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VCS Parking Ticket at East Midlands Airport (Notice to Driver)

Dear Fellow Members,

My story might end up being a long one so bear with me. I am completely a newbie when it comes to parking tickets so please be patient with me and all the advise from experts would be really helpful!!!

So, I went to EMA in December 2021 for a COVID test and I stopped briefly on the double red lines waiting for a family member to return. All of a sudden, the VCS van with the CCTV just appeared within seconds of me stopping there. I drove off immediately within seconds of spotting the VCS vehicle but they still took pictures/video of the vehicle I was driving. The car that I was driving was my brother in law's car so he received a charge notice (Notice to Keeper) asking for £100 (or £60 if paid quickly in 14 days) but since he is reluctant to deal with the parking companies, therefore, I asked him to declare to VCS the name of the driver which was myself as I am determined to fight the case. However, I have no previous experience so all the experts on this forum, please help!!!

Once my brother-in-law informed them of the driver, I then received a charge notice (Notice to Driver) asking for £100. I appealed it saying that I deny any liability or contractual agreement. I requested for further evidence about the signage etc on the site as well as mentioned in the appeal that bylaws are in place for airports to operate. The charge notice also said that the vehicle in question was on a privately operated access road but that is clearly not the case due to bylaws, please correct if I am wrong. I also mentioned that they are trying to take financial advantage by false representation and would be referring this case to the action fraud which I did do. Anyways, as expected, they refused my appeal by saying that the signs at the entrance to the airport clearly identify the roads as private and byelaws are currently not in use. Moreover, they also provided more evidence of the signage on site and bigger version of the pictures of the car I was driving in the rejection letter. I haven't appealed to IPC as I think they would always be on the VCS side.

I have done a subject access request about two weeks ago asking for all the information/images/videos that they hold relevant to this case.

I understand that the case would have been much easier if the name of the driver was never disclosed but as I mentioned earlier, my brother-in-law (registered keeper) was reluctant to flight the case/court hearing etc so he had to tell VCS of the driver. So, my main concern is how to go about this case when they already know the name of the driver. Do I still stand a case even though they know who the driver was?

Anyhow, a month later after receiving the appeal rejection, I have received another threatening letter from VCS dated 30/03/2021 saying "Demand for Payment" of £170. This is the most updated event in my case.

Please advise. Thanks for reading this post and any help will be much appreciated!!!

«1345

Comments

  • Coupon-mad
    Coupon-mad Posts: 147,800 Forumite
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    edited 20 April 2022 at 2:09PM
    So you are the known driver in a VCS Airport case. Not a problem.  Most defendants admit to driving.  Certainly defendable.

    You mean your latest letter was this March 22, not 2021?

    Read the SECOND post of the NEWBIES thread.
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  • ezzaf3
    ezzaf3 Posts: 25 Forumite
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    So you are the known driver in a VCS Airport case. Not a problem.  Most defendants admit to driving.  Certainly defendable.

    You mean your latest letter was this March 22, not 2021?

    Read the SECOND post of the NEWBIES thread.
    Thanks for your prompt reply. I will have a read through the NEWBIES thread and would get back with further questions.

    Sorry, yeh my bad, its March 2022 and not 2021.
  • Fruitcake
    Fruitcake Posts: 59,417 Forumite
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    Were the images of the vehicle taken whilst it was moving, or whilst it was stationary? They will struggle top prove the vehicle was stopped if they don't have images/video of it stationary.
    I married my cousin. I had to...
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  • ezzaf3
    ezzaf3 Posts: 25 Forumite
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    Fruitcake said:
    Were the images of the vehicle taken whilst it was moving, or whilst it was stationary? They will struggle top prove the vehicle was stopped if they don't have images/video of it stationary.
    Thanks four reply.

    So the images were taken when my car was stationary. The car was actually half on the kerb. There was another driver who was also waiting like me (half on the kerb and double red lines) and was stopped ahead of me. Therefore, they know that my car was stationary it being half on the kerb. I have done a SAR to see if they just have images of my car which they provided me with in the letter they send me every time or they also hold the video footage as well. No reply of SAR yet.
  • Coupon-mad
    Coupon-mad Posts: 147,800 Forumite
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    edited 21 April 2022 at 12:10PM
    Out of interest (and this isn't a criticism) why did the driver stop on double reds? It is the one place (apart from bus stops, crossings, etc.) never to stop.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • Router66
    Router66 Posts: 185 Forumite
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    Out of interest (and this isn't a criticism) why did the driver stop on double reds? It is the one place (apart from bus stops, crossings, etc.) never to stop.
    Just an example...If an unwitting driver follows the signs for LJLA Drop Off area, chances are they will turn into the gateway of Wynne Aviation.
    The double reds continue into the gateway, forcing the driver to stop before turning out of the gateway back onto the red route. 
  • ezzaf3
    ezzaf3 Posts: 25 Forumite
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    Out of interest (and this isn't a criticism) why did the driver stop on double reds? It is the one place (apart from bus stops, crossings, etc.) never to stop.
    Yes I know that I shouldn’t have stopped on the double red lines. I guess I was just being careless and ended up paying for my mistake.
  • ezzaf3
    ezzaf3 Posts: 25 Forumite
    Second Anniversary 10 Posts Name Dropper
    Dear Fellow Members,

    Hope you are all well.

    Now I have new advancements in my case and therefore I am back on the forum for more timely advice.

    So VCS has decided to take me to court. I have received a N1SDT Claim Form dated 26th July 2022 from Money Claims Online (MCOL) from Northampton which also includes a response pack N9SDT, form of admission N9A (SDT) as well as Defence and Counterclaim N9B (SDT). I have already submitted an acknowledgement of service (AOS) online on MCOL on 31st July which was acknowledged on 1st August. Currently I am preparing my defence and would need advise regarding my situation. My main reason that I was visiting EMA when it all happened back in December 2021 was for COVID'19 tests for myself and my family including my sister, her husband and her 5 months old baby. So the main reason why I had stopped on double red lines was the fact that my niece was a little disturbed and had started crying perhaps because her mum wasn't there since my sister took a bit longer than everyone else to have her test sample taken at the test centre. I know I shouldn't have stopped on double red but I also got stressed out at that time since the baby was crying and I decided to bring my car out of the car park and briefly stopped on the double red lines to see if her mum was making her way out of the test centre or not. I have all the COVID'19 test bookings for everyone to prove that my sister and her husband was also attending the test with me. Moreover, it is in fact my brother in law's car that I was driving on the day. As far as I understand, emergency stops are allowed in the bye laws and this situation of mine would be classed as an emergency stop? Please advise.

    Right now, I am working on filling my defence and I have obtained the template for it from one of the threads on this forum. I post the draft here. If you guys could please give me some feedback and advice as to what I need to include in it, it would be really appreciated! As per my understanding, I am not supposed to touch points 4-27 in the template, only need to add details in number 2 and 3, Right? However, I am not sure how much detail shall I include in those points. Given my situation above what should be included in point 3? Please give some feedback.

    Many thanks for reading my long post and your valuable feedback will be highly appreciated especially from @Coupon-mad@Fruitcake or anyone else who probably has been through a similar situation as mine.

    Please bear with me as I am a newbie here and all this is new to me. Please don't hesitate to ask for more info as I might have missed out something.

    Thanks in advance!!!

    Defence Letter is below in the next post.
  • ezzaf3
    ezzaf3 Posts: 25 Forumite
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    IN THE COUNTY COURT

    Claim No.:  XXXXXXXX

    Between

    Vehicle Control Services Limited

    (Claimant) 

    - and -  

    Mr XXX XXXX

     (Defendant)

    _________________

    DEFENCE 

    1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

     The facts as known to the Defendant:

    2. It is admitted that the Defendant was the driver however is not the registered keeper of the vehicle in question.

    3. The defendant, who was the driver of the vehicle in question was visiting East Midlands Airport on 24/12/2021 with family for a COVID-19 test. However, after the defendant left the car park, the defendant had to make an emergency stop. However, within seconds, a CCTV van appeared out of nowhere and took images of the car in question. (What more do I write in number 3?). 

     4. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

    5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.  

    6.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

    7. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

    8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

    9. 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." 

    10. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

    11. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

    12. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event. 

    13. 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.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

    14. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

     POFA and CRA breaches

    15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

    16. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

    17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. 

    ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

    18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

    19. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.

    20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

    (i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

    (ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

    both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

    (ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

    21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

    Lack of landowner authority evidence and lack of ADR

    22. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

    23.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

     Conclusion

    24. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

    25. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

     26. In the matter of costs, the Defendant asks:

    (a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

    (b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

    27.  Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

     Statement of Truth

    I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

    Defendant’s signature: XXX XXXX

    Date: 02/08/2022

  • Coupon-mad
    Coupon-mad Posts: 147,800 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Looks fine (we assume this claim was addressed to you as the Defendant and not the keeper, your brother in law?).

    You could add to 3 that the Defendant has checked the Airoort byelaws which permit brief stopping in an emergency.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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