Bristol Airport, No Stopping, VCS Court Claim

KeithP

rapidon said:

They seem to complain that I did not send the defence directly to the claimant. Was I supposed to?

No, you have done nothing wrong in that respect.

No, they are not complaining that you failed to send them a copy of your Defence.
If anything, they are complaining that the CCBC failed to send them your Defence.
Read again what they wrote...

I am amazed that they think that they can get away with that.

This case would not have progressed to a hearing if the Claimant had not filed a Directions Questionnaire stating that the had read the Defence and decided to continue with their case.

Umkomaas

They are always complaining that they've not received elements of the paperwork - Defence, or Witness Statement - and have had some hearings adjourned when their advocate has managed to throw the Judge a line!

Castle

Very likely the copy of the Defence went to Elms Legal.

Coupon-mad

Which is their admin error/fault.  No-one else!

rapidon

Jenni_D said:

BTW I'd take that down and redact any personal info such as the vehicle reg before posting back up. e.g. there is some redaction in point 5 but the reg is still showing.

Thanks for spotting that, should be fixed now.

Re. No stopping - that's what's known as a forbidding term therefore there cannot be any contract - one cannot contract to do that which is forbidden; ergo it can only be a penalty clause, and a private business has no authority to impose a penalty on a consumer.

I get that, but they also state "£100 charge if you stop" which sounds more contractual. So I am not sure how it stands having both on the sign. Certainly VCS vs. Idle/Ward is quite foreboding 

Their contract with the landowner is ALWAYS relevant to a defence - look again at what your defence said.

You're right of course, I just didn't notice anything in it to pick up on and was being lazy about pdf-ing it! It's done now, see here:

https://drive.google.com/file/d/1VrPOWup1iGYpWe1U_At-A6aYbxi7dxyV/view?usp=sharing

Sorry that I didn't scan the final pages 7 and 8. I did the scanning earlier and these are just maps of where they are contracted to operate. The site in question is within this area.

Jenni_D

It doesn't matter what they state - a forbidding term is forbidding thus there is either no contract, or that term must be struck from the contract. As this term is fundamental to their claim then I'm sure you realise why you must rebut that effectively in your own WS/at the hearing.  

rapidon

Great, thanks.

So I am going through the Defence, adding to it to turn it into a WS...

I've got to the bit where it turns into copy/paste from the Newbies. It then becomes harder to expand upon. This is what I've written:

I am xxxxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge

In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

Whilst the vehicle in question was registered to myself, I was not driving at the time which the Claimant refers to as the “Contravention Time”. Indeed, I have never driven into Bristol Airport.

I first became aware of the incident when I received a letter entitled “Parking Charge Notice (PCN) Notice to Keeper (NTK)”, claiming that a charge of £100 had become payable for Contravention Reason: 46) Stopping in a zone where stopping is prohibited)”.

I sent a letter in reply informing the Claimant that I was not the driver. I 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 I, 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 my letter. They went on to state that they were relying on the POFA to hold me 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, with the original charge becoming inflated. This caused significant distress.

The Protection of Freedoms Act 2012

In order to pursue the Defendant as Keeper of the vehicle in question, the Claimant continues to rely on Sch 4 of the POFA. However, the schedule states that:

“1(1) 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. It is noted that in the claimant’s Witness Statement, they have begun to alternate between the terms ‘stopping’ and ‘parking’ to suit the point they are making, however theses are not the same event. For example, in the appeal case Laura Jopson v Homeguard Services Limited [2016] 9GF0A9E, His Honour Judge Harris finds that:

“Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars.”

The POFA goes on to explicitly clarify:

“3(1) 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 (b). 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” (c). Therefore, the airport is not ‘Relevant Land’ and the POFA does not apply.

The claimant attempts to circumvent this limitation of the POFA, citing Jones & Tighilt (on behalf of National Taxi Association) v First Greater Western Ltd (2013) EWHC 1485 in an attempt to present byelaws as optional. However, this case is not relevant to the POFA. It is not a question of whether the claimant is permitted to pursue the alleged contravention via contract law despite there being byelaws in place, it is question of whether the claimant is permitted to peruse the keeper instead of the driver under the powers of the POFA. Here the POFA is perfectly explicit, the “Schedule applies where… the driver of a vehicle is required… to pay parking charges in respect of the parking of the vehicle on relevant land” and ““relevant land” means any land… other than… a parking place which is provided or controlled by a traffic authority [or] any land… on which the parking of a vehicle is subject to statutory control.”

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 valid ‘Notice to Keeper’ following strict stipulations set out under para 9.

(2) The notice must—…
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—…
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(4) The notice must be given by—…
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(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; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

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): xxxx”

This is clearly contrary to the Notice requirements under paragraph 9 as the 28 days is said to begin from the date which the notice was posted and not when it was ‘given’. Therefore, the Claimant would not have established keeper liability under the POFA, even if the legislation were applicable.

The ‘Contract’

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. Video evidence is provided from a car’s dash-cam, showing how illegible the signs are from a car moving through the site at normal speeds.

The Claimant has provided images of signs present on site; however, no representation is given of how the signs would have looked in the dark of x am in xxx. Indeed, it is clear from the Claimants own images that it was extremely dark at the time. Additionally, the signs are typically orientated parallel to the direction of travel on the road, meaning that they are extremely oblique until the fleeting moment that the driver is aligned with the sign, at which point the driver will logically be looking at the road ahead, and not reading a sign to their side.

Furthermore, the term “No Stopping”, as written most prominently 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. The smaller text reading “£100 Charge if you Stop” is contradictory to the text above it forbidding stopping.

Clearly I need to reference evidence/number paragraphs etc. But for now:
Is it too much the same as the defence?
Is there any case law that I can I get it?
Is there anything I am missing / need to change
Any other feedback?

Thanks!

Umkomaas

I get that, but they also state "£100 charge if you stop" which sounds more contractual. So I am not sure how it stands having both on the sign. 

The three major components of a contract comprise Offer, Acceptance and Consideration. 

How does'No Stopping' fit with any of those, let alone all three?

Coupon-mad

You should look at the more recent example WS by @Nosy and @jrhys instead.

Fruitcake

Assuming the defendant is the registered keeper, then one of the defence points should have been, Airport Byelaws apply, therefore the driver can be liable, the vehicle owner may be liable, but the registered keeper can never be liable for a parking charge. 

This should be expanded upon at the WS stage with extracts from the relevant byelaws, and the PoFA to show that byelaws do apply, and the PoFA does not.

The Jopsn vs Homeguard case should also be included as an exhibit, and the relevant parts referred to (paras 19 and 20) where the judge stated that stopping is not parking.

A statement from the defendant that they were not driving, but were an occupant of the car, is evidence. Unlike the claimant or their representative, the defendant was present at the time of the alleged event and is not only a witness, but also the only witness, and a judge should take this into account.