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

Fruitcake

There is always a danger the claimant (or the court for that matter) will say they couldn't open the documents. It may even be true.

I suggest it would be better to show them as an annexe of individual pages.

Wilkes1402

Thank you, I will display them as individual pages just in case.

If anyone could be kind enought to check / critique my WS and make sure I havent made any silly mistakes:

Table of Contents

Witness Statement of Defendant 1

Exhibit 01 - Vehicle Control Services Ltd v Ian Edward Transcript 6

Exhibit 02 - Excel Parking Services Ltd v Anthony Smith Transcript 6

Exhibit 03 – VCS Appeal Response. 6

Exhibit 04 – VCS Appeal Rejection. 7

Exhibit 05 – Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016)  7

Exhibit 06 – Airport Signage. 7

Exhibit 07 – Airport Signage. 7

Exhibit 08 – Airport Signage. 7

Exhibit 09 - Liverpool John Lennon Airport Byelaws 2022. 7

Exhibit 10 - Land subject to statutory control in the LJLA Byelaws 2022. 8

 

Witness Statement of Defendant

Between

VEHICLE CONTROL SERVICES LIMITED

(Claimant)

- and -

Mr xxx

(Defendant)

_________________

WITNESS STATEMENT

 

1.            I, xxx, of xxx, 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:

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').

 

3.            The vehicle with the registration mark xxx (“the vehicle”) is on long term lease from LeasePlan UK Ltd to my own company xxx. 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.

4.            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).

 

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4

No Keeper / hirer liability

5.            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.

6.            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 1).

7.            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 2).

8.            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

9.            I can confirm that the vehicle was used to collect family members from Liverpool John Lennon Airport (LJLA) on the 24th October 2023.

10.         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”. I categorically deny being the driver and VCS is put to strict proof otherwise.

11.         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.

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

(i)            that VCS are unable to use Schedule 4 of POFA to transfer liability to myself or xxx, as the registered keeper / hirer;

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

13.         VCS responded to my appeal via email on 22 November 2023, stating that they have not cited POFA nor stated that I am liable for the charge. (Exhibit 03).

14.         I responded to VCS’s email, reiterating that:

(i)            there is no keeper liability;

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

(iii)         airport byelaws apply.

15.         VCS responded to my follow up email on 01 December 2023, stating that they are unable to accept my appeal and that they will continue to pursue this matter on the reasonable assumption that I was the driver of the vehicle on the date in question until information/evidence to the contrary is provided. No further appeal was possible. (Exhibit 04).

Impossibility of contract

16.         The PoC claim is for “breach of contract for breaching the terms and conditions”. It is trite law that, for a contract to exist, there must be an offer, an acceptance, and a consideration.

No offer is defined.

17.        As the signage is forbidding, it does not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case, neither the Claimant, nor their principal, the landowner, is offering anything to the Defendant.

No option to refuse the contract.

18.        There is 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 (Exhibit 5). The next set of sign’s are placed on a roundabout, again with no place to stop, on red lines and are visually obstructed (Exhibit 6 / 7).

19.        The specific circumstance under which stopping would/would not contravene the contract are not defined. Within an area open to public access by vehicles, there clearly needs to be provision for vehicles to stop in specific circumstances. For example, if way were blocked by pedestrians, in such case compliance would be illegal. Furthermore, as this is an airport access road the vast majority of the traffic will be using the road to conduct business at the airport and this will in most cases entail stopping.

20.        The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant. The aforementioned point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims on these grounds. (Exhibit 8)

Primacy of statutory powers

21.         The Liverpool John Lennon Airport Byelaws 2022 (“LJLA Byelaws” – Exhibit 9) are in force and the statute has primacy in this matter. The vehicle was within the red boundary (Exhibit 10) that constitutes the land subject to statutory control in the LJLA Byelaws 2022. 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.

22.         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.

23.         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 hirer, 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.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

24.        Given the considerable time and effort in researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay  another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred plus the court may award a set amount allowable for loss of earnings or loss of leave.

25.        The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings). are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing. a sum not exceeding £95 per day for each person.'' 

Statement of Truth

I believe that the facts stated in this witness statement 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.

LDast

You said "Once again, there is no option to refuse the contract." That is wrong. There is no contractual offer at all.

Wilkes1402

Corrected thank you!

Coupon-mad

Mr xxx

(Defendant)

I don't understand how you have ended up with a Claim form naming you (an individual) as the named Defendant?  The Notice was sent to your company as lessee, so the company should be the Defendant (and cannot be liable because a company can't drive, and the driver wasn't on company business so no 'agency' argument could have worked).  At what point did they shift to writing to you as an individual?  When you appealed for the company?

You need to address this.  The fact that you are the wrong Defendant.  Neither hirer, keeper or driver.

Be careful, this is not true:

"there is no legal obligation on me, the registered hirer, to name the driver;"

You aren't.  The company is.  VCS seem to have shifted the case to you just because you appealed for the company, who at all material times should have remained the entity pursued (not that the hirer in this case is liable).

Wilkes1402

I don't understand how you have ended up with a Claim form naming you (an individual) as the named Defendant?  The Notice was sent to your company as lessee, so the company should be the Defendant (and cannot be liable because a company can't drive, and the driver wasn't on company business so no 'agency' argument could have worked).  At what point did they shift to writing to you as an individual?  When you appealed for the company?

• They have never actually contacted the company regarding this, I received the NTK via the lease company. The lease company responded to VCS with my company name and my own name for contact.
  
• They then responded to me as an individual after I appealed for the company.
  

You need to address this.  The fact that you are the wrong Defendant.  Neither hirer, keeper or driver.

• I will add this in at the top.

Be careful, this is not true:

"there is no legal obligation on me, the registered hirer, to name the driver;"

You aren't.  The company is.  VCS seem to have shifted the case to you just because you appealed for the company, who at all material times should have remained the entity pursued (not that the hirer in this case is liable).

• Just to clarify this point, is the company legal obliged to name the hirer? or are you saying to remove the part that says I am the hirer (this is what I have done).

I am a little pushed for time today, it needs to be submitted by 4pm and I am working so dont have much time to change the WS around unfortunately.

Thank you again

Umkomaas

• Just to clarify this point, is the company legal obliged to name the hirer? or are you saying to remove the part that says I am the hirer (this is what I have done).

No, absolutely not. 

Change 'me' to 'the company'. Remove 'registered'.  Should get that done by 4pm! 😊

Wilkes1402

Ah perfect, I think I can manage that!  I was worried I may needed to restructure the entire WS.

VCS didnt bother showing up for mediation so hopefully they will drop it after this.

Thank you

Coupon-mad

Wilkes1402 said:

Ah perfect, I think I can manage that!  I was worried I may needed to restructure the entire WS.

VCS didnt bother showing up for mediation so hopefully they will drop it after this.

You've mentioned that in the WS and asked the court to apply costs sanctions against VCS?

Wilkes1402

Unfortunately no I didnt, sorry I should have mentioned that earlier! Thought the judge would automatically take that into account.

I've received no WS / evidence from VCS as of yet.

THanks

Carl