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

Coupon-mad

stop_this_nonsense said:

Thanks @Coupon-madand @KeithP

KeithP said:

stop_this_nonsense said:

I believe that the facts stated in this witness statement are true. 

That statement of truth is several years out of date.

I think we need to speak to HMCTS then!  

Verbatim, from the N157:

@Coupon-mad
Paras 1 & 2 are the usual blurb:

That's good.

Make sure you do change the SoT to the newer longer one seen in recent WS, such as by: 

@Harry77

@Defendant911

@Milliered

1505grandad

A few pedantic observations:-

Para 26  -  "The London Southend Airport Bylaws 1997 (“LSA Bylaws”)..."  -  does the exhibit state "Byelaws"  -  i.e. with a middle "e"
Para 28  -  "(i)             they have locus to sue in their own name regarding this location, and that..."  -  should the word "standi" be put after "locus"?
Para 36  -  "VCS unreasonably rejected the appeal without any evidence to back-up their reasonable assumption and no chance of a fair,..."  -  should that be "unreasonable"
Para 37  -  "Nothing in the applicable ICS Code of Practice (“COP”)..."  -  typo  "IPC"
Para 43  -  " Personal data can only be processed for specific lawful bases ..."  typo
Para 49  -  "(iii)   Interest appears to be miscalculated on the whole enhanced sum from day one as if"  -  is there and ending missing
Para 51  -  " ...now the DHCLG).."  -  a already advised by a previous poster the name/initials have slightly changed.

stop_this_nonsense

1505grandad said:

A few pedantic observations:-

Para 26  -  "The London Southend Airport Bylaws 1997 (“LSA Bylaws”)..."  -  does the exhibit state "Byelaws"  -  i.e. with a middle "e"
Para 28  -  "(i)             they have locus to sue in their own name regarding this location, and that..."  -  should the word "standi" be put after "locus"?
Para 36  -  "VCS unreasonably rejected the appeal without any evidence to back-up their reasonable assumption and no chance of a fair,..."  -  should that be "unreasonable"
Para 37  -  "Nothing in the applicable ICS Code of Practice (“COP”)..."  -  typo  "IPC"
Para 43  -  " Personal data can only be processed for specific lawful bases ..."  typo
Para 49  -  "(iii)   Interest appears to be miscalculated on the whole enhanced sum from day one as if"  -  is there and ending missing
Para 51  -  " ...now the DHCLG).."  -  a already advised by a previous poster the name/initials have slightly changed.

Thank you @1505grandad

26. I checked and you are right. I always though it was with an 'e'. Will update.
28. Seems that when we are referring to present a case then standing / locus standi seems appropriate. Will update.
36. I will put in single quotes as these are their word - this is their entire premise for trying to get me to pay their 'debt'! What are these morons smoking?!
37. Thank you for spotting. Will update.
43. I think this is fine as there is more than one basis and plural of basis is bases.
49. Copy paste error. Will update.
51. Thanks for spotting. Updated.

stop_this_nonsense

Coupon-mad said:

stop_this_nonsense said:

Thanks @Coupon-madand @KeithP

KeithP said:

stop_this_nonsense said:

I believe that the facts stated in this witness statement are true. 

That statement of truth is several years out of date.

I think we need to speak to HMCTS then!  

Verbatim, from the N157:

@Coupon-mad
Paras 1 & 2 are the usual blurb:

That's good.

Make sure you do change the SoT to the newer longer one seen in recent WS, such as by: 

@Harry77

@Defendant911

@Milliered

Located @Harry77 's WS and have now updated. Thanks!

Le_Kirk

Paragraphs 4 & 24 contain repetition about trite law and breach of contract; do you need it twice?

stop_this_nonsense

Le_Kirk said:

Paragraphs 4 & 24 contain repetition about trite law and breach of contract; do you need it twice?

Thanks @Le_Kirk

I did wonder about this when drafting it. I cam to the conclusion that para 4 is related to POC, the point being that it is not a statement of truth. Para 24 is probably more important as it relates to the impossibility of contract.

Obviously, happy to receive guidance on this!

Coupon-mad

Whilst it is good (at first glance) it is very very long. There must be a fair bit of repetition in there.  Harry77's one was less templatey and it is best to be concise.

Can you cut out any repetition and show us your final draft for consideration?

If you used our template defence then you don't need to repeat the second half now.

stop_this_nonsense

Thanks @Coupon-mad

Updated and repetition removed (or context changed). Order has changed slightly and have kept the weight in the keeper liability 

WITNESS STATEMENT

1.             I, …, am the Defendant in this claim. The facts in this statement come from my personal knowledge. My account has been prepared upon my own knowledge.

2.             In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page, reference numbers and excerpts where appropriate. My defence is repeated, and I will say as follows:

Preliminary matter: The claim should be struck out

3.             I bring to the court’s attention compelling Appeal judgments that support the striking out of the claim (Exhibit 2 and Exhibit 3). These circumstances align with the typically poorly pleaded private parking claims, and the existing Particulars of Claim (“POC”) in this case are even worse than the ones seen on Appeal. I firmly believe that dismissing this baseless claim is the appropriate course of action, in line with the Overriding Objective. Bulk litigators (legal firms) should be well aware of their obligation to comply with the Practice Direction. Persistently using generic, auto-filled and vague language in their case pleadings, private parking firms should not be surprised when courts reject their claims based on the persuasive authority cited.

4.             The POC breach numerous Civil Practice Rules with the Overriding Objective in mind:

(i)            The POC fails to identify whether I am being pursued as the driver or the registered keeper and instead relies on an attempt to ‘cover all the bases’ by stating that I am “the driver and / or registered keeper” (Exhibit 4). As such, it is not possible for me to identify a basis on how to defend the claim.

(ii)         The amount of interest charged, the principal amount on which interest is being charged, and the date on which interest starts to accrue have not been stated.

(iii)       The amount being claimed is far in excess of the originally alleged debt of £100.

(iv)        The POC alleges a breach of contract when no contract can possibly exist. Hence, the POC fail to state an actionable breach.

(v)          The POC references a “Parking Charge Notice” document and I deny that any such document has been issued to me.

Sequence of events

5.             I confirm that the vehicle was used to transport a relative to Southend Airport at approximately 3:30pm on 25 June 2023 and that I was the registered keeper of the vehicle with the registration mark … (“the vehicle”) at the time.

6.             I was not driving and was not in the vehicle at the time alleged by VCS. I was at home at the time. On the day in question there would have been four people permitted to drive the vehicle. It is noted that the POC makes a broad and imprecise claim that “At all material times the Defendant was the registered keeper and/or driver”. I categorically deny being the driver and VCS is put to strict proof otherwise.

7.             I have been able to ascertain that the driver of the vehicle at the time drove into the airport access road, turned around and then stopped adjacent to the area marked by zig-zags leading away from the zebra crossing. I understand that when the vehicle stopped the passenger opened the car door and stepped out of the vehicle. At no point did the driver leave the vehicle and neither did the driver park, in the sense of leaving the vehicle for a period of time. The entire event lasted only 46 seconds. The persuasive case of Jopson v Homeguard (Exhibit 5) confirmed that stopping is not parking.

8.             On 9 August 2023 I received a “CHARGE NOTICE (CN) FINAL REMINDER” (Exhibit 6) referencing a previously sent demand. I categorically deny that I received any previous communication on this matter.

9.             I appealed against this “Charge Notice” using VCS’s online form stating as follows:

(i)            that VCS are unable to use Schedule 4 of The Protection of Freedoms Act 2012 (“POFA”) to transfer liability to me, the registered keeper;

(ii)         that I was unable to name the driver at the time and that I was under no legal obligation to do so;

(iii)       for VCS to refrain from unlawfully processing my personal data; and,

(iv)        for VCS to refrain from further communication with me on the matter, other than to confirm compliance with my instructions.

10.         VCS responded to my appeal via email on 22 August 202, acknowledging my statement that I was not the driver but rejecting my appeal. No further appeal was possible.

11.         VCS issued follow-up letters including a fake add-on debt collection cost of £70 to cover recovery costs:

(i)            DEMAND FOR PAYMENT – 22 August 2023

(ii)         FINAL DEMAND – 9 October 2023

Each follow-up letter included increasing levels of threatening language and tone that, even the man on the Clapham omnibus would recognise, intended to intimidate and scare me into giving in to VCS’s unfounded demand for payment, e.g. by references to CCJs. I did not pay and I did not respond to these letters.

12.         VCS issued a LETTER BEFORE CLAIM on 20 October 2023 (Exhibit 8), referencing the “Charge Notice” and alleging a “Principle [sic] Debt” of £170 (comprising the original £100 demand + £70 add-on debt recovery costs). 

13.         I responded to VCS’s LBC, reiterating that:

(i)            there is no keeper liability;

(ii)         there is no legal obligation on me, the registered keeper, to name the driver;

(iii)       there is no application of agency;

(iv)        airport byelaws apply; and,

(v)          continued processing of my personal data is in breach of the UK Data Protection Act 2018 due to a lack of lawful basis.

14.         VCS’s legal representative, ELMS Legal, issued a Notification of Instruction to recover the sum of £170 for the alleged debt and referencing a “Parking Charge Notice” for the first time.

15.         VCS have not provided any evidence regarding the identity of the driver. It is my honest belief that no evidence exists, it being well within VCS’s interest to deliver it.

16.         At all times and in all correspondence received from VCS, only the term “Charge Notice” was used and the industry standard term “Parking Charge Notice” was not used once.

No keeper liability

17.         POFA provides a statutory tool to enable private parking companies, such as VCS, to transfer liability for parking charge notices to the registered keeper of the vehicle (Exhibit 7).

18.         VCS have averred that they are not relying on keeper liability and are relying on a speculative “reasonable assumption” that I was the driver. However, I was one of four people permissible to drive the car at the time, giving VCS’s “reasonable assumption” that I was the driver a mere 1 in 4 chance of being correct.

19.         Notwithstanding that VCS have averred that they are not relying on POFA, the land on which the vehicle was photographed is land subject to statutory control and so is not relevant land within the scope of POFA. Additionally, the original “Charge Notice” letter, were it ever delivered, could never be a valid notice to keeper as it was issued outside the 14 day deadline stipulated in POFA (11 Jul 2023, some 15 days after 25 June 2023 – Exhibit 6).

20.         Further, the vehicle keeper is not obliged to name the driver to a private parking company (“PPC”). 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 with both VCS and its sister company, Excel.

21.         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 POFA and no adverse inference can be drawn, if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because 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 (Exhibit 9).

22.         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 POFA. Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then 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. Mr Smith's appeal was allowed, and Excel's claim was dismissed (Exhibit 10).

Impossibility of contract

23.         The PoC claim is for “breach of contract for breaching terms and conditions”. It is trite law that, for a contract to exist, there must be an offer, an acceptance, and a consideration. The prohibition offers nothing and so can never be a contractual term.

Primacy of statutory powers

24.         The London Southend Airport Byelaws 1997 (“LSA Byelaws” – Exhibit 13) are in force and the statute has primacy in this matter. The vehicle was within the red boundary (indicated in Exhibit 12) that constitutes the land subject to statutory control in the LSA Byelaws 1997. Were it within the airport’s genuine interest to control traffic within this area then a clear, legally enforceable option is available that is directly enforceable by the airport owners. VCS have no standing (as a bare license holder) to prosecute alleged breaches of the in-force statutory laws. For the avoidance of doubt, the byelaws are statutory, not advisory.

25.         In a similar case dismissed at Leicester County Court on January 7, 2022, Deputy District Judge Wigham upheld that East Midlands Airport statutory byelaws, confirmed by the Secretary of State, are binding, contrary to VCS’s claim of them being advisory, adding “these byelaws are there to protect the public from firms like you”. The court dismissed VCS’s claim, refusing permission to appeal.

26.         Furthermore, and by way of alternative defence, airport approach roads are subject to road traffic enactments (public highway). Even if VCS are able to overcome the difficulties they face in showing that:

(i)            they have locus standi to sue in their own name regarding this location, and;

(ii)         they offered a parking space with value, and a licence to park there, and;

(iii)       the driver was afforded the opportunity to accept all contractual terms, and;

(iv)        these terms were prominently displayed and well lit, and;

(v)          their charge notice can override statutory byelaws and has sufficient contractual, commercial and ‘legitimate interest’ to save it from falling foul of the penalty rule, and;

(vi)        the driver was in breach, and;

(vii)     there is some way that, despite the two persuasive appeal judgments against VCS and their sister company Excel, they can hold the me, the registered keeper, liable outwith POFA, then;

VCS are also put to strict proof that:

(viii)   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 VCS is put to strict proof to the contrary.

VCS’s unreasonable behaviour and breach of code of practice

27.         As a litigant-in-person I seek fixed witness costs for time spent on legal research and preparation. I understand that costs in Small Claims are limited unless “wholly unreasonable conduct” is found.

28.         I attach a detailed costs assessment (Exhibit 1) and request the court to award costs for misconduct under CPR 44.11.

29.         VCS were made aware of the fact that I was not the driver at the outset. I maintain that VCS unconscionably issued the Charge Notice in the complete absence of reasonable cause or evidence and that VCS fully intended to progress to Small Claims ‘come-what-may’.

30.         VCS have harassed me by sending me threatening letters for a non-existent debt and escalating to legal proceedings within the space of three months.

31.         VCS have inflated the claim amount and are engaging in “double recovery.”

32.         VCS did not make any initial communication before a final demand was issued and VCS have used misleading terminology to validate their claim.

33.         My appeal was rejected out-of-hand, with no further evidence provided.

34.         VCS are in breach of the Code of Practice of the International Parking Community (“COP” – Exhibit 16), the applicable Accredited Trade Association (“ATA”) to which this operator signs up to and which was in force on the date in question by:

(i)            issuing a “Charge Notice” – the COP only uses the precise term “Parking Charge Notice” (12 times) and the term “Charge Notice” is never used, and;

(ii)         expressly excluding me, the registered keeper, from further appeal and there being no genuine offer of appeal (Exhibit 7) – VCS’s appeal service is widely considered a kangaroo court (Exhibit 17).

cont'd

stop_this_nonsense

Unlawful processing of my personal data

35.         I assert that the act of obtaining and processing my personal data was unlawful.

36.         The DVLA allows PPCs like VCS to access registered keeper details for a fee, under the Keeper of a Vehicle at the Date of an Event (“KADOE”) contract. It is a condition of KADOE that the PPC adheres to the ATA’s COP.

37.         The Information Commissioner’s Office (“ICO” – the UK data protection regulator) has confirmed the DVLA can provide keeper details to PPCs with a “reasonable cause”.

38.         The reason provided to DVLA by VCS to access my personal data under their KADOE contract was factually incorrect on all counts (Exhibit 26), i.e. that there was:

(i)            “a breach of terms and conditions”, which was impossible, and;

(ii)         “a car park”, which there was not.

39.         Continued processing of personal data obtained inappropriately, even if through a genuine mistake, would breach the COP.

40.         Furthermore, while a PPC may initially process data to establish facts, continued processing must be based on the investigation outcome. It is clear that, without proof that I was driving, this “reasonable cause”, or to put it another way VCS’s “reasonable assumption”, can no longer be relied on and VCS were legally obligated to cease from further data processing.

41.         The COP breaches noted in the previous section and the method used to obtain my personal data is a clear breach of the KADOE terms, invalidating the “reasonable cause” and rendering VCS’s data processing unlawful under the Data Protection Act 2018 (“DPA”).

42.         This egregious processing of personal data is precisely the type of processing the DPA and the ICO are there to prevent.

Airport signage and other matters

43.         Signage within the lease boundary at the area where the vehicle is shown in the photographs provided by VCS (Exhibit 14) display the message “No dropping off” and is different to the other signs that adjoin it which display the message “No stopping”, and so is wholly inconsistent with the claimed POC breach (Exhibit 15).

44.         All VCS signage at the airport is prohibitive and it is impossible for VCS to conclude any contract at London Southend Airport, there being no areas within the Airport boundary where VCS offer parking for a price. VCS are put to strict proof that they offer parking for a price within the airport lease boundary.

etc. etc. etc.

1505grandad

"4.         The London Southend Airport Byelaws 1997 (“LSA Byelaws” – Exhibit 13) are in force and the statute has primacy in this matter."

In your Defence you appear to have stated:-

"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."


Date needs completing  -  "10.         VCS responded to my appeal via email on 22 August 202, acknowledging my statement that I was not the driver but rejecting my appeal. No further appeal was possible.

Not sure that the following is the correct way:-

"28.         I attach a detailed costs assessment (Exhibit 1) and request the court to award costs for misconduct under CPR 44.11."  -  I believe that usually costs are incorporated in the WS (towards end)  -  not as an exhibit.