Bristol Airport, No Stopping, VCS Court Claim

Jenni_D

Have they served their WS on you? If yes, was it by post or email?

rapidon

Yes, received by post.

I uploaded and linked the main parts here, their contract with land owner separately in this post.

rapidon

Well it all went today, for better or worse!

Here's what they got in the end, minus the evidence. It never got checked over properly, was too sick of it:
https://docs.google.com/document/d/1b-81VOMgbnAo9FualodGHNDJnN6rPAXF/edit?usp=sharing&ouid=109721251989854400065&rtpof=true&sd=true

I just noticed Fruitcake recommended to put that the defendant was in the car but not driving in the WS. Oh well!

Definitely shouldn't say WS is the easy bit in Newbies, for me it was by far the worst.

I'll let you you know what happens in March!

Coupon-mad

That's probably because you made such a thorough job of it and were among the first to quote from the DLUHC Select Committee.

rapidon

So my partner had her day in court. I didn't know about lay representation then so she was alone. She said the young representative was very hot on his case and was talking about all kinds of recent cases that support their position and appears to have bamboozled her somewhat.

Apparently the judge was very nice but appeared to be buying what the the rep was saying. However the judge decided to defer his judgement and we will get the decision in the post. The rep said this was extremely rare. Apparently the rep will be sending the judge more cases to support his case. I'm not sure why this is ok and where our opportunity is to respond to this new information or present counter cases.

Would love to know what everyone makes of that? 

Coupon-mad

The rep can't send more cases after the event, so don't worry about that.  They often sound very confident because they are used to the environment and are legally trained.

A written judgment is rarer but she will get to see all the reasoning from the Judge.  Reading between the lines, maybe the Judge felt they hadn't had enough time to read the evidence and picked up on the unbalanced dynamic, and felt that to do justice to the case they should look again at the evidence.

A fair Judge wouldn't let themselves be bamboozled by the sharp rhetoric of a keen legal rep.  In fact, maybe the rep was irritating the Judge a bit and they want to decide this with a clear head.

It will come down to basics like whether the signage looks clear, whether the breach has been proved on the balance of probabilities. 

rapidon

Coupon-mad said:

The rep can't send more cases after the event, so don't worry about that.  They often sound very confident because they are used to the environment and are legally trained.

The rep referred to the extra cases in court, but no transcripts were included with their witness statement. He had a laptop and was quoting from that. Apparently the judge gave the rep his personal email to send the transcripts to. The rep has also sent them to us, apparently from his personal email address. 

They are VPS v Crutchley, VCS v Ward and VCS vs Percy.

I can think of various things to say in response to all three cases, however only the claimant was given the judge's email address so there is no opportunity to respond. 

So the extra cases focus on 'no stopping' and the extra £60 (/70), but don't address POFA. Apparently the rep did a lot of talking about POFA, but it went over my partner's head so she couldn't challenge or relay it. The judge appeared to take it. Some cases were referred to in the claimant's WS attempting to sidestep the Byelaw issue, but they seemed utterly irrelevant to me.

Reading between the lines, maybe the Judge felt they hadn't had enough time to read the evidence and picked up on the unbalanced dynamic, and felt that to do justice to the case they should look again at the evidence.

This is exactly the impression I got. 

Coupon-mad

This one was won recently:

https://forums.moneysavingexpert.com/discussion/comment/79046548/#Comment_79046548

And the OP said "It was quite daunting as the claimants lawyer went a small rant for 10mins about of bunch of legal cases and had this permanent smirk on their face. But the outcome was the correct one thankfully."


Right, as the rep has emailed the Judge and your partner, she should email straight back, formally requesting the legal rep to also forward to the Judge, immediately, a timely response from the Defendant, who has now read the cases that she was ambushed with, having only been afforded that chance after the hearing. 


Use the word 'ambush' (use my words above) ...and continue like this:


If the Claimant can email transcripts late then the Defendant surely has a right to reply promptly, and as a legally qualified representative's first duty is to the Court, the Defendant respectfully and formally requests that this brief emailed skeleton argument be forwarded to the Judge immediately, along with the attached transcripts, in the interests of balance and justice:


Skeleton argument provided by the Defendant on 10/3/22 re claim xxxxxxxx

1.VCS v Ward and Idle was in fact a joint Defendant case (as the transcript shows) and was not in evidence before the hearing but having now read it, the Defendant observes that the case against Mr Idle was not able to be pursued because Mr Idle was not the driver and the POFA did not apply.

Same as this non-POFA case, despite the Claimant trying to mislead the court that the POFA applies.  As submitted by the Defendant in their witness statement, Airport land is byelaws land - i.e. under statutory control - and thus, not 'relevant land' and 'keeper liability' can never apply.

• “relevant land” has the meaning given by paragraph 3;

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Official Guidance document about the POFA 'keeper liability' provisions, here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

See 4.1. "Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded."

The Claimant has been extremely selective and failed to tell the Court that they have lost all arguments about 'presuming a keeper was driving' and/or 'the driver was an agent of the keeper' on appeal already (Excel v Smith, heard by His Honour Judge Smith sitting at Manchester).  Excel are the sister/umbrella company for VCS - same Director/owner, so they are well aware of this case but failed to show it to the court.

http://nebula.wsimg.com/87cdd1ece93beeb2f058693b81e4d057?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

Also VCS v Quayle (among many others) covered the exact same issue of a non-POFA situation, where a keeper who was not the driver has no liability under any applicable law:

http://nebula.wsimg.com/ba23da00fdbf49863b82719de49e2d6c?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1



2.  VCS v Percy. was not produced until after the hearing either, but having read it, clearly that 2021 finding has been trumped by the Government banning 'debt recovery fees', ending that abusive conduct entirely last month.  This is not news to the Claimant or to the court in this case, because the new Code was mentioned in the Defendant's witness statement at paragraphs 32 and 33, at the point in time where the DLUHC's proposals had just been reviewed by the Select Committee and the added costs were called in question. 

The Defendant quoted the position at the time, and the DLUHC has since confirmed their final position, which the Claimant is well aware of, but omitted to tell the Court despite the relevance of new Code of Practice being in evidence.  The Defendant has had to research the update overnight and has found that pseudo 'debt recovery costs/damages' (disproportionately added as a fixed fee on top of a parking charge) were banned a month ago.

Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice:
https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

"Escalation of costs

The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

Explanatory Impact Document here:
https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice-explanatory-document-how-was-it-developed-and-what-will-it-change

The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  The Explanatory document goes into the rationale behind the ban, as does the DLUHC's link within it, to the 'Response to Technical Consultation - Debt Recovery fees' at paras 29-31 'Government Position':

https://www.gov.uk/government/consultations/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation/outcome/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation-response

The complete ban is a clear steer for the Courts that rationale along the lines of that by Her Honour Judge Jackson was correct, in her very detailed decision in Excel v Wilkinson (transcript for this was an exhibit provided by the Defendant before the hearing, unlike the Claimant's ambush with just their one-sided transcripts). 

It is regrettable that none of the above was mentioned to the court by the legally-represented party and it has taken a litigant-in-person to provide this skeleton, to assist the Judge before the judgment is handed down.




*********************************

Notes for you:
(the Smith and Quayle transcripts are the bottom two here:

http://www.parking-prankster.com/more-case-law.html

Attach them to your wife's email after downloading them and saving them. 

Don't provide them as links in case the Judge or rep won't click on them (it's fine to provide the Govt Code of Practice as a link as it's a Govt webpage).

VCS v Idle was not pursued at appeal, it is in the transcript of VCS v Ward and indeed they have underlined the relevant parts in black, helpfully!  Mr Idle was not able to be pursued because he was not the driver, and the Judge concluded there was no contract the Defendant had formed, and VCS were not claiming under the POFA.

Once she has URGENTLY (in the morning) emailed the rep asking him to forward it to the Judge's personal email, ASSUME HE WILL NOT (despite his first duty being to the Court) and print the sent email and transcripts off and put them in the post 1st class marked:

For the urgent attention of the learned Judge re claim xxxxxxxx heard on 9th March 2022.
Response from Defendant to the transcripts that they were ambushed with.  This email, attaching Excel v Smith & VCS v Quayle and commenting on the Claimant's late transcripts, was emailed  on 10/3/22 to the Claimant's legal representative, with a request to forward the response and attachments to the Judge, in the interests of balanced information for the Judge, before the judgment is made.


Also post a copy to VCS (or Elms Legal if they were using them?).

A skeleton argument does not have to be signed nor does it have a statement of truth.

If you know the Judge's name for sure, put that on the envelope that goes to court.

Don't worry about rebutting Crutchley, it's as useless as Ward.  Much of a muchness.

rapidon

Thanks so much. I just managed to do this before I had to go. Email and letter to judge sent (letter to VCS will have to wait until this afternoon). 

rapidon

Coupon-mad said:

Also post a copy to VCS (or Elms Legal if they were using them?).

They dropped Elms Legal early on, switching to their in-house team. I just sent them the new pack with a little cover letter.

If you know the Judge's name for sure, put that on the envelope that goes to court.

I meant to do this but missed it in haste so it's just addressed to the court with the line about for the urgent attention of  "the learned judge" with the case number after inside.

I am so grateful to you for drafting that, allowing us to act swiftly. 

Now we wait and see!

Stepping back, what do you make of it all? How often is the judgement postponed? Is it normal for claimants to be permitted to send in cases late?... From one personal email to another!