Southend Airport no stopping

Redx

So ensure that poor and inadequate signage is in the defence , elaborate on it at the witness statement stage

valrossi

Can I have your opinions on my defence please
  1. The Defendant was the registered keeper of the vehicle xxxxxxx on the date of the alleged contravention, but was not the driver and cannot be held liable under any rule of law, due to the location. 

2. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.

Registered Keeper liability

3. 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.

Protection of Freedoms Act 2012

4. 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 11:05. 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 11:05:23, 11:5:25 and 11:05:29. This shows the vehicle was stationary for 6 seconds. This cannot be claimed the vehicle was parked.

5. The claimant even states in their letter to the defendant dated 21st September 2019 “Please note the responsibility for this charge lies with the driver of the vehicle at the time the contravention was observed.” The defendant contends that keeper liability is not applicable in these circumstances.

6. 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.

7. 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. 

8. 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

9. This predatory 'parking charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver.

10. 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.

11. 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:

12. 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.

13. 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.

14. 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 Stansteasd 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. 

valrossi

15. The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.

Trespass is a matter for a landowner only - the Claimant has no locus

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

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

7. 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

The Claimant is also put to strict proof that:

8. 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.

9. The road comes off a roundabout and is not clearly marked as a private car park and thus, any parking/traffic 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.

10. 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.

11. Excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

12. 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').

13. 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.

14. 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.

15. 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:

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

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

18. 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.

19. 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

20. Lack of the 'Privacy Notice' required delivering 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. 

valrossi

1. 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.

2. In a similar instance of excessive and inappropriate use of ANPR surveillance cameras 24/7 (confirmed on the rival Trade Body (BPA) website, in a 2013 article urging its members to comply) Hertfordshire Constabulary was issued with an enforcement notice by the ICO. The force was ordered to stop processing people's information via surveillance cameras until they could comply. The ICO ruled that the collection of the information by constant streaming of data from cameras was excessive and illegal; breaching principle 1 of the DPA.

3. 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).

4. 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.

5. 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.

6. 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.

Added costs have not been incurred - attempt at double recovery

7. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported costs which the Defendant submits have never actually been incurred.

8. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent 'charge'. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.

9. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

10. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

11. I believe the facts contained in this Defence Statement are true.

Sorry the numbering has gone wrong after pasting on here.

Thanks in advance.

Coupon-mad

Very good but get rid of #20 and this (below) about the ICO stuff which detracts from the rest and isn't something Judges will consider, really:

1. 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.

2. In a similar instance of excessive and inappropriate use of ANPR surveillance cameras 24/7 (confirmed on the rival Trade Body (BPA) website, in a 2013 article urging its members to comply) Hertfordshire Constabulary was issued with an enforcement notice by the ICO. The force was ordered to stop processing people's information via surveillance cameras until they could comply. The ICO ruled that the collection of the information by constant streaming of data from cameras was excessive and illegal; breaching principle 1 of the DPA.

3. 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).

Also, read the new template defence I wrote (new thread started a week ago with a downloadable template) and attach the three Appendices that we now suggest in every case where a PPC has added £60 or more to the charge.  Brown Trout replied on that thread, with attachments of the three Appendices as standalone PDFs, so they can be attached to anyone's defence when it is emailed to the CCBC.

valrossi

Thanks for your help, particularily Coupon-mad. I have incorporated your template but I think kept the parts of my statement that need to be there. I think this is the final draft if you guys could give it the once over for me. Thanks

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant. Whilst it is admitted that the Defendant was the keeper, they were not the driver of the vehicle at the time. Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.

2.      In relation to parking on private land, it is settled law from the Supreme Court that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.

3.      The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

4.      Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

5.      Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A)  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix .

6.      Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

7.      The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

8.      The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

9.      Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

10.  The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mind-set, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

11.      In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

12.      The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

13.      Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

 

valrossi

14.      This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish drivers or to present a motorist with concealed pitfalls or traps, or to claim an unconscionable total sum.

15.      Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

16.      The Defendant is not the main/only driver of this vehicle and has no knowledge of any parking charge notice (‘PCN’) or letters. It is not established thus far, whether the car was parked or just stopped momentarily and caught by predatory ticketing.  It is not accepted that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge. A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

17. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed. 

Registered Keeper liability

18.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. 

Protection of Freedoms Act 2012

19 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 11:05. 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 11:05:23, 11:5:25 and 11:05:29. This shows the vehicle was stationary for 6 seconds. This cannot be claimed the vehicle was parked.

20 The claimant even states in their letter to the defendant dated 21st September 2019 “Please note the responsibility for this charge lies with the driver of the vehicle at the time the contravention was observed.” The defendant contends that keeper liability is not

applicable in these circumstances.

21. 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.

22. 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.

23. 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

24. 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.

25. 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:

26. 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.

27. 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.

28. 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 Stansteasd 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.

 

 

valrossi

Trespass is a matter for a landowner only - the Claimant has no locus

29. 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.

30.Iin 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.

31. 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.

32. 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.

33. 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.

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

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

1. they have locus to sue in their own name regarding this location, and that
2. they offered a parking space with value, and a licence to park there, and that
3. the Defendant was afforded the opportunity to accept contractual terms and that
4. this charge which is somehow saved from the penalty rule
   

The Claimant is also put to strict proof that:

35. 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.

36. The road comes off a roundabout and is not clearly marked as a private car park and thus, any parking/traffic 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.

37.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.

38. excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

39. 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').

40.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.

41. 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.

42. 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:

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

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

45. 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.

46. 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

47    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.

48    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.

49    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''.

50    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.

51    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 LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

52    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:                              …………………………….…………………………….

Coupon-mad

Nice - let;s hit VCS with a 52 point defence and three appendices to try to get this struck out.

Re-send the appendices at DQ stage as well, asking again for a Judge to strike the claim out for abuse of process as per the appendices.

John464

Did the driver have to stop for safety reasons?
A dashboard warning light, unexplained noise, or someone's actions that might indicate a fault with the vehicle for example?