Vehicle Control Services (VCS) EMA, ELMS Legal - Court

philuk2000

Coupon-mad said:

Indeed but your current defence sadly (wrongly) says you were driving.

Apply for permission to amend.  If it's refused you don't get the £108 back but I advised you what to put.  Can't guarantee a Judge will allow you to.

Yes.  I spoke to the county court business centre today just to ensure I was doing everything correctly.

They advised on amending a defence using the N244 form that I only needed to answer questions 1, 2, 3, 10 and 11.  They also advised me to send my new defence at the same time using a separate form (n009b) and not to wait for the court to respond to the N244 application notice.

So I need to make the correction and provide a more robust defence to file.  I'm not totally sure what I need exactly to reference regarding the part from what you said about VCS not allowed to hold registered keepers liable on airport land.

I also have 3 witnesses (who were in the car) to say I wasn't driving.

Coupon-mad

Just use the Template Defence and copy & add what you find in any other VCS Airport defence thread about the POFA not applying (no keeper liability).

Snakes_Belly

Sorry that I misunderstood your post. Some previous forum members who have defended similar claims have had dash cam images showing that they were unlikely to have stopped so I thought there there may have been a similar image in your case.

The signage is quite specific and says nothing about turning. They mention no stopping and no dropping off but not turning.

philuk2000

Hi Everyone,

Please can someone review my defence for any errors, inconsistences, suggestions and advise what is relevant and what is not that I have?

I don't know what I need to add for Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062

Also, what exhibits would I need to include?

The facts as known to the Defendant

2. It is admitted that the Defendant was the registered keeper but was not the driver of the vehicle at the time of the event, and liability is denied. 

3. The location, “East Midlands Airport” (the Airport) is not 'relevant land’ and does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the PoFA').

4. Paragraph 3 of Schedule 4 of the PoFA states that land is not ‘relevant’ where byelaws apply to it.

5. The land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009:

https://live-webadmin-media.s3.amazonaws.com/media/7234/east-midlands-airport-byelaws-2001-re-issued-september-2009.pdf

6. As the land is not ‘relevant’ land the Claimant does not have the right to recover charges from the Defendant, as "Registered Keeper" of the vehicle as there is no "keeper liability" at the airport which is covered by East Midlands Airport byelaws.

Since the PoFA cannot be used under byelaws, for contract-based parking tickets, only the driver can be held liable.

7. The location of the event is entirely accessible to the public; there are no barriers or obstructions to prevent public access. This falls in the definition of a “road” as per section 142 in the Road Traffic Regulation Act 1984. Therefore the recovery for the “parking charge notice” did not occur in a private car park, where the Claimant may have permission to form its own contracts.  Instead, it was on a public road, meaning any penalty falls within statutory regime, enforceable only by Traffic Officers as defined in the Traffic Management Act 2004.

8. The Claimant’s case is that the area is “private land” where “stopping in a zone where stopping is prohibited” at all times. The signage would therefore be prohibitive in nature and would not communicate any offer of consideration (ie: such as stopping or parking, at a price). In the absence of any consideration no contract exists. 

9. The particulars outline the contract’s accepting conduct to be the entering of "private land".  When approaching the signs in a vehicle, it is not possible to perform the declining conduct without first performing the accepting conduct.

10. The Defendant has no knowledge or time to read and digest the terms. The "no stopping" term was forced upon the Defendant, as the registered keeper of the vehicle, rendering it an unfair term as stated in Schedule 2 to the Consumer Rights Act 2015: 

i.  “A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.”

11. Judge Moloney QC reiterates this in Ransomes vs. Anderson (“the Ransomes case”), a persuasive County Court judgement on appeal:

i.  “the notice was insufficiently clear to constitute a valid contractual offer capable of acceptance by conduct. […] Although the doctrine of acceptance by conduct, on the basis of the terms on a notice in a parking place or similar zone, is an obviously right, valuable and useful one, it is an essential minimum that the contract be sufficiently simple and clear that the motorist is in no doubt before he performs the accepting conduct what he is letting himself in for”.

12. Whether or not the Claimant alleges that they operate under, or rely upon, the East Midlands Airport byelaws, these create a level of statutory parking control and must take precedence over the land and cannot be overruled by a claim pleaded in contract or tort.

13. It appears that the Claimant has not only attempted to create a contract to apply to a public highway, but has also bypassed Airport Byelaws in doing so, defining contradictory terms and conditions that allow them to profiteer from the use of the publicly accessible roads.  Even if the Claimant has authority to do that, where is the evidence that these specific areas of the roadways fall within their area map of enforcement, and where are the pictures and locations of the signs that constitute such a “contract”.

14. 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.

15. 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 a public highway and the Claimant is put to strict proof to the contrary.

16. 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.

17. 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

philuk2000 said:

Please can someone review my defence...

That looks more like a Witness Statement than a Defence.

Why not start with the template in the Template Defence thread?

Coupon-mad

Para 10 doesn't make sense if you weren't driving.

The alleged contract is only made with the driver, not the keeper.  It should talk about 'the driver' not 'the Defendant as keeper'.

I don't know what I need to add for Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062

You can search the forum

You can search the forum. Good wording about Excel v Smith has been written hundreds of times.

philuk2000

KeithP said:

philuk2000 said:

Please can someone review my defence...

That looks more like a Witness Statement than a Defence.

Why not start with the template in the Template Defence thread?

That is what I was planning to merge this with.
If that is not the correct approach, what should I be putting in the defence and what should be left out?

Are all sections in the template defence relevant to my case and being the registered keeper?

philuk2000

Coupon-mad said:

Para 10 doesn't make sense if you weren't driving.

The alleged contract is only made with the driver, not the keeper.  It should talk about 'the driver' not 'the Defendant as keeper'.

I don't know what I need to add for Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062

You can search the forum

You can search the forum. Good wording about Excel v Smith has been written hundreds of times.

I added this because as the registered keeper (and not there) then it would be impossible for me to know about any signs to agree to.

Is it better to not include any defences relevant to a driver and only include defences what are relevant to being the keeper and not the driver?

Coupon-mad

philuk2000 said:

Coupon-mad said:

Para 10 doesn't make sense if you weren't driving.

The alleged contract is only made with the driver, not the keeper.  It should talk about 'the driver' not 'the Defendant as keeper'.

I don't know what I need to add for Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062

You can search the forum

You can search the forum. Good wording about Excel v Smith has been written hundreds of times.

I added this because as the registered keeper (and not there) then it would be impossible for me to know about any signs to agree to.

Is it better to not include any defences relevant to a driver and only include defences what are relevant to being the keeper and not the driver?

No.

You just need to word it more clearly.

philuk2000

Coupon-mad said:

No.

You just need to word it more clearly.

Thank you.

I have some other questions just to be absolutely sure I'm doing things correctly.

Do I just add my defence to the templated defence and renumber as appropriate?

Because I need to resubmit my defence (I errored in my original, so I'm applying to amend), I thought maybe that I could possibly use the driver or any passengers as witnesses to say that I was not the driver.
Is this a good or bad idea i.e. it could reveal the driver to the claimant to pursue?

KeithP said my defence looks more like a WS - How will my witness statement differ from what I have already put in my defence?