VCS - Southend Airport No Stopping - RK - Not Driver - Costs Awarded - Another One Bites the Dust

Fruitcake

stop_this_nonsense said:

I don't think that there is any harm in being honest with them that I am not the driver. Maybe they will think I am lying and take me to court anyway. It is neither here nor there in that case. 



I do have a question though for you experts about a POFA point I am not clear on. VCS have not sought to rely on Schedule 4 of POFA to transfer liability (and they don't mention it in the Charge Notice). So, is the point about relevant land still needed, i.e. does POFA apply to all 'PCN's even if the PPC can't (or chooses not to!) rely on Sch. 4? This is a point that is not entirely clear to me.

You are right; there is no harm in being honest about not being the driver. There IS harm in you NOT mentioning that you were NOT the driver.

Yes, the point about relevant land is very relevant.

In response to an LBC, state (all) the basic points you intend to rely on as a defence if this goes to court, and repeat them during every communication you have with VCS and/or their solicitors, especially in your defence.

Not the driver.
Not relevant land.
PoFA does not apply.
Keeper not liable.
Airport byelaws apply that permit stopping in certain circumstances.

VCS may say the PoFA doesn't apply/they aren't pursuing you under the PoFA/reasonable to assume you were the driver. If so, repeat the above ad nauseum. 

Coupon-mad

Hit them with VCS v Edward and Excel v Smith and threaten a counterclaim if they persist in processing the wrong person's data.

VCS will be painted into a corner. 

stop_this_nonsense

OK ... v2.

@Fruitcake I am choosing to not add the part about "not relevant" land as they have stated they are not relying on POFA. They are going for the good, old-fashioned keeper = driver = contract approach. Thanks for the guidance from you and @Umkomaas.

@Coupon-mad have added the cases to cover obligation to name the driver and applicability of agency.

***

I am seeking debt advice, but I deny any debt and the case must be put “on hold” for not less than 30 days, as per the provisions of paragraph 4 of Pre-Action Protocol for Debt Claims 2017 (“PAP”).

I confirm my address (“address for service”) as:

[...]

I dispute the above charge notice, reference [...] (“the charge notice”). I am the Registered Keeper of the above referenced vehicle. I was not the driver.

In your rejection letter to my online appeal (dated [...]), VCS acknowledges that Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) is not being relied on. As POFA is not applicable you cannot transfer the liability to the registered keeper.

I rely on the cases of VCS v Edwards and Excel v Smith (on appeal) in response to any demands to name the driver or applicability of agency. I have no obligation to identify the driver and I will not volunteer this information. 

If you persist in continuing to process and / or share my personal data with any other entities, affiliates, (so-called) debt recovery companies, or any other agents, and in the event of VCS filing a court claim, note that I will file a Part 20 counterclaim for not less than £500. This will be claimed as damages for distress arising from flagrant breaches of the Data Protection Act 2018 and / or the Protection from Harassment Act 1997. I will rely upon the case of Simon Clay v Civil Enforcement Ltd and similar cases that have succeeded.

Cancel the Charge Notice. Erase my data. Confirm compliance in writing to the address for service.

Fruitcake

Of course you don't have to take my advice if you don't want to, even though I don't understand why you wouldn't include it. Whilst VCS may not rely on the PoFA, there is no reason why you shouldn't, which clearly states that land where byelaws apply is not relevant land. I do respect your right to ignore my advice though.

Coupon-mad

It's not 'Edwards'. 

stop_this_nonsense

Coupon-mad said:

It's not 'Edwards'. 

Thanks @Coupon-mad. Noted and will udpate.

stop_this_nonsense

Fruitcake said:

Of course you don't have to take my advice if you don't want to, even though I don't understand why you wouldn't include it. Whilst VCS may not rely on the PoFA, there is no reason why you shouldn't, which clearly states that land where byelaws apply is not relevant land. I do respect your right to ignore my advice though.

OK @Fruitcake ... this, taken with your previous comment, makes a compelling argument to include more on these points. I humbly concede and can see a benefit in adding this and repeating it ad nauseum in any subsequent comms with VCS. Have re-phased the relevant section to:

...

You have failed to comply with the requirements of Schedule 4 of The Protection of Freedoms Act 2012 (“POFA”) by failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the POFA.

The land is airport land covered by bylaws and is therefore not “relevant land” within the definition in section 3 (1) of POFA.

You cannot, therefore, rely on POFA to transfer liability for the alleged charge from the driver at the time to me, the keeper.

Airport bylaws apply that make exceptions for vehicles stopping in certain cases. 

...

Maybe useful for other forum members. At Southend Airport the specific bylaw seems to be:

"No person shall, except in the case of an emergency, leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by Notice on the Airside"

I guess the problem is that, as I was not the driver, I can't say for certain whether or not the car was stopped because of an emergency. Maybe the driver stopped because someone walked out in the middle of the road, at which point the passenger opened the door. In this case the driver needs to respond to this 'emergency' to remain safe and in control of the vehicle. Maybe the driver stopped to read the signage and the passenger opened the door ...  

Fruitcake

Your comment above about byelaws appears to apply only "airside" where the public are not normally permitted to drive, so doesn't seem to apply in your case.

I guessed that the byelaws specific to Southend allow stopping in certain circumstances "groundside" based on what I have seen regarding other airports, but it was only a guess and may not apply. It won't hurt to include it though since VCS when have to prove it is not correct even if I guessed incorrectly.

The important thing is to repeat at every stage that you were not the driver and therefore you cannot be held liable on non-relevant land where byelaws apply.

stop_this_nonsense

Thanks all for your assistance (@Fruitcake, @Coupon-mad, @keithp, @Umkomaas ... in no particular order).

Will be posting the LBC response in the next few days (just before the deadline and allowing for postal rules) but was wondering ... is it worth requesting the SAR at this point, or to wait until I have their answer to my LBC response?

Fruitcake

Wait for the actual claim to arrive (if it gets that far) before sending the SAR. The reason is to see if particulars of claim comply with the CPR. You don't want to alert the PPC beforehand.
The results of the SAR will be of more help at the witness statement stage anyway.