Bristol Airport NTK - 104) Stopping to Pick-Up/Drop Off In a Restricted Zone

RRTechie

Oh I had no idea...what is the best way for me to format this now please? Is it best for me to remove spaces to ensure related information is kept together so that a single number references related information? 

Coupon-mad

LDast said:

Le_Kirk said:

Didn't you see @Coupon-mad's post asking you not to post the whole 30 odd paragraphs?   You are now expecting the regulars to read it all and check what you have changed or added!

Most judges are not going to bother reading iIt either. All paragraphs need numbering sequentially, which they aren’t. The profile about the owners is extraneous waffle. Imagine you have not received any prior correspondence about this event. Now re-read the PoC and answer the allegation on that basis. This is perfect for the short defence and draft order.

After querying the applicability of the short defence and draft order regarding the obvious resistance to using it on this forum, the judge has come to the conclusion that the regulars on here seem to be institutionally distrustful. 

The problem is, “they” don’t know how judges think. “They” don’t know how judges work. And people are naturally “suspicious” of something they don’t know anything about.

But  @Johnersh does...

Coupon-mad

RRTechie said:

Oh I had no idea...what is the best way for me to format this now please? Is it best for me to remove spaces to ensure related information is kept together so that a single number references related information? 

No.

Judges want every paragraph to have a number. It's to make the hearing easier and to enable both parties to refer to para or page numbers.

All pages must be numbered, too.

RRTechie

Defence with all paragraph sections now numbered...

Note: Section 28 does not show as separate paragraphs in the document as it does here.

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. 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.

3.     VCS are not the landowner. The Bristol Airport website details the following Ownership hierarchy…
“Bristol Airport is owned by Ontario Teachers’ Pension Plan (OTPP).
Ontario Teachers’ Pension Plan owns the largest number of shares and has been an investor in our airport since 2001. They are Canada's largest single-profession pension plan with over C$200 billion in net assets and represent around 333,000 working and retired teachers.

4.     OTPP have their headquarters in Toronto with a number of regional offices, including in the UK. It has holdings in five freehold airports in Europe: Copenhagen Airports, Brussels Airport, Bristol Airport, Birmingham Airport and London City Airport.

5.     In addition to OTPP, Australia’s New South Wales Treasury Corporation ("TCorp"), the Australian Retirement Trust (“ART”) and StepStone own a minority interest in the airport.”

6.     The airport is managed by a sub-contractor to the landowner, Bristol Airport limited, and Vehicle Control Services Limited are sub-contractors to this management company, not the landowner.

7.     The Particulars of Claim is inadequate by failing to define a cause of action because it does not state whether the charge was issued for dropping off, or for picking up. The car was at the airport being driven to the Drop and Go Car Park. The claim is for "Stopping to Pick Up/Drop Off in a restricted zone" but the claimant has failed to specify whether it was for Stopping to Pick Up, or Stopping to Drop Off. In addition, the claimant has failed to specify the location of the "Restricted Zone."

8.     A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

9.     It is averred that no contract to manage or enforce parking on this land exists between the Landowner and the Claimant or flows from the Landowner to the Claimant. Further, it is averred that this Claimant (understood to have a bare licence as agents of a sub-contractor) has no standing to sue or form contracts in their own name.

10.  The claimant has failed to produce any proof that such contract with or flowing from the landowner exists. If such a contract did exist, it is reasonable to assume that a copy, or a copy of the relevant parts would have been provided by the claimant. The fact that no such contract has been produced by the claimant would suggest that on the balance of probabilities that no such contract exists. The claimant is put to strict proof that the contrary is true.

11.  In order to pursue the Defendant as Keeper of the vehicle in question, the Claimant (VCS) is relying on Schedule 4 of the POFA. However, para. 1 of this schedule states that “This Schedule applies where— (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land”. Firstly, it is to be noted that this is an event of stopping but not parking. No parking event has, nor is alleged to have occurred in relation to this claim and so Schedule 4 of the POFA does not apply.

12.  The site is not relevant land since airport byelaws apply as defined by Schedule 4 of the Protection of Freedoms Act (PoFA) 2012, therefore the vehicle keeper cannot be held liable.

13.  Schedule 4 of the POFA Para. 3 goes on to clarify: “In this Schedule “relevant land” means any land (including land above or below ground level) other than—… (b) a parking place which is provided or controlled by a traffic authority. (c) any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.” However, Bristol Airport is under the statutory control of Bristol Airport Byelaws 2012 section 6 “Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply”. Therefore, the airport is not ‘Relevant Land’ and therefore the vehicle keeper (the defendant) cannot be held liable. The case should be struck out accordingly.

14.  In reference to an email PDF letter the Defendant received dated 03/01/2024 from Excel Parking Services in response to their appeal sent to VCS…
Bristol Airport Bylaws:
In the letter received as the registered keeper dated 03/01/2024 Excel/VCS stated the following…
“Byelaws are not currently in use as the last set of byelaws published relate to the old airport site and are now regarded as obsolete by the Airport Company.”

15.  This statement is not true, the Bristol Airport Bylaws are not Obsolete…Bylaws apply to land under statutory control and do not just become "obsolete". The airport land is still the airport land and if it's airport land then it is not Relevant Land and the vehicle keeper cannot be held liable.

16.  The Right Honourable John Penrose MP wrote to Bristol Airport detailing that VCS had stated that Bylaws were obsolete and he (Mister Penrose) received the following response on 21/09/2023…
“Firstly, our Byelaws are definitely in place and are not obsolete. We have of course contacted our third-party parking enforcement provider who have identified an issue with the wording used in the response to the constituent, which does not align with their usual communication standards. The operative used incorrect phrasing with regards to Byelaws in this particular response. Excel Parking Services have assured us that this wording anomaly is not consistent  with the response typically used in other communications.”

17.  Please note that the response received from Bristol Airport clearly states that Bylaws ‘are definitely in place and are not obsolete’ and that Excel Parking Services had assured Bristol Airport that ‘this wording anomaly is not consistent with the response typically used in other communications’ however, clearly this is not the case because Excel recited the same mistruth to the Defendant!

18.  According to VCS’ own photographs, the vehicle was stopped at Traffic Lights with a Pedestrian Crossing; Stopping (in a queue) at a Pedestrian crossing is a mandatory byelaw requirement therefore there is no breach of parking contract. Additionally, stopping at a traffic light is required by UK law and as per Section 192 of the Road Traffic Act 1988, "road, in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes". The roads on Bristol Airport's land are publicly accessible and therefore UK legislation applies.

19.  As evidenced by the still images provided on both charge notices, it is unequivocally clear that multiple pedestrians, are using the crossing. Additionally, the pedestrian traffic control light is green, indicating that pedestrians are crossing and the road traffic light is red, requiring vehicles to stop. It therefore appears that VCS are condoning both breaking the law and placing pedestrians and other road users in grave danger, and are attempting to penalise any driver who refuses to do both of these.

20.  Bristol Airport Byelaws 2012 state the following: -
6. PROHIBITED ACTS ON PRIVATE AIRPORT ROADS AND OTHER PARTS OF THE AIRPORT TO WHICH ROAD TRAFFIC ENACTMENTS DO NOT APPLY On any private Airport roads or other parts of the Airport to which the Road Traffic Enactments do not apply no person shall:

21.  6.7 Road Traffic Enactments
drive or cause or permit to be driven any vehicle which fails to comply with any braking, steering, lighting, tyre or electrical requirements which apply to that type of vehicle if it were to be operated on a road to which the Road Traffic Enactments apply.
Failing to stop as required would have caused the driver to commit a prohibited act.

22.  VCS issued a parking charge notice for a non parking event. At the material time, the driver stopped at a red traffic light at a pedestrian crossing a mandatory requirement of airport byelaws.
Stopping is not parking as determined in the persuasive appeal case of Laura Jopson v Honeguard Services, case number B9GF0A9E. Here His Honour Judge Harris QC stated that, "coping with some vicissitude of short duration" is not parking. Stopping as required at a red traffic light at a pedestrian crossing for a few seconds must surely constitute a vicissitude of some short duration. The claimant should not therefore have issued a parking charge notice for a non-parking event.

23.  The defendant is not the person against whom any claim can be made on non-relevant land. In the persuasive appeal case of VCS v Edward, case number H0KF6C9C, it was determined by His Honour judge Mark Gargan that it is not appropriate to draw any inference that, on balance of probability, the registered keeper was driving on any given occasion. His Honour also stated that the evidential effect of establishing that the defendant was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the defendant was driving on this particular occasion. Therefore there is no material inference for the defendant to rebut.
In other words, the defendant has no reason to respond to any assertion that the keeper was the driver, and no inference can be assumed for the keeper's silence on this matter. VCS are fully aware of this case of course, since they were the claimant when the judge found against them.
Were it a requirement of the PoFA to name the driver, their Lordships would surely have included it in the Act.

24.  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. Mr Smith's appeal was allowed and Excel's claim was dismissed.

25.  DPA/GDPR infringement: The response the Defendant received to their appeal was not from VCS but was from a separate company named Excel Parking Services Ltd. This company is a totally different company in respect to Companies House; the register of companies retained by Companies House clearly shows that VCS and Excel have different company numbers and are therefore completely separate accounting companies therefore Excel Parking Services is not the same company that Bristol Airport has a contractual agreement with to provide parking enforcement and has a separate incorporation ID and separate accounting. VCS have broken GDPR rules by passing on my personal data to Excel Parking Services, a separate accounting company. The Defendant has complained to their member of parliament and the airport landowners.

26.  The Particulars of Claim indicate that the Claimant wishes the courts to believe that a contract was agreed by the Driver of the vehicle by the act of entering the land of Bristol Airport. However, it is not possible to read, consider and accept the terms of the signage which the Claimant relies upon from a moving car and indeed stopping to read a sign constitutes the very contravention for which this charge has arisen – ‘No Stopping’. Therefore, this supposed contract is paradoxically impossible to accept without breaking. In addition this is unfair contract terms as defined by Consumer Rights Act 2015 para 71.

27.  Part B2 of VCS's KADOE contract allows VCS to obtain data only for purposes related to trespassing, abandonment and parking charges, not for "stopping", and especially not for stopping  at a traffic lights/pedestrian crossings. VCS are therefore in breach of contract, and a complaint will be made to the DVLA in due course. An overview of valid reasons for obtaining data using the KADOE service can be found here: (https://kadoe.co.uk/dvlaimportantinfo/) and a summary is provided below:

28.  "You are reminded of the conditions of the KADOE (Keeper At Date Of Event) agreement signed between DVLA and your company, and the contract signed between your company and VALCON."
"Cars parking on private property
Releasing vehicle information to landowners or their agents helps to find the keeper of a vehicle that has:

                        i.         obstructed access to land or property

                       ii.         been abandoned on private property

                     iii.         been parked without payment of the relevant fees

                      iv.         been parked without the right to do so, eg in a space reserved for disabled motorists"

                       v.         "Information cannot be released for any other reason

DVLA will monitor your use of KADOE and conduct periodic audits to confirm compliance with the regulations.
DVLA must meet the requirements of the Data Protection Act, and false declarations may be referred to the Data Protection Registrar as a suspected breach.

WARNING - UNAUTHORISED USE OF DATA CAN RESULT IN PROSECUTION"

29.  Furthermore, the term “No Stopping”, as written on the signs, is forbidding and therefore not an offer to stop and pay a charge. Therefore, no contract to pay a charge in the event of stopping was agreed to by the Driver and so no charge can be brought about by doing so. Precedence in Case Law can be found in CS036 PCMUK v Bull et al B4GF26K6.

30.  The VCS camera van that took images of the vehicle at the material time bears the legend, Safety Camera Unit. Since this vehicle is used to take candid images, it is required to display for what reason the images will be used, but it does not. This is a breach of the CCTV code of practice, and the relevant Data Protection Act (DPA), and General Data Protection Regulations (GDPR) because the images are not being used for the purpose advertised on the vehicle.

Coupon-mad

I can't follow what's going on really because this isn't based on the Template Defence. There's a lot of repetition too.  I can't make head nor tail of it.

But as a starter for ten, remove this unnecessary wordy end to your quote:

"Ontario Teachers’ Pension Plan owns the largest number of shares and has been an investor in our airport since 2001. They are Canada's largest single-profession pension plan with over C$200 billion in net assets and represent around 333,000 working and retired teachers."

And remove paras 7, 8 and the Chan transcript which is (surely, in my experience of no stopping claims) not applicable to your Particulars of Claim, but I am guessing because we haven't seen the POC, have we?

1505grandad

Para 22  -  Typo (should be Homeguard) -  "Stopping is not parking as determined in the persuasive appeal case of Laura Jopson v Honeguard Services, case number B9GF0A9E. 

Coupon-mad

I don't think Jopson (residential unloading case) is remotely applicable to a red route Airport 'no stopping' claim. Remove that.

RRTechie

Apologies @Coupon-mad never realised I should have posted the PoC. 

Particulars of Claim:

Defendant

Particulars of Claim

1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charges) issued to vehicle **** at Bristol Airport, Bristol, BS48 3DY.
2. The PCN(s) were issued on 17/12/2023, 12/12/2023.
3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason: 104) Stopping TO Pick UP/ Drop Off In A Restricted Zone
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

AND THE CLAIMANT CLAIMS

1. £340 being the total of the PCN(s) and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of €.06 until judgment or sooner payment.
3. Costs and court fees

LDast

Again, a lot of dithering where the short defence would be enough to get the case management judge to issue the draft order as it is quite obvious that CPR 16.4 has not been fully complied with. It is highly unlikely that a judge would ignore that fact, whether the cause of action is stated or not.

in the highly unlikely event that a judge thought that CPR 16.4 has been fully complied with, it can easily be pointed out that partial or even substantial compliance is not sufficient. It is believed that it is highly unlikely to ever get to a hearing without further PoC that fully comply with the draft order being submitted and the defendant allowed to submit a new defence based on the further PoC, assuming that they fully complied with the order.

The first claim using the short defence, which even included a brief cause of action, was discontinued on receipt of it. There are now another six going through the process. How many will it take to convince that it is the way to go, if only to stop having to explain where everyone is screwing up the long defence which is likely to be unread by the judge anyway?

Coupon-mad

I respectfully disagree. That POC is OK.

Hence why I told the OP to remove the Chan images and paragraphs.