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EMA East Midlands Airport VCS Claim Form
Comments
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DEFENCE
1. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
No keeper liability
2. The vehicle, registration XXXX XXX, of which the Defendant is the registered Keeper, appears from the evidence supplied by this Claimant to have entered a petrol filling station from a private road and stopped briefly. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed they are pursuing this claim against the keeper of the vehicle.
3. The land entered is not ‘relevant’ land as defined in the Protection of Freedoms Act 2012 (POFA). Paragraph 3 of Schedule 4 of POFA states that land is not ‘relevant’ where byelaws apply to it. In this case, the land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009. As the land is not ‘relevant’ land the Claimant does not have the right to recover any unpaid parking charges from the Keeper of the vehicle.
No contract existed
4. The Claimant claims that there was a breach of contract for “breaching the terms and conditions” set on private land.
5. The Claimant’s case relies upon the signage at the site constituting a ‘contract’ between a driver and the Claimant, and the breaching of terms presumably refers to the supposed ‘contract’ formed by this signage.
6. In other correspondence, The Claimant invites the Defendant to refer to the ‘Parking Eye vs Beavis’ case. In the ‘Parking Eye vs Beavis’ case, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘, and no conceivable way anyone could have benefitted from this alleged ‘contract’ without breaching its terms. The ‘Parking Eye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.
7. The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it. The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract’ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.
8. In the Parking Eye vs Beavis case the Supreme Court Judges reiterated the requirement for fair and open dealing, at Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
9. The Court must consider the fairness of a term, where it is not 'prominent and transparent’. At the roadway where the PCN was issued, it was not transparent that anyone was agreeing to some sort of contract to pay £100 to park under some sort of licence. In this case, the unfair terms include the penalty fine itself and also the added £60 'debt collection costs' bolted onto this claim which themselves are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (CRA).
Inadequate, Contradictory, Unclear and Confusing Signage
10. It is the Defendant’s position that the accepting conduct and declining conduct are contradictory as one cannot be performed without first performing the other.
11. In Ransomes vs. Anderson (“the Ransomes case”), a persuasive County Court judgement on appeal, Judge Moloney QC said:-
12. “the notice was insufficiently clear to constitute a valid contractual offer capable of acceptance by conduct. […] Although the doctrine of acceptance by conduct, on the basis of the terms on a notice in a parking place or similar zone, is an obviously right, valuable and useful one, it is an essential minimum that the contract be sufficiently simple and clear that the motorist is in no doubt before he performs the accepting conduct what he is letting himself in for”.
13. It is the Defendant’s further position that due to the size of font used on the signage, the accepting conduct laid out in the signs was not readily legible without having first performed the accepting conduct and therefore fails when viewed in the context of the Judge’s comments in the Ransomes case in that there is doubt before performing the accepting conduct.
Unfair Terms Contrary to the Consumer Rights Act 2015
14. If, by pursuing this claim, the Claimant is denying that the Defendant has declined the alleged contract in accordance with the declining conduct, then the Defendant avers that the Claimant is forcing the contract irrevocably on the Defendant who has not had reasonable time to read and digest the terms, rendering it an unfair term as stated in Schedule 2 to the Consumer Rights Act 2015:-
“A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”
Contract Terms Not Breached / Alleged Act Did Not Occur
15. There are signs stating no parking is in effect on (parts of) the petrol station forecourt. The acts of parking and stopping can be differentiated by applying the definition supplied by Judge Harris QC in the Jopson case:-
“[…] However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required”. 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.”
Sect 4, para (4)(a) of the Airport Byelaws state:-
“4. Prohibited acts on parts of the airport to which the road traffic enactments do not apply […]”
“(4) No person shall, except as reasonably necessary in the case of an emergency, leave or park a vehicle or cause it to wait; [...]”
“(a) in an area where parking is prohibited by notice [...]”
16. Within the confines of the airport land, double red lines signify the “Restricted Zone” and are referred to in signage on the airport roadways.
17. The double red lines end at the entrance to and recommence at the exit from the petrol station forecourt signifying that stopping is not prohibited on that portion of the airport land. Furthermore, it is a reasonable assumption that stopping is an implicitly allowable act on a petrol station forecourt – how does one fill up, visit the shop, use the car wash, etc?
No Grace Period
18. According to the current Contract between DVLA and parking companies, in order to obtain “Keeper of a Vehicle at the Date of an Event” (KADOE) information from the DVLA, Clause A6.1 states that “The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct”.
19. The Claimant is an Accredited Operator and a member of the International Parking Community (IPC), and according to the ‘Notice to Keeper’ issued to the Defendant, operates in accordance with their Code of Practice.
20. The IPC Code of Practice (Sixth Edition that was in force at the time of the event) Clause 15.1 states that a ‘grace’ period must be allowed:
“Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site”.
21. A reasonable grace period in any car park would be from 5-10 minutes from the period of stopping. According to the evidence supplied by the Claimant, the Defendant’s vehicle was stopped for a period of less than one minute. Thus, a grace period was not observed and therefore the Claimant is in breach of the IPC Code of Practice, and therefore in default of the contract that exists between them and the DVLA; hence the Claimant has obtained Keeper details under false pretences.
22. Additionally, no contract can be in place by conduct until a reasonable period elapses.
23. 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.
Double Recovery
24. The Claimant is seeking an additional £60 ‘debt recovery cost’ over and above the original Notice to Keeper amount of charge of £100.
The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs), and the Consumer Rights Act 2015 Schedule 2 in respect of 'terms that may be unfair'.
24. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
25. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
26. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
31. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant has artificially inflated their claim, and this constitutes double recovery.
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Hi, I've removed any references to I, me, myself etc. I've also reduced by at least 50%.
Thanks!0 -
OK, so highlight what bits you changed from the standard you copied from.
Do you have any questions?1 -
Just a thought:-
"As the Claimant does not know the identity of the driver of the vehicle in question..........."
Let's hope that nobody with ill intent looks at the very first line of the very post.1 -
You've lifted portions of this directly from my defence on behalf of my sister.
Whilst I have no objection to this, some of your defence lacks context as a result.
In the para entitled "Inadequate, Contradictory, Unclear and Confusing Signage" you mention accepting and declining conduct without defining what that is.
Where you have the paragraph "Contract Terms Not Breached / Alleged Act Did Not Occur" this I specifically penned as VCS provided video evidence to "support" their claim that actually shows my nephew open the car door, inform my sister she couldn't pick him up there, close the door and walk away, hence alleged act (stopping to pick up/drop off) did not occur whilst stopping in itself cannot be a prohibited act on that forecourt.
Just an aside, I am currently investigating the location, wording and existence of signage on this site. I have two videos from YouTube by independent sources that show signs were not in place attached to the fuel pumps (as has been alleged in the media) on or before 24 Aug 19 or as of 3 or 4 days ago! I am working on the assumption at this time there's something fishy going on. To confirm this, I plan a drive out some time in the coming weeks to have a look for myself and take pictures and also to make note of the signage. You might like to hold off stating exactly what the signage says at this time, as I am working on assumptions at this stage whilst I am not done investigating what the signs actually say. My sister can't remember seeing any signs other than the one at the entrance (but only once pointed out) and one in the cordoned off parking bays (again can't recall exactly what it said!) There is a lot of doubt at this time and I plan clarifying and rewriting a lot of that defence you have lifted portions from.
I will of course share any info I glean if it of use to anyone ;-)
--Tony1 -
Thanks for you help Tony/g0wfv, I think i will delete the paragraphs under ""Contract Terms Not Breached / Alleged Act Did Not Occur" as they are not applicable like you say.
I haven't got time to go and visit beofre the Defence is due, but I will try to go at some point and take some pictures.0 -
Here's the final version if there are no more comments?:
IN THE COUNTY COURT
CLAIM No: XXXXXXX
BETWEEN:
Vehicle Control Services Limited (“the Claimant”)
2 Europa Court
Sheffield Business Park
Sheffield
S91XE
-and-
XXXXXX (“Defendant”)
DEFENCE
1. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
No keeper liability
2. The vehicle, registration XXXX XXX, of which the Defendant is the registered Keeper, appears from the evidence supplied by this Claimant to have entered a petrol filling station from a private road and stopped briefly. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed they are pursuing this claim against the keeper of the vehicle.
3. The land entered is not ‘relevant’ land as defined in the Protection of Freedoms Act 2012 (POFA). Paragraph 3 of Schedule 4 of POFA states that land is not ‘relevant’ where byelaws apply to it. In this case, the land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009. As the land is not ‘relevant’ land the Claimant does not have the right to recover any unpaid parking charges from the Keeper of the vehicle.
No contract existed
4. The Claimant claims that there was a breach of contract for “breaching the terms and conditions” set on private land.
5. The Claimant’s case relies upon the signage at the site constituting a ‘contract’ between a driver and the Claimant, and the breaching of terms presumably refers to the supposed ‘contract’ formed by this signage.
6. In other correspondence, The Claimant invites the Defendant to refer to the ‘Parking Eye vs Beavis’ case. In the ‘Parking Eye vs Beavis’ case, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘, and no conceivable way anyone could have benefitted from this alleged ‘contract’ without breaching its terms. The ‘Parking Eye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.
7. The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it. The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract’ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.
8. In the Parking Eye vs Beavis case the Supreme Court Judges reiterated the requirement for fair and open dealing, at Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
9. The Court is requested to consider the fairness of a term, where it is not 'prominent and transparent’. At the roadway where the PCN was issued, it was not transparent that anyone was agreeing to some sort of contract to pay £100 to park under some sort of licence. In this case, the unfair terms include the penalty fine itself and also the added £60 'debt collection costs' bolted onto this claim which themselves are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (CRA).
Inadequate, Contradictory, Unclear and Confusing Signage
10. It is the Defendant’s position that the accepting conduct and declining conduct are contradictory as one cannot be performed without first performing the other.
11. In Ransomes vs. Anderson (“the Ransomes case”), a persuasive County Court judgement on appeal, Judge Moloney QC said:-
12. “the notice was insufficiently clear to constitute a valid contractual offer capable of acceptance by conduct. […] Although the doctrine of acceptance by conduct, on the basis of the terms on a notice in a parking place or similar zone, is an obviously right, valuable and useful one, it is an essential minimum that the contract be sufficiently simple and clear that the motorist is in no doubt before he performs the accepting conduct what he is letting himself in for”.
13. It is the Defendant’s further position that due to the size of font used on the signage, the accepting conduct laid out in the signs was not readily legible without having first performed the accepting conduct and therefore fails when viewed in the context of the Judge’s comments in the Ransomes case in that there is doubt before performing the accepting conduct.
Unfair Terms Contrary to the Consumer Rights Act 2015
14. If, by pursuing this claim, the Claimant is denying that the Defendant has declined the alleged contract in accordance with the declining conduct, then the Defendant avers that the Claimant is forcing the contract irrevocably on the Defendant who has not had reasonable time to read and digest the terms, rendering it an unfair term as stated in Schedule 2 to the Consumer Rights Act 2015:-
“A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”
No Grace Period
15. According to the current Contract between DVLA and parking companies, in order to obtain “Keeper of a Vehicle at the Date of an Event” (KADOE) information from the DVLA, Clause A6.1 states that “The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct”.
16. The Claimant is an Accredited Operator and a member of the International Parking Community (IPC), and according to the ‘Notice to Keeper’ issued to the Defendant, operates in accordance with their Code of Practice.
17. The IPC Code of Practice (Sixth Edition that was in force at the time of the event) Clause 15.1 states that a ‘grace’ period must be allowed:
“Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site”.
18. A reasonable grace period in any car park would be from 5-10 minutes from the period of stopping. According to the evidence supplied by the Claimant, the Defendant’s vehicle was stopped for a period of less than one minute. Thus, a grace period was not observed and therefore the Claimant is in breach of the IPC Code of Practice, and therefore in default of the contract that exists between them and the DVLA; hence the Claimant has obtained Keeper details under false pretences.
19. Additionally, no contract can be in place by conduct until a reasonable period elapses.
20. 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.
Double Recovery
21. The Claimant is seeking an additional £60 ‘debt recovery cost’ over and above the original Notice to Keeper amount of charge of £100.
The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs), and the Consumer Rights Act 2015 Schedule 2 in respect of 'terms that may be unfair'.
24. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
25. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
26. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
31. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant has artificially inflated their claim, and this constitutes double recovery.
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Just a pedantic observation - paras 6 and 11 - there is no middle "e" in judgment re this context3
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Judge ruled against the Claimant! No contract in place, signs couldnt be read whilst driving into the fuel station!5
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Brilliant news! ANOTHER VCS ONE BITES THE DUST!
Do tell us more about your hearing, whether a rep appeared for VCS and what was said, whether you claimed any costs, etc.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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