Vcs ema petrol station yet again!

Loretta1970

Hi all, I have edited my defence and here it is:


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 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.

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 act 2012, in 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.



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) 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.
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.

If anyone can suggest anything else please let me know asap as i will be submitting this as defence in the next 48hrs. Many thanks for any help

KeithP

In para 2, what is a CN?

Surely cannot be a Charge Notice as the driver would be totally unaware of any possible Charge Notice at the time of parking.

Whatever a 'CN' is, it needs to be spelt out in full the first time it is used.

Similarly in para 5, the first time you refer to the Protection of Freedoms Act 2012, You must spell out POFA in full.

And as I mentioned earlier, in para 5, the 'A' of POFA stands for 'Act' so there is a superfluous 'act' in there.


Don't rush to file this. You still have a couple of weeks and it is best to get it right.

Loretta1970

Hi All, Ok think ive done the editing now, what do you all think? Any advice comments criticism or anything else you think would help the defence please feel free to pass on.

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

2- 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.

2.1 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.

2.2 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.

3- 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.

4- The Protection of freedom act 2012 in 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.

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



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) Since byelaws apply on this road, keeper liability does not and cannot apply as it is not relevant land as stipulated by the Protection of freedom act 2012.
6- 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.

nosferatu1001

1) Just ends without completing the sentence. Read before uploading.
2) I fail to see how 1) establishes a defence as such. It just makes a claim that it was stopped. Nothing else. So there is no "further and..." yet?

5) Is not a defence, at all. Just a statement of facts

A defence is an argument why the D is not liable. So you need to put the argument FIRST. If the argument is you are not liable bwcqause they cannot hold the keeper liable as the land is not relevant land, then say that

That defence fails to explain anything about the situation really. Just launches straight in. You coudl esstablish some facts e.g. the vehicle was stopped for only... seconds due to... just go give SOME context to this.

KeithP

For the third time:

And as I mentioned earlier, in para 5, the 'A' of POFA stands for 'Act' so there is a superfluous 'act' in there.

Loretta1970

Sorry keith thought i had changed it. Ive now done it and will put the edited version up when i can try to get my head round what is been advised. thanks for your patience.

Loretta1970

Nosferatu1001 i really appreciate you taking your time to reply but im finding it hard to understand what you are putting forward. Im not legally minded and if the truth was known i dont know what a lot of the legal words even mean. I've really tried my best to put a defence forward but it just seems like im doing is all wrong and im running out of time to get it all together. I would be truly grateful if you could edit and post some or all my revised defence.many thanks loretta

Le_Kirk

You would be better advised to go to the NEWBIE sticky post # 2 and find/read the 17 pre-written defences by Bargepole and others. One of them will give you as starting point which you can adapt to suit. Also as it is an airport parking issue search the forum (Advanced Search) using East Midlands Airport or EMA as your keyword(s) but change the radio button from threads to posts.. Others have been in a similar position to you and you might as well benefit from their experiences.

Loretta1970

Hi all, i have just re-edited the defence and here it is. Please let me know how it could be improved or pointers please feel free to pass them on.


IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

Vehicle control services (Claimant)
2 Europa Court
Sheffield Buisness Park
Sheffield
S91XE

-and-

MYSELF (Defendant)

DEFENCE

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 briefly on the material date on a private road where bylaws apply and as such cannot hold the keeper liable as this land is not relevant land.

2- 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.

2.1 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.

2.2 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.

3- 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.

4- The Protection of Freedoms Act 2012 in 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.

5- The Protection of Freedoms 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.

6- The Claimant is put to strict proof that it has sufficient 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

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.

I believe the facts contained in this Defence Statement are true.

With my signature and date below
J

Coupon-mad

VCS LTD (Claimant)

Nope that's not the Claimant's full company name.

Remove this as it makes little sense:

Therefore it cannot be assumed keeper liability is held responsible.

You have a typo copied from a typo! Did you not yet do a spell check?

prorpietary

And you need a heading (no using USA Spellcheck though!):

DEFENCE