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

KeithP

With a Claim Issue Date of 23rd January, you have until Monday 12th February to file an Acknowledgment of Service.  Do not file an Acknowledgment of Service before 27th January, but otherwise there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 26th February 2024 to file your Defence.

That's well over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

Include a paragraph about VCS v Edward unless the D already admitted to driving in pre-action comms.

stop_this_nonsense

So some of the details / considerations  / circumstances for the defence statement.

• D is registered keeper, not the driver
• Land is not relevant land for POFA
• POC mentions 'registered keeper and/or driver' - so is imprecise / not factual
• POC mentions 'parking charge notice' but 'charge notice' only has been used in all comms - so is materially different, at least from my position  - KADOE and codes of practice use 'parking charge notice' - but can the POC be factually correct if the instrument / object of the remedy morphs into something different at the claim stage and / or is contradictory?
• POC mentioned airport land but the access road is both on non-statutory and statutory land, although it is a continuous road (which may be the case at other airports?). The signage is materially different in position and frequency between the two. Does the POC need to be more precise as to the land on which the breach occurred?
• Stopping is not parking!
• Airport bylaws do not specifically prohibit stopping, but they do require compliance with notices.
• C's choice of ADR (IAS) is unreasonable and inaccessible as it only allows appeals by drivers, so as registered keeper this is unavailable (notwithstanding it is largely an exercise in futility!).

There are some obvious issues with the signage but I will collate further details on this in due course.

So, initial defence for issues with the POC, lack of keeper liability (incl POFA) and 'stopping is not parking'

***

1. 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 in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

The facts as known to the Defendant

2. The facts in this defence come from the Defendant's own knowledge and honest belief. The vehicle is recognised and it is admitted that the Defendant was the registered keeper of vehicle ******* ("the vehicle"). 

3. The Defendant confirms that the vehicle was used by the driver to travel to Southend Airport on the afternoon of *********.

4. The Defendant was not the driver and declines to name the driver.

Preliminary matter: The claim should be struck out

5.  The Claimant fails to state a Cause of Action, offering only boilerplate text in the Particulars of Claim ("the POC") that are characteristic of the bulk claims submitted by this Claimant. The Claimant sets out a menu of choices claiming that the Defendant was “the registered keeper and/or the driver of the vehicle”. As such, the Defendant is unable to determine whether the Claimant is pursuing the Defendant as registered keeper or driver. The Claimant seeks the recovery of a ‘parking charge notice’ but the Defendant only recognises the ‘charge notice’ referenced by the Claimant up to and including the Letter Before Claim. The addition of the word 'parking' is significant and contradicts the claimed breach, namely 'Stopping in a zone where stopping is prohibited'. The Defendant is unable to determine if the Claim is for recovery of damages for parking, or stopping, within the ordinary meaning of those words. 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  

6. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment which supports striking out the claim without a hearing (in these exact circumstances of typically poorly pleaded private parking claims). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill wording, unclear basis of claim and factual errors in the POC, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

7. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan [2023] E7GM9W44, on appeal, would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

[CEL v Chan transcript]

No keeper liability

8. As the Claimant does not know the identity of the driver of the vehicle in question at the time of the breach, it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

9. Keeper liability is denied. The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. Paragraph 3 of Schedule 4 of the POFA states that land is not 'relevant' where byelaws apply. The land entered is land subject to bylaws enacted in the The London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land. POFA cannot be used by the Claimant to recover any unpaid parking charges from the keeper of the vehicle.

10. The Claimant cannot rely on a reasonable assumption that the registered keeper was the driver. The Defendant has declined to identify who was driving the vehicle on the date and location detailed in the claimants POC and no inference that the registered keeper was the driver can be drawn - paragraphs 34-36 of VCS v Edward, on appeal [2023] H0KF6C9C.

11. The Claimant cannot infer that the driver was acting on behalf of the registered keeper or that there is any application of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all) and that a Defendant who was not the driver cannot be held liable outwith POFA - Excel v Smith, on appeal [2017] C0DP9C4E.

Stopping is not parking

12. The Claim is for recovery of an unpaid 'parking charge notice' but the vehicle did not park, it merely stopped and at no point did the driver leave the vehicle, as is evident from the photographic evidence provided by the Claimant to the Defendant - paragraphs 19-21 of Jopson v Homeguard [2016] 9GF0A9E, on appeal, where is was decided that stopping is not parking ("in the sense of leaving a car for some significant duration of time" and "of leaving a car for some duration of time beyond that needed for getting in or out of it").

 

Coupon-mad

Use the full citations of Edward and Smith - search the forum for Edward Smith Gargan if you need to find the citation numbers.

I would move this down a paragraph and put it at the end of para 3 instead.  Easier to see (and it's really important):

"The Defendant was not the driver and declines to name the driver."

stop_this_nonsense

Coupon-mad said:

Use the full citations of Edward and Smith - search the forum for Edward Smith Gargan if you need to find the citation numbers.

I would move this down a paragraph and put it at the end of para 3 instead.  Easier to see (and it's really important):

"The Defendant was not the driver and declines to name the driver."

Thank you so much for your guidance @Coupon-mad

Have tidied it up and added the citations.

stop_this_nonsense

Hi all. Thank you again for all your help on this - @Coupon-mad @KeithP @Umkomaas
@Fruitcake

Wondering if I need to add anything else to this defence? Is it necessary to point out that it is impossible for me to be in breach of a contract to which I am not a party?

Coupon-mad

You just use the wording already written about the two cases of Smith and Edward.  The search terms I gave you reveal that wording as well as the transcripts.

stop_this_nonsense

For the general interest of forum participants.

I sent an email to Southend Airport requesting whether they consider the airport to be a data controller under the Data Protection Act 2018. They were of the opinion that they were not. I disagreed and followed up with a personal data processing objection to Southend Airport. They responded as follows:

I write further to your email dated ********** and on behalf of London Southend Airport (“LSA”).

Can you please clarify why you believe our confirmation that LSA is not the data controller to be at odds with the current data protection legislation and please also confirm the specific law/regulation to which you are referring?

I can confirm that the CCTV/ANPR cameras used to capture your vehicle details resulting in the parking charge notice (PCN) are owned, were installed and are operated solely by VCS. LSA has no access to the data collected by VCS unless we ask them for it on behalf of a passenger and with that passenger’s consent.

VCS determines the purpose for which they use the data gathered by them i.e. whether a vehicle is in breach of the local road laws/bylaws and whether to make further enquiries in order to issue a PCN as a result.

Data Controllers make decisions about processing activities. They exercise overall control of the personal data being processed and are ultimately in charge of and responsible for the processing. LSA makes no such decisions and is not involved in the processing activities relating to the cameras operated by VCS.

It is correct that LSA utilises both security and ANPR cameras in and around the airport but unfortunately the footage of your vehicle parked in breach of local road laws/bylaws giving rise to the PCN is owned and operated by VCS and has no data connection to LSA.

To that end, I attach images of the signage in the area (one at the entrance to the site and one on the access road your vehicle stopped on), both of which confirm that vehicle keeper details may be requested from the DVLA and that VCS manages and controls the site.

LSA has, as previously confirmed, performed a data sweep and advised that it holds no personal data pertaining to you other than your name and email address as a result of your recent correspondence.

We again reiterate that LSA is not the Data Controller in this instance and can only redirect you to VCS in relation to any further/ongoing data issues arising from this incident.

Umkomaas

VCS determines the purpose for which they use the data gathered by them i.e. whether a vehicle is in breach of the local road laws/bylaws and whether to make further enquiries in order to issue a PCN as a result.

You might want to ask them which 'local road laws' and which 'bylaws' VCS are enforcing.  And, which roads within the airport perimeter involve such 'road laws' and 'bylaws' and which are included in VCS's remit to enforce?

Debszzzz2

But aren't VCS their agents? Does data protection legislation allow for the LSA to be jointly and severally liable for the actions of its agent?

What are "local road laws"? Why does LSA suppose that VCS, an unregulated private parking company, contracted by them, has any authoritative powers to determine whether a vehicle is in breach of the local road laws/bylaws and whether to make further enquiries in order to issue a PCN as a result?

Could there be an issue with any contracts that confer authoritative powers to an unregulated private parking company?