VCS Ltd at Bristol Airport - PCN for stopping at level crossing in no-stopping zone + passenger exit

Coupon-mad

deficit said:

any more for any more or shall I now submit the defence?

https://www.dropbox.com/scl/fo/7q0tzi7izipkv4pnfs1o6/h?rlkey=3102neviaguzhx21xazxt2mns&dl=0

I can't see a defence there? Did I miss it?

Only some pictures of signs & appeals/letters, none of which go with a defence because this is early days and not yet 'exhibits' time.

Fruitcake

Coupon-mad said:

deficit said:

any more for any more or shall I now submit the defence?

https://www.dropbox.com/scl/fo/7q0tzi7izipkv4pnfs1o6/h?rlkey=3102neviaguzhx21xazxt2mns&dl=0

I can't see a defence there? Did I miss it?

Only some pictures of signs & appeals/letters, none of which go with a defence because this is early days and not yet 'exhibits' time.

There is a draft defence in there that has been updated in the last few days.

Coupon-mad

Better to just copy & paste the bits the OP has changed here in a reply. Not the whole template.

deficit

Coupon-mad said:

Better to just copy & paste the bits the OP has changed here in a reply. Not the whole template.

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".   However, the vehicle registration number (VRN) stated on the Claimant’s “Charge Notice” (CN), which was posted to the Defendant, is recognised and it is admitted that the Defendant was the registered keeper on the stated “date of event”.

 3.       Following receipt of the CN, an appeal was sent by the Defendant to the Claimant, outlining their erroneous characterisation and mishandling of the alleged event and some of the numerous legal shortcomings and Code Of Practice violations that are apparent from their correspondence, but the appeal was rejected by the Claimant.  The Defendant has also lodged complaints with Bristol Airport Ltd (a third party sub-contractor that operates the airport), Ontario Teachers’ Pension Plan Ltd (the major shareholder/owner of the airport) and the Defendant's Member Of Parliament.

4.       The poor quality CCTV images included in the CN appear to show a queue of vehicles stopped at a pedestrian crossing, as mandated by the relevant byelaws at Bristol airport, as opposed to having parked or stopped to pick up or drop people off.  It is not possible to discern times, dates, relevant vehicle registration number or a sequence of events from the evidence provided in the CN.

5.       The poor quality CCTV images included in the CN are purported to have been “recorded by Mobile Enforcement Cameras”, presumably mounted on a vehicle, however the height from which the photographs appear to have been taken is more likely to be consistent with a fixed camera mounted on a pole or similar.  The Claimant therefore appears confused as to how their supposed evidence has been generated.

6.       A driver cannot be held responsible for the actions of a passenger who, of their own volition, decides to exit a vehicle.  By doing so, the driver would also be prevented from driving off until the passenger door was closed.  Pursuit of a driver who has stopped at a pedestrian crossing to allow pedestrians to cross is completely unreasonable as stopping for this reason is mandated by the relevant byelaws at Bristol airport.  The Claimant has therefore breached the Data Protection Act 2018 by requesting keeper’s details from the Driver and Vehicle Licensing Agency (DVLA) on this basis.

7.       It is assumed that the Claimant intends to rely on Protection Of Freedoms Act 2012 Schedule 4 (POFA) as grounds to pursue the keeper for the alleged debt.  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.  Even if the 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 where it was found that the claimant cannot "assume" the keeper was the driver.  Since VCS lost this appeal case, they are already aware that it is inappropriate for them to state it is reasonable for them to assume the keeper was the driver, yet they have stated exactly that in their CN to the Defendant.

8.       The "period of parking" is stated in the CN to be "the period immediately preceding the Time of Event" but this appears to be completely false as the vehicle was not parked at all, it was lawfully stopped at a pedestrian crossing.  The CN therefore does not meet the requirements of POFA paragraph 9 (2) (a) since, without parking, there can be no period of parking.  Therefore the Claimant has failed to provide a compliant NTK and may not pursue the keeper under POFA.

Stopping (in this case, in a traffic queue) is not parking, as defined by Judge Harris in Jopson v Homeguard, B9GF0A9E, a persuasive appeal case.

9.       Bristol airport is not relevant land under POFA therefore VCS have no right to pursue the keeper.  It is not relevant land because it does not fulfil the criteria in POFA paragraph 3 (1).  Bristol Airport give a partial list of byelaws that apply at the airport at

https://www.bristolairport.co.uk/corporate/about-us/our-policies/

It is therefore clear that the airport land is under statutory control.

10.   The CN states that it was posted on 26/07/23.  This is unlikely, since the CN did not arrive at the keeper's address until 04/08/23.  Even if it were true that the CN were posted on 26/07/23, it would, according to POFA and the CN, be assumed to arrive 2 working days later, on 28/07/23, which is day 15, counting from 13/07/23 with that date being day 1.  The CN sent to the Defendant by the Claimant therefore may not be relied upon as a Notice To Keeper (NTK) as it contravenes POFA paragraph 9 (4) (a).  Therefore the Claimant may not pursue the keeper under POFA.

The above is consistent with the Interpretation Act 1978 in conjunction with the Practice Direction [1985] 1 All ER 889 in that a document would be deemed to have been delivered two working days later if sent first class, or four working days later if sent second class.

11.   Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the 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:

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; 

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; and 

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..."

12.   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.

13.   A site visit was conducted to determine whether there was in fact adequate signage in place.  A basic binding contract in UK law must comprise some key elements, including: offer, acceptance and consideration.  The signage makes no offer of parking, it is forbidding, therefore there can have also have been no consideration and no acceptance of terms.  The signage at the site therefore fails to create any form of contract with the operator and therefore no possibility of a breach.  Images of the signage will be adduced in evidence.

14.   It is denied that a 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 denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name

Fruitcake

I would add at 14 my comments that the majority landowner is not aware of the unregulated private parking industry, and that if there was a contract with or flowing from the landowners, VCS would have at least referred to it let alone produced a copy at pre-action stage in order to narrow the issue.
The fact that no such contract has ever been mentioned by the claimant, nor produced, would lead the man on the Clapham omnibus to believe on the balance of probabilities that no such contract exists that, and that therefore the claimant has no standing to issue charges, especially for non-parking events on land where airport byelaws apply, nor any standing to issue court claims in their own name.

Coupon-mad

I think you need to group subject matter better to avoid repetition.

You cite VCS v Edward in 7 and 11.  Cite it once in an amalgamated paragraph next to your citation of Excel v Smith.  You could add sub-headings.

WomblePilgrim

Hi, 

Any updates as I am about to complete the paperwork for a very similar offence?

Would love to learn from your experience.

Fruitcake

WomblePilgrim said:

Hi, 

Any updates as I am about to complete the paperwork for a very similar offence?

Would love to learn from your experience.

I would love to learn how your previous thread about NHS parking went. Any chance of an update there, especially as the thread has since been closed?

As for your current problem, you should start your own thread.

There are several threads about parking charges being issued for stopping at airports, and many of these concern VCS, and many of those concern BRS.

I think a group thread might help if you are willing to start one. That way all the relevant points would be in one place. 

WomblePilgrim

I went to the local court in Bournemouth - the parking company did not present themselves. The judge hear my case - said 'there was insufficient signage for you to understand the restrictions' I replied yes - and it was thrown out.

Hence why I am willing to fight this one at Bristol airport - as it is a similar situation - inadequate signage to locate the required free drop off zone. It is there - but turns out it is in the silver parking zone offsite with no signage to indicate as such!

WomblePilgrim

I have now received the paperwork to state if this should be dealt with on paper or in person - I feel I want it in person - but just need to ensure I write what they need me to write to ensure this happens.