JLA "Stopping" Charge

Router66

The below letter, from my son, will be sent to his MP with a request to submit it to the Under Secretary for the DHULC. He will also provide his MP with details of an ongoing case with VCS, details of which are contained in this thread.
My son won't be able to send it until next week, which will hopefully provide sufficient time to take on board any feedback from forum members. 

I am disappointed to learn that you have advised my MP, ???? of the intention to proceed with the former MHCLG recommendation, although I understand a final decision has not yet been made.

I am somewhat baffled as to how these proposed measures are expected to reduce the number of parking charge notices issued to motorists. The opportunity for parking operators to significantly increase their profits will only incentivise parking operators to find creative ways to side-step any enforcement framework within the new Code of Practice.

I can only assume that the new department has more important priorities and has not yet taken on board concerns of the many MP’s that supported Sir Greg Knights Parking Act.

Under current legislation, The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered (by parking operators) is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording.

This legislation specifically prevents parking operators from adding further charges for debt collection, as these costs are already incorporated in the £100 core charge. Furthermore, as Debt Recovery Agents widely operate on a no win, no fee basis, parking operators are currently claiming for debt collection costs that have not been incurred; a practice that is unlawful.

I can well understand that both ATA’s and their members are worried about being brought under control and, will be doing their utmost to convince your department that they will provide an essential service to the new Code of Practice, whilst, in the meantime, ATA’s continue to encourage their members to break the law and ignore complaints about members wrongdoings.

I and many others will be telling their MP’s not to agree in Parliament to any Code of Practice from the Secretary of State, that allows this ludicrous add-on.

I would therefore welcome your assurance that more weight will be added to understand the implications of allowing parking companies to increase their charges beyond a ceiling that mirrors that of local authorities. 

Le_Kirk

Good letter, pretty much along the same lines that I sent to my MP yesterday.

Router66

Le_Kirk said:

Good letter, pretty much along the same lines that I sent to my MP yesterday.

Thanks Le Kirk, but I wouldn't have known where to start without the forum...

Router66

My son just had a very positive reply from his MP, who confirmed he will again take up my son's concerns over the Code of Practice proposals, and, without being asked to do so, he will also take up representations with VCS regarding the parking charge. 
If only all MP's were this helpful...

Anchovie

Forgive if I'm supposed to create a new post, but my wife has received a 'Claim Form' from a 'County Court Business Centre' for stopping on 21 May 2018 on the JLA access road. She was the driver but was not the registered keeper (neither of these has been disclosed been admitted to claimant). 

I plan to 'Disagree with the claim' on the basis that she cannot read the contract terms and conditions without stopping. Is this still relevant? 

Is there any further grounds for defence regarding the bye laws?  

Jenni_D

Please start your own new thread (if you still need help after reading this one and the NEWBIES FAQ thread).

One case, one person, one thread is how things work here.

Router66

Sadly I must re-kindle this thread as VCS has instructed Elms Legal to start court proceedings.

To refresh the forum of the circumstances; I am helping a family member (FM) since I have time to do so and he hasn’t. Previous posts took the thread to the LBC stage; below is my response to VCS and Elms Legal sent 28th October.
No reply was received from either party.

---------------------------------------------------------------------------------------

It is hereby admitted that the defendant is the keeper of the vehicle but it is not admitted that the defendant was the driver of the vehicle at the material time.

The defendant is not the Registered Keeper; for procedural purposes the defendant is to be considered as hirer or lessee of the vehicle, as defined in the Protection of Freedoms Act 2012.

 

1. VCS is a member of International Parking Community (IPC) which is an Accredited Trade Association (ATA).

This membership allows VCS to access DVLA records on condition that VCS abides by the IPC Code of Practice (CoP).

VCS has failed to adhere to the Code of Practice on a number of counts, specifically, but not limited to:

(a) Failure to provide a Notice to Hirer within 21 days from being notified of the keepers details.

(b) Failure to inform the Hirer of the discount provided for prompt payment.

(c) Failure to inform the Hirer of the arrangements under which disputes or complaints may be referred by the keeper to the IPC.

(d) Failure to inform the Hirer that any unpaid parking charges may be recovered from them.

(e) Failure to identify the creditor

VCS has failed to engage with either the Registered Keeper or the defendant, other than to send out template demands for payment with increasing threats and aggressiveness, either directly from their office or from the offices of various debt collection agencies, engaged on a no win, no fee basis.

2. The first notification of the parking charge was received on 2nd July 2019 in the form of a Final Reminder addressed to the Registered Keeper; the reminder advised that a Notice to Keeper had been issued on 29th May 2019; however this was not received. The Registered Keeper and the defendant both highlighted this omission in their communications to VCS dated 11th July 2019. VCS did not act on this information; instead two further demands for payment were issued to the Registered Keeper on 15th and 30th of July. When this attempt to obtain payment from the Registered Keeper failed, VCS issued a Notice to Driver (NtD) in the name of the defendant; however the NtD was also not received...The Keeper only became aware of the NtD after receiving the SAR response.

It is averred that both the NtK and NtD were not received by the Registered Keeper, or the defendant, due to being withheld, either deliberately or through procedural incompetence.

 3. The NtD is invalid in that it claims the Registered Keeper has named the defendant as the driver of the vehicle; since the Registered Keeper is a Company it can only provide the name of the Keeper/Hirer of the vehicle. The SAR confirms that the contact details provided to VCS by the Registered Keeper on 11th July 2019 were those of the Keeper/Hirer, not the Driver. Furthermore the NtD was not issued within the timeframe stipulated by the IPC Code of Practice.

Also, the NtD is not the appropriate document for service, in order for VCS to further their claim; VCS should have issued a Notice to Hirer/Lessee as per the requirements of the IPC Code of Practice (refer point 1(a) above).

It can be established from the SAR response that a Notice to Hirer has not been issued and therefore no invoice exists for VCS to rely on, in order to prove their claim.

4. The very sparse Particulars of Claim suggest that a contract was agreed between the driver of the vehicle and VCS by the act of signage being brought to the attention of the driver on entering the land of Liverpool John Lennon Airport. However, it is not possible for the driver to read, consider and accept the terms of the signage, which VCS relies upon, from a moving car.

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.

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.

 5. The images provided by the SAR show the driver waiting to pull out from an entrance, to join a road on which passing traffic has priority. The roadside red lines and any signage do not come into play as “avoiding an accident” is an exemption in no stopping zones. Furthermore, on the 1st February 2020, the defendant made a special trip to the site to view the layout and obtain alternative photo images of the area where the vehicle is stopped; one particular image shows that the gate opening extends beyond the red markings, which would allow any lost driver the possibility of turning round outside of the designated area where stopping is prohibited.

 6. The “demand for payment” documents currently include an additional £60 for debt collection. The £60 add-on represents an attempt at double recovery, which may be considered an abuse of process, and invite the Court to strike out the claim ab initio for that reason.

 7. As per Box I of Annex 1:

7.1 Please provide a copy of the contract between VCS and the landowner to prove that a contract is in place, allowing VCS to undertake legal proceedings on behalf of the landowner. Please note that a Witness Statement about the existence of a contract is insufficient.

7.2 Please provide a map showing the boundaries of the site VCS is contracted to control.

7.3 Please confirm under what legislation the defendant is being pursued and under what capacity (Keeper, Hirer or Driver?) If driver, please provide undisputable evidence that the defendant was the driver of vehicle YD16DUY at the material time.

Under no circumstances should court action be initiated until the defendant has confirmed to VCS that Pre-action Protocol has been satisfied and the LBC is therefore fully compliant.

 ---------------------------------------------------------------------------------------------------

 

The claim was issued on 29th. December 2021 and AOS was confirmed as received on 5th Jan 2022.
The Particulars of Claim state that the defendant was, at all material times the Registered Keeper and/or Driver. It has not been admitted that the defendant was the driver and the registered Keeper is the defendant’s employer.

I am looking to put together a defence based on the forum’s model and personalising sections 2 and 3, using the defence submitted in respect of the “Letter Before Claim”.

I would like to keep the defence short but punchy and any guidance on what to focus on, or discard would be much appreciated.

KeithP

Router66 said:

The claim was issued on 29th. December 2021 and AOS was confirmed as received on 5th Jan 2022. 

Had to go a long way through that post to discover that you have a County Court Claim 

With a Claim Issue Date of 29th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 31st January 2022 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Router66

Below is a first stab at a defence, much of it can be expanded on at the Witness Statement stage.

Would appreciate feedback if anything missing or not necessary.

2. It is admitted that the Defendant was the driver and lessee/hirer of the vehicle in question. Liability is denied.

 

3. The Particulars of Claim, as specified on the Claimant’s Claim Number XXXXXX state that clear and prominent signage provided acceptance of an offer to enter into a contract with the Claimant by conduct.  

The Defendant encountered various signs during his navigation through the airport site to Drop Off 2. Had all these signs been clear and prominent, the Defendant would have arrived at Drop Off 2 without incident.

The largest of the signs were positioned alongside a dual carriageway which had a 40 mph speed limit. It was therefore impossible for the driver to read these signs safely without stopping. It is noted that these signs have since been replaced, suggesting that the Claimant had recognised that the 2019 signs were not fit for purpose. Regrettably for the Claimant, the latest signs still contain a forbidding term “No Stopping” therefore the signs cannot offer a 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.

It is disputed that stopping in a zone where stopping is prohibited breaches any terms and conditions. The Defendant attempted to exit a gateway which he had entered inadvertently as a result of the airport site’s inadequate signage. The Defendant was forced to stop in order to give way to approaching traffic. The roadside red lines and any signage do not come into play as “avoiding an accident” is an exemption in no stopping zones.

As the Lessee/Hirer of the vehicle in question I would have expected the Claimant to serve the Defendant with a Notice to Hirer (NTH), as is required by the Code of Practice of the Claimant’s Accredited Trade Association (ATA). Since the Claimant failed to serve the NTH, thereby failing to adhere to the ATA Code of Practice, the Defendant was denied their right to a discount for prompt payment and a right to an independent appeal against the parking charge.
It is noted that other important and required Notices have been allegedly served by the Claimant; however none have been received by the intended recipient.

The Claimant failed to respond to the defence put forward by the Defendant in the Pre-action Protocol process; instead the Claimant instructed their Legal Representative to commence Court proceedings.

Coupon-mad

All paragraphs need a number.

Not sure you need to repeat their case unless you add 'This is denied'.

3. The Particulars of Claim, as specified on the Claimant’s Claim Number XXXXXX state that clear and prominent signage provided acceptance of an offer to enter into a contract with the Claimant by conduct.