VCS Bristol Aiport claim - not driver and no PCN received

notonmywatchDCBVCS

Hi,

So I've been through the pre-claim letter stages and have now received a claim form (issued 19/6/24). I have completed the AOS (24/6/24) on MCOL and am now preparing my defence statement to submit by email.

I've tried searching the forums but don't seem to be very good at finding what I am after, sorry...

Wondered if anyone can point me in the direction of threads with any additional wording to add to the template that might be useful for my defence covering:

- not being the driver (I can prove that I was elsewhere on the date they claim and I have not disclosed the driver's identity)

- not receiving any PCN (alleged breach was for stopping in a prohibited zone so would have received this by post if they had sent it - my address is correct with DVLA)

- failure by DCB Legal (representative of VCS) to respond to the above facts when I told them by email following receipt of the letter in advance of claim (they simply tried to harvest my personal data for "verification" purposes, which I declined to provide and said they did not require to respond to my points).

Thank you in advance!


Copy of my defence as adapted so far:

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. 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. The Defendant was not, however, the driver at the time of the alleged breach.

3.       No evidence has been supplied to the Defendant of any circumstances that might lead to an alleged breach. The Claimant alleges that PCN(s) were issued on 25 January, however no PCN has been received by the Defendant to date. As a result, the Defendant has not been properly notified of the alleged breach nor been given any route by which to challenge the same. The Defendant notified the Claimant’s representatives, DCB Legal, of these facts via email on 13 May 2024 in response to a letter received from DCB Legal. However, DCB Legal have not responded to the Defendant’s email beyond attempting to gather the Defendant’s personal data under highly doubtful claims of requiring this for security purposes to “verify” the Defendant’s identity. It is not clear how providing such data would allow DCB Legal to “verify” the Defendant’s identity as the Defendant has not provided this data to them previously.

4.       The Defendant was not at Bristol Airport and cannot possibly have been driving the vehicle when the breach is alleged to have taken place on 25 January 2024, having travelled to Scotland on 24 January 2024 and returned only on 28 January 2024.

5.       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.

6.       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

7.       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.

8.       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.

9.       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).

10.   The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022:

hxxps://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 from motorists."

11.   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: 

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

12.   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).

13.   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. 

14.   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 c.90% 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.

15.   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'.

16.   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).

17.   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'.

18.   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.

19.   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'.

20.   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').

CRA breaches

21.   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):

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

22.   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.

23.   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

24.   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. 

25.   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''.

26.   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

27.   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.

28.   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

29.   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.

30.   In the matter of costs, the Defendant seeks:

i.            standard witness costs for attendance at Court, pursuant to CPR 27.14, and

ii.            a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5.30.  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:

Coupon-mad

I've tried searching the forums but don't seem to be very good at finding what I am after, sorry.

Put Bristol Airport true defence in as your keywords and change to NEWEST.

The trick is 3 or 4 keywords, not whole sentences (same as good Googling practice) and ALWAYS change to NEWEST.

KeithP

notonmywatchDCBVCS said:

...have now received a claim form (issued 19/6/24). I have completed the AOS (24/6/24) on MCOL...

With a Claim Issue Date of 19th June, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 22nd July 2024 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Fruitcake

Have a look at the thread by @RRTechie. You will find a number of defence points in that thread including,

VCS are not the landowner
VCS do not have a contract with or flowing from the landowner
The site is not relevant land/airport byelaws apply, therefore the keeper cannot be held liable for the charge
Stopping is not parking, the persuasive appeal case of Jopson v Homeguard applies

Check the map linked from RRTechie's thread and/or ginger_bread_man to determine whether or not the vehicle was photographed inside or outside the are where VCS are contracted to operate. They have been caught issuing charges on several occasions where their own evidence shows the vehicle was outside the area where they have a contract (from the landowner's sub-contractor) to operate.

Please show us using google streetview where the alleged event took place, and include VCS's photos but with your VRM redacted. 

LDast

Consider that the PoC mention that the claim is for a breach of contract.

As this is a PCN for an alleged breach of (no) contract at an airport which is land that is under statutory control, VCS cannot rely on PoFA to transfer liability from the unknown driver to the known keeper. VCS can believe what they like but the burden of proof is on them to prove their "belief". If the known keeper has not revealed the unknown drivers identity, how do you suppose VCS can prove that? They can't.

Consider this too... The PoC state that the claim is for a breach of "contract" for breaching terms and conditions.... For a contract to exist, contracts are made up of three basic parts – an offer, an acceptance and a consideration. The offer is a proposal by VCS to enter into an agreement to provide goods or service on certain terms. Acceptance is the unknown drivers agreement to the proposal to receive goods or services on the terms of the offer. The consideration is the exchange of something of value (goods or services).

How can a prohibition on stopping ever be a contractual term? Nothing is offered. The claim is mendacious.

The claim is based on an alleged breach of contract for stopping in a prohibited area. One of the key defence points revolves around challenging the existence of a contract, given the lack of an offer and consideration. If no contract can be established, the claim lacks any grounds under contract law.

VCS’s claim against the registered keeper for an alleged breach of contract on land under statutory control faces almost impossible legal hurdles. Emphasise that the burden of proof lies with VCS to demonstrate that the known keeper was also the unknown driver. If VCS cannot provide evidence identifying the keeper as the driver, their claim must fail. They can't.

Additionally, there was no valid offer made to form a contract. Prohibitive signs do not constitute an offer but rather a restriction. Without a valid offer, there could not have been any acceptance. Stopping in a prohibited area cannot be construed as accepting terms that would form a contract. For any alleged contract to be valid, there must be consideration (something of value exchanged between the parties). There was no exchange of value.

Watch them get a spanking in court if they are actually stupid enough to "go all the way".

Grizebeck

Bylaws / no keeper liability should be front and centre

notonmywatchDCBVCS

Fruitcake said:

Have a look at the thread by @RRTechie. You will find a number of defence points in that thread including,

VCS are not the landowner
VCS do not have a contract with or flowing from the landowner
The site is not relevant land/airport byelaws apply, therefore the keeper cannot be held liable for the charge
Stopping is not parking, the persuasive appeal case of Jopson v Homeguard applies

Check the map linked from RRTechie's thread and/or ginger_bread_man to determine whether or not the vehicle was photographed inside or outside the are where VCS are contracted to operate. They have been caught issuing charges on several occasions where their own evidence shows the vehicle was outside the area where they have a contract (from the landowner's sub-contractor) to operate.

Please show us using google streetview where the alleged event took place, and include VCS's photos but with your VRM redacted. 

Thanks Fruitcake - I had seen some discussion on this point previously. However in my case I have not actually received the PCN they claim to have issued so have no way of knowing where they believe the driver stopped to dispute it.

I would have thought that there must be some procedural point I can score about them not having satisfied the pre-requisites for making a claim as no evidence of the alleged breach has actually been supplied, nor have I had a chance to go through their own "appeal" process. First I knew of it was receivng the letter from DCB saying they would be chasing the debt, from which point I have followed the "NEWBIE" advice.

Fruitcake

It doesn't matter whether or not the keeper received the NTK, and it doesn't matter if VCS are not relying on the PoFA 2012 because the site is not relevant land and therefore the keeper, who was not driving, cannot be held liable. Just because they have chosen not to rely on the law (the PoFA 2012) does not mean that the law does not apply. "I had my fingers crossed so it doesn't count," doesn't work where the law is concerned.

It doesn't matter what they put in the claim about having a contract with the sub-contractor. Put every relevant point in your defence and put the claimant to strict proof that the contrary is true. Let them convince the judge.

notonmywatchDCBVCS

OK - so hoping to submit my defence in next couple of days and woul dbe immensely grateful for any review of the sections I have added. Text copied below with links removed:

The facts known to the Defendant:

1.       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 Particulars of Claim ('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. The Defendant was not, however, the driver at the time of the alleged breach.

 

No basis for claim as POFA 2012 does not apply and the keeper was not driving:

2.       The land where the breach is alleged to have taken place (Bristol Airport, BS48 3DY) is not relevant land as defined by Paragraph 3, Schedule 4 of the Protection of Freedoms Act 2012 (POFA link to legislation.gov /ukpga/2012/9/schedule/4), as airport byelaws apply (link to bristolairport /corporate/about-us/our-policies/) such byelaws requiring motorists to obey signs as if the site was under a traffic authority order (including stopping a pedestrian crossings, give-way signs and so on). The conditions are, therefore, not met for the land to be deemed “relevant land” as the land is under statutory control.

 

3.       This means that the Claimant, who is not the landowner (nor, indeed, do they have any contract with or flowing from the landowner, only a contract with a third-party subcontractor), cannot pursue the keeper for liability under POFA and only the actual driver of the car can be held liable (had the requirements of Schedule 4 POFA been met, which they were not). As the Defendant was in Scotland on the day of the alleged breach (having travelled to Scotland on 24 January 2024 and returned only on 28 January 2024) then they quite clearly cannot have been the driver.

 

4.       The Claimant cannot simply assume that the keeper was the driver, rather they bear the burden of proving that the Defendant was actually the driver) and the Claimant has no basis for claim against the Defendant: In April 2023, His Honour Judge Gargan at Teesside Combined Court on appeal (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 POFA], 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..."

 

5.       The Claimant is not permitted to pursue the keeper outside of the provisions of POFA: In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal (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 out with 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.

 

6.       In the current case this Claimant (being the same as that in Mr Edward’s case) has launched “cut & paste” proceedings pursuing the Defendant as '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. Since the Claimant lost the appeal case involving Mr Edwards, they are already aware that it is inappropriate for them to state it is reasonable for them to assume the keeper was the driver.

 

Claim is for a “Parking Charge”, but the reason given is “stopping”, which is not “parking”

7.       The POC states that this claim relates to a “Parking Charge”, however no details of the supposed “parking” event have been provided to the Defendant. “Parking” is also clearly different from “stopping” and the Defendant will rely upon the judgment on appeal of HHJ Harris QC in Jopson v Homeguard [2016] B9GF0A9E case where the judge distinguished “stopping” from “parking”, saying: “Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes.”. Given the Claimant has provided no supporting information to the Claimant on the alleged “stopping” that took place, the Defendant is not able to fully respond to the claim, but it should be noted that “stopping” as opposed to “parking” can occur for a multitude of reasons and is a perfectly normal action to take when driving, for example, the law requires drivers to stop for pedestrians at a crossing, or when giving way to other vehicles and certain junctions. The Claimant is put to strict proof that they are not requiring drivers to break the law with their purported prohibition on “stopping” at Bristol Airport.

 

Failure to provide Notice To Keeper (NTK) or follow correct procedure to notify the Defendant:

8.       No detail has been supplied to the Defendant of any circumstances that might lead to an alleged breach. The Claimant alleges that PCN(s) were issued to the Defendant on 25 January, as is required by Paragraph 6, Schedule 4 of POFA, however no PCN has been received by the Defendant to date, neither has evidence of posting been supplied by the Claimant and as such the requirements of Paragraphs 6, 7, 8 and 9, Schedule 4 POFA) have not been met, even were they to apply (which they do not). As a result, the Claimant is not entitled to pursue the driver or keeper under POFA.

 

9.       The Defendant has not been provided with any means to challenge the allegation in advance of the Claimant bringing this claim, again failing to comply with the requirements of Paragraph 8 (2) Schedule 4 of POFA. The Defendant notified the Claimant’s representatives, DCB Legal, of the Claimant’s failure to provide a PCN via email on 13 May 2024 in response to a letter received from DCB Legal. However, DCB Legal have not responded to the Defendant’s email beyond attempting to gather the Defendant’s personal data under highly doubtful claims of requiring this for security purposes to “verify” the Defendant’s identity. It is not clear how providing such data would allow DCB Legal to “verify” the Defendant’s identity as the Defendant has not provided this data to them previously.

 

10.   The Defendant complained to Bristol Airport Ltd (a third party sub-contractor that operates the airport) and to Ontario Teachers’ Pension Plan Ltd (the major shareholder of the landowner) on 25 June 2024 following the failure by the Claimant’s representatives, DCB Legal, to properly respond to their concerns.

 

No contract exists and no loss has occurred:

11.   The Claimant alleges that a contract exists between themselves and the Defendant. This is incorrect as:

                                 i.            No valid contract was formed between the driver and the Claimant as there was no offer, acceptance or consideration made that was capable for forming a binding contract. The POC claims that the breach derives from “Reason:46) Stopping In A Zone Where Stopping Is Prohibited”; however no evidence has been provided of the terms that are alleged to form the contract and, in any event, a prohibitive and forbidding sign (as the signs are at Bristol Airport) does not constitute an “offer” for the purposes of forming a valid contract, rather it is a restriction. In the absence of a valid offer then there can have been no “acceptance”. Furthermore, there was no exchange of “consideration” between the driver and the Claimant.

                               ii.            The Defendant was not the driver of the vehicle when the alleged contract was formed and so is not a party to such contract should it exist.

 

12.   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.

 

13.   The Defendant denies that 12 (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... [rest of template unchanged until the below]

Lack of standing or landowner authority, and lack of ADR

 

35.       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". VCS are therefore in breach of contract by obtaining the Defendant’s details from the DVLA, 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: link to KADOE /dvlaimportantinfo/

 

36.       DVLA data is only supplied... [template continues]

notonmywatchDCBVCS

One other query I could not see in the forums - the claim form received says that the matter is being heard in the Civil National Business Centre, rather than the County court, but the "stamp" still says County Court... Do I amend this wording at the very top of the defence template to refer to"In the CNBC" rather than "In the CC"?

KeithP

notonmywatchDCBVCS said:

One other query I could not see in the forums - the claim form received says that the matter is being heard in the Civil National Business Centre, rather than the County court, but the "stamp" still says County Court... Do I amend this wording at the very top of the defence template to refer to"In the CNBC" rather than "In the CC"?

I can't imagine it matters much, but yes, state "in the Civil National Business Centre" if you want.