Another EMA VCS No Stopping Fine!!!!!

SkyWhy

@KeithP understood and makes sense.  I just thought it might help others in the future reading this thread to see the completed version.

Jenni_D

If people are unable to cross-compare the template vs any amendments then I aver that they have bigger issues to resolve.  

Coupon-mad

SkyWhy said:

@KeithP understood and makes sense.  I just thought it might help others in the future reading this thread to see the completed version.

Makes sense, except that the template evolves over time. It will be out of date by 2023.

People are unlikely to stumble across individual threads in future anyway (which is why we have permanent 'sticky' threads as a resource pinned at the top of the board) but if they did somehow find this one in a couple of years' time, far better that they only read your factual additions and have to go seek out the current version of defence.

The Template Defence has changed twice already since I first wrote it, and it will again when the temporarily stalled Government regulation is finally implemented next year.

Do stick around to check this forum weekly or so, as I'm sure you will want to contribute your evidence to the final DLUHC Public Consultation (this Summer, date TBA).

It's specifically about the regulated level of parking charges (starting at £50 - that was the Govt's stated intention). The PPCs will be bleating for £120/£130.

And it is vital we make sure the DLUHC confirm that the banning of the false 'debt recovery' fees was 100% correct and must be re-stated to be the blatant extortion that the DLUHC said the added £70 clearly is.  It also directly funds and fuels court claims and the whole roboclaim culture depends on the £70 multiples.

This 'vulture culture' must end.

The likes of BW Legal, Gladstones, DCBLegal, QDR et al have no place as apparent 'parasites' dragging the parking industry further into the gutter, IMHO. Disincentivise them by removing the extortion add-on, and they will disappear.

People will either pay parking charges without harassment or if a PPC wants to sue a persistent 'offender' they still can, like any other honest trader can. No-one needs a roboclaim underclass driving parking cases to court instead of letting struggling people settle at the original rate.  As any honest trader does!

SkyWhy

So here are the bits of my defence that fall outside the standard template.  I welcome your feedback on the arguments raised and any suggested amends please.  I have added wording to para 7 of the Template doc (para 25 below) to reflect the fact the code was temporarily withdrawn. This post may run into several posts given the word limit per post:

The facts as known to the Defendant:

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

3. The Defendant was taking their family to a pre-booked swimming session (‘the session’) at the Jury’s Inn Hotel (‘the hotel), a hotel in the East Midlands Airport complex on the evening the alleged offence took place.  It was November and approximately 5.30pm and it was dark.  It was the Defendants first visit to the hotel and therefore they were unfamiliar with the parking arrangements.  When the Defendant pulled into the hotel access road, they noted the hotels’ parking tariff sign which wasn’t lit and could only be read using the cars headlights.  Due to the position of the sign the only way to read it and light it up was to bring the car to a halt in front of the sign and prior to the car park entrance barrier.  It should be noted that the Defendants’ foot was on the brake pedal the entire time which is evidenced by the pictures produced by the Claimant in numerous claim demands they bullied the Defendant with.  At no time was a handbrake utilised which shows a distinction between ‘vehicle stopped’ and ‘vehicle waiting to manoeuvre’.  The Defendant then proceeded to ring the hotel to clarify whether or not they would be liable to pay for parking in addition to the £15 they had already paid when booking to use the swimming pool.  Once clarified that parking was included the Defendant proceeded to the barrier and entered the car park.  

Lack of Authority

6. Contract authority refers to the ability given to an individual or agency to act on another’s behalf in order to carry out a specific task. 

7. A lack of authority refers to a party acting on behalf of another without having granted the permission to do so, or a party who has been granted permission to act on another’s behalf interfering with areas that they have not been granted specific permission to handle. In this instance, any action made is not legally binding. 

8. It is clear from the photographic evidence provided by the Claimant that the Defendant’s vehicle was stationary within the demise of the hotel at the time of the alleged offence. 

9. This can be cross referenced with the hotels’ lease title plan Title number LT505278 to clearly see that the Defendants vehicle was always on the hotels land when it is alleged an offence took place.

10. This is relevant because the Defendant avers that the Claimant did not have actual authority from the tenant of the hotel land (Jury’s Hotel Management (UK) Limited) upon which the alleged offence took place to issue a claim against the Defendant.

11. I therefore aver that the Claimant was acting with a lack of authority when they issued their claim rendering their claim not legally binding.

12. The defendant asserts that the Claimant’s case should fail on these facts alone.

No valuable consideration

13. In the alternative on the date referenced by the Claimant in the ‘POC’ the Defendant booked and paid to attend the swimming session with their son and wife at the hotel.  The session was to take place on the same day.

14. At the time of this booking, the Defendant obtained a contractual licence to use the estate roads by virtue of the access rights granted in the lease dated 31st August 2018 vested in Jury’s Hotel Management (UK) Limited (leasehold title no LT505278).

15. The Defendant strongly denies he had the opportunity to read any of the alleged terms contained within the Claimants signage when they attended the swimming session, however even if the court was to find that they did, it would not form the basis of a legally binding contract between the Defendant and the Claimant.

16. For a legally binding contract to exist, there must be valuable consideration moving from the promisee to the promisor. Valuable consideration was not provided by the claimant at the time of the alleged agreement of terms.

17. In Thomas v Thomas [1842] 2 QB 851, 859 Patteson J famously stated that ‘consideration means something which is of some value in the eye of the law’.

18. In the case of Chappell & Co Ltd v Nestlé Co Ltd [1960] AC 97, Lord Somervell expressed that ‘valuable’ consideration exists where the promisor places value on it or requests it.

19. The Defendant submits that there could be no valuable consideration in the circumstances made out in the Claimant’s ‘POC’.

20. In the case of VCS v Ward [2019] it was held on appeal to the county court by HHJ Saffman that the consideration was the contractual licence to be on the estate roads (which was provided by the claimant operator in exchange for the driver’s promise to observe the no stopping rule).

21. The facts are very different in the instant case.

22. In these proceedings, the Claimant cannot claim that consideration is given by way of a contractual licence to use the estate roads as this would be of zero value to the Defendant and not valuable or good consideration for the purposes of a legally binding contract. This is because the Defendant already had a contractual licence to use the estate roads under the booking made with the hotel to use the swimming pool and a subsequent licence would be of no value to the Defendant.

23. The Defendant asserts that the Claimant’s case should fail on these facts in addition to the Claimant’s lack of authority to issue a claim.

25. 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.  It is noted, however, that the Code of Practice has been temporarily withdrawn on 7 June 2022 pending review of the levels of private charges and additional fees.  The intent of the code is still deemed relevant to this case by the Defendant.

SkyWhy

I would like to submit to the court before COB tomorrow so apologies for the short notice. Thanks.

Coupon-mad

Very good individual additions. Can't fault it except:

"which is evidenced by the pictures produced by the Claimant in numerous claim demands they bullied the Defendant with."

...would read better not ending with the word 'with'. And the letters were not 'claim' demands.

SkyWhy

Thank you for your prompt response @Coupon-mad.  I will make those amends.

SkyWhy

Does this read better: "It should be noted that the Defendants’ foot was on the brake pedal the entire time which is evidenced by the pictures produced by the Claimant in numerous demands with which they bullied the Defendant." 

Coupon-mad

Yes that's better!

KeithP

Paragraph 11 includes the word 'I'.

It should start "The Defendant therefore avers...".