Doncaster Airport PCN claim form received

Cow_bag

Hi, any help will be appreciated, sorry if too long.
I’ve done AOS so the deadline for the claim form to be sent back is 26 Jan (claim letter dated 24Dec). Its for Northampton County Court.
I’ve read Newbies thread (since I found this forum) but not sure which defence line I should go with.
I picked up my family from DSA back in may 2015. I paid for parking and as I was coming out of the car park I stalled the car (I was waiting for the machine to spit my ticket back but it never did and I panicked the barrier would shut, just one of many blonde moments). As I restarted the car engine management light came on and lots of other warning light and acceleration was not working properly – it turned out, after a dozen of garage visits and 2 years of internet searching, there was a fault with a speedo cluster. (I’ve got a receipt of the repair 2 years after PCN, could I possibly use it in a court as a proof, should this reach a hearing stage?)
I pulled over in the bus stop and after turning the engine off and on again I set off – 30 seconds in total.
I received parking charge in June ’15 and I was hoping being honest would help the case to be dropped but oh my how foolish I was. I appealed (in my own words) within the deadline and admitted I was the driver (like an idiot). I explained what happened and said they cannot send me a parking charges as I did not park – I stopped in an emergency. I received the acknowledgement of the receipt of the email but never got the official response that the appeal was rejected (though SAR files contain some form of letter of appeal rejection sent to me!!).
Don’t want to make it too long but I also replied to BWL letter asking them to stop harassing me as I was still waiting for a formal appeal response. They informed me they’ve put my case on hold while awaiting VCS response and would get back to me when they’ve heard back – never did.
I was going to use the fact that VCS did not respond to my appeal as a defence but it’s included in SAR. They’ve either used wrong email address or sent it to someone else – funny cos I’ve got sent someone else’s litigation case management file in my SAR with all their details!!! That’s how they follow data protection rules! Can this be used against them if this goes to court?
I drove to DSA today and I’ve got a video of how impossible it is to read their stupid no stopping signs while driving at 40mph.
I will post a drafted defence as soon as I can but all I’ve got is the unable to read the signs while driving bit. Any suggestions? Many thanks in advance.

KeithP

Cow_bag wrote: »

I’ve done AOS so the deadline for the claim form to be sent back is 26 Jan (claim letter dated 24Dec). Its for Northampton County Court.

Is 24th December the Issue Date on the Claim Form?

On what date did you file an Acknowledgment of Service?

Redx

its not for Northampton County Court unless that is your local county court ?

if its not your local court, it came from the office of the CCBC in Northampton, the centre for any MCOL , you will choose your local court at DQ stage

email a new SAR to the DPO at VCS and also tell them to rectify your data by erasing any old address and using your current address only

attach a copy of the claim form to the email as proof of I D under the GDPR, plus your current email address or use a new fmail email address set up for this purpose instead

read other RHA court claim threads and LJLA threads to prepare your own defence, its that simple, do what they did

you say the ISSUE DATE on the claim form was 24 Dec 2019, you will be given further instructions on this but we need the date the AOS was done too (hopefully 5 or more days later ?)

Cow_bag

Yes, 24th is the issue date on the claim form.
I did AOS yesterday as I only just came back of holiday on Friday

Cow_bag

Hi Redx,
Sorry i'm lost.
I've got the sar with my details but one of the files (litigation management) is for another person.
I have not changed the address since PCN. They have got my correct address and this is the address they have used for all the correspondence. Shall i still request a new sar?

Redx

no , not if you have the full data and if they have your current address , but yes if they missed anything out that is your data

report them to the ICO for a data breach as its happened before to others

then concentrate on drafting your defence and post it below, for critique

KeithP

Cow_bag wrote: »

Yes, 24th is the issue date on the claim form.
I did AOS yesterday as I only just came back of holiday on Friday

With a Claim Issue Date of 24th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 27th January 2020 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Coupon-mad

I've got the sar with my details but one of the files (litigation management) is for another person.

Brilliant - report them to the ICO first (attach copies as proof) and email the PPC's data protection officer back, to tell them you have reported this serious data breach to the ICO and are they going to tell the DVLA about this matter as a KADOE breach, or do they want you to report them to the DVLA and their Trade Body as well?

Suggest they need to treat this seriously and discontinue this claim.

If you hear nothing by mid January, crack on with showing us your draft defence.

Cow_bag

Coupon-mad wrote: »

Brilliant - report them to the ICO first (attach copies as proof) and email the PPC's data protection officer back, to tell them you have reported this serious data breach to the ICO and are they going to tell the DVLA about this matter as a KADOE breach, or do they want you to report them to the DVLA and their Trade Body as well?

Suggest they need to treat this seriously and discontinue this claim.

If you hear nothing by mid January, crack on with showing us your draft defence.

Thanks, done this but no response from them so posting defence below.

Cow_bag

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The defendant was the registered keeper and driver of vehicle on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is likely to be a matter of common grounds that this claim arises as a result of an alleged infraction brought about by the stopping of (colour make model) motor vehicle registration number (xxx) on xx/xx/xx on the approach roads to Robin Hood Airport that in turn it resulted in the issue of a parking charge notice by a Claimant.
3. The stoppage was due to an engine fault which resulted in lack of acceleration power and the need to pull over to minimise the risk for other road users. The Defendant suggests that it is unreasonable that the Claimant seeks to charge for such action and that it is unreasonable to not allow vehicles to stop under such circumstances.
4. Doncaster Sheffield/Robin Hood Airport is designated as an airport by the Secretary of State and therefore roads within the airport are subject to airport byelaws.The engine fault falls within the criteria of an emergency specified in DSA byelaws as follows:
“5. PROHIBITED ACTS ON PARTS OF THE AIRPORT TO WHICH THE ROAD
TRAFFIC ENACTMENTS DO NOT APPLY
The following acts are prohibited on any part of the Airport to which the Road
Traffic Enactments do not apply:

“5 (3) Obstruction:
except in an emergency, leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by Notice”

and

“5(12) Parking of Vehicles
without reasonable excuse! Park a Vehicle elsewhere than in a place provided for that purpose.
5. As the vehicle was stopped for a minimal amount of time and not parked, The Defendant challenges whether the Claimant is eligible to issue PCNs for “stopping”, as this falls outside the remit of the IPC that defines core standards for “parking” charges. The Claimant provided the Defendant with 3 photographs, within a total time observed of 34 seconds, of the vehicle with the original PCN which shows the vehicle stopped and with head lights illuminated, giving no indication that the vehicle was parked in any way, simply that it had stopped.
5.1. whilst the Defendant was trying to start the car, the driver of the mobile CCTV van used by this Claimant made no attempt to offer help or enquire as to the difficulty, but instead, trained the CCTV camera on the car to take misleading photographs in those few minutes, unbeknown to the Defendant. Even if the Claimant shows the court that the terms on any signs were legible, any contract was frustrated. This is a fact that the Claimant would have known about, had their watching CCTV camera operator driver mitigated any loss, rather than taking photographs with the intent of penalising a stricken and distressed driver who was clearly trying to re-start the car.
6. The particulars of Claim state that 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 the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
7. 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.
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. 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.
9. In Parking Eye Ltd v Barry Beavis (2015) UKSC 67 it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and Parking Eye Ltd 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 Parking Eye Ltd could charge more than any nominal loss that a landowner could have recovered under tort. As such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
10. Even if the contract was binding, the charge is a penalty and an unfair consumer charge. ParkingEye v Beavis is the leading authority on this. Although ParkingEye won the case, the judgment makes it clear that if the charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms. As this has not happened the charge is not saved from being a penalty/unfair consumer charge, and unless VCS have incurred costs of £100, the charge is excessive.
11. It is relevant to note that the IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. No grace period was observed and therefore the operator is in breach of the industry code of practice. Additionally, no contract can be in place by conduct until a reasonable period elapses. Thus, the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention. The Defendant refers the Court to the appeal of Laura Jopson v Homeguard Services Ltd [2016] 9GF0A9E, sections 19-21 in which Judge Harris makes the distinction between parking and stopping:
“The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars.”
12 The Claimant has not provided any documentary evidence regarding grace periods applicable to this car park. Their signage makes no mention of any applicable grace periods.

13. It is believed the Claimant will base the claim on VCS v Ward case. This case is distinguished from case of VCS v Ward, where on appeal in the County Court His Honour Judge Saffman accepted that the signage represented an offer of a contractual licence, which was accepted when the user drove onto the private land. The terms on the Claimant's signage are not at driver eye level and displayed in a font which is too small to be read from a passing vehicle at 40mph, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. VCS v Ward case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rule out that an emergency, such as engine malfunction fault, is a reasonable excuse clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all.

Airport approach roads are subject to road traffic enactments (public highway)

14. Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Defendant was afforded the opportunity to accept contractual terms and that
(d) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being out of the driver's control,

the Claimant is also put to strict proof that:
(g) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.
14.1. The airport road comes off an adopted highway roundabout and is not clearly defined 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.
Alternative defence - excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

15. This Claimant uses CCTV camera systems (365 days a year, 24 hours a day, seven days a week) and processes personal data excessively and disproportionately, and thus fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code').!

15.1. The ICO Code applies to all CCTV systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the International Parking Community ('IPC') trade body are required to comply fully with the Data Protection Act ('DPA') and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system to harvest VRN data, including the addresses of registers keepers.

15.2. Whilst CCTV has its uses to keep Airport approach roads clear - to stop drivers from choosing to park and leaving their vehicles or using the roads as a drop-off point, for example - this must be with reasonable and proportionate application, with sufficient checks and balances being an ICO Code requirement when operating such a data-intrusive regime.!

15.3. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial Surveillance Camera privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it is necessary and proportionate use CCTV to issue penalties in all cases, applying no human intervention or common sense approach (e.g. having no checks and balances to exclude from the 'immediate penalty' approach, cases where the CCTV operator would have seen and that driver was trying to re-start a broken down vehicle as in this case), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the 'commercial intent' and purpose of the CCTV system and how the data captured would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant and indeed the Defendant has been furnished with no images, information about the terms or the alleged breach, or any data at all.

16. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the IPC and the ICO Codes of Practice.!

17. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by CCTV, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

17.1. In any case involving a consumer contract, Courts must evaluate and apply a test of fairness, whether the Defendant raises the issue or not, and transparency of terms must also be considered carefully in every case.

17.2. It is averred that this Claimant at this location, fails on both counts and therefore the charge is unjustified and just the sort of 'unconscionable' parking charge that the Supreme Court had in mind when retaining the 'penalty rule' for use in cases such as this, where the facts are less complex than in Beavis.

17.3. Further, the IPC Code of Practice specifically prohibits 'predatory tactics', therefore this Claimant is operating in breach of the effectively 'regulatory framework' of their trade body code that the Supreme Court in Beavis found was a pre-requisite of a transparent and lawful operation.

Then as per post #14 Abuse of process.

Any feed back would be fantastic.
Thanks

The_Deep

I've got the sar with my details but one of the files (litigation management) is for another person.

In other words they have committed a serious breach of the DPA against that person. You might like to inform that other person, it could be a big stick with which to beat them.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]