EMA airport fine for stopping at the fuel station BP Fuel station.

KeithP

san2020 said:

...how should I complete my Defence?

By following the guidance I gave you on 13 March at 5:18PM. 

san2020

I sent the SAR request at part of another court claim (same day just minutes before) to DPO, and also received the SAR information about this court claim. Should I request a new SAR for this court claim?
This may be due to the following email request: "Can I remind you that any claim must be for all PCNs, not several separate claims."

Redx

If they supplied all the information in the first SAR , then do not send a second SAR , if you do they will most likely charge you

If they failed to provide all your data the first time , it's a breach of GDPR , all your data meant all the data on yourself , not the vehicle , so meant every PCN etc with your name on it , every document , every picture , etc

san2020

Dear Members, qq,
this may be confusing but bear with me. 
my first PCN was of EMA airport for vehicle stopping in a zone where stopping is prohibited. My 2nd PCN 5 minutes later, was of same but at PB fuel station at EMA airport. Would it be possible to combine the 2 cases, especially when by first defence was poorly defined. My 2nd defence due date is 13th April.

Coupon-mad

You need to use the Henderson v Henderson estoppel consolidate wording in this defence and refer to the other claim number in this defence wording (NOT IN THE HEADINGS) and ask the court to use its case management powers to consolidate claim xxxxxxx with claim xxxxxxx.

Search the forum and find a defence with that paragraph already in it.  Copy.

san2020

Hi all, any comments on the below. I believe the point 2 and 4 are more relevant to this claim. Also, what elements are worth leaving out from the below link in relation to EastMidlands Airport Fuel Station. hxxps://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1 

"The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question  and the driver of the vehicle but liability is denied. A very late request was received by the defendant to be a volunteer to drop a community member to the airport. The defendant found this a privilege to assist a member of the community and did not charge any money, fuel expense or any other favour. In fact, the defendant would seize a similar opportunity to assist in in future.

3. The defendant drove towards the East Midlands Airport and noticed that there were wide and double lanes everywhere. The cars were able to manoeuvre easily, the signs were present but not fully readable, due to poor lighting, especially when driving. Defendant did not find the opportunity to fully read the signs without stopping the vehicle.

The defendant was not of any plan to park, or seize the opportunity to use any other stay, except to find an opportunity to drop the passenger as near to the entrance of the airport as possible. The defendant at that time saw the barriers which were leading to parking, which would not open automatically. The defendant moved the vehicle to the side of the road, to allow the passenger to drop off. As per the evidence, the other vehicles at that time of the night did not have any problems passing by around the vehicle. The defendant was also searching for the opportunity to use a U-turn, but it was not present. The defendant saw the opportunity to reverse out until it was possible to make a U-turn. I moved away from the space and went into the Fuel Station nearby.

4. The defendant carefully drove into the fuel station, carefully passed the fuel pumps and stopped to take the call from the passenger who was dropped. The defendant did not notice any signs of stopping prohibition. The defendant carefully left the fuel station (as anyone would do, regardless of the intention to use the fuel station with inflated rates or not). Also Defendant is of the point that is not possible to use the fuel station without stopping. "

Coupon-mad

You have 'cease' twice when you mean seize.  And most of what you have put is the story, for the later witness statement, not in a defence.

And you haven't searched for and copied what I said your defence needs.  We won't be providing links, we need people to use the forum and find.

san2020

I saw this defence below which seems applicable to defendant. what elements of this defence are not relevant to EMA BP Fuel station:

IN THE COUNTY COURT

 

CLAIM No: XXXXXXX

 

BETWEEN:

 

Vehicle Control Services Limited (“the Claimant”)

2 Europa Court

Sheffield Business Park

Sheffield

S91XE

 

-and-

 

XXXXXX (“Defendant”)

 

DEFENCE

 

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

 

No keeper liability

 

2.         The vehicle, registration XXXX XXX, of which the Defendant is the registered Keeper, appears from the evidence supplied by this Claimant to have entered a petrol filling station from a private road and stopped briefly. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed they are pursuing this claim against the keeper of the vehicle.

 

3.         The land entered is not ‘relevant’ land as defined in the Protection of Freedoms Act 2012 (POFA). Paragraph 3 of Schedule 4 of POFA states that land is not ‘relevant’ where byelaws apply to it. In this case, the land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009. As the land is not ‘relevant’ land the Claimant does not have the right to recover any unpaid parking charges from the Keeper of the vehicle.

 

No contract existed

 

4.         The Claimant claims that there was a breach of contract for “breaching the terms and conditions” set on private land.

 

5.         The Claimant’s case relies upon the signage at the site constituting a ‘contract’ between a driver and the Claimant, and the breaching of terms presumably refers to the supposed ‘contract’ formed by this signage.

 

6.         In other correspondence, The Claimant invites the Defendant to refer to the ‘Parking Eye vs Beavis’ case. In the ‘Parking Eye vs Beavis’ case, it was found that a contract could exist because there was a meaningful ‘offer’ made to the Defendant (that of a licence allowing free parking for a set period of time) and that the Defendant’s agreeing not to overstay this period could constitute a ‘consideration’ in respect of this. There is no such ‘offer’ made by the signage in this case, no ‘contractual licence’, no ‘benefit of free parking‘, and no conceivable way anyone could have benefitted from this alleged ‘contract’ without breaching its terms. The ‘Parking Eye vs Beavis’ judgement is littered with references to the disputed charge being justifiable only in the context of the ‘contractual licence to park’ being given to the Defendant, e.g. ‘They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there’.

 

7.         The parking contract in ‘ParkingEye vs Beavis’ case was judged to be ‘objectively reasonable’ partly because ‘motorists generally’ did accept it. The landowner wanted as many people as possible to use the car park in question so the contractual arrangements were designed to be attractive to the average motorist. This is the complete antithesis of the supposed ‘contract’ in this case which is designed to actively discourage motorists from parking at the site. The terms of this ‘contract’ are not ‘objectively reasonable’, but deliberately designed to be so heinous that no one in their right mind would agree to them. It follows that this is not a ‘contract’ but a prohibitory notice masquerading as such.

 

8.         In the Parking Eye vs Beavis case the Supreme Court Judges reiterated the requirement for fair and open dealing, at Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

 

9.         The Court is requested to consider the fairness of a term, where it is not 'prominent and transparent’. At the roadway where the PCN was issued, it was not transparent that anyone was agreeing to some sort of contract to pay £100 to park under some sort of licence. In this case, the unfair terms include the penalty fine itself and also the added £60 'debt collection costs' bolted onto this claim which themselves are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (CRA).

 

Inadequate, Contradictory, Unclear and Confusing Signage

 

10.      It is the Defendant’s position that the accepting conduct and declining conduct are contradictory as one cannot be performed without first performing the other.

 

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

 

12.      “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”.

 

13.      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.

 

Unfair Terms Contrary to the Consumer Rights Act 2015

 

14.      If, by pursuing this claim, the Claimant is denying that the Defendant has declined the alleged contract in accordance with the declining conduct, then the Defendant avers that the Claimant is forcing the contract irrevocably on the Defendant who has not had reasonable time to read and digest the terms, rendering it an unfair term as stated in Schedule 2 to the Consumer Rights Act 2015:-

 

“A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”

 

No Grace Period

 

15.      According to the current Contract between DVLA and parking companies, in order to obtain “Keeper of a Vehicle at the Date of an Event” (KADOE) information from the DVLA, Clause A6.1 states that “The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct”. 

 

16.      The Claimant is an Accredited Operator and a member of the International Parking Community (IPC), and according to the ‘Notice to Keeper’ issued to the Defendant, operates in accordance with their Code of Practice.

 

17.      The IPC Code of Practice (Sixth Edition that was in force at the time of the event) Clause 15.1 states that a ‘grace’ period must be allowed:

 

“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”.

 

18.      A reasonable grace period in any car park would be from 5-10 minutes from the period of stopping. According to the evidence supplied by the Claimant, the Defendant’s vehicle was stopped for a period of less than one minute. Thus, a grace period was not observed and therefore the Claimant is in breach of the IPC Code of Practice, and therefore in default of the contract that exists between them and the DVLA; hence the Claimant has obtained Keeper details under false pretences.

 

19.      Additionally, no contract can be in place by conduct until a reasonable period elapses.

 

20.          Thus, the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

Double Recovery

 

21.      The Claimant is seeking an additional £60 ‘debt recovery cost’ over and above the original Notice to Keeper amount of charge of £100.

 

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs), and the Consumer Rights Act 2015 Schedule 2 in respect of 'terms that may be unfair'.

24. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

25. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

26. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

31. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). The Claimant has artificially inflated their claim, and this constitutes double recovery.

san2020

Coupon-mad said:

You need to use the Henderson v Henderson estoppel consolidate wording in this defence and refer to the other claim number in this defence wording (NOT IN THE HEADINGS) and ask the court to use its case management powers to consolidate claim xxxxxxx with claim xxxxxxx.

Search the forum and find a defence with that paragraph already in it.  Copy.

Not getting any luck searching in forum for this. where am I going wrong?

Redx

use google search with mse or similar in those keywords (instead of the forum search box on here) , or there is a way of concentrating the search into only those words on here (which I can never remember), but this forums ability to search has been terrible since the forum changed engines just over a year ago (its pants and has been complained about to no effect)

blame MSE , not us