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

stop_this_nonsense

Coupon-mad said:

stop_this_nonsense said:

Coupon-mad said:

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.

Have made a small update to paragraph 10 to remove repetition (based on the feedback that @CosmicLanes received - thanks).

Is it necessary to add the paragraphs from the case transcripts cited in paragraphs 10 and 11 in the defence (and maybe the verbatim paragraphs in Jopson, rather than an excerpt)?

Not sure what you mean.

Show us the latest draft.

Have been updating the defence I posted on 28 Jan (p4 of the thread). I will add CEL v Chan transcript in full on the final version. Just wondering if the transcripts for the edward and Smith cases is also needed in the defence.

Coupon-mad

We need to see it here in p6 please!

stop_this_nonsense

Thanks all. Current version:

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 the vehicle with registration mark ■■■■■■■ ("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. 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 15 August 2023, in the cited case, HHJ Murch (in paragraph 11) 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 in full]

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 it 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").

No financial loss

13.    The Claimant will concede ... etc. using the template defence

___

Remaining points for clarification are, I think:

1) is it worth mentioning that the original NtK, which incidentally was not received, was dated on day 16 and so outside day 14 for POFA?
2) I will add the full CEL v Chan transcript after 7. but do I need to add the full Edward and Smith transcripts after paras 10 and 11?
3) There is some contradictory signage at the location that would undermine the breach referenced in the POC. I don't want to go into details here, but it is something that would require evidence, e.g. a photo from me and comparison to the defendant's photo evidence. Would this go into the WS instead? Guidance here would be appreciated. 

Coupon-mad

I think save all of the above for WS stage.

Nellymoser

Like you so many people don't receive 1st and/or 2nd PCN but the £170 payment due letter often manages to drop through letter boxes.

PPCs always claim discounted rate/full rate PCNs/court claim letters were sent though they offer no evidence to prove this. Since they CHOOSE NOT to provide evidence of their posting we must continue to press gov to ensure they do and see it included in the new Parking CoP.
Please sign/share @jmccabe petition closes 22nd june 2024.
https://petition.parliament.uk/petitions/652355
Require communications from Private Parking companies to be traceable/trackable
Thank you. Good luck..hope to read about your win soon.

stop_this_nonsense

Hi all. Final run-up at this, then I will send on Monday so that I can move on from this stage of the process! I saw the Edward Smith Gargan defence versions that @Coupon-mad has add in @DannyMac1984 's thread and followed these as the wording was so much better (para 10 (i) and (ii))!

I have also amended the costs in the conclusion, adding that I am also seeking a a finding of unlawful processing of personal data flowing directly from the Claimant's unreasonable behaviour and damages which I would appreciate your view on (new para 37 and appended to the my defence below).

***

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 the vehicle with registration mark x ("the vehicle").

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

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. 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 15 August 2023, in the cited case, HHJ Murch (in paragraph 11) 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:

 [full 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 byelaws enacted in 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.    Outwith POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases - which this same Claimant and their sister company lost, twice - and these transcripts will be adduced in evidence:

(i) VCS v Edward, on appeal [2023] H0KF6C9C, where HHJ Gargan held that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation. HHJ Gargan concluded at paragraphs 35.2 and 35.3 that "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed. 

(ii) In Excel v Smith, on appeal [2017] C0DP9C4E, HHJ Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all). HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of’ the keeper, which was without merit. Mr Smith's appeal was allowed and Excel's claim was dismissed.

Stopping is not parking

11.    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 it 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").

No financial loss

12.    The Claimant will concede ... etc. ...

37.    In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14,

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5, and

(c) a finding of unlawful processing of personal data, flowing directly from the Claimants unreasonable behaviour, and damages.

Coupon-mad

You could add Smith & Edward with this preliminary paragraph immediately before:

Further, the vehicle keeper is not obliged to name the driver to a private parking firm.  Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases and the following transcripts will be adduced in evidence:

(i).   In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re: claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed, and Excel's claim was dismissed.

(ii).     In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re: claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be held liable outwith the POFA and no adverse inference be drawn, if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  His Honour Judge Gargan concluded at 35.2 and 35.3. "My decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."   Mr Edward's appeal succeeded and the Claim was dismissed.

stop_this_nonsense

Thanks all! Am now done with this defence. Signing it today and emailing it tomorrow.

troublemaker22

If it’s not too late, you should add at the end of the first sentence in para 9 “where the parking occurred on ‘relevant land’ as defined in POFA”

stop_this_nonsense

troublemaker22 said:

If it’s not too late, you should add at the end of the first sentence in para 9 “where the parking occurred on ‘relevant land’ as defined in POFA”

I didn't see this in time, so it was sent as is. Thanks though for the suggestion.