Being taken to court for two PCNs from VCS for stopping at Liverpool Airport in 2018

Snakes_Belly

At the start of the debate surrounding Sir Greg's PMB there was talk about monitoring hot spots. This would certainly fall into that category. 

It may be an idea to write to your MP if you have not already and describe your experience. 

Not trying to highjack your thread however there has been a hotspot in the area that I live "managed" by the sister company to VCS, Excel. Their contract will finish at the end of this month. 

Coupon-mad

Doddle1 said:

bargepole said:

Here's one I did earlier (the appeal succeeded):

https://www.dropbox.com/s/botgka5mct8uf2o/N164 Redacted.pdf?dl=0

That's really helpful thanks very much. Does this look any better? Is there anything else I should include as I feel I'm making the same point three times. 

1. The District Judge erred in law, in that he failed to recognise that the Appellant cannot be held liable as the registerred keeper for the actions of a driver under the  Protection of Freedoms Act (POFA) 2012 Schedule 4 which states that Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability'

2. The District Judge erred in law by stating the the Appellant could not rely on the Protection of Freedoms Act (POFA) 2012 because the Judge didn’t know which  byelaws were in place at Liverpool Airport. The specific byelaws are not a factor in determining whether POFA applies. Where byelaws exist such as airport land it is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability'” 

3. It is a point of law that the registerred keeper cannot be held liable and I believe that the Judge erred in law in my case.

I think that your point #3 should state that:

3. This was a finding that relied on an unpleaded point.  The Claimant had not pleaded that the keeper could be held liable under the POFA Schedule 4; indeed this parking firm is aware that Airport land is excluded from POFA Schedule 4.  The Claimant was instead relying on a bare assumption that the keeper might have been driving (a position that the Claimant's sister firm has previously lost at appeal, in Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062 - full transcript is in the public domain).

4.  Given that in the instant case, the learned Judge heard the Defendant's witness testimony in person and accepted that the Defendant was not driving, there was no lawful basis to hold the keeper liable for the actions of another driver at this particular location, which is not within the POFA definition of 'relevant land' and was not pleaded to be so.


See what @bargepole thinks...

bargepole

Yes, the above looks good.

Whilst some of it may appear repetitive, you have to bear in mind that the Circuit Judge very rarely gets involved in a parking case, so you have to lead them through it Janet and John style.

Doddle1

I submitted my appeal today to make sure I met the 21 day deadline - I've copied what I said below. However I've just received the Order and it's a Tomlin Oder which I've just googled and it says that it "cannot be overturned" It's a contractual agreement as opposed to a regular consent order. 

I think the judge has stiched me up good and proper! I went into court with a comprehensive WS and knowledge that I could not be held liable as the RK. The judge then tells me that I am liable and won't hear any other points around signage as I wasn't the driver. I was then strongly encouraged to 'negotiate' a settlement (basically the judge was hinting that I'd lose if I didn't). He mentioned to the VCS rep that he'd make it a certain order but I didn't catch what he said and by that point I was broken by the process. 

So I fully expect my appeal to be able to appeal will be turned down even though it was all down to the judge being wrong and a bully! 

Any advice other than to give up?

Section 5 ‘Grounds for Appeal’  

1.The District Judge erred in law, in that he failed to recognise that the Appellant cannot be held liable as the registerred keeper for the actions of a driver at this location under the Protection of Freedoms Act (POFA) 2012 (Schedule 4) which states that Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability'

2.The District Judge erred in law by stating the the Appellant could not rely on the Protection of Freedoms Act (POFA) 2012 because the Judge did not know which byelaws were in place at Liverpool Airport. The specific byelaws are not a factor in determining whether POFA applies. Byelaws exist at Liverpool Airport. Where byelaws exist such as airport land it is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability'”. It is a point of law that the registerred keeper cannot be held liable and the Appellant believes that the Judge erred in law in this case.

3. The Judges assertion that the case was weak relied on an unpleaded point. The Claimant had not pleaded that the keeper could be held liable under the POFA Schedule 4; indeed this parking firm is aware that Airport land is excluded from POFA Schedule 4.  The Claimant was instead relying on a bare assumption that the keeper might have been driving (a position that the Claimant's sister firm has previously lost at appeal, in Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062 - full transcript is in the public domain).

4.  Given that in the instant case, the Judge heard the Appellant's witness testimony in person and accepted that the Appellant was not driving (in fact the Judge refused to consider the Appellant’s defence points regarding poor signage to the free drop off area because they were not the driver) there was no lawful basis to hold them liable for the actions of another driver at this particular location, which is not within the POFA definition of 'relevant land' and was not pleaded to be so. 

5 The Appellant understood that in law they could not be held liable as the registerred keeper due to POFA 2012 Schedule 4. However at the start of the Hearing the Judge stated that the Appellant’s case, and this particular defence point was weak and the registerred keeper was liable because the Judge didn’t know the detail of the Airport byelaws. On this basis the Judge suggested that the Appellant and Claimant negotiate a settlement for this case and an almost identical case. The Appellant would not have entered into any negoitation had the Judge not erred in law.  

6 The Appellant did not recieve the Claimant’s Witness Statement prior to the Hearing. The Judge said that the case could be adjourned however the Appellant understood that in law they could not be held liable as the registerred keeper due to POFA 2012 Schedule 4 and therefore agreed to procede. The Appellant would have accepted the adjournment had the Judge not erred in law.  

Coupon-mad

See what @bargepole and @Johnersh say as IANAL.

bargepole

I presume that the Tomlin Order is a result of the outcome of the first hearing.

If so, it is a contractual agreement between the parties that the Defendant shall pay £X to the Claimant, either as a lump sum or by agreed instalments. It has the advantage that no Judgment is recorded in the Register, or on your credit file. However, you should not have agreed to it if you were intending to appeal.

It cannot subsequently be appealed, so I'm afraid you're stuck with it - pay up and move on.

Doddle1

Thanks bargepole.

I still think it's unfair that the only reason I agreed to 'negotiate' was because the judge told me that I was liable as the RK. And then he gave me a Tomlin order which I didn't understand. 

I should have been able to rely on a judge reading my WS and understanding the law. Because he didn't understand the law he basically told me to negotiate or he would find against me anyway. 

And he topped it off with an Order which means I can't appeal ane he'll never be found to have been ignorant of the law.

I've paid and I'll move on but hopefully other people reading this may learn from what happened to me.   

Fruitcake

Is the opportunity to make your own claim against the PPC still and option?

Coupon-mad

There would still be scope to complain to the area Circuit Judge about this Judge's actions and misapplication of the POFA and say how incensed you are that you now find that he has also scuppered your chances of appealing a wrongful judgment based on a clear error.

You could also sue the Airport for the loss caused by the misleading actions of their agent.  You'd need to send a well pleaded LBC first.

Doddle1

Coupon-mad said:

There would still be scope to complain to the area Circuit Judge about this Judge's actions and misapplication of the POFA and say how incensed you are that you now find that he has also scuppered your chances of appealing a wrongful judgment based on a clear error.

You could also sue the Airport for the loss caused by the misleading actions of their agent.  You'd need to send a well pleaded LBC first.

Thanks, I like the idea of complaining about the Judges actions - would that just be a letter to the court or should I try to find the area Circuit Judge?