VCS Claim Form for Stopping in a Restricted Bus Stop at Southend Airport.

TNA.Music

Registered Keeper Liability

23.              The Claimant is pursuing the Registered Keeper on the assumption that the Registered Keeper is the Driver. 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.

24.              The NTK - PCN states that it is purported to have been issued in accordance with Road Vehicles (Registration and Licensing) Regulations 2002. It goes on to claim: “The period of parking to which this notice relates is the period immediately preceding the Contravention Time stated in the notice”, which is 17:14. It goes on to state “if after the period of 28 days beginning with the day after the issue Date of this Notice, the amount of the unpaid Parking Charge specified in this notice has not been paid in full and we do not know both the name of the Driver and a current address for service of the Driver, we will have the right to recover from you the Keeper, any unpaid balance of the parking charge. The Claimant states in NTK - PCN that a charge has been made for parking. They have supplied three photographs showing the vehicle stationary. They are timed 17:14:50, 17:14:51 and 17:14:58. This shows the vehicle was stationary for 8 seconds. It cannot be claimed the vehicle was parked.

25.              The Claimant even states in their NTK - PCN “The Driver of the above vehicle is liable for the Parking Charge for which the payment is now due.” The Defendant contends that Keeper liability is not applicable in these circumstances.

Protection of Freedoms Act 2012

26.              The Defendant contends that the POFA is not applicable because Airport land is not 'relevant land' within the meaning provided by paragraph 3 of schedule 4 of the POFA, and this is further confirmed by the Department for Transport's Official Guidance regarding 'Section 56' (as it was in 2012) of that Act. The site of Southend Airport is subject to statutory control by virtue of the Southend on Sea Municipal Airport Byelaws 1980.

27.              It is further contended that the act of stopping a vehicle does not amount to parking. This predatory operation pays no regard to the byelaws at all. It is likely that this Claimant may try to rely upon two 'trophy case' wins, namely VCS v Crutchley and/or VCS v Ward, neither of which were at an Airport location. Both involve flawed reasoning and the Courts were wrongly steered by this Claimant's representative; there are worrying errors in law within those cases, such as an irrelevant reliance upon the completely different Supreme Court case. These are certainly not the persuasive decisions that this Claimant may suggest.

28.              In Ransomes vs. Anderson (“the Ransomes case”), a persuasive County Court judgement on appeal, Judge Moloney QC said: “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”.

ParkingEye Ltd v Beavis [2015] UKSC 67

29.              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. Therefore, the Defendant denies entering into any contract with the Claimant. The Defendant does not see how as Registered Keeper, they can be expected to have formed a contract with the Claimant.

30.              The Defendant believes that there was no agreed parking contract. If the Court is minded to consider that there was, then any contract was frustrated and outside of the control of the Defendant, because:

31.              At the time of the alleged stopping of the vehicle which the Claimant now refers to as a “Breach of Contract” within the particulars of claim. The Defendant cannot see how stopping a vehicle for a matter of seconds can constitute parking of the vehicle, particularly as it is alleged the vehicle was stopped in area which is not a car park.

32.           As such, the elements of a contract were absent. No consideration flowed between the parties; there was no acceptance of any terms by performance or express or implied agreement and the Defendant has been given no opportunity to read any terms.

33.           The Claimant argues that the terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. “The sign was the offer and the act of entering the private land was the acceptance of the offer hereby entering into a contract by conduct.” However, the Defendant would argue

a.     The lack of information on the signs are themselves confusing. Upon entering the airport roads there are no clear signs as to where a motor vehicle is able to safely drop passengers whether on payment or otherwise. Other airports, for example Stanstead airport, gives clear directions to the drop off/pick up points. They charge for this service but the signage makes this clear. At Southend On Sea Airport this is not the case and it is not obvious where this act should take place.

b.     The text is not legible by anybody passing the sign at legal speed limits or in poor conditions such as bad lighting or at night.

c.     It cannot be expected of or physically possible for any motorist approaching the site to read all of this information whilst moving at speed.

d.     The act of stopping to read the signs including the small print on the signs to decide whether you wish to enter into the contract stated to take place by the Claimant in the notice of claim would if the Claimant is correct already render you to having to pay. There is no grace period for you to consider the offer.

Trespass is a Matter for a Landowner Only - The Claimant Has No Locus

34.           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 (Southend on Sea 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.

35.           In the Beavis Case it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye 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 ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.

36.           If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any Driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.

37.           It is believed that the contract this Claimant has with the Airport, limits the parking firm to act as agent of the Airport who remains the (known) principal, in which case only the Airport can sue, not the agent in their own name.

38.           The Claimant is put to strict proof of their locus and cause and right of action in their own name, and to disclose the un-redacted contract with the Airport, before any hearing.

TNA.Music

Airport Approach Roads are Subject to Road Traffic Enactments (Public Highway)

39.              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.               this charge which is somehow saved from the penalty rule;

40.              The Claimant is also put to strict proof that 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.

41.              It is the Defendant’s position that the road comes off a roundabout and is not clearly marked as a private car park and thus, any parkingtraffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

42.              The Claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

Data Keeper of a Vehicle at the Date of an Event (KADOE) & CCTV

43.              It is the Defendant’s further position that the Claimant’s blanket use of CCTV is excessive and disproportionate regardless of circumstances (contrary to the CCTV rules issued by the ICO)

44.              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').

45.              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.

46.              Whilst CCTV has its uses to keep Airport approach roads clear - to stop Drivers from choosing to park and leaving their vehicles - 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.

47.              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:

48.           Lack of an initial Surveillance Camera privacy impact assessment, and

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

50.           Failure to regularly evaluate whether it is necessary and proportionate to 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.

51.           Failure to prominently inform users in large lettering on clear signage, of the 'commercial intent' and purpose of the hidden van CCTV system and how the data captured would be used, and

52.           It is the Defendant’s position that 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.

53.           It is averred that this Claimant at this location, fails on all 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 Case.

54.           The Beavis Case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

a.       Spurling v Bradshaw [1956] 1 WLR 461 and

b.       Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

c.       Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.

The Defendant Seeks Costs

55.           In the matter of costs, If the claim is not struck out, the Defendant seeks:

a.     standard witness costs for attendance at Court, pursuant to CPR 27.14, and;

b.     the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

56.           At NoD stage or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant. Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that Litigant in Person (LiP) costs are not necessarily capped at £19 per hour. The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer and another v Paul Jones Financial Services Ltd.

57.           In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis Case, the POFA and the CRA, The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

Statement of Truth

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

Defendant’s signature: …………………………….…………………………….

Defendant’s name: …………………………….…………………………….

Date: …………………………….…………………………….

Le_Kirk

Your paragraph 5 has a smiley generated by the forum for you because you typed Appendix without a space.  You need to type Appendix B ), however just make sure when you print before signing and scanning that it is no a smiley!!!

TNA.Music

Defence submitted and confirmation received. Will keep updating the thread as things happen.

nosferatu1001

You will keep reading and reviewing the expected steps in the NEWBIES thread, so you knwo what the next steps are and whether you have missed a piece of post

TNA.Music

I received Notice of Transfer of Proceedings (dated 5 May 2020) and Notice of Trail Date (dated 17 June 2020). The trail is now scheduled for 8 October 2020 at my local court but there is no clear date by which I must file the evidence and WS. Have I received all expected County Court communication or should I wait for something additional to start preparing evidence and WS? 

Additionally, in the Notice of Trail Date there is an instruction to the claimant (VCS) to pay the trail fee of £25 before 4 pm on the 10th October 2020 but the trail date is 8th October 2020 - is this normal or court's mistake (typo) and if so should I do anything about it?

Redx

Check both side of the paperwork you received , it normally states that all parties must serve documents on each other and the court and may say 2 weeks before , or give a deadline date for exchange

If in any doubt about anything , ask the court on a day they are open , not us on a Sunday , we cannot possibly know what your court or paperwork require and never assume that they are all the same , they aren't , so what does the paperwork say ? What does the court website say ? Ask them about any typos or nonsensical issues

Check , check again , assume that you have missed some vital piece of information or they messed up

As for your last question , clearly it makes no sense so ask them about it , if necessary write to them about it , but I would phone first , because you need to start communicating with that court that you chose

Ask them if it should say 10th September , not October etc , if yes , use that as the deadline date and ask that new court orders are issued to correct their mistakes

Le_Kirk

TNA.Music said:

I received Notice of Transfer of Proceedings (dated 5 May 2020) and Notice of Trail Date (dated 17 June 2020). The trail is now scheduled for 8 October 2020 at my local court but there is no clear date by which I must file the evidence and WS. Have I received all expected County Court communication or should I wait for something additional to start preparing evidence and WS? 
Additionally, in the Notice of Trail Date there is an instruction to the claimant (VCS) to pay the trail fee of £25 before 4 pm on the 10th October 2020 but the trail date is 8th October 2020 - is this normal or court's mistake (typo) and if so should I do anything about it?

Should that be trial? 

TNA.Music

Le_Kirk said:

TNA.Music said:

I received Notice of Transfer of Proceedings (dated 5 May 2020) and Notice of Trail Date (dated 17 June 2020). The trail is now scheduled for 8 October 2020 at my local court but there is no clear date by which I must file the evidence and WS. Have I received all expected County Court communication or should I wait for something additional to start preparing evidence and WS? 
Additionally, in the Notice of Trail Date there is an instruction to the claimant (VCS) to pay the trail fee of £25 before 4 pm on the 10th October 2020 but the trail date is 8th October 2020 - is this normal or court's mistake (typo) and if so should I do anything about it?

Should that be trial? 

Yes it should, damn auto correct!

nosferatu1001

Have you checked? Do t look for the words "witness statement".