Southend Airport Stopping claim

34

KeithP said:

34, did you read my earlier post?

Yes, thanks, started my own. I hope I put it in the right place. I haven't used forums for years

Coupon-mad

The claim form is real.
Please post on your own thread only - BUT READ LOTS OF OTHERS!

34

This thread swell as my own seem to have come to a dead end.

?

Coupon-mad

Highport63 said:

I'm waiting on the SAR fullfilment too as I the number plate on the photo from the original demand for payment is in no way clear.

In terms of Defence, this seems to cover most things I've read previously. Any reason to change anything here?

DEFENCE
1. The Defendant is not liable because Keeper Liability does not apply in this situation.
1.1. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver”.
1.2. The Defendant was the registered keeper of vehicle registration number <reg no> on the material date.
1.3. The Defendant is unable recall which of the named drivers were driving at this time.
1.4. Airport land is not 'relevant land' as it is covered by statutory bylaws (in this case The London Southend Airport Byelaws 1997) and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. The Claimant is put to strict proof so if they disagree with this point it would require them to show evidence including documentary proof from the Airport Authority that this land is not covered by bylaws.
1.5. Further to the above, the DVLA has confirmed in writing that, for this alleged contravention, the provisions of POFA 2012 are not being applied.
1.6. Therefore, as no Keeper Liability can be assigned, the Claimant is put to strict proof regarding the identification of the driver at the time of the alleged contravention.
2. The Defendant was not bound by a contract due to inadequate signage.
2.1. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
2.2. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.
2.3. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.
2.4. The regulations define an on-premises contract as: “a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract”. Thus a contract cannot be on-premises if it is a distance contract.
2.5. The regulations define a distance contract as: “a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded”.
2.6. This is clearly an organised service-provision scheme.
2.7. The alleged contract is clearly concluded without the simultaneous physical presence of the trader and the consumer. There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.
2.8. This would therefore be classified as a distance contract.
2.9. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract.
2.10. Regulation 13 lists information to be provided before making a distance contract. The alleged contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium.
2.11. Accordingly, 13.1 states the alleged contract is not binding on the consumer.
2.12. Although the Claimant has not provided a signage map, it can be seen from the Claimant’s photographic evidence, that the signs are positioned in such a way as to create an ‘entrapment zone’ where signage is not clearly visible. From where the car was photographed, not a single sign is visible along the visible length of the road. The Claimant is put strictly to proof that this is not the case.
2.13. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present.
2.14. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide management services and is not capable of entering into a contract with the Defendant on its own account, as the land is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.
2.15. The claim is for breach of contract. However, it is denied any contract existed.
3. The Claimant has not offered a complete Cause of Action.
3.1. Photos received from the claimant show the driver stopped for less than a minute (7 seconds according to the timestamps). The International Parking Community (IPC), of which the claimant is an operator, details a grace period in their code of practice (Part B, section 15). Part B, Section 15.1 states “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.”
3.2. Due to the predatory practices of the Claimant, the parking bay that is nearest the terminal was made unusable. Signage for the free drop-off point is written in a font so small that it is not possible to read from a moving car, and is only visible from outside the airport property, at a busy roundabout with several exits. More prominent signs directed vehicles to the short stay car park where no grace period was on offer.
3.3. If the Defendant could have seen the signage then the Defendant would have ensured that the free drop-off point in Long Stay Car Park 3 was used.
3.4. According to the Claimants own photographic evidence the road is wide, so no obstruction of other traffic was possible. Additionally, traffic was particularly sparse at this time.
3.5. As a free drop-off point is in fact available and the road is wide enough to accommodate stationary vehicles, the Claimant is put to proof regarding the harm that has been done by stopping where the vehicle did, for the length of time that was evident.
3.6. Thus the Claimant has failed to set out all of the components of a Cause of Action.
4. The Defendant, as registered keeper, cannot be pursued for a stopping contravention.
4.1. The Claimant has obtained details of the Keeper from the DVLA electronically, therefore under a KADOE (Keeper of a Vehicle at the Date of an Event) contract with the DVLA.
4.2. The Defendant has not had sight of the KADOE contract despite requesting such, in contravention of the Pre-Action Protocol for Debt Claims section 5.2; however a sample contract is available on the DVLA website.
4.3. The Claimant has failed to abide by section D1.8 of the (sample) contract as several Subject Access Requests being made to the Claimant’s Data Protection Officer without response.
4.4. According to the sample contract, the service defines a Parking Charge as “a sum in the nature of a fee or charge, arising under the terms of a contract (including a contract arising only when the vehicle was parked on the land)…between the driver and the owner or occupier of the land; or a person authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring payment of parking charges in respect of the parking of the vehicle on the land…”
4.5. The purpose for which data is provided under this contract is set out in B2.1. As Schedule 4 of POFA 2012 is not applicable in this case, recovery is sought specifically from the driver.
4.6. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (case number: B9GF0A9E) (2016) in regards to distinguishing stopping from parking (“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.”
5. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
5.1. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has requested to the Claimant a copy of the contract between the Claimant and the Landowner but this request has been ignored.
5.2. At best, parking without authorisation could be a matter or the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) confirmed that a non-landowner parking firm could not have pursued a sum in damages for trespass.
5.3. The Claimant is put to strict proof that they have sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf.
6. The Defendant is not liable for a charge of £160.
6.1. If the Court is willing to consider that the Claim may continue to a hearing, the parking charge sum has been exaggerated by 60% and this is a clear abuse of process, even if the Code of Practice (CoP) alludes to such a cost.
6.2. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt and the Claimant stands in breach of the Civil Procedure Rules 1998 (CPR), the Protection of Freedoms Act 2012 (POFA) and the Consumer Rights Act 2015 (CRA) Schedule 2 'terms that may be unfair'.
6.3. The Claimant is seeking interest but has not complied with Civil Procedure Rule 16.4 (2) as the Claimant has not shown how the interest is calculated, nor upon which basis it is being demanded.
7. In summary, it is the Defendant's position that the claim discloses no cause of action, is without basis, and the Claimant has no right to pursue said claim. The charge is unconscionable and relies upon a misleading business practice as described above and the attempt to add a further sum in 'damages' that a private parking firm is not entitled to collect, is a clear abuse of process. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

I believe that the facts stated in this Defence are true.

<defendant's full name>

<date>

Your numbering is really confusing!  And the stuff about hair salons far too distracting, remove all that.

Copy instead, one of the other Airport stopping ones we have on the first pages of this forum right now, the ones that mention RANSOMES - I even linked one as a good example, in @34's thread.

34

So the date is nearly here. Case to be heard next week (online) and everything in place.

Received VCS witness statement today (7 days late). They have clearly doctored and enhanced two key photos within their witness statement. As a keen photographer I can prove this . The photos are very specific to my case and my own statement shows my own pictures taken on the day and two months later. This should be interesting. Their own witness statement should work against them. There are 4 pictures in their evidence pack that contradict mine and their own original CCTV pictures show me in the area in question.

KeithP

@34, did you mean to post that on your own thread?