VCS Court claims for stopping at East Midlands Airport - defence

tibisi

Firstly, thank you to the regular contributors to this forum for giving hope of an alternative to paying off these claims!

VCS are pursuing me as registered keeper for two alleged infringements of the "no stopping" rule at EMA, five minutes apart. So far, I've been following the advice from the newbies thread. I've recently received two court claims, for which I have acknowledged service online. Now on to preparing my defence. Draft below, grateful for any feedback from the seasoned pros :-) 

(Looks like I will have to split it across more than one post due to the character limit + remove the links)

IN THE COUNTY COURT

Claim No.:  XXXXXX

Between

Vehicle Control Services Ltd

(Claimant) 

- and -  

XXXXXX                      

 (Defendant)

_________________

DEFENCE

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').

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

Abuse of process

3. The Court is invited to take note that the Claimant has issued two current claims, numbers XXXXXX and XXXXXX, against the Defendant with substantially identical particulars.

4. The issuing of separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In the event that similar matters proceed to claim issue, they must be particularised as a single claim and not as multiple separate cases, otherwise (as an extreme analogy) a builder purportedly owed money by an individual customer, could file a separate claim for each brick laid.

5. The facts of these cases are duplicated in every respect: Claimant, Defendant, parking charge breach allegation, and added unrecoverable 'debt collection' and/or 'legal' costs for each case, that are an abuse of process in themselves, given that the Claimant did not in fact ever incur such costs and that they are disallowed by virtue of the ceilings set in the Protection of Freedoms Act 2012 ('the POFA') and the Supreme Court decision in ParkingEye Ltd v Beavis.

6. Multiple claims and disproportionate added costs run contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to consolidate the claims to be determined at a single hearing, and vacate the other hearing, and the Defendants asks that these two cases be put before a Judge at the earliest opportunity - before allocation - to apply appropriate sanctions against the Claimant for a gross abuse of process and to strike out the imaginary and unrecoverable added 'damages/debt collector' costs, which do not exist even once, let alone multiple times per claim.

No keeper liability

7. The vehicle, registration XXXXXX, of which the Defendant is the registered keeper, appears from the evidence supplied by the Claimant to have stopped for approximately 30 seconds on the site of East Midlands Airport on the evening of 7th May 2023. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed they are pursuing this claim against the keeper of the vehicle.

8. The land entered is not 'relevant' land as defined in the POFA. Paragraph 3 of Schedule 4 of the POFA states that land is not 'relevant' where byelaws apply to it. In this case, the land in question is covered by East Midlands Airport Byelaws 2001, issued September 2009. As the land is not 'relevant' land the Claimant does not have the right to recover any unpaid parking charges from the keeper of the vehicle.

9. Even if the land in question had been ‘relevant’ land under Paragraph 3 of Schedule 4 of the POFA, the Claimant did not send a ‘notice to keeper’ to the Defendant in time for it to be delivered within the ‘relevant period’. Paragraph 9 of Schedule 4 of the POFA states that the ‘relevant period’ is the period of 14 days beginning with the day after that on which the specified period of parking ended. The Claimant’s ‘notice to keeper’ was delivered to the Defendant’s address on 26th May 2023, 19 days after the alleged breach of contract. The Claimant therefore does not have the right to recover any unpaid parking charges from the keeper of the vehicle.

tibisi

(Continued)

Exaggerated Claim and 'market failure' currently being addressed by UK Government

10. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

11. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

12. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

13. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

14. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

15. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: LINK REMOVED

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

16. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here: LINK REMOVED

17. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

18. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

19. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

20. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

21. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

22. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

23. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

24. In addition, pursuant to Schedule 4 paragraph 4(5) of the POFA, the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

25. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

26. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):  LINK REMOVED

27. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

28.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

ParkingEye v Beavis is distinguished

29.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

30. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

31.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

Lack of standing or landowner authority, and lack of ADR

32. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

33. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

34. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

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

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

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

36. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature: XXXXXX

Date: XXXXXX

KeithP

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

You need to add:

 CEL v Chan

VCS v Edward

Search the forum!

tibisi

KeithP said:

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date 31 Oct. AoS 12 Nov.

KeithP

tibisi said:

KeithP said:

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date 31 Oct. AoS 12 Nov.

With a Claim Issue Date of 31st October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 4th December 2023 to file a Defence.

That's three weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.
To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

tibisi

Thanks @Coupon-mad and @KeithP for your advice. 

I've added the relevant paragraphs about VCS vs Edward under the 'No keeper liability' section.

I haven't added CEL vs Chan, as, although the POC was still more or less boilerplate text, it did spell out the conduct ("stopping in a zone where stopping is prohibited") that is alleged to have resulted in a breach of contract.

I have a couple of questions that are still in my mind before I submit the defence, on which I would be grateful for your input:

1) Do I include transcripts of the relevant appeal cases at this point, or is that later on (at Witness Statement stage)?

2) In case neither 'abuse of process' nor 'no keeper liability' does the job, I would want to say more in court about inadequate signage, unclear contractual terms, bad faith actions on the part of the claimant, etc. Do I need to spell all of that out in the defence, or can I stick with the template defence for now and flesh out the detail at a later stage if needed?

Fruitcake

Transcripts and detail go in the witness statement later on, as long as you have mentioned those points in your defence. You can't include something later if you didn't mention it in your defence.

Where you have used acronyms or abbreviations, you need the full description first. 
For example, use "The Protection of Freedoms Act (PoFA) 2012 the first time you refer to it, then just "the PoFA" thereafter.

Coupon-mad

Can you show us the Particulars of Claim including the dates of events? Cover your VRM.

There was an issue with a lack of written landowner authority at EMA...see a recent thread.

Show us your facts section of defence so we can help you put this extra point in.

tibisi

I don't have the PoC to hand right now, but will add later.

Great spot about the missing landowner authority! The date of the alleged incidents in my case(s) is 7th May 2023, so within the window during which VCS seems to have been without written landowner authority.
Should this go in as a new paragraph under the "Lack of standing or landowner authority, and lack of ADR" section?

I don't have a 'facts' section as such. Since the driver is unidentified, there didn't seem to be much to say. They have photographic evidence that the car was there on the date in question, and that it was stationary for a few seconds on two occasions separated by a few minutes.

In outline, my defence goes:

 - Opening two paragraphs from the template defence
 - Abuse of process (two claims launched with substantially identical particulars)
 - No keeper liability (EMA byelaws, no PoFA, etc.)
 - Exaggerated Claim and 'market failure' currently being addressed by UK Government (straight from the template defence)
 - CRA breaches (straight from the template defence, though I added the following to the final paragraph concerning unfair/unclear terms etc.: "Site photographs and copies of pre-claim correspondence will be adduced in evidence in support of the Defendant’s position that terms were unfair/unclear, that no contract was in fact entered into, and that the Claimant has failed to act in good faith.")    
 - ParkingEye v Beavis is distinguished (straight from the template defence)
 - Lack of standing or landowner authority, and lack of ADR (straight from the template defence, though possibly now with added specifics about VCS not having written landowner authority during the relevant period)
 - Conclusion (straight from the template defence)
 - Statement of Truth (straight from the template defence)

Thanks again for all the helpful advice 

Coupon-mad

Seems a good plan.