Liverpool Airport VCS PCN: Some questions re: Defence

Doomtrooper

Yes... Thank you very much, and my apologies for my ignorance.

VeryOldBailey

Once again, thanks to @KeithP for the reminder and to @Redx for the links provided which are very helpful.

Two further questions:

1. The PCN was addressed to me as keeper of the vehicle but as yet the driver at the time has not been named. Is there any prospective benefit or disadvantage in identifying the driver?
2. I have a copy of the Liverpool Airport byelaws from 1982, 2019 and the draft byelaws of 2021. If necessary, can I asert that the 1982 version applied at the time of the contravention and leave VCS to prove that they weren't?

KeithP

VeryOldBailey said:

1. The PCN was addressed to me as keeper of the vehicle but as yet the driver at the time has not been named. Is there any prospective benefit or disadvantage in identifying the driver?
   

Yes, there is great benefit in them not knowing who was driving - particularly when the incident took place on land covered by byelaws.
That benefit being their inability to transfer any driver's liability to the keeper due to Schedule 4 of the Protection of Freedoms Act 2012.

Redx

1) The big BUT is the honest truthful answer to this question if asked in court under oath

Mr Bailey , were you the driver on the day ? Yes or No ? ( Or the driver is unknown ? )

Coupon-mad

1. I have a copy of the Liverpool Airport byelaws from 1982, 2019 and the draft byelaws of 2021. If necessary, can I assert that the 1982 version applied at the time of the contravention and leave VCS to prove that they weren't?

Yes, assert that now.

DisruptiveLad

Where on the complex was this PCN issued?

VeryOldBailey

Redx said:

1) The big BUT is the honest truthful answer to this question if asked in court under oath

Mr Bailey , were you the driver on the day ? Yes or No ? ( Or the driver is unknown ? )

Who, and under what circumstances, could ask that question?

KeithP

VeryOldBailey said:

Redx said:

1) The big BUT is the honest truthful answer to this question if asked in court under oath

Mr Bailey , were you the driver on the day ? Yes or No ? ( Or the driver is unknown ? )

Who, and under what circumstances, could ask that question?

Either the Judge or the Claimant's advocate.

I don't understand the 'under what circumstances' bit.

VeryOldBailey

My first draft can be found below. I've copied extracts from a couple of airport defences but relied heavily on the recommended template. I know that I will need to sort out the numbering and layout but thought it better to do that once I know I'm on the right track. All advice welcomed.

@disruptivelad: your question is answered at para 3.

DEFENCE

1 It is denied that a contract was entered into or breached.

It is denied that an offer was made - either by signs or any other means: the signs contained nothing which could constitute an offer, and 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. any such wording would not have been readable from a moving car.

The Claimant’s case is that the area is intended as “a zone where stopping is prohibited” at all times.

The signage is therefore prohibitive in nature and does not communicate any offer of consideration (ie: such as stopping or parking, at a price). In the absence of any consideration no contract exists.

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

3 The driver had arranged to pick up two travellers returning from abroad. The agreement with them was to meet inside the pick up/drop off area signposted Drop-Off 2. The driver was unaware (nor was it signposted) that it was necessary to make a booking prior to parking there. The driver was therefore not allowed to enter the car park and was instead obliged to reverse away from the barrier, towards the roundabout. This manoeuvre was performed extremely slowly because of the heavy rain, the absence of a rear screen wiper on that model of car, and the presence of traffic entering the roundabout. Suddenly one of the travellers opened a passenger door, causing the driver to brake sharply and immediately afterwards the tailgate was lifted by the other traveller. It was at this point that the claimant's photographs were taken.

No Cause of Action

The Particulars of Claim state that “At all material times the Defendant was the registered keeper and/or driver.” These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule (CPR)16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

No Keeper Liability

In order to pursue the Defendant as Keeper of the vehicle in question, the Claimant is relying on Schedule 4 of the Protection Of Freedoms Act 2012 (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”. It is to be noted that the claim before the court concerns an event of stopping but not parking. No parking event has occurred, nor is alleged to have occurred in relation to this claim and so Sch 4 of the POFA does not apply.

Para. 3 (1) of the Schedule goes on to clarify: “In this Schedule “relevant land” means any land (including land above or below ground level) other than -

(a) a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);

(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, the roads at Liverpool Airport which are publicly accessible are covered by the Road Traffic Enactments and therefore under authority of the police. Additionally, driving and parking at Liverpool Airport was under the statutory control of Liverpool Airport Byelaws 1982. Therefore, the airport is not ‘Relevant Land’ and the POFA does not apply.

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.

There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

Double Recovery

The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

Template paras follow from here.

Coupon-mad

I'd add near the start that the Claimant is put to strict proof that:

(a)  the byelaws, that have precedence, do not cover the situation of a brief stop as part of manoeuvring or other such 'de minimis' situation, and

(b) the vehicle was in an area enforced by them, because the entire Airport is not, and

(c)  the vehicle was in an area clearly marked by double red lines and conspicuous repeater signs, visible from a vehicle, and...

...wait for more advice from @DisruptiveLad:

https://forums.moneysavingexpert.com/discussion/6328051/vehicle-control-services-ljla/p1

Read it!

Please also answer his question, he has info to help you:

Where on the complex was this PCN issued?