Bristol Airport, No Stopping, VCS Court Claim

rapidon

D_P_Dance said:

Misuse of personal date might e an avenue to explore.  

Yes, misuse of personal data is the route outlined in the link I previously posted, I was wrong to focus on the access of the data.

But Coupon-Mad seems pretty against the idea and is clearly a very reputable member. We don't want to do anything which might prejudice the defence, tempting though it is to attack them on all fronts. Maybe the issue of misuse of personal data should just be mentioned in the defence?

rapidon

rapidon said:

Maybe the issue of misuse of personal data should just be mentioned in the defence?

Does the below outline argument make any sense? Is it in any way a worthwhile addition? 

The claim represents a misuse of personal information obtained from the DVLA, contrary to the data protections act 1998:

The KADOE (Keeper at Date of Event) contract permits PPCs access to the DVLA database for "reasonable cause of seeking recovery of unpaid parking charges”. providing:

• That the parking company seeks recovery in accordance with the Accredited Trade Association Code of Practice
• That the parking company seeks recovery from:
• The driver, or The keeper if the procedure in Schedule 4 of the Protection of Freedoms Act is used
• The data is only used in relation to the particular date, event, and purpose it was requested, and must not be re-used for other dates, events, and purposes

However,

• This is a case of stopping, but not parking.
• The Accredited Trade Association Code of Practice stipulates that a grace period be granted, which has not been followed.
• PoFA does not apply as previously illustrated.
• VCS may argue that the DVLA data was accessed to ask the keeper who was driving. However, they are also illegitimately using that data to pursue the keeper, representing a distinct use which is contrary to the KADOE contract.

Given the common law principle that one should not be allowed to profit from one's own wrongdoing, VCS should not profit their misuse of the keeper data.

Redx

On the 5th you were advised to read the thread by fruitcake , I suggest that you do so

https://forums.moneysavingexpert.com/discussion/6283762/and-so-it-begins-bristol-airport/p1

Fruitcake

Redx said:

On the 5th you were advised to read the thread by fruitcake , I suggest that you do so

https://forums.moneysavingexpert.com/discussion/6283762/and-so-it-begins-bristol-airport/p1

The OP has read it and we are in contact off-forum.

rapidon

So I'm trying to draft the defence. I've taken the standard defence as linked to in the Newbies thread, but it is written in such a specific way that I find it difficult to add separate points to it. I don't know exactly where to add points, or how to format, word and reference them in a way which is consistent with the rest of the letter. Any advice?

Redx

Only 2 & 3 need adapting , leave the rest alone

Find any other airport VCS Court claim threads over the last 20 months and crib from theirs , so only 2020 and 2021 cases , like for Bristol and Southend airports

rapidon

Ok, I have edited 2 & 3 and tried adding my points in after. Then I'll continue from 4 onwards, renumbered.

Perhaps I need to change the wording to match the way the rest of the template defence is written? I'm sure I have more issues?

The facts as known to the Defendant:
2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The Defendant was not the driver of the vehicle at the time which the Claimant refers to as the “Contravention Time”. 
3.       The Defendant first became aware of the incident when they received a letter entitled “Parking Charge Notice (PCN) Notice to Keeper (NTK)”, dated xx/xx/xxxx, claiming that a charge of £100 had become payable for “Contravention Reason: 46) Stopping in a zone where stopping is prohibited)”. A letter was sent in reply informing the Claimant that the Defendant was not the driver. It was pointed out that due to the byelaws in place covering parking at Bristol airport, the site is not considered ‘relevant land’ under Sch 4 of the Protection of Freedoms Act 2012 (‘the POFA’) and therefore that the Defendant, as the registered keeper but not the driver, could not be held liable. The Claimant replied, stating that they were not accepting the appeal but failed to address the point raised in the Defendant’s letter. They went on to state that they were relying on the POFA to hold the Claimant liable as the keeper of the vehicle. Over the year and a half following this letter, a sustained barrage of Final Demands and Debt Recovery letters were received by the Defendant, with the original charge becoming inflated. This caused significant distress.
4.        In order to pursue the Defendant as Keeper of the vehicle in question, the Claimant is relying on Sch 4 of the POFA. However, para. 1 of this schedule states that “This Schedule applies where— (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Firstly, it is to be noted that this is an event of stopping but not parking. No parking event has, nor is alleged to have occurred in relation to this claim and so sch 4 of the POFA does not apply.
5.        Para. 3 goes on to clarify: “In this Schedule “relevant land” means any land (including land above or below ground level) other than—… (b) a parking place which is provided or controlled by a traffic authority. (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” However, as the roads outside of the car parks at Bristol Airport are publicly accessible, they are covered by the Road Traffic Enactments and therefore under authority of the police. Additionally, driving and parking at Bristol Airport is under the statutory control of Bristol Airport Byelaws 2012 section 6 “Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply”. Therefore, the airport is not ‘Relevant Land’ and the POFA does not apply.
6.        Furthermore, for the Claimant to recover unpaid parking charges from the keeper of a vehicle under sch. 4 of the POFA, they must provide a ‘Notice to Keeper’ fulfilling all of the specifications under Para. 9, which includes warning the keeper that they have “28 days beginning with the day after that on which the notice is given” before the creditor may recover a charge from the vehicle’s keeper. ‘Given’ is defined in sub-para. 9.6: “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted.” However, the ‘Notice to Keeper’ actually states that “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… we will have the right to recover from you, the Keeper, any unpaid balance of the Parking Charge.” The ‘Issue Date’ is defined at the top of the Notice as “Issue Date (posted): 22/01/2020". This is clearly contrary to the Notice as specified and therefore the claimant has not satisfied the requirements to establish keeper liability under the POFA.
7.        The Particulars of Claim indicate that the Claimant wishes the courts to believe that a contract was agreed to by the Driver of the vehicle by the act of entering the land of Bristol Airport. However, it is not possible to read, consider and accept the terms of the signage which the Claimant relies upon from a moving car and indeed stopping to read a sign constitutes the very contravention for which this charge has arisen – ‘No Stopping’. Therefore, this supposed contract is paradoxically impossible to accept without breaking.
8.        Furthermore, the term “No Stopping”, as written on the signs, is forbidding and therefore not an offer to stop and pay a charge. Therefore, no contract to pay a charge in the event of stopping was agreed to by the Driver and so no charge can be brought about by doing so. Precedence in Case Law can be found in CS036 PCMUK v Bull et al B4GF26K6.

Coupon-mad

Very good additions to the template - can't fault it!  In a case where you were not driving and the land is not 'relevant land' you have an absolute defence in law, as long as the Judge gets it.

rapidon

Coupon-mad said:

Very good additions to the template - can't fault it!  In a case where you were not driving and the land is not 'relevant land' you have an absolute defence in law, as long as the Judge gets it.

Oh, wow; wasn't expecting that - thanks! Does it not matter that it was clearly written by someone different from the rest of the template? Is the reference to PCM v Bull at the end formatted OK (I don't actually know what the numbers all mean, I just copied them from here?)

Is there any case law for 'Relevant Land' and byelaws which could be pointed to, to make sure the judge gets it?

Thanks!

Coupon-mad

Well case law exhibits can wait until witness statement snd evidence stage, sometime in the Spring.

I am not seeing a difference in writing style.