Claim Form received from VCS for stopping at Southend Airport

50_plus

Have now received a Claim Form issued 10/02/20 in relation to a PCN NTK received back in August 2019, from VCS:
Contravention Reason: 46) Stopping in a zone where stopping is prohibited.
The still images taken from CCTV footage clearly show the vehicle stopped at a marked zebra crossing to allow pedestrians to cross, but whilst stopped the passenger disembarked from the vehicle - (approx 20 secs duration).
 
The PCN states that "this Notice relates to the period immediately preceding the Contravention Time" given as 15:35 yet the first image is time stamped 15:35:30 (so it occured after 15:35 not before).  Could this be considered an inconsistency/error in their claim ?

I appealed through VCS's own system but did not declare the drivers details.  My appeal was rejected and they claimed that they  "have the right to recover from the registered keeper, any unpaid balance of the Parking Charge" .   From reading other threads, it seems that as the airport land is governed by byelaws (and is therefore not "relevant land")  PoFA does not apply so they do not have the right to pursue the registered keeper.  I pointed this out to them in my response to their Letter Before Claim

In addition their PCN stated that I had to notify the drivers details "no later than 28 days beginning with the Issue Date of this Notice" rather than from service/receipt of the notice, so again they have not complied with PoFA protocol.

I have submitted my AOS (today) declaring that I dispute the whole claim and now have until the 14th March ( 10/2/20 + 5 days + 28 days) to submit my defence. 
Would it be sufficient simply to state that I was not the driver and therefore not liable ? 
I would welcome any advice on how best to submit my defence and if there is anything else I should add to the above.

KeithP

50_plus said:

Have now received a Claim Form issued 10/02/20.

I have submitted my AOS (today) declaring that I dispute the whole claim and now have until the 14th March ( 10/2/20 + 5 days + 28 days) to submit my defence.

Unfortunately by filing an Acknowledgment of Service today, you have effectively told the CCBC that the Claim was served today. That means you get twenty-eight days from today - the date of service - to file your Defence.
Never mind. You have only lost a couple of days.

With a Claim Issue Date of 10th February, and having filed an Acknowledgment of Service on 13th February, you have until 4pm on Thursday 12th March 2020 to file your Defence.

That's four 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:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5. 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'.
   
6. 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.
   
   After filing your Defence, there is more to do...
   
   
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou"]
   
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
   
10. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

50_plus

Thanks KeithP
I did wonder about that but upon reading their guidance it wasn't obvious.  I shall make sure I submit in good time anyway.
Here is my proposed defence.  Do you, or anyone else, have any comments or suggestions ?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxxx xxxxxxx xxxxxxx   (Claimant)

-and-

xxxxx xxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

2.    The road upon which the alleged offence was committed falls under the definition of a road as defined in the Road Traffic Act 1988  (ie: ‘any highway and any other road to which the public has access and includes bridges over which a road passes’  - RTA 1988 sect 192(1)) and is therefore subject to the RTA 1988 and all subordinate legislation.

 

3.    The Claimant’s claim is for breach of contract, “namely stopping in a zone where stopping is prohibited” as defined by signage erected by the Claimant. 

 

4.    The evidence submitted clearly shows that the driver of the vehicle stopped in order to allow a pedestrian to cross a marked zebra crossing.

 

5.    The Defendant maintains that the driver of the vehicle was obliged to stop under Section 25(1) of The Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997  (ZPPPCR 1997) which states:

 

Every pedestrian, if he is on the carriageway within the limits of a Zebra crossing, which is not for the time being controlled by a constable in uniform or traffic warden, before any part of a vehicle has entered those limits, shall have precedence within those limits over that vehicle and the driver of the vehicle shall accord such precedence to any such pedestrian.

 

6.    The private signage erected by the Claimant contradicts the ZPPPCR 1997 in this location and circumstances and therefore cannot apply.

 

7.    The Defendant is the Keeper of the vehicle and the driver has not been evidenced on any occasion.  The Defendant denies any liability for the claim as the Keeper of the vehicle.

8.    The Particulars of Claim state that “At all materials times the Defendant was the registered keeper and/or driver.”  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.

 

9.    The Claimant’s Notice to Keeper states that “we will have the right to recover from you, the Keeper any unpaid balance of the Parking Charge” and the Claimant’s letter dated xxxxxxxx reiterates this claim and refers to Schedule 4 of the Protection of Freedoms Act 2012 (PoFA 2012).

 

10.  The land where the alleged contravention was committed is covered by Southend Airport Byelaws and therefore is not “relevant land” covered under PoFA 2012 therefore the Claimant is unable to hold anyone other than the driver liable for the charges.  

 

11.  In addition, the Claimant has failed to comply with the strict provisions of Schedule 4 of PoFA 2012 and again is therefore unable to hold anyone other than the driver liable for the charges.

 

(should I add details of their transgressions of PoFA protocol)

 

12.  There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

 

13.  Schedule 4, Para 4(5) of PoFA 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 of “contractual costs”, for which no calculation or further explanation is given.  The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt.

 

14.  The Claimant is put to strict proof that it has the necessary authorisation from the landowner to issue Parking Charge Notices and to pursue payment by means of litigation.

 

15.  In summary, the Claimant's particulars disclose no legal basis for the sum claimed nor liability of the Defendant, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

 

KeithP

(should I add details of their transgressions of PoFA protocol)

No, that comes later - at witness statement and evidence time.

D_P_Dance

It is very likely that this event took place on land covered by airport bye laws.  If so, different laws may apply, they are explained in the stickies, please read them.

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.

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.

50_plus

Hi All
I didn't have many comments about my proposed defence (above) - does that mean everone thinks it is OK ? 
I have been doing some more research and come up with some additional lines of defence, so here is version 2.  Any comments/suggestions ?
 

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxxx xxxxxxx xxxxxxx (Claimant)

-and-

xxxxx xxxxx (Defendant)

________________________________________

DEFENCE

________________________________________

 1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 No Contract Exists

 2.    The Claimant’s claim is for breach of contract, “namely stopping in a zone where stopping is prohibited” as defined by signage.

 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.

 4.    The Claimant’s case is that the area is intended as “a zone where stopping is prohibited” at all times.  The signage is therefore prohibitive in nature and does not communicate any offer of consideration (ie: such as stopping or parking, at a price).  In the absence of any consideration no contract exists.

 5.    This was reflected in the “PCM vs Bull” case, where Defendants were issued parking tickets for parking on private roads with signage stating “no parking at any time”. District Judge Glen in his final statement mentioned that “the notice was prohibitive, and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.

 

Road Traffic Enactments Take Precedence Over Signage

6.    The road upon which the alleged offence was committed falls under the definition of a road as defined in Section 192(1) of the Road Traffic Act 1988 (RTA 1988) ie: ‘any highway and any other road to which the public has access’, and is therefore subject to the RTA 1988 and all subordinate legislation.

 7.    The evidence submitted by the Claimant clearly shows that the driver of the vehicle stopped in order to allow a pedestrian to cross a marked zebra crossing.

 8.    The Defendant avers that the driver of the vehicle was obliged to stop under Section 25(1) of The Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (ZPPPCR 1997) which states:

Every pedestrian, if he is on the carriageway within the limits of a Zebra crossing, which is not for the time being controlled by a constable in uniform or traffic warden, before any part of a vehicle has entered those limits, shall have precedence within those limits over that vehicle and the driver of the vehicle shall accord such precedence to any such pedestrian.

9.    The signage relied upon by the Claimant contradicts the Road Traffic Enactments (RTE) and specifically ZPPPCR 1997 in this location and circumstances, and therefore cannot apply.

 No Cause of Action

10. The Particulars of Claim state that “At all materials times the Defendant was the registered keeper and/or driver.” 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.

  

No Keeper Liability

 11. The Defendant is the keeper of the vehicle and the vehicle is insured for, and used by more than one person.  On no occassion has the identity of the driver at the material time been evidenced and the Keeper denies any liability for the claim.

 12. The Claimant’s Notice to Keeper states that “we will have the right to recover from you, the Keeper any unpaid balance of the Parking Charge” and the Claimant’s letter dated xxxxxxxx reiterates this claim and refers to Schedule 4 of the Protection of Freedoms Act 2012 (PoFA 2012).

 13. The land where the alleged contravention was committed is covered by Southend-on-Sea Municipal Airport Byelaws 1980 and the RTA 1988 , therefore it is not “relevant land” covered under PoFA 2012 and therefore the Claimant is unable to hold anyone other than the driver liable for the charges.

14. Furthermore, the Claimant's Notice to Keeper is not compliant with Schedule 4 of PoFA 2012 in that it fails to specify the period of parking to which the notice relates, and incorrectly states the timescale within which a response is required. The Claimant, therefore, does not have the right to claim unpaid parking charges from the keeper of vehicle.

 15. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

 Double Recovery

16. The claim includes an additional £60 of “contractual costs”, also referred to as “Debt collection costs”.  No calculation or further justification/explanation is given.  The Defendant has the reasonable belief that the purported added 'costs' constitute double recovery.  They are disproportionate, vague and in breach of the Consumer Rights Act 2015 (CRA 2015) S71(2) insomuch as being unfair.  

 17. 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.  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 £100 “parking charge” covers the costs of the debt recovery administration and letters.

 18. Schedule 4, Para 4(5) of PoFA 2012 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.

 

Abuse of Process

19. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge is disallowed under the CPRs, the Beavis case, the POFA 2012 and the CRA 2015, and should be considered an abuse of process.

 20. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

 21. The Claimant contested the Judge’s decision in a N244 application, but the added £60 was still disallowed on 30th Oct 2019.  District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances.

 22. In Claim numbers F0DP806M and F0DP201T - Britannia Parking -v- Mr C and another the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

 23. Similarly, in December 2019, Deputy District Judge Joseph sitting at Warwick County Court summarily struck out multiple parking ticket claims from various firms all due to the adding of false £60 costs to a £100 parking charge, that already indisputably (in law and case law) includes those costs.

 24. The Defendant is of the opinion that the Claimant has knowingly submit an inflated claim including an additional sum which it is not entitled to recover, and this should be considered an abuse of process.  The court is invited to strike out the claim pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.

 25. In the event that this claim is not summarily struck out for the same reasons as the Judges cited above, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

 

No Grace Period

26.  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”.

 27. 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.

 28.  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.  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.

D_P_Dance

Have you seen this?

https://www.dailymail.co.uk/news/article-8065277/Driver-fined-185-pulling-41-seconds-East-Midlands-Airport-adjust-wing-mirror.html

nosferatu1001

"Mitigating Circumstances"
Dont use that phrase. It means I transgressed but the reason why means the outcome should be less severe
On RTA covered areas you MUST obey the RTA. tha isnt "mitigatioN", thats "I was following legislation that is superior to any possible civil "contract" you supposedly offered"

50_plus

Hi D P Dance,  Thank you for that.  Obviously she will have to fight her corner and from the advice given on this forum likely to win, but I was surprised that most of the comments were against her rather than the parking company 

50_plus

Thank you Nosferatu1001 "Mitigating Circumstances" now changed to "RTA 1988 Takes Precedence"

50_plus

I have to submit my defence in the next couple of days.  Anyone have any further comments or opinions on my chances of winning ?   
I expect they will try to counter my "No Contract Exists" argument with the VCS vs Ward appeal but is it correct that this result is only binding in the Northeast court circuit and in other court areas it is only considered another judges opinion?
One other thing, there is one additional named driver on the insurance, (who will be my lay representative in court), should I add this to my defence or can it wait until my witness statement ?   (Postscript:  Now added to paragraph 13)