Vcs ema petrol station yet again!

Loretta1970

Hi all, sorry it has taken a while but I have now got together my defence. Please have a read see if it makes sense and if you think ive missed something or not worded correctly let me know (but go easy im only a newbie!)

The defendant denies that the claimant is entitled to relief in the sum claimed, or at all.

1 - The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be stopped on the material date on a private road, not on any yellow lines nor causing an obstruction.

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- 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. The signage is attached to a lamp post and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

4- 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 the terms on the ‘contract’ could not possibly be read from a moving vehicle entering the forecourt.

5- The POFA, 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.

6- East midlands Airport operations manual "Aerodrome manual", page 91 shows the airports boundary highlighted in blue.

{Diagram of ema airport boundary cant upload it for some reason}

Directly above the A (of EASA ) there is a road leading up and into the airport, if this is followed to the round about, the petrol station is just above this ( ie north) well within the blue boundary shown (appendix 2 east midlands airport boundary and land ownership)
Pofa act 2012 schedule 4 section 1 clearly states:
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 and some railway station car parks) is also excluded.
Therefore it cannot be assumed keeper liability is held responsible.

7- 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.

KeithP

In para 3 - Leave out the last sentence. Let the Claimant promote their own case.

Para 6 - the first part belongs in your Witness Statement and 'the map' will be part of your evidence.

Para 6 should start at "Pofa act 2012..." (although the 'A' of POFA stands for 'act' so should be reduced to "Pofa 2012...")

There are other opportunities for improvement that I'll leave for others.

Fruitcake

"Therefore it cannot be assumed keeper liability is held responsible."

Since byelaws apply on this road, keeper liability does not and cannot apply as it is not relevant land as stipulated by the PoFA 2012.

Half_way

Change the bit about double recovery to Abuse of process - see abuse of process thread




Any comments on the two sections below - re Jurisdiction and counter claim??


And there could also be something about contesting jurisdiction as the site is covered by by-laws


I would also be tempted to add a counter claim against Prax group ( owner / operator of the petrol station )

Coupon-mad

Remove this as you have made it sound clearer than it is!

The signage is attached to a lamp post and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

Loretta1970

Hi all, I am going to edit the defence in a couple of days time (just to get the all the great advice in) then i will repost the edited version. Please continue

Coupon-mad

Add this re the signs & lines (was the car stopped on double RED or YELLOW lines?).

3. 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. The signs and lines are woefully inadequate at the entrance and inside this garage, which is separate from the roadway, and no terms can be said to have been 'bound to be seen', distinguishing this case from the 'brief terms and large lettering' that managed to disengage the penalty rule in what the Supreme Court Judges called the 'unique arrangements' and 'completely different' case of ParkingEye Ltd v Beavis [2015] UKSC 67.

3.1. Quite the opposite of the legitimate interest in Beavis, which involved a retail park where parking was on offer (positively invited) and the parking bays had a commercial value, this site has been widely reported as an entrapment zone money-pot for VCS whose interest is in drivers not seeing the signs. In the case of an Airport Garage site where (purportedly) VCS are contracted to prevent people from stopping apart from at the pumps, all this site needed was a clear deterrent/warning 'no stopping zone' message, in the form of very large, bright and prominent signs and lines. If there had been large lettering warning about an instant £100 fine (and any signs on the roadway outside are irrelevant to the Garage so cannot be considered) then drivers would stay away and not be caught, however that is not how this industry operates.

3.2. This Claimant's signage is in breach of Schedule 2 of the Consumer Rights Act Schedule 2 'the grey list of unfair terms' and the court has a duty under para 71 of that legislation to consider the transparency and prominence of all consumer notices, which (even if they include a price term) are never exempt from the mandatory legal test of fairness.

Loretta1970

Hi coupon mad, no the car wasnt as far as im aware parked on any lines. Should i insert into my defence what you have posted? Thanks

Coupon-mad

Of course, surely that's clear?

I'd already told you to remove a sentence from #3...so I gave you replacement wording.

Loretta1970

Thanks coupon mad ur a star x i will edit it over the weekend and repost it.