County Court Claim Form - Claimant VCS

pobrien947

Hi All, 
First I would like to say a big Thank You for putting all this information, directions and instructions together - I cannot express how useful and comforting it is.

I've put together a defence based upon the template provided and would be grateful for any further advice/suggestion before I submit to MCOL.

Brief Background, 
 - A vehicle for which I am the registered keeper stopped for less than minute on one of the roads at Liverpool Jon Lennon Airport (outside of any car park) on 10th November 2022 at 12:27pm
 - I was not the driver, I was working in West Sussex from 8:30am until 6pm on that day
 - VCS sent a "Charge Notice - Notice to Keeper" on 13th December 2022

Below is my initial draft of a defence without points 4 onwards from the template defence,

Thanks in advance for any advice/suggestions.

pobrien947

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 the driver of the vehicle.

3.The Defendant was not the driver of the vehicle on the date and time of the alleged incident. On 10th November 2022 the Defendant was working for clients from his office in West Sussex from 8:30pm until 6pm. Therefore it is impossible for the Defendant to have been driving any vehicle, some 260 miles away, at Liverpool Jon Lennon Airport. The Defendant had meetings with clients in West Sussex at 9:30am, 10am to 11am and 1:30pm, those clients would be able to verify the defendant’s location at those times.

Furthermore the Defendant made a purchase at the Shell Garage in Henfield, West Sussex around 12:30pm. See attached bank statement for confirmation of the transaction.

The Claimant will concede that it takes over 4 and half hours to travel from West Sussex to Liverpool Jon Lennon Airport and therefore will also concede that the Defendant could not possibly have been the driver on the date and time stated.

4. The Claimant has previously provide photographic evidence to the Defendant showing the vehicle stopped with passengers and driver outside the vehicle. None of the people in the images even remotely resemble the defendant. Despite claiming to have a large number of cameras on the site, to date the Claimant has not been able to provide an image showing the defendant.

5. The Claimant does NOT appear to have any responsibilities or any authority outside of the car parks. The images provided by Claimant clearly show the vehicle outside the car parks. Here is the relevant extract from Liverpool Jon Lennon Airport’s terms and conditions,

“1.5 In addition to these Terms, our parking enforcement operator, VCS Control Services Limited, also have terms and conditions, which apply once you have entered a car park at the Airport.  They relate to our requirements for the parking of vehicles in our car parks, and how such requirements are enforced if not met.  Their terms and conditions are located at the entrance of our car parks, and within each car park itself.  If you are not prepared to comply with their terms and conditions then please do not enter the car park.”

The full terms can be viewed at,
www.liverpoolairport.com/parking/terms-and-conditions-car-parks

Liverpool John Lennon Airport is private land. VCS do not have authority from the landowner to issue parking charges on roads that are covered by airport byelaws. It was confirmed in a recent court case that VCS' authority does not extend to roads - it is only inside car parks that VCS have authority. LJLA's own parking T&Cs state categorically that VCS have authority only when a car enters a car park.

6. Notice to Keeper is not Compliant.

The Claimant issued a “Notice to Keeper” to the Defendant on 13th December 2022 relating to an incident that occurred on 10th November 2022. This is beyond the 14 day time limit for such notices to be issued as set out in Schedule 4 Paragraph 9 of the Protection Of Freedoms Act (POFA) 2012.

To date no charge notice has been issued to the Driver of the vehicle.

7. Protection of Freedom Act POFA

7.1 The Claimant has relied on The Protection of Freedoms Act (POFA) 2012 to obtain my details as the registered keeper of the vehicle. However POFA Schedule 4 sub-section ‘keeper liability’ states that Airport land is not 'relevant land' as it is already covered by statutory byelaws and is specifically excluded from 'keeper liability'

7.2 As the roads outside of the car parks at Liverpool Airport are publicly accessible, they are covered by the Road Traffic Enactments and therefore under authority of the police. Additionally, driving and parking at Liverpool Airport is under the statutory control of Liverpool Airport Byelaws 2012 “Prohibited Acts on private airport roads and other parts of the airport to which traffic enactments do not apply”. The airport is not ‘Relevant Land’ and POFA does not apply, therefore as the Registered Keeper the Defendant is not legally liable as this Act does not apply on this land.

7.3 As the Registered Keeper the Defendant informed the Claimant that he was not the driver therefore maintains that his contact details were obtained illegally from the DVLA. The only basis in the DVLA KADOE contract for obtaining the Registered Keeper details using POFA however POFA can't apply on airport land where byelaws apply. Additionally POFA is only relevant for parking. The Defendant puts The Claimant to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Airport Authority that this land is not already covered by bylaws and/or other statutory instruments.

7.4 As POPLA assessor Steve Macallan found in case 6062356150 in September 2016, that land under statutory control cannot be considered ‘relevant land’ for the purposes of POFA 2012. He stated ‘As the site is not located on ‘relevant land’, the operator is unable to rely on POFA 2012 in order to transfer liability to the hirer. Additionally, as I am not satisfied the appellant was the driver, I am unable to conclude that the operator issued the PCN correctly, and I must allow this appeal.’

7.5 In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured.

7.6 Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a valid NTK.

7.7 The burden of proof rests with the Claimant, because they cannot use the POFA in this case, to show that (as an individual) the Defendant has personally not complied with terms in place on the land and show that the Defendant is personally liable for their parking charge. The Claimant cannot.

7.8 Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, a POPLA Lead Adjudicator, in 2015: Understanding keeper liability There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

7.9 There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass."

7.10 Therefore, no lawful right exists to pursue unpaid parking charges from the Defendant as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

7.11 This exact finding was made in 6061796103 against Parking Eye in September 2016, where POPLA Assessor Carly Law found: "I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal."The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in point 6.4 above.

7.12 The BPA code of practice also says '20.14 When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details.' The PCN does not provide this information; this does not comply with the BPA code point 20.14.

7.13 The Defendant’s research has found that the Claimant has lost all arguments about 'presuming a keeper was driving' and/or 'the driver was an agent of the keeper'. An example is Excel v Smith, heard by His Honour Judge Smith sitting at Manchester. Excel are the sister/umbrella company for VCS with the same Director/owner, so the Claimant is well aware of this case

8. Stopping is not parking

8.1 The claimant has raised a Charge Notice, however the vehicle was “stopped” for less than minute and not “parked”. It is contended that the act of stopping a vehicle does not amount to parking as determined in the case of Laura Jopson vs Homeguard Services, case number B9GF0A9E. Note that this was an appeal court case and therefore persuasive on the lower courts.

8.2 It is likely that the Claimant may try to rely upon two ‘trophy win’ cases, namely VCS vs Curtchley and/or VCS vs Ward, however neither of these cases were at an airport location.

8.3 The term “No Stopping”, as written on the signs, is forbidding and 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.

8.4 The original Notice to Keeper (NTK) gives the contravention as ‘Stopping in a zone where stopping is prohibited’. I submit that the Claimant is deliberately conflating parking and stopping in order to confuse the court.

pobrien947

9. Breach of contract

9.1The Claimant is pursuing the Defendant for a breach of contract by the Driver, however not at any point in material time was any contract agreed. It is denied that the neither the Driver or Defendant breached any advertised terms and conditions that were specifically detailed on signage. It is disputed that the signage constitutes the making a contractual offer.

9.2 As the signage is forbidding, it does not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case, neither the Claimant, nor their principal, the landowner, is offering anything to the Defendant. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant. The aforementioned point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims on these grounds.

9.3 Furthermore, it is disputed that the signage is clear and prominent. The font size is too small and the words too many ie it falls far short of the requirements for road signs as detailed in the UK government’s “Traffic Signs Manual”.

9.4 The details given on the signage are inadequate to form the basis of a contract. -

9.4.1 No offer is defined.

9.4.2 The geographical area over which any contract would apply is not defined, thus rendering compliance impossible.

9.4.3 The specific circumstance under which stopping would/would not contravene the contract are not defined. Within an area open to public access by vehicles, there clearly needs to be provision for vehicles to stop in specific circumstances. For example, if way were blocked by pedestrians, in such case compliance would be illegal. Furthermore, as this is an airport access road the vast majority of the traffic will be using the road to conduct business at the airport and this will in most cases entail stopping.

9.5 These inadequacies in signage render any motorist attempting to safely travel through the site at 30mph, whilst navigating traffic, wholly incapable of even reading/understanding any alleged terms offered by said signage. It then follows that the formation of any contract based upon these terms is impossible. It is an ironic fact that the only way any sign could be read, would be to stop.

9.6 On the material date, the Driver was unaware that they were entering private land and was unfamiliar with any local rules for stopping in the vicinity of Liverpool John Lennon Airport (LJLA). The Driver was not alerted to this fact by any signage and thus could not have entered into any contract. The Driver appears to have stopped at the side of the road for less than a minute as they could not locate the free drop off zone. The driver only became aware of the local rules for stopping when a PCN was received after the event.

9.7 The Claimant has failed to comply with the IPC Code of Practice which states: “Motorists must be allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land.”The Driver was not offered opportunity to consider the terms of the alleged contract or the opportunity to decline it.

9.8 The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

9.9 Airport approach roads are subject to road traffic enactments (public highway) and even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Driver was afforded the opportunity to consider and accept contractual terms
(d) these terms were prominently displayed, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule,

the Claimant is also put to strict proof that:

(f) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

9.10 The road is not clearly demarcated as private land, nor is it a private car park and thus, any parking/traffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

9.11 The claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

10.There is no contract between VCS and the Defendant:

It is contended that no Legal contract existed between the Claimant and the Defendant at the time of this incident and that the Claimant knows this is the case.

10.1 - In the Upper Tribunal Tax and Chancery Chamber, Court of Appeal (Appeal number: FTC 51/2011) in Vehicle Control Service (the Claimant) v’s HMRC, Judges’ Berner and Aleksander said “39. We find that there was no contract between VCS and the motorist. Any contract requires there to be an offer and acceptance.”The court also stated“40. On the facts of this case we do not consider that any offer was made by VCS that was capable of forming the basis for a contract between it and the motorist. VCS was not in a position, by virtue of its limited licence, to make any offer of a right to park. The ability to offer such a right was not conferred by the contract with the client, either expressly or by virtue of the nature of the interest in the car park conferred on VCS. That interest did not amount to a licence to occupy, or give VCS any right to possession. It merely conferred a right of entry to perform VCS’s obligations under the contract.” The Lord Justices continued “41. The warning signs erected in the car park do not assist VCS in these circumstances. The reference in those signs to the fact that the motorist is entering into a contractual agreement cannot create a contract where there is no relevant offer from VCS that can be accepted.”

10.2 - It is clear from the above that the Appeal Court is saying that any contract is between the landowner and the Claimant, and not between the Claimant and the Driver. It is the landowner that is allowing the motorist on to their land, not the Claimant therefore there is no contractual relationship between the Claimant and the Driver. Furthermore the Defendant was not the Driver and never entered the land, therefore no such contract ever existed.

10.3) The Defendant does not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give VCS any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, VCS’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.

VCS is an agent working for the owner (without a contract) and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

The Defendant believes there is no contract with the landowner/occupier that entitles VCS to levy these charges and therefore it has no authority to issue parking charge notices. This being the case, the burden of proof shifts to VCS to prove otherwise so I require that VCS produce a copy of their contract with the owner/occupier for the judge to scrutinise.

10.4In any event, an access road would surely be of such significance that it would be under statutory control and subject to Road Traffic Act 1988 and/or airport byelaws rather than a private parking company.

10.5 The Defendant puts the Claimant to strict proof that the road in question is not under statutory control.

11 Signeage

11.1 Permission to enter Airport land is implicit in the operation of an airport to allow airline passengers access to the airport to take flights.The Defendant believes that misleading sineage which fails to direct drivers to the free drop off point and instead leads them to a dead end is entrapment.

11.2 Red Route Signage on land at Liverpool Jon Lennon Airport

11.2.1 Signage asserts that the airport roads are “Red Routes”. First introduced in London in 1991, Red Routes are urban clearways that form a network of major roads which carry a significant amount of traffic, especially during rush hours. Red routes are commonly roads with heavy traffic and often incorporate public transport routes. More recently Red Routes are being used with the aim of reducing accident rates. The red routes within the airport private land are not official Red Routes nor do the forbidding signs adhere to the specified format for Red Routes. The landowner has, instead, mimicked red routes for their own purpose. The road in question is separate from the main roads within the airport and no other vehicles used the road at the time of the alleged incident.

11.3 The Claimant has failed to provide the contract between the Claimant and the landowner to provide evidence that the landowner has given them the necessary authority to issue parking charge notices and to pursue payment by means of litigation.

11.4 The Claimant has failed to provide the proof of planning permission granted for alleged signage etc under the Town and Country Planning Act 1990

KeithP

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

LDast

It's Liverpool JoHn Lennon Airport. You need to get the details correct. Also, you waffle on in your defence with stuff like identifying people in CCTV images. Forget about that. SO what if there is an image of anyone? How on earth do you imagine they could identify anyone, even if they had a clear HD image of the driver? How would you go about identifying a random person you took a photo of? Do you imagine that there is some magical unicorn database they an image of someone can be input and out will spew that persons details? Of course there isn't and VCS do not have any authority of any kind ti use those images for forensic detection, even if they could.

You also go on about PoFA. PoFA is irrelevant. They are not using PoFA to hold the Keeper liable because they can't. LJLA is land under statutory control, not relevant land. No need to go on about PoFA. The only way the keeper would be liable is if the Keeper told them that they were driving. You have evidence you were not driving, so you cannot be liable.

Your defence is like War & Peace. All you are answering is the allegation in the PoC of the claim. imagine you knew nothing about this until you received the claim form. Assuming that was the very first you know about this, how would you defend against the allegation? It would be almost impossible because the PoC are so woefully inadequate.

If the allegation is stopping in a prohibited zone or something similar, all your defence needs to be is "The defendant was not at LJLA on the date in question and denies any liability." That's it. You have your "hook" for later if you need to produce a Witness Statement (WS). If it ever gets that far, you expand on the story in your WS, not in the defence.

A short defence would suffice for this with a single "hook" in it and a draft order requiring the claimant to fulfil its obligations under CPR 16.4. However, the long defence is what this form as available and all you need is a short single sentence as suggested above for your para #3. Judges hate the long defence but it serves its purpose.

Coupon-mad

Too much info and repetition in that defence section.  It also reads like a POPLA appeal (which is irrelevant to VCS).

Remove these for starters

7.3
7.4
7.5
7.6
7.11
7.12

Then search the forum for:

Excel Smith VCS Edward defence true

pobrien947

Thanks all.

Below is an image of the POC and this is the claim history from MCOL,

A claim was issued against you on 28/08/2024

Your acknowledgment of service was submitted on 04/09/2024 at 14:08:08

Your acknowledgment of service was received on 04/09/2024 at 16:05:07

KeithP

pobrien947 said:

A claim was issued against you on 28/08/2024

Your acknowledgment of service was received on 04/09/2024 at 16:05:07

With a Claim Issue Date of 28th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 30th September 2024 to file a Defence.

That's a little over a week away. Plenty of time to produce a Defence but please don't leave 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'.

pobrien947

Thanks all. So if I understand correctly my defence just needs to be,

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 the driver of the vehicle.

3.The defendant was not at Liverpool John Lennon Airport on the date in question and denies any liability.

plus points 4 onwards from the template.

If it gets to the Witness Statement stage, is that where I detail all the evidence of where I was on that day etc?
Am I correct in understanding that I can add things to the WS that I haven't mentioned in the Defence?

Coupon-mad

Not enough. Like I said: search the forum for:

Excel Smith VCS Edward defence true

Le_Kirk

3.The Defendant was not the driver of the vehicle on the date and time of the alleged incident. On 10th November 2022 the Defendant was working for clients from his office in West Sussex from 8:30pm until 6pm. Therefore it is impossible for the Defendant to have been driving any vehicle, some 260 miles away, at Liverpool Jon Lennon Airport. The Defendant had meetings with clients in West Sussex at 9:30am, 10am to 11am and 1:30pm, those clients would be able to verify the defendant’s location at those times.

4. Furthermore the Defendant made a purchase at the Shell Garage in Henfield, West Sussex around 12:30pm. See attached bank statement for confirmation of the transaction.

5. The Claimant will concede that it takes over 4 and half hours to travel from West Sussex to Liverpool Jon Lennon Airport and therefore will also concede that the Defendant could not possibly have been the driver on the date and time stated.

You need to be accurate with timings, unless you have a time machine you need to correct the above, perhaps 8.30 am.

If you take those sentences, give them a number and add them in to your defence after #3 that should be all you need, you can provide the rest of the narrative and evidence at witness statement stage.

Of course you need VCS V Edward as stated by @Coupon-mad