VCS - EAST MIDLANDS

Gkits

Is this better- ???To be honest I cannot find anything since 2000 on byelaws so Im not even sure if the airport and that entrance area is covered by them. Thats why I was putting in the POFA timescale which they did not follow as a backup. I have eliminated this now 

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 registered keeper of the vehicle (******) but was not the driver at the time of the date/claim.

3 The Protection of Freedoms act 2012 Schedule 4 states that  the creditor has the right to  recover any unpaid parking charges from the keeper of the vehicle if the driver is not known. However, Since PoFA cannot be used under byelaws, for contract-based parking tickets, only the driver could be held liable.

4. The defendant has checked the airport byelaws which permit brief stopping on double red lines in case of an emergency.

5. The vehicle did not park, it merely stopped and turned around in a hotel entrance in an emergency, the vehicle was not stationary at any point. In Jopson Vs. Homeguard, case no: B9GF0A9E, which had seen this appeal allowed, his honour Judge Harris QC mentions that stopping briefly is not parking. "19. The purported prohibition was upon "parking", and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time"

6.  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 using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

Coupon-mad

Why not just copy from any other VCS Airport byelaws defence (search the forum) as better ones have been written and there are hundreds here to learn from.

There are pages in this 'forum book' that you haven't turned yet, I think.  It's a huge resource.  

Gkits

The forum is a minefield and as explained I have to submit this evening as Im going away tomorrow. All of the previous cases have different defences I really dont know which one to use!! 

Gkits

Is this a better clearer defence - I appreciate your advise 

DEFENCE

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was not the driver on the date. .

3. 4. The Particulars of Claim state that the Defendant XXXXX; was the registered keeper and/or the driver of the vehicle XXXXX;. 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 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.

6.  It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name.

7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. East Midlands airport byelaws should be applicable and considered: VCS operates under East Midlands airport byelaws.

9. This Claimant may try to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, at appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015) that an emergency is a 'reasonable excuse' clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all. This Claimant has misapplied the byelaws rules and twisted them for their own profit.

10.  Airport approach roads are subject to road traffic enactments (public highway)
Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Defendant was afforded the opportunity to accept contractual terms and that
(d) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being out of the driver's control,

the Claimant is also put to strict proof that:

(g) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

11. The road comes off a roundabout and is not clearly demarcated as private land, nor is it a private car park and thus, any parking/traffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

12. The claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

13. The Protection of Freedoms act 2012 Schedule 4 states that  the creditor has the right to  recover any unpaid parking charges from the keeper of the vehicle if the driver is not known. However, Since PoFA cannot be used under byelaws, for contract-based parking tickets, only the driver could be held liable

.

14.  The vehicle did not park, it merely stopped and turned around in a hotel entrance in an emergency, the vehicle was not stationary at any point. In Jopson Vs. Homeguard, case no: B9GF0A9E, which had seen this appeal allowed, his honour Judge Harris QC mentions that stopping briefly is not parking. "19. The purported prohibition was upon "parking", and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time"

15.   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 using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

7. 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.  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 and specific breach allegations, which makes it difficult to respond in depth at this time; however this claim is unfair, generic and inflated.  

Coupon-mad

Much better, IMHO, but one change. This is incorrect (below) because VCS do NOT operate under byelaws, in fact they try to run an alternative model outside of the byelaws which renders their purported contractual offer a nullity, because byelaws are a creature of statute and must prevail:


"8. East Midlands airport byelaws should be applicable and considered: VCS operates under East Midlands airport byelaws."

Gkits

OK another draft:

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.      The Particulars of Claim state that the Defendant ****; was the registered keeper and/or the driver of the vehicle ******;. 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 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3.      The facts are that the vehicle, registration ******, of which the Defendant is the registered keeper, was not the driver on the date. The driver has informed the defendant that they had to make an emergency stop. The vehicle did not park, it merely stopped and turned around in a hotel entrance in an emergency, the vehicle was not stationary at any point. In Jopson Vs. Homeguard, case no: B9GF0A9E, which had seen this appeal allowed, his honour Judge Harris QC mentions that stopping briefly is not parking. "19. The purported prohibition was upon "parking", and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time"

4.      If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.

5.       It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name.  The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

6.      The defendant has checked the Airport byelaws which permit brief stopping in an emergency. The driver who is an asthmatic, stopped on double red lines briefly as he was having a sneezing fit and deemed it unsafe to drive. However, within seconds, a CCTV van appeared out of nowhere and took images of the car in question. The defendant has checked the airport byelaws which permit brief stopping in an emergency. For reference, please see point 4 (4) on page 5 of the East Midlands Airport Byelaws 2001 booklet.

7.      The Protection of Freedoms act 2012 Schedule 4 states that  the creditor has the right to  recover any unpaid parking charges from the keeper of the vehicle if the driver is not known.. However, Since PoFA cannot be used under byelaws, for contract-based parking tickets, only the driver could be held liable

8.      This Claimant may try to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, at appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015) that an emergency is a 'reasonable excuse' clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all. This Claimant has misapplied the byelaws rules and twisted them for their own profit.

9.      Airport approach roads are subject to road traffic enactments (public highway)
Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Defendant was afforded the opportunity to accept contractual terms and that
(d) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being out of the driver's control,

the Claimant is also put to strict proof that:

(g) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

10.  The road comes off a roundabout and is not clearly demarcated as private land, nor is it a private car park and thus, any parking/traffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

11.  The claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

12.    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 using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

KeithP

I hope you are not planning to file a Defence with that layout.

Left justified is always the way.

Gkits

No its all been renumbered and filed left!!!    I hope the content is better . Thanks for all your support guys but sometimes you can be really harsh!

Boat_to_Bolivia

Please stop panicking, you can submit your defence by email from anywhere in the world so long as you have Wi-Fi/data. 

Coupon-mad

But as long as the rest of the Template Defence follows that, it looks ready to sign & date and email to the CCBCAQ email address.  As stated in the first 12 steps in the Template Defence thread.

Ideally during working hours and you MUST make sure you get an auto-acknowledgement email straight back.  Do not go off on holiday thinking you've done it, if you DIDN'T get an auto-reply.