EMA Parking Penalty for Stopping in a non-stopping zone - Defence

LetItSnow789

Hi all, 

Thank you for taking the time to look at this for me. I have a county court claim from VCS for stopping in a non-stopping zone at East Midlands Airport. To date I have appealed to VCS stating no keeper liability which was rejected. I have had several letters demanding payment which I have ignored. I had a letter before claim and now the actual claim. Claim issued on 28/11/23, AOS on 09/12/23 so I have around 10 days to file my defence. Though I would like to get done soon to avoid anything getting lost over Christmas - I'm not sure if the county court has is a shutdown over Christmas? I assume they have timed the issue of this to run into Christmas.

One final bit of info before the defence (I am using the template defence and have only included the parts I have made specific to my defence), the images sent by VCS had two where only 3 of the digits of the registration plate were visible, the third was a close up of a registration plate not showing any context to where the vehicle was or indeed if it was stopped. I have included this in the defence as it seems the evidence is inconclusive but would value your opinions on this. 

Anyway here is my defence, after the template intro and paragraphs 1 & 2: 

No keeper liability

3. The vehicle, registration XXXXXX, of which the Defendant is the registered keeper, is alleged to have stopped on the site of East Midlands Airport on the morning of  xxxxxxxxx. Evidence provided by the claimant does not clearly show the vehicle registration plate and/or the situation of the vehicle in question. 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.

4. 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.

5. Attention is drawn to paras 34 - 36 of VCS vs Edward [2023] H0KF6C9C (the Edward case). In this case the claimant stated a “reasonable belief” that the registered keeper is the driver of a vehicle where the registered keeper has declined to identify who was driving. Here, in finding for the defendant, the judgement rejected the notion that declining to identify the driver produced any kind or inference that the registered keeper was the driver. I decline to identify who was driving the vehicle on the date detailed in the claimants POC.

6. The claimant in the Edward case is also the claimant in this case. When appealing, through the claimants own process, upon first receiving their claim, the defendant made the same defence as above, namely that as the registered keeper they have no liability and declining to name the driver. It seems a reasonable conclusion that the claimant was aware there was no basis on which to pursue the defendant and poses the question whether the claimant acted in good faith in rejecting the defendants appeal and in their subsequent conduct in this matter.  

7. 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:

and after that follow the template to the end. 

I'm not sure whether what I have written in 5 & 6 are the best use of Edward (or if 6 is worth including - though it definitely seems to me they have acted in bad faith reading the judgement in the Edward case).

You comments on this are greatly appreciated,

Have a great Christmas

JerryJ64

You have until 4pm on Tuesday 2nd January to file your defence.

JerryJ64

Please show us the PoC on the claim form. It is important to see the exact wording. Just redact the PCN number and the car reg. All dates should be shown. If you show a scan or photo of the form then also redact your name and address, the claim number and the MCOL password.

LetItSnow789

JerryJ64 said:

Please show us the PoC on the claim form. It is important to see the exact wording. Just redact the PCN number and the car reg. All dates should be shown. If you show a scan or photo of the form then also redact your name and address, the claim number and the MCOL password.

Thanks, I will send over shortly

LetItSnow789

Here is the POC

JerryJ64

Did VCS try and use PoFA in their NtK? Either way, just continue to defend as the registered keeper. No admitting who was driving and no requirement to do so as per the Edward case you have mentioned above.

The claimant is acting unreasonably by pursuing you as the registered keeper and/or driver. As stated and obvious under the PoFA, you are not liable as the registered keeper and you cannot be presumed to be the driver.

LetItSnow789

JerryJ64 said:

Did VCS try and use PoFA in their NtK? Either way, just continue to defend as the registered keeper. No admitting who was driving and no requirement to do so as per the Edward case you have mentioned above.

The claimant is acting unreasonably by pursuing you as the registered keeper and/or driver. As stated and obvious under the PoFA, you are not liable as the registered keeper and you cannot be presumed to be the driver.

No they haven't mentioned PoFA at all. The NtK and their appeals process all seemed to be aimed at getting me to reveal who the driver was, which I havent. 

Is there anything else I need to include in the defence or does this cover everything? 

Thanks for your help on this

JerryJ64

Standard template defence with emphasis on the PoC stating, unreasonably, "...as the registered keeper and/or driver". They know they can't sue you as the registered keeper and they cannot prove you were the driver.

Fruitcake

I would throw in that stopping is not parking, as determined in the appeal case of Jopson v Homeguard, therefore issuing a parking charge notice for a non parking event is inappropriate, and not relevant. 

Do you have a map of the airport and the areas where VCS are contracted to operate? At Bristol Airport, VCS have a history of issuing PCNs even when a vehicle has stopped outside the area where they are contracted to operate. They lost in court twice when they tried this, but alas the posters never provided the case numbers.
Depending where precisely the vehicle was photographed, it may be worth putting the claimant to strict proof that they had the authority from the landowner to issue PCNs at that precise location. 
VCS issued PCNs at Bristol where a vehicle was stopped in a queue on a car park entrance road with the entrance barrier in the down position, on the exit road of a different car park, on the entrance to the drop-off car park, and in a contractor's work yard, all outside the boundary of the area where they had a contract.
They were also caught lying that Bristol Airport byelaws were considered obsolete by the airport management company, which the management company confirmed wasn't true, issuing PCNs to vehicles stopped at a zebra crossing, and at a Stop sign.

LetItSnow789

Fruitcake said:

I would throw in that stopping is not parking, as determined in the appeal case of Jopson v Homeguard, therefore issuing a parking charge notice for a non parking event is inappropriate, and not relevant. 

Do you have a map of the airport and the areas where VCS are contracted to operate? At Bristol Airport, VCS have a history of issuing PCNs even when a vehicle has stopped outside the area where they are contracted to operate. They lost in court twice when they tried this, but alas the posters never provided the case numbers.
Depending where precisely the vehicle was photographed, it may be worth putting the claimant to strict proof that they had the authority from the landowner to issue PCNs at that precise location. 
VCS issued PCNs at Bristol where a vehicle was stopped in a queue on a car park entrance road with the entrance barrier in the down position, on the exit road of a different car park, on the entrance to the drop-off car park, and in a contractor's work yard, all outside the boundary of the area where they had a contract.
They were also caught lying that Bristol Airport byelaws were considered obsolete by the airport management company, which the management company confirmed wasn't true, issuing PCNs to vehicles stopped at a zebra crossing, and at a Stop sign.

Thanks for this Fruitcake, 

I'll add in Jopson vs Homeguard. I don't have a map of the areas where VCS are contracted to operate but will try to locate one.

Wow, sounds like VCS are a lovely bunch it's amazing that airports are happy to let them try to take their customers for every penny they can get!

1505grandad

"Wow, sounds like VCS are a lovely bunch it's amazing that airports are happy to let them try to take their customers for every penny they can get!"

Also the DVLA.