Got 2 Private PCNs for stopping on a road for 1 min to take an urgent call (VCS ltd)

vitaleducator

ThUmkomaas said:

But the PCN charged in unlawful. 
I am just trying to understand whether the Judge will see that and rule it in the driver's favour. 

I'd be rather more circumspect in making bold statements about what is or is not lawful when speaking with a Judge!  Leave that to the Judge. 

Umkomaas said:

But the PCN charged in unlawful. 
I am just trying to understand whether the Judge will see that and rule it in the driver's favour. 

I'd be rather more circumspect in making bold statements about what is or is not lawful when speaking with a Judge!  Leave that to the Judge. 

That is a great advice. I will keep my emotions in control in front of the judge. 
I have never done this before so need all the support I can get

vitaleducator

This is what I just submitted in response to VCS's claim.
"1. The Defendant is not liable because keeper liability does not apply in this situation.
1.1 The Defendant is the registered keeper of the car and is in NOT the driver.
1.2. The Defendant is unable to recall which of the named drivers were driving at this time
1,3 Airport land is not "relevant land" as it is covered by statutory bylaws (in this case The East Midlands Airport Byelaws) and so is specifically excluded from "keeper liability" under Schedule 4 of POFA 2012. The Claimant is out 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.
1.4 Further to the above, the appellant and DVLA has confirmed in writing that for this alleged contravention, the provisions of POFA 2012 are not being applied,
2. The Defendant is 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 & Additional Charges) Regulation 2013.
2.2 The regulations define three types of contracts; distance contracts, on premises contract and off-premises contract
2.3 The definitions concern themselves with how a contract is concluded (and in particular if face to face contract 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 into the salon for actually 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 phoned the salon to confirm, that will be an off-premise contract. All these contracts are performed on-premises, but concluded in different ways.
2.4 The regulations define an on-premise 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 an-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 regulations (6) apply. No vending machine or automated premises were used to conclude the contract
2.10 Regulation 13 of Health and Social Care Act 2008, lists information to be provided before making a distance contract. The alleged contract fails to provide the required information list i Schedule 2 or a means to have a copy of 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 from the claimant's photographic evidence, that the signs are positioned in such a way as to create an "entrapment zone" where the signage is not clearly visable. 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 prove 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 2019(TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landownerto 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 This claim is for breach of contract. However, it is denied any contract existed.
3. The Claimant has not offered a complete Cause of Action (COA).
3.1 Photos received from the claimant show the driver stopped for only ONE minute. 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 to 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. More prominent signs directed vehicles to the short stay car park where no grace period was on offer
3.3 If the driver could have seen the signage then the defendant would have been ensured that the free drop-off point in long stay car park was used.
3.4 According to the claimant's own photographic evidence the road is wide and empty, so no obstruction of other traffic was possible.
3.5 The claimant is put to prove regarding the harm by stoppage.
3.6. Thus, Claimant has failed to set all components of COA."
Hopefully this will help someone in the future. I will update the progress of this case as I go along!

vitaleducator

Redx said:

Are you sure that the PCN is unlawful ?  If it was it would have broken a law

I wouldn't go that far , there will be a word for it , such as misguided , invalid , fails to comply with mandatory or voluntary laws such as POFA or the CRA , could be a Penalty and not Parking ?

POFA does not apply at all on airport land

You are right, I am getting abit ahead of myself here! I'll leave that to judge to decide. Two court cases will not be an easy task!

vitaleducator

Uptown_Boy said:

Ralph-y said:

playing devils advocate here ......

are you aware of the rules using mobile phones?

they do not say that you can stop to use a   phone hand held or otherwise for an urgent call.

Follow the advice given to beat VCS

Ralph

Agreed ... if the vehicle engine was on and/or the keys were in the ignition then an offence may have been committed. But as said, usual advice (e.g. grace period) should see this off.

I have included all that in my response appeal to the IAS, even if I don't have much chance, I am still gonna go for it! No harm in trying my luck! 

Snakes_Belly

"I have included all that in my response appeal to the IAS, even if I don't have much chance, I am still gonna go for it! No harm in trying my luck! "

Before Covid it would most certainly be rejected. The PPC has to respond and there may not be staff there to respond to the appeal. It may be upheld by default.

If not it will still waste their time and money. 

Don't have too many expectations from this though. It can be a bruising experience. The PPC's are not always polite in responses and can be sarcastic and rude.

Umkomaas

Biggest mistake the driver made was to declare that he was the driver at the time in my challenge (i know he is an idiot!). 

This is what I just submitted in response to VCS's claim. 
"1. The Defendant is not liable because keeper liability does not apply in this situation.
1.1 The Defendant is the registered keeper of the car and is in NOT the driver.
1.2. The Defendant is unable to recall which of the named drivers were driving at this time

Not sure how those two statements square?

MothballsWallet

Snakes_Belly said:

"I have included all that in my response appeal to the IAS, even if I don't have much chance, I am still gonna go for it! No harm in trying my luck! "

Before Covid it would most certainly be rejected. The PPC has to respond and there may not be staff there to respond to the appeal. It may be upheld by default.

If not it will still waste their time and money. 

Don't have too many expectations from this though. It can be a bruising experience. The PPC's are not always polite in responses and can be sarcastic and rude.

Something which the new CoP will, hopefully, clearly state is no longer allowed and any PPC who does not conduct their correspondence with motorists (aka private citizens and taxpayers) in a professional and courteous manner will be punish appropriately.

vitaleducator

Umkomaas said:

Biggest mistake the driver made was to declare that he was the driver at the time in my challenge (i know he is an idiot!). 

This is what I just submitted in response to VCS's claim. 
"1. The Defendant is not liable because keeper liability does not apply in this situation.
1.1 The Defendant is the registered keeper of the car and is in NOT the driver.
1.2. The Defendant is unable to recall which of the named drivers were driving at this time

Not sure how those two statements square?

Good point but I wasn't the driver so I am not sure whether the driver has declared that he was driving.

vitaleducator

vitaleducator said:

This is what I just submitted in response to VCS's claim.
"1. The Defendant is not liable because keeper liability does not apply in this situation.
1.1 The Defendant is the registered keeper of the car and is in NOT the driver.
1.2. The Defendant is unable to recall which of the named drivers were driving at this time
1,3 Airport land is not "relevant land" as it is covered by statutory bylaws (in this case The East Midlands Airport Byelaws) and so is specifically excluded from "keeper liability" under Schedule 4 of POFA 2012. The Claimant is out 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.
1.4 Further to the above, the appellant and DVLA has confirmed in writing that for this alleged contravention, the provisions of POFA 2012 are not being applied,
2. The Defendant is 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 & Additional Charges) Regulation 2013.
2.2 The regulations define three types of contracts; distance contracts, on premises contract and off-premises contract
2.3 The definitions concern themselves with how a contract is concluded (and in particular if face to face contract 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 into the salon for actually 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 phoned the salon to confirm, that will be an off-premise contract. All these contracts are performed on-premises, but concluded in different ways.
2.4 The regulations define an on-premise 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 an-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 regulations (6) apply. No vending machine or automated premises were used to conclude the contract
2.10 Regulation 13 of Health and Social Care Act 2008, lists information to be provided before making a distance contract. The alleged contract fails to provide the required information list i Schedule 2 or a means to have a copy of 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 from the claimant's photographic evidence, that the signs are positioned in such a way as to create an "entrapment zone" where the signage is not clearly visable. 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 prove 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 2019(TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landownerto 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 This claim is for breach of contract. However, it is denied any contract existed.
3. The Claimant has not offered a complete Cause of Action (COA).
3.1 Photos received from the claimant show the driver stopped for only ONE minute. 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 to 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. More prominent signs directed vehicles to the short stay car park where no grace period was on offer
3.3 If the driver could have seen the signage then the defendant would have been ensured that the free drop-off point in long stay car park was used.
3.4 According to the claimant's own photographic evidence the road is wide and empty, so no obstruction of other traffic was possible.
3.5 The claimant is put to prove regarding the harm by stoppage.
3.6. Thus, Claimant has failed to set all components of COA."
Hopefully this will help someone in the future. I will update the progress of this case as I go along!

So VSC have sent their response to this: 
1. A person can enter into a contract either by expressly agreeing to do so or by acting in such a way that they can be said to have implied agreement to enter into a contract. Where notice is given to a motorist of the consequences of entering a restricted particular area, by implications a motorist enters into a contract with Vehicle Control Services Ltd and accepts the terms set out in the Notice by proceeding to enter. These conditions clearly prohibit stopping.

2. As per our Prima Facie submission we will continue to hold the motorist liable under the reasonable assumption that as keeper of the vehicle they were the driver until this assumption is either demonstrated by evidence to be unreasonable or an alternative named driver is nominated.

3. We are not pursuing this under Schedule 4 of PoFA 2012 and have never stated this is the case. As such the motorist's comments about airport byelaws are largely irrelevant.

4. We would reiterate that this site and its signage have passed audit by the International Parking Community (IPC). We are therefore confident that the signage is suited for the purposes of informing motorists that this entire area is private land where Terms and Conditions apply. We have previously supplied evidence highlighting the proximity of the motorist's vehicle to our signage.

5. It is unclear why the appellant believes a signage map has not been included when this is the case. It appears that their comments may have been copied from another source and are therefore of dubious relevance to the case at hand.

6. In response to the appellants comments concerning the consideration given by Vehicle Control Services Ltd (VCS), within the contract between VCS and the driver. The offer to provide access to this private land is the key consideration passing from the offeror (being VCS). In most circumstances the parking operator is the offeror in the contract and the driver is the offeree. The offeror is providing parking related services and/or access. That offer is then either denied by the driver at which point they can leave the site, or accepted by the driver of the vehicle (the offeree), and they then remain on site to utilise the access offered. At that point, the driver must comply with the Terms and Conditions which form the basis of the contract, if past the act of acceptance into the contract with VCS, the driver breaches the Terms and Conditions, they accept to pay a Charge Notice, as stated on signage.

7. The appellant has raised the issue that we do not have the required authority to operate on this site. We would refer the Adjudicator to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that we are the principal (not an agent) in the contract. Whilst we maintain that we do in fact have the authority of the landowner to operate upon this site (being the principal in the contract), the existence of this document has no legal bearing on the contract with the motorist. See Vehicle Control Services v HMRC [2013] EWCA Civ 186, para 22 per Lewison LJ. As this is a commercially sensitive document, and is irrelevant to the issues at hand, this is not provided as evidence in this appeal, which may be accessed and circulated by the appellant.

8. A copy of our authority to manage parking on this site was supplied as part of the IPC audit process and is available to the Adjudicator for their perusal.

9. There is a requirement in the IPC Code of Practice for drivers to be allowed a consideration period to consider the terms of the contract for parking in a car park and obtain the necessary permit or ticket or leave the car park; however, this being an airport, it is not a normal car park situation. For very specific reasons the airport want access routes to be clear from stopped traffic, consequently, there can be no grace period allowing drivers to stop in a no stopping zone, in order to decide whether they wish to accept the terms for not stopping, it would make no sense. To balance this, the Operator must give very clear notice to those entering the site, both that they should not stop and the consequences if they do so. The abundance of signage on the airport access roads is located at each entrance and throughout the site and is of such a size that they can easily be read and are also clear in respect of their meaning.

10. The motorist not knowing how to reach the drop-off point on site did not permit them to stop in contravention of the displayed Terms and Conditions.

11. Whether or not the motorist personally deems themselves to be causing an obstruction has little to no bearing on their liability for a charge.

12. By stopping on a road where stopping was prohibited the appellant became liable for the Parking Charge Notice issued as per the Terms and Conditions displayed.

Any rebuttal regarding any of these points will be greatly appreciated guys 

nosferatu1001

Oh so it's just a bloody IAS appeal? Why did you say defendant then? Wrong term. You're the appellant. 

The point unkomass was making is you say you don't know who drove, but your first quote says you know who the driver was. They can't both be true. Lying bad mkay 

who cares
its it's 
youll lose. You know you're going to lose
you should point out that as their assumption has been rebutted by a direct statement to the contrary, they need to prove their claim. It's not up to you to disprove