, in very large letters to ensure all drivers were 'bound to see' the terms. The Defendant also has verifiable photographic evidence that the signage orientation was changed after the material date in an attempt to presumably address the lack of clear visibility in this case, demonstrating by definition that the Claimant did not consider the position of the sign on approach to the private road suitably visible at the material time.
8. The Defendant avers that he did not enter into any contract either express, implied, or by conduct with the Claimant as no contract terms were properly displayed and accessible, no consideration flowed between the parties and no contract was established. The Defendant denies that the Claimant signage at the location can create a fair or transparent contract with a driver in any event and fails to set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The Defendant puts the Claimant to strict proof that the wording of the signage did offer a licence to park at a price rather than simply saying 'No Stopping' which would be forbidding wording which cannot also be painted as offering any contractual licence.
9. The Defendant avers that the Claimants signage font size is too small and the words too many to be safely read while driving from the roundabout to enter the airport road. Any subsequent attempt to fully read any further signs on the road would involve having to stop in contravention to the limited large font text that states ‘no stopping’, rendering it impossible for the Defendant to make any informed acceptance of the alleged offer without being at the same time in breach of the alleged contract.
10. The airport road comes off an adopted highway roundabout and is not clearly demarcated as private land or a private car park. The commercial signage visible on entering the road and the Industrial/commercial units visible from the roundabout and accessible from the road indicate the road to be freely open to the general public. The Defendant avers that the Airport approach road, while private land can be considered de jure ‘highway’ under the terms of the Highways Act 1980 and puts the Claimant to strict proof that parking/traffic contraventions are not a matter for the local authority and the road is not subject to the rules of the Road Traffic Act and statutory instruments requiring any 'PCN' to be a proper penalty charge notice issued under the Traffic Management Act 2004.
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. This case is distinguished from the Beavis case in that no such clearly visible signage capable of binding the driver existed at the time of the alleged breach nor was the alleged contract for ‘parking’ at a retail site with commercial value.
12. This predatory 'charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver. It was stated that the penalty rule was 'engaged' in all private parking ticket cases and that what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.
13. The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.
14. 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 a principal debt of £160 which as confirmed in the Letter before Claim includes a sum of £60.00 as a ‘debt collection charge’ which appears to be an attempt at double recovery. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing. DJ Grand stated:
‘…the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998’
15. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and insofar as inflating the claim, an abuse of process. 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 confirm that the above facts and statements are true to the best of my knowledge.
Name
Signed
Date
Having reviewed other defences, commentary and google maps the key defence is the signage on entry to the airport road is oblique to the driver view but was turned round after the date of the PCN. Hence the gist is the lack of signage, no offer only prohibition, therefore no contract along with other common themes of locus standi, abuse of process etc I have also added in the suggestion that the claimant prove the road is not 'highway' under council enforcement given the complete lack of demarcation and access to public for business units etc
Due to ongoing turmoil of dealing with the first claim in my wifes name and receipt of a default judgement from CCBC despite having email receipts for AOS and Defence (action now pending with CCBC to overturn) this defence has been delayed and is due by tomorrow before 4pm. Any comments gratefully received but not expected within the tineframe
DEFENCE
1. The Defendant was the driver of the vehicle registration number XXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. Any debt is denied in its entirety because there is no cause of action against the Defendant. The Claimant has failed to show locus standi, the defendant does not believe they have a right to bring an action. 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. In failing to provide such a contract or other document constituting such an agreement the claimant has failed to comply with the requirements of Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no right to bring any action regarding this claim.
3. Due to the lack of Particulars of Claim, it is difficult for the Defendant to understand the cause of action, given that the Claimant does not own the land in question. If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.
4. In ParkingEye Ltd v Barry Beavis (2015) UKSC 67 it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye could not have recovered monies for unauthorised parking/trespass. It was only because they were able to offer something of value (a parking space) and that the charge was part of that contractual licence, that ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.
5. If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if (as suspected) the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.
6. It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name. The Claimant is put to strict proof of their locus and cause and right of action in their own name and to disclose the unredacted contract with the Airport, before any hearing.
7. The Particulars of Claim state the terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The Defendant denies that any such signage was in place at the time of the alleged breach of contract and has verifiable photographic evidence confirming the Claimants signage was not clearly visible on approach to the airport road. The Defendant will show that the single small scale sign was at an oblique angle to the driver view on joining the adopted highway roundabout that provides access to the airport road, nestled amongst much bigger commercial signs. No additional signage or road makings were provided to distinguish the airport road from the public highway with both appearing identical. Consequently, the Defendant avers that signage does not meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a contract would have had to have been extremely clear, in very large letters to ensure all drivers were 'bound to see' the terms. The Defendant also has verifiable photographic evidence that the signage orientation was changed after the material date in an attempt to presumably address the lack of clear visibility in this case, demonstrating by definition that the Claimant did not consider the position of the sign on approach to the private road suitably visible at the material time.
8. The Defendant avers that he did not enter into any contract either express, implied, or by conduct with the Claimant as no contract terms were properly displayed and accessible, no consideration flowed between the parties and no contract was established. The Defendant denies that the Claimant signage at the location can create a fair or transparent contract with a driver in any event and fails to set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The Defendant puts the Claimant to strict proof that the wording of the signage did offer a licence to park at a price rather than simply saying 'No Stopping' which would be forbidding wording which cannot also be painted as offering any contractual licence.
9. The Defendant avers that the Claimants signage font size is too small and the words too many to be safely read while driving from the roundabout to enter the airport road. Any subsequent attempt to fully read any further signs on the road would involve having to stop in contravention to the limited large font text that states ‘no stopping’, rendering it impossible for the Defendant to make any informed acceptance of the alleged offer without being at the same time in breach of the alleged contract.
10. The airport road comes off an adopted highway roundabout and is not clearly demarcated as private land or a private car park. The commercial signage visible on entering the road and the Industrial/commercial units visible from the roundabout and accessible from the road indicate the road to be freely open to the general public. The Defendant avers that the Airport approach road, while private land can be considered de jure ‘highway’ under the terms of the Highways Act 1980 and puts the Claimant to strict proof that parking/traffic contraventions are not a matter for the local authority and the road is not subject to the rules of the Road Traffic Act and statutory instruments requiring any 'PCN' to be a proper penalty charge notice issued under the Traffic Management Act 2004.
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. This case is distinguished from the Beavis case in that no such clearly visible signage capable of binding the driver existed at the time of the alleged breach nor was the alleged contract for ‘parking’ at a retail site with commercial value.
12. This predatory 'charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver. It was stated that the penalty rule was 'engaged' in all private parking ticket cases and that what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.
13. The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.
14. 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 a principal debt of £160 which as confirmed in the Letter before Claim includes a sum of £60.00 as a ‘debt collection charge’ which appears to be an attempt at double recovery. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing. DJ Grand stated:
‘…the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998’
15. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and insofar as inflating the claim, an abuse of process. 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 confirm that the above facts and statements are true to the best of my knowledge.
Name
Signed
Date
0
Comments
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How long was the stop in this case, and for what reason?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
about 30 seconds, I was lost looking for a new unit on the estate and had to get map out of the boot.0
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Oh dear, VCS v Ward will make your case difficult. It needed to be an emergency...
Find the VCS defence thread about Ransomes and copy from that one.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Nine times out of ten these tickets are scams so complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0
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