VCS Letter Before Claim

Milliered

Hi Coupon -Mad,sorry,I didn't mean to send  the defence off,far from finished!! I just meant is the start of it ok before I continue? I have posted just the first few paragraphs to make sure they are right as I was being advised that it didn't look good.
My date isn't till 8th April,however I am due to be away for next couple of weeks so ideally need to have sent by this weekend.

Milliered

Hi all. Can my draft be checked please to see if it is ok? 
Thank you.

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (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').

The facts known to the Defendant:

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 offering only boilerplate text in the Particulars of Claim,that are characteristic of the bulk claims submitted by this Claimant.  The Claimant sets out different 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 persuing 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' references 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 '. Therefore,the Defendant is unable determine if the Claim is for recovery of damages for parking or stopping. The POC appears to be in breach of Civil Procedures Rule 16.4 or Civil Practice Direction 16, paragraphs 7.3 to 7.5.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 but categorically NOT the driver.

3.The Defendant confirms that the vehicle was used by the driver to collect the Defendant and his family from East Midlands Airport on returning from their holiday on the date of the alleged breach of contract. It is noted that the Particulars of Claim state that "At all material times the Defendant was the registered keeper and/or driver".
The Defendant categorically denies being the driver and the Claimant is put to strict proof otherwise . As the alleged contravention occurred on land under statutory control (not relevant land as defined by PoFA 2012 and a place where airport bylaws apply) the registered keeper cannot  be liable.

4. The Defendant denies being the driver and declines to name the driver.

   Preliminary matter: The claim should be struck out

5. 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.

6.   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 the Court should strike out the claim, using its powers pursuant to CPR 3.4:

  No keeper liability

7.    As the Claimant will not disclose the identity of the driver of the vehicle in question at the time of the breach,(as is their right not to) it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

8.   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 in force at East Midlands Airport 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.

9.   Outwith POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases -which this Claimant and their sister company lost.

Further, the registered 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.

Stopping is not parking

10.    The Claim is for recovery of an unpaid 'parking charge notice' but the vehicle did not park, it merely stopped , as the forecourt to the Fuel station was coned off with traffic cones, due to being closed,as is evident from the photographic evidence provided by the Claimant to the Defendant. The driver had no choice but to stop and obey the order or risk damage to the vehicle -

 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.

11.  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.

12.  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.


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

13.. 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.

14.. 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.

15. 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).

16. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

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

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:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

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).

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'.

22.  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.

23.  In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('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'.

24.  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').

Milliered

CRA breaches

25.. 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):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

26. 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.

27.  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

28..  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.  

29. 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''. 

30.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO 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

31. 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.

32. 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

33. 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.

34. 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. 

35.  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:

Date:

Hopefully that is ok? Would be very appreciated if this could be checked by you kind folk please. I have took a bit here and a bit there and followed the template as best I can but happy to be advised of any changes that are more relevant to my case.

Many thanks

KeithP

Milliered said:

Would be very appreciated if this could be checked by you kind folk please.

I don't think there are many people here who are going to go through your thirty-five paragraph Defence reading every word and wondering which ones you have changed.

We all know the template Defence is good.
Now, if you want people to check your work, then show us your work - not ask us to check all three thousand odd words as you have done.

Milliered

Good morning KeithP and thank you for your reply.
Point taken!
I just wasn't sure it was too much in any case as some of the later paragraphs from the template didn't seem to reflect my own case. However,as was instructed on the template,I included all of it. Was that the correct thing to do?
I would be very grateful if paras 1 -10 could be checked over though please?  Wasn't sure if I should be providing  full transcript
of cases or what I have put is suitable?
Having read it through this morning,I have noticed a mistake in th wording in paragraph 7( was a long night)!!!. Will get that sorted it everything else looks ok
Many thanks and appreciation for your help.

nopcns

You include all the additional paragraphs in the template defence. You just don't need to show us all the unedited paragraphs.

What you have shown us above is a bastardisation of the original and the hharry defence templates. How can a "Preliminary Matter" be anything other than paragraph #2? So, Preliminary Matter should be paras #2 and #3 followed by the embedded images of the CEL v Chan appeal judgment.

Next should be "The facts as known to the Defendant" with your edited paras #4 (driver/keeper etc) and #5. If you add another paragraph then every subsequent paragraph need to be renumbered sequentially.

You have added the following: "However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but categorically NOT the driver." and then added another paragraph which is just repetition: "The Defendant denies being the driver and declines to name the driver". Pointless.

Everything else is as per the template and we don't need to see that and have to scroll all over the place to read what you have edited. Just make sure that all paras are numbered correctly and sequentially.

1505grandad

"7.    As the Claimant will not disclose the identity of the driver of the vehicle in question at the time of the breach,(as is their right not to)...."

Should that be "Defendant"?

Coupon-mad

Milliered said:

Hello Coupon-Mad
I can't find the defence that you was telling me to use. I am struggling around the site at times. I have had a look for it in the newbies section but just not got the tech know how sometimes. Finding it all a little overwhelming unfortunately.

This is what I suggest you include and you SHOULD NOT be using CEL v Chan:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (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 at a site where statutory parking penalties would apply instead.

The facts known to the Defendant:

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 offering only boilerplate text in the Particulars of Claim (POC) that are characteristic of the bulk claims submitted by this Claimant. 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. The Defendant has not even been furnished with a copy of the contract (sign). However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but categorically NOT the driver as they were being collected at the Airport, having just landed back in the UK.

3.  The Defendant confirms that the vehicle was used by the driver to collect the Defendant and his family from East Midlands Airport on returning from their holiday on the date of the alleged breach of contract.  The Defendant denies being the driver and declines to name the driver which is not an obligation, as confirmed by appeal cases cited below.

4.  It is noted that the POC states that "At all material times the Defendant was the registered keeper and/or driver".  The Defendant categorically denies being the driver and the Claimant is put to strict proof otherwise. As the alleged contravention occurred on land under statutory control (not relevant land as defined by the Protection of Freedoms Act 2012 ('the POFA') and a place where airport bylaws and/or the Traffic Management Act applies, the registered keeper cannot be held liable.

5.  The CN, upon which it is assumed that the Claimant intends to rely as a Notice To Keeper (NTK) for the purposes of POFA paragraph 6 (1) (b), states that the keeper will be assumed to be the driver in such circumstances but there are no grounds for this assumption.  POFA paragraph 9 (2) (f) states that "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid".  The applicable conditions have not been met, therefore VCS have no right to recover any alleged debt from the keeper.

6.  Even if this was 'relevant land' (which it is not) and even if the POFA conditions had been met, the keeper cannot be assumed to be the driver.  Vehicle Control Services v Edward (HOKF6C9C) is the current authority, a persuasive appeal case involving this same Claimant ('VCS'), who cannot lawfully "assume" the keeper was the driver.  Since VCS lost this appeal case in 2023, they are already well aware that it is improper for them to plead that they may 'assume the keeper was the driver'.

7.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases involving VCS and its sister firm, Excel Parking Services Ltd 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).  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. 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 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 held at 35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force;"

7.1.  HHJ Gargan continued at 35.2. "...my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so.  [...]. 35.3.  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..."

7.2.   Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant has launched 'roboclaim' cut & paste proceedings saying vaguely that the Defendant was 'keeper and/or driver' and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in parking operators' favour, but this is plainly an abuse of the court process.  This baseless claim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing.

8.   Further and in the alternative: a binding consumer contract in UK law must comprise some key elements, including: offer, acceptance and consideration.  The sparsely placed signage (researched online; not supplied by the Claimant) makes no offer of parking; it is forbidding, therefore there can have been no consideration flowing between the parties and no acceptance of 'parking' terms by the driver. The Defendant believes that the signage at the site fails to create any form of contractual meeting of minds and therefore no possibility of a breach under contract law.  The correct remedy would lie with the Airport to invoke the terms of the byelaws which provide for a penalty, ot for a Penalty to be issued under relevant road traffic enactments (given that this meets the definition of public highway) not for a third party to profit from dressing it up as if it were a parking contract.

9.  In any event, the Airport byelaws allow for certain conduct including emergency stops and it is clear that bringing vehicles to a brief halt is not in fact prohibited in every circumstance.  The Claimant is put to strict proof that their supposed contract aligns with the byelaws, which clearly take precedence, and to prove the circumstances that caused a 'parking charge' or 'CN' to arise.  For the avoidance of doubt, the byelaws are statutory, not advisory.

10.  In a similar case heard (and claim dismissed) at Leicester County Court on 07/01/2022, Deputy District Judge Wigham asked VCS' solicitor if they were aware of the statutory Bylaws in force at this Airport, especially condition 4 (4) on page 5 of the East Midlands Airport Byelaws 2001 booklet. VCS' legal representative's reply was "I am instructed that the byelaws are advisory".  The learned Judge disagreed, pointing out that the Airport Byelaws carry statutory weight and remain in force at EMA by order of the Secretary of State, reportedly telling VCS' solicitor: "these Byelaws are there to protect the public from firms like you".  She dismissed the case and permission to appeal was refused.

11.  Further and by way of alternative defence: Airport approach roads are subject to road traffic enactments (public highway).  Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that

(b) they offered a parking space with value, and a licence to park there, and that

(c) the driver (who was not the Defendant) was afforded the opportunity to accept contractual terms and that

(d) these terms were prominently displayed and well lit, and that

(e) this charge (described by the Airport as a 'fine') can override statutory Byelaws and has sufficient contractual, commercial and 'legitimate interest' to save it from falling foul of the penalty rule, and that

(f) the driver was in breach, and that

(g) there is some way that - despite the two persuasive appeal judgments against their two firms - they can hold the Defendant liable outwith the POFA;

the Claimant is also put to strict proof that:

(h) 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 the Claimant is put to strict proof to the contrary.

12.  The Defendant believes that the approach road comes off a roundabout and is not clearly demarcated as 'private land', nor is it a private car park and thus, any parking/traffic contraventions on this roadway would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004. As such, the claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

13.  The roadway referred to is in fact subject to road traffic enactments rather than airport byelaws, as per the Airport Act 1986:

''65 Control of road traffic at designated airports -
(1) Subject to the provisions of this section, the road traffic enactments shall apply in relation to roads which are within a designated airport but to which the public does not have access as they apply in relation to roads to which the public has access.''

Both the Airport Act 1986 and the airport byelaws state that byelaws only apply to roads to which road traffic enactments do not apply. This location is publicly accessible and therefore the Road Traffic Act applies.

(Rest of template defence re-numbered to suit)
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Milliered

Hi folks ,thank you so much for the replies. I understand it must be quite frustrating for you when dealing with someone like myself. Must admit I have found myself wishing I had just paid the original fee. But I guess that's exactly what their operation scam is all about and needs to be contested.
Coupon -Mad, that is brilliant what you have drafted for me to use,thank you. Am I to just add my paragraphs 1-3 to start ,are they ok?
And then off course the rest of the template to follow on from what you have drafted..
Many thanks

Coupon-mad

No I've edited it.  Take another look after refreshing the page.  I changed 1-3.

Obviously you will need to put actual data in the headings, and sign & date it under the Statement of Truth, after the 40-odd paragraphs.