Charge notice from John Lennon Airport for “No Stopping” - ANOTHER ONE BITES THE DUST

1505grandad

Para 7  -  typo  -  "Here is the relevant extract from Liverpool Jon Lennon Airport’s terms and conditions,...."

Wilkes1402

Good afternoon all,

The above has progressed a little and I have a court hearing on the 20th February. I am fairly happy with alot of the witness statement I am preparing but could do with a little advice on POFA and how it works in regards to registered keeper when it is a company lease car (I am the owner of the company it is leased to).

I have based my initial WS on these two from Milliered and stop_this_nonsense given it is a similar situation:

https://forums.moneysavingexpert.com/discussion/6482090/vcs-southend-airport-no-stopping-rk-not-driver-costs-awarded-another-one-bites-the-dust/p10

https://forums.moneysavingexpert.com/discussion/6492060/vcs-letter-before-claim/p14

My question is how do I use POFA when technically I am not the keeper, the lease hire company is and they have passed my details on as the leasee. Would it still apply or is it better to argue that I am neither the driver or the keeper?

This is my current draft of this section:

No keeper liability

3. 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 The Protection of Freedoms Act 2012 (“POFA”), which makes no such provision. (Exhibit 1). 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 Vehicle Control Services Ltd (“VCS”) and its sister company, Excel.

4. 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 2).

5. 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 3).

6. 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.

Sequence of events

7. I confirm that the vehicle was used to collect family members from Liverpool John Lennon Airport (LJLA) on the 24th October 2023. The vehicle with the registration mark xxxxxx (“the vehicle”) is on long term lease from LeasePlan UK Ltd to my own company xxx.

8. Multiple family members and employees were authorised to use the vehicle at the time of the alleged contravention via their own comprehensive insurance policies, which allowed them to use another vehicle for which they were covered on a third party only basis. 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”.

9. I have been able to ascertain that the driver of the vehicle at the time was unaware that they were entering private land and was unfamiliar with any local rules for stopping in the vicinity of Liverpool John Lennon Airport (LJLA). The Driver was not alerted to this fact by any signage and thus could not have entered into any contract. The Driver appears to have stopped at the side of the road for less than a minute as they could not locate the free drop off zone. The driver only became aware of the local rules for stopping when a PCN was received after the event.

I havent included the other arguments in my WS (beavis / airport byelaws etc) as I am fairly confident with those parts.

Once again I thank you for any help!

Coupon-mad

Glad you found Smith and Edward.

Is the Defendant the company (not individual)?

For specific wording to explain how the operator has failed to properly transfer liability, I'd suggest you read the template APPEAL wording by Edna Basher at the end of the first post of the NEWBIES thread.

You'll see which part of POFA Sch 4 was breached by their non-compliant NTH.  Without full compliance with Sch4, liability has NOT legally passed to the lessee company.

Castle

Coupon-mad said:

Glad you found Smith and Edward.

Is the Defendant the company (not individual)?

For specific wording to explain how the operator has failed to properly transfer liability, I'd suggest you read the template APPEAL wording by Edna Basher at the end of the first post of the NEWBIES thread.

You'll see which part of POFA Sch 4 was breached by their non-compliant NTH.  Without full compliance with Sch4, liability has NOT legally passed to the lessee company.

It's John Lennon Airport so no POFA.

Wilkes1402

Is the Defendant the company (not individual)?

• They have name me as an individual as the defendant. I think I may have messed up within my evidence as I did wrongly admit to being the registered keeper.
  

For specific wording to explain how the operator has failed to properly transfer liability, I'd suggest you read the template APPEAL wording by Edna Basher at the end of the first post of the NEWBIES thread.

You'll see which part of POFA Sch 4 was breached by their non-compliant NTH.  Without full compliance with Sch4, liability has NOT legally passed to the lessee company.

• Ah yes I see, I did initially appeal with this template, I have been reading up on this (thank you) and I did not receive a NTH, I only received a NTK via the leasing company.
  

Based on this, I am thinking this might be a better response:

The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA') (Exhibit 1)

 The vehicle with the registration mark xxxx (“the vehicle”) is on long term lease from LeasePlan UK Ltd to my own company xxxx. In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, Vehicle Control Services Ltd (VCS) did not provide any Notice to Hirer.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14. Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

Vehicle Control Services Ltd did not provide me with copies of any of these documents, (a), (b) or (c).

 

No Keeper / hirer liability

4. The vehicle keeper / hirer 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 The Protection of Freedoms Act 2012 (“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 Vehicle Control Services Ltd (“VCS”) and its sister company, Excel.

5. 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 2).

6. 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 3).

7. 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.

(I do need to re-number the paragraphs).

Thank you

Coupon-mad

Much stronger points for a Judge to get their teeth into!

But Sch4 could just be a URL rather than an exhibit. As it is statute law it isn't 'evidence' so there's no need to 'exhibit' it.

Car1980

Once again, there is no option to refuse the contract. No way or space to stop before the sign, red lines indicate you are not permitted to stop, read and understand. And certainly no method to refuse and turn around because it's a dual carriageway. The equivalent of a phone app that says "accept" or "accept" when it shows you the terms and conditions, and freezes your phone until you click one.

Wilkes1402

Thanks both, updated the WS as suggested.

Just a quick question in regards to the exhibits - is it acceptable to include these as embedded PDF documents within the document or should they be merged / added as separated pages?

Car1980

Usually best to keep all the your exhibits at the end and put notes in the text in italics e.g. (See exhibit C on page 14).

Wilkes1402

Ah yes sorry should have said that they are at the bottom and referenced through the WS but at the bottom they are currently just embedded documents: