Bristol Airport, No Stopping, VCS Court Claim

rapidon

Fruitcake said:

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.

Thanks Fruitcake, case is very useful. Defendant is RK. Byelaws are referenced but not quoted beyond the section 6 heading "Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply" which covers driving/parking issues. Do you think I need to be more specific?

Coupon-mad said:

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

I read through their WSs. They seemed useful, particularly in relation to tackling the more generic extortionate claim / distinguishing Beavis areas. Was there anything specific you were thinking I need to implement?

Fruitcake

You need to include a copy of the airport byelaws as an exhibit, and then refer to the relevant parts, quoting the paragraph numbers and an extract of what they say.

For example, Byelaws ABC 12345 states at paragraph N and N 4.3 that .....

You will also need to send a copy of my dashcam video of the site on a durable medium such as a CD, DVD, or thumb drive to the claimant and the court. Send it first class from a Post Office counter, and keep the oh so vital proof of posting and a include a copy of it as one of your exhibits.
I suggest you also send the court and the claimant and their solicitors  links to it by email and include the link in your defence.

Note that the most of the signs cannot be seen, let alone read at 10 mph in broad daylight. If the alleged event took place in the dark, or rainy/misty conditions then you should aver that they would be impossible to see or read. Note that they are not illuminated (if relevant) and many are placed at right angles to the flow of traffic so cannot be seen at all, let alone in the dark.

Coupon-mad

rapidon said:

Fruitcake said:

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.

Thanks Fruitcake, case is very useful. Defendant is RK. Byelaws are referenced but not quoted beyond the section 6 heading "Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply" which covers driving/parking issues. Do you think I need to be more specific?

Coupon-mad said:

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

I read through their WSs. They seemed useful, particularly in relation to tackling the more generic extortionate claim / distinguishing Beavis areas. Was there anything specific you were thinking I need to implement?

Their style (what the bundle should look like) and the two transcripts of Wilkinson and Firescu (see thread I started in May about how to reference them).

Also search Discussions for 'PAP run up costs Select Committee' and quote what I suggested all WS should now include.

rapidon

Coupon-mad said:

Also search Discussions for 'PAP run up costs Select Committee' and quote what I suggested all WS should now include.

Hi Coupon-mad, I am looking at your post here and trying to fully understand it. I haven't found anything to insert directly. 

So it seems that there is a Pre-Action Protocol (PAP) for debt claims which stipulates that Pre-Action steps should not run-up costs disproportionally to the sum being claimed. Also that in discussions regarding new legislation being drafted for PPC's operation, Steve Gooding of the RACF considers £70 too high. You also state that the relevant Select Committee have written to the government in agreement with this position. Do you have a source that I can quote from the Select Committee as this would seem the most pertinent authority?

Thanks.

rapidon

This is where we're at so far. If anyone has time to read it and comment I'd really appreciate it.

https://docs.google.com/document/d/1qCnFltme7LhLzgB8yANvjsRQZweiowaY4u-h94ddbQs/edit?usp=sharing

Still need to append the evidence and put in exhibit numbers.

Also add Coupon-mad's PAP point once I have a handle on it.

And some of the defence points from the Newbies which haven't been included yet. I don't know how necessary it is to integrate these or expand upon them? I feel like I should be referencing the Consumer Rights Act 2015 at least.

Thanks as always!

Coupon-mad

Hi Coupon-mad, I am looking at your post here and trying to fully understand it. I haven't found anything to insert directly. 

The entire thing.  That's why I posted it like that.  To be copied and pasted.

The Select Committee's letter is on the forum already in a thread about it.

rapidon

Ok, I your post about it now in the select committee's oral evidence thread.

For anyone else, here is the letter:
https://committees.parliament.uk/publications/8068/documents/83007/default/

When you say "One of the main criticisms of the pre-action rules..." do you mean BPA's guidelines on debt recovery fees (i.e. the now £70 limit)? 

And then I will add quotes from the letter. 

PS, I just realised the Claimant's WS link I posted was broken. It's here if anyone wanted to read it:

https://drive.google.com/file/d/1uNDW8sBm2XlcQhp00RBGMeEMbx92s4Li/view?usp=sharing

Coupon-mad

Thanks for the links, things move quickly here!   No, I mean the pre-action protocol for debt claims as my post about it goes on to talk about.  The 'PAP'.

rapidon

Ok, thanks - I understand now.

I have written something about it in my own words using the same quotes. This is the whole section on the debt collection charge:

Abuse of process – the quantum

In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is described variously as ‘further charges’ or ‘debt collection costs’. However, the only charge mentioned on the signs, as presented by the claimant, was of £100 (exhibit XX). Therefore, if a contract was entered into, which is disputed, the only sum payable would be £100, as it is impossible for new terms to be added to the contract without the agreement of both parties.

If instead of a contractual charge, the claimant wishes to pose this additional sum of £60 as recovery of debt collection costs incurred, the claimant is put to proof that this sum was incurred. Given that the letters are merely generic templates from the claimant’s own ‘debt management team’, it is contested that the debt recovery stage could have cost the claimant £60.

Furthermore, in ParkingEye Ltd v Beavis [2015] UKSC67 the Supreme Court allowed the £85 parking charge against Mr. Beavis because it “was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available” (para 98).

In this case however, the claimant wishes to charge a fee of £100 based on the authority of the Bevis case, but also add £60 for costs. This clearly constitutes double recovery, and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (Exhibit XX). The Judge concluded that such claims are proceedings with 'an improper collateral purpose' (p. XX). Leave to appeal was refused and that route was not pursued.

After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

The Pre-Action Protocol for Debt Claims (Exhibit XX), is clearly aimed to avoid such inflated costs:

"2 AIMS OF THE PROTOCOL 2.1 This Protocol’s aims are to – 
 - encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue)"

Meanwhile, the PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS (Exhibit XX) is more explicit on the requirement for proportionality:

“Proportionality
4. A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.
5. The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)). Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.”

In claiming £60 as costs for an automated template debt collection letter the claimant is clearly abusing the Pre-Action stage.

Additionally, The Levelling Up, Housing and Communities Committee, has recently sent a letter of recommendations for the planned Private Parking Code of Practice Enforcement Framework which will regulate the industry (Exhibit XX), following technical consultations. This fee specifically (now typically inflated to £70) was discussed with Betts quoting Steve Gooding, director of the RAC Foundation that:

“charges at £70 may mean that charges levied are disproportionate to the action taken and do not reflect an accurate representation of the admin costs involved, for instance where a debt collection agency has only generated an automated letter”.

The Committee proceeds to agree with this sentiment, stating that:

“The Committee recognises the need for proportionality of recovery fees and the issues caused by imposing additional fees for debt collection on motorists who are struggling to pay charges. The Committee therefore recommends that the Department considers requiring fees charged to be proportionate to the level of enforcement action taken by operators and their debt recovery agencies in the particular case, subject to an overall cap that is also proportionate to the action taken, so that motorists are protected both from unscrupulous recovery behaviour and from disproportionate costs.”

The whole thing is here:

https://docs.google.com/document/d/1qCnFltme7LhLzgB8yANvjsRQZweiowaY4u-h94ddbQs/edit?usp=sharing

rapidon

Uh, I've just seen that VCS say that they don't accept services of papers by email. So I'd better get this sent today to make sure it arrives in time. Despite the hearing not being until March, they want the WS in soon.

 Is it looking ok so far? Any final comments really appreciated.