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

Johnersh

Why not just do a hybrid? The short defence rightly looks to getting the points down clearly. I remain of the view that has merit, generally. I have flagged what I believe is a CPR interpretation error with it, but  I’m not sure the original author has reviewed that yet.

I do believe that it is risky to assume that a DJ will simply order new particulars in each case.  I’ve seen claimants apply to strike out particulars and fail on the basis that the particulars were broadly good enough. I agree with @LDast that particulars from PPCs rarely are compliant, but it would, in my view, be quite wrong to assume they’ll routinely get bounced. Litigation risk is exactly that - courts can be unpredictable. That is why, in my view, an outline of the substantive defence can be set out alongside it.

The longer defence from the o/p may have some good points but they get lost and the thread of the argument jumps around. In short, it’s probably not going to work as presently drafted - there appears to be some consensus on that.

Who cares about the good people of Canada's pension fund? There’s like 3 paras on that, almost none of which address the issues in dispute. Lengthy quotations from Hansard are also pretty irrelevant inmho. The DJ will apply the law as it is, not what it might be in 3 years time or might have been, but for a change in government. 

Perhaps the o/p should try writing what are their 3 or 4 main arguments (there may be fewer) and structuring a couple of paras for each. That’s probably all that’s needed. Pasting a full judgment mid-defence is also unhelpful. If you want to refer to cases, name the judge and quite the paragraph. You’ll probably find it reads better.

Johnersh

The first claim using the short defence, which even included a brief cause of action, was discontinued on receipt of it. 

This is great, does, of course mean that it has not actually been tested by the courts. 

There are now another six going through the process. How many will it take to convince that it is the way to go,

At least that many, because correlation is not causation. Further, there is another consideration.  If the claimant has a poor set of particulars, you might want to weigh up whether giving them a chance to improve their case is sensible. That, too, is not wholly without risk.

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?

I suspect it comes to the same. Once a bespoke set of particulars are served no template cuts it, so the time spent will remain the same.

Fruitcake

I've seen several comments here and on other threads about, "the short defence," but I have no idea what it means, and I'm quite sure neither does the OP. There is what appears to be a quote about it in Johnersh's post above, but all I see is an icon of an eye with an oblique line through it followed by the word Spoiler. It's all too cryptic for me.

I've been helping the OP off forum whilst my Lovely Cousin and I battle covid and try to prevent my live in elderly Outlaws from getting killed by it, and I take a lot of the blame for the deficiencies of the OP's defence. I can't tell you about the OP's circumstances other than they need all the help this forum can give.

Personally, I think CEL v Chan is relevant simply because in my pedantic, and possibly autistic mind, stopping to drop off is not the same as stopping to pick up. The claimant should know which they are claiming has happened, not giving a choice of one or t'other. Perhaps the POC are not so unclear that a strike-out be requested, but still unclear enough that they should be challenged. I would rather leave that part in at least for the judge to decide if I am wrong.

I also think that the judge's comments in the Jopson case regarding a vicissitude of some duration are relevant. Stopping in a queue at a red traffic light at a pedestrian controlled crossing seems, at least in my mind, to be a vicissitude of some short duration.

The filing deadline for this defence is Tuesday, so realistically it needs submitting on Monday. I/we will take any constructive criticism offered.  Meanwhile, The OP and I will go through the defence again and try to amend it as per the advice given. It is much appreciated, but please be gentle with us.

Umkomaas

I've seen several comments here and on other threads about, "the short defence," but I have no idea what it means, and I'm quite sure neither does the OP. There is what appears to be a quote about it in Johnersh's post above, but all I see is an icon of an eye with an oblique line through it followed by the word Spoiler. It's all too cryptic for me.

The 'short defence' was introduced by regular poster @LDast a few weeks ago.  Perhaps he could post a link to it please (I've briefly searched on his username but drew a blank)?

If you click on the Spoiler eye icon, it will reveal what's hidden beneath it. Essentially a hidden quote.

Johnersh

Had some issues with the quote function. Not sure what "spoiler" means, but there's nowt missing from my reply above.

The short defence is 4-5 paras which invite the DJ to make an order for C to re-plead their case with proper detail.

C's case is that this is a red route clearway, so whatever you did (collecting or picking up) breaches that. They presumably can't tell from the photo.

Ds case is presumably that D had to stop at the lights as a matter of law. No obstruction was caused. It would presumably be for C to prove that D stopped to drop off or lingered when the lights were green. Do any images show the lights at red? 

Fruitcake

Johnersh said:

Had some issues with the quote function. Not sure what "spoiler" means, but there's nowt missing from my reply above.

The short defence is 4-5 paras which invite the DJ to make an order for C to re-plead their case with proper detail.

C's case is that this is a red route clearway, so whatever you did (collecting or picking up) breaches that. They presumably can't tell from the photo.

Ds case is presumably that D had to stop at the lights as a matter of law. No obstruction was caused. It would presumably be for C to prove that D stopped to drop off or lingered when the lights were green. Do any images show the lights at red? 

This is what I see when I look at your post where you mention the short defence,



This is what I see when I click in the box where the icon and "Spoiler" appear.



I'm working from memory because the OP has two NTKs for separate events. One of the sets of images shows the pedestrian light at green (safe to cross). I think it also shows the (road) traffic light at red but facing the opposite way to the vehicles' direction of traffic. Cars are travelling towards the pole mounted camera.
It should be noted that only the number plate of the lead car in the queue can be seen. The front of the defendant's car cannot be seen, so of course the number plate cannot be seen either. The car at the back of the queue appears to have a nearside (therefore a passenger) door open, but whether someone is trying to get in or out is unclear.

Subsequent images show the defendant's vehicle after it has cleared the crossing, at which point its VRM can be read. There may well be a video that shows they are of the same car, but it has not been produced. Were I to sit on a jury, I could not swear on oath just from the still images that they are both of the same car that was stopped at the back of the queue.

For both PCNs, the claimant's images clearly show the defendant's vehicle stopped at a traffic light whilst pedestrians cross the road.

RRTechie

Johnersh said:

Had some issues with the quote function. Not sure what "spoiler" means, but there's nowt missing from my reply above.

The short defence is 4-5 paras which invite the DJ to make an order for C to re-plead their case with proper detail.

C's case is that this is a red route clearway, so whatever you did (collecting or picking up) breaches that. They presumably can't tell from the photo.

Ds case is presumably that D had to stop at the lights as a matter of law. No obstruction was caused. It would presumably be for C to prove that D stopped to drop off or lingered when the lights were green. Do any images show the lights at red? 

Yes, the claimants images clearly show that the lights were red and there are two instances a week apart. The first was dropping off and the second picking up, both at exactly the same set of temporary traffic lights that control access to a pedestrian crossing. At drop off they were red and pick-up were green but for both cases people were crossing therefore the car could not proceed unless they decided to run-over pedestrians. In effect this is the main stay of the case as I see it.

RRTechie

I really appreciate all your support but from the above engagement and support there seems that there are more than one direction people are recommending and from my perspective I just need to get a coherent Defence finalised to deliver on Monday with maximum potential to not go to a hearing and if it does, then to win.

With regards the current state of the document, I would appreciate definitive direction in how to modify to provide the aforementioned result with respect to the great knowledge and experience on this forum....but preferably not multiple directions.

RRTechie

Defence version 2....Many thanks to @Fruitcake for this version and his extensive support...

The facts known to the Defendant:

2.    The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, 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 at the material time.

3.    VCS are not the landowner. The Bristol Airport website details the land ownership and states that the majority landowner shareholder is the Ontario Teachers’ Pension Plan (OTPP).

4.    The airport is managed by a sub-contractor to the landowner, Bristol Airport Limited, (BA Ltd), and Vehicle Control Services (VCS) Limited are sub-contractors to this management company, not to the landowner.

5.    The Particulars of Claim is inadequate by failing to define a cause of action because it does not state whether the charges were 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."

6.    It is averred that no contract to manage or enforce parking on this land exists between or flowing from the Landowner. Further, it is averred that this Claimant (understood to have a bare licence as agents of a sub-contractor) has no standing to issue court claims in their own name.

7.    The claimant has failed to produce any proof that such a contract with or flowing from the landowner exists. It is reasonable to assume that a copy, or 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.

8.    In order to pursue the Defendant as Keeper of the vehicle in question, the Claimant (VCS) is relying on Schedule 4 of the Protection of Freedoms Act (POFA) 2012. However, paragraph 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.

9.    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.

10. 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.” 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.

11. In reference to an email letter the Defendant received dated 03/01/2024 from Excel Parking Services (Excel), a sister company to VCS, in response to the defendant’s appeal to VCS, the claimant responded that,

“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.”
This statement is not true. Bristol Airport Bylaws are not Obsolete.

 

12. The Right Honourable John Penrose MP wrote to Bristol Airport Limited detailing that Excel had stated on behalf of VCS that Bylaws were obsolete and he (Mister Penrose) received the following response on 21/09/2023 from BA Ltd.
“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.”

13. The response received from BA Ltd 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 incorrect statement to the Defendant some four months later.

14. According to VCS’ own photographs, the vehicle was stopped at pedestrian-controlled traffic Lights at a pedestrian crossing. Stopping at a pedestrian crossing is a mandatory byelaw requirement therefore there was no breach of parking contract.

15. As evidenced by the still images provided on both charge notices, it is unequivocally clear that multiple pedestrians were using the crossing at the material times. Additionally, in at least one of the claimant’s images, the pedestrian traffic control light is green, indicating that pedestrians are crossing and the road traffic light is red, requiring vehicles to stop. 

16. 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:”

17. “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.

18. VCS issued parking charge notices for a non-parking event. At the material times the driver stopped at a pedestrian crossing, a mandatory requirement of airport byelaws. It is immaterial what another occupant of the vehicle or a pedestrian did at that time. Neither the keeper nor the driver can be held liable for the unexpected actions of another person whilst the vehicle was stationary.

LDast

For information, this is the “short” defence and accompanying draft order:

Short defence: https://www.dropbox.com/scl/fi/e3ywca2o8vkrqxpy6bddn/Short-defence.pdf?rlkey=x1fukkeyi1w58l6x2axezmwid&dl=0

Draft order for the short defence: https://www.dropbox.com/scl/fi/z8zcqfdncdoajgj4ag6a4/short-defence-order.pdf?rlkey=at98xmfwj0ehi3w9d0ia15ogp&dl=0

it has been suggested (by a district judge) as an alternative to the long defence which is, according to the judge, hated by most judges. It pleads the failure by the claimant to comply with CPR 16.4 and gives the case management judge an easy way to force the claimant to comply with the CPR.

The draft order is used in the judges own circuit, on their own volition,  for poorly pleaded claims by serial litigators. To date, no claimant that has been served that order has managed to comply with it and in all cases, the claims have either been struck out or discontinued.

As stated by @Johnersh, there are no guarantees but it is the judges view that this short defence for poorly pleaded claims, even if there is some cause of action stated, is more likely to result in the desired outcome and puts the notoriously lazy serial litigators (robo-claim firms of solicitors) on notice that their poorly pleaded claims need to be better formulated. That is likely to be something that they will manage to screw up every time. 

Regarding adding to the short defence additional pleading was not recommended as it then defeats the purpose of making the judges life easy and the “shirt” defence is no longer “short”.  In the words of the judge “This defeats the entire object of the short defence”. When I queried about the fact that the PoC may be considered as just about adequate, the response was “You don’t say on the one hand that I can’t respond to the Pof C and then in the very same defence you respond to the P of C”.

The advice given was “trust the judges”.