CNBC received preparing defence... Would welcome your feedback

AA00112233

Hello all,

I have followed this forum for guidance so far and never really thought I would have to go down this road of taking on these parking scammers but here I am!

A quick summary of events so far (can give details if needed):

• I received a Notice of instruction from ELMS legal in to say that they have been instructed to recover £170 on behalf of VCS for a PCN for stopping my vehicle at Liverpool john Lennon airport on a given data more than 2 years ago. I am the registered keeper of the vehicle but have no idea who was driving the vehicle on the said day and time.
• No letter or instructions had been received previously by VCS and I was not given a chance to appeal this decision.
• Received a CNBC claim from in excess of £250 for this recently where I gave the acknowledgement of service, giving me 28 days to prepare my defence.
• I have not responded to anything from ELMS legal because all I had to go with leading up this point was a notification of instruction.
• After the CNBC, I had one more letter from ELMS legal titled ‘notification of issues of proceeding’ – so my only real options have been to prepare my defence and take it to court.

 

I have gone through several forums on here and really thankful to everyones efforts. Special thank you to  ‘Stop_this_nonsense’ for his post because my story very similar. I took feedback  and guidance from that thread to prepare my defence below.

Please review and let me know if there is anything else I should add or omit. Thank you.

 

A draft of my defence is below.

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 as known to the Defendant

2.    The facts in this defence come from the Defendant's own knowledge and honest belief. The vehicle is recognised and it is admitted that the Defendant was the registered keeper of the vehicle with registration mark x ("the vehicle").

3.    The Defendant confirms that the vehicle was used by the driver to travel to Liverpool John Lennon Airport on the evening of x.

4.    The Defendant was not the driver and declines to name the driver.

Preliminary matter: The claim should be struck out

5.    The Claimant fails to state a Cause of Action, offering only boilerplate text in the Particulars of Claim ("the POC") that are characteristic of the bulk claims submitted by this Claimant. The Claimant sets out a menu of choices claiming that the Defendant was “the registered keeper and/or the driver of the vehicle”. As such, the Defendant is unable to determine whether the Claimant is pursuing the Defendant as registered keeper or driver. The Claimant seeks the recovery of a ‘parking charge notice’ but the Defendant only recognises the ‘charge notice’ referenced by the Claimant up to and including the Letter Before Claim. The addition of the word 'parking' is significant and contradicts the claimed breach, namely 'Stopping in a zone where stopping is prohibited'. The Defendant is unable to determine if the Claim is for recovery of damages for parking or stopping. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5 

6.    The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment which supports striking out the claim without a hearing (in these exact circumstances of typically poorly pleaded private parking claims). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill wording, unclear basis of claim and factual errors in the POC, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

7.    A recent persuasive appeal judgment in Civil Enforcement Limited v Chan [2023] E7GM9W44, on appeal, would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On 15 August 2023, in the cited case, HHJ Murch (in paragraph 11) held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4:

 [full CEL v Chan transcript]

No keeper liability

8.    As the Claimant does not know the identity of the driver of the vehicle in question at the time of the breach, it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

9.    Keeper liability is denied. The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known. Paragraph 3 of Schedule 4 of the POFA states that land is not 'relevant' where byelaws apply. The land entered is land subject to byelaws enacted in London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land. POFA cannot be used by the Claimant to recover any unpaid parking charges from the keeper of the vehicle.

10.    Further, the vehicle keeper is not obliged to name the driver to a private parking firm.  Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and this has been tested on appeal more than once in private parking cases and the following 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).  His Honour Judge 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 held liable outwith the POFA and no 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.  His Honour Judge Gargan concluded at 35.2 and 35.3. "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 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..."   Mr Edward's appeal succeeded and the Claim was dismissed.

 

Stopping is not parking

11.    The Claim is for recovery of an unpaid 'parking charge notice' but the vehicle did not park, it merely stopped and at no point did the driver leave the vehicle, as is evident from the photographic evidence provided by the Claimant to the Defendant - paragraphs 19-21 of Jopson v Homeguard [2016] 9GF0A9E, on appeal, where it was decided that stopping is not parking ("in the sense of leaving a car for some significant duration of time" and "of leaving a car for some duration of time beyond that needed for getting in or out of it").

No financial loss

12.    The Claimant will concede ... etc. ...

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

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14,

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5, and

(c) a finding of unlawful processing of personal data, flowing directly from the Claimants unreasonable behaviour, and damages.

 

Coupon-mad

Very good research. You seem to have covered everything for a VCS Airport defence.

I noticed that the inverted comma is in the wrong place here:

 "not ‘relevant’ land."

should be this phrase:

 not ‘relevant land'.

1505grandad

In your post above you stated:-

"......behalf of VCS for a PCN for stopping my vehicle at Liverpool john Lennon airport on a given data more than 2 years ago"

Are you stating the wrong airport here?:-

Para 9  -  "The land entered is land subject to byelaws enacted in London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land."

Le_Kirk

AA00112233 said:

• I received a Notice of instruction from ELMS legal in to say that they have been instructed to recover £170 on behalf of VCS for a PCN for stopping my vehicle at Liverpool john Lennon airport on a given data more than 2 years ago. I am the registered keeper of the vehicle but have no idea who was driving the vehicle on the said day and time.

 I have gone through several forums on here and really thankful to everyone's efforts. Special thank you to tity of the driver of the vehicle in question at the time of the breach, it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

I note you are using the @hharry100 defence; are your POC vague as you state or do they give sufficient detail so that you can work out what you are defending against?  
Did you mean date?
Which forums have you gone through?

AA00112233

Coupon-mad said:

Very good research. You seem to have covered everything for a VCS Airport defence.

I noticed that the inverted comma is in the wrong place here:

 "not ‘relevant’ land."

should be this phrase:

 not ‘relevant land'.

Thank you, i have now amended this

AA00112233

1505grandad said:

In your post above you stated:-

"......behalf of VCS for a PCN for stopping my vehicle at Liverpool john Lennon airport on a given data more than 2 years ago"

Are you stating the wrong airport here?:-

Para 9  -  "The land entered is land subject to byelaws enacted in London Southend Airport Byelaws 2021 and is therefore not ‘relevant’ land."

Thank you, I corrected to the right airport and the right bylaws. 

AA00112233

Le_Kirk said:

AA00112233 said:

• I received a Notice of instruction from ELMS legal in to say that they have been instructed to recover £170 on behalf of VCS for a PCN for stopping my vehicle at Liverpool john Lennon airport on a given data more than 2 years ago. I am the registered keeper of the vehicle but have no idea who was driving the vehicle on the said day and time.

 I have gone through several forums on here and really thankful to everyone's efforts. Special thank you to tity of the driver of the vehicle in question at the time of the breach, it must be presumed they are claiming against the Defendant as registered keeper of the vehicle.

I note you are sing the @hharry100 defence; are your POC vague as you state or do they give sufficient detail so that you can work out what you are defending against?  
Did you mean date?
Which forums have you gone through?

I used the defence in the forum started by stop_this_nonsense found here https://forums.moneysavingexpert.com/discussion/6482090/vcs-southend-airport-no-stopping-registered-keeper-but-not-the-driver-cnbc-claim-received/p1

Apologies, I did mean date. 

The POC is rather vague. I will type it here "The claim is for breach of contract for breaching he terms and conditions set on private land. The defendant vehicle, registration xxx, was identified at xxx airport on xxx date in breach of advertised terms and conditions; namely stopping in a zone where stopping is prohibited. At all material times the defendant was the the registered keeper and/or the driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations.  The sign was the offer and the act if entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and consequence of failure to comply, namely a parking charge notice will be issued, and the defendant has failed to settle the outstanding liability. The claimant seeks the recovery of the parking charge notice, contractual costs and interest."

Few things to note here:

1) I have no recollection of there being a sign there back in 2020. Even on my recent visits, its hard to read the sign unless you are stopping and actively trying to read the said sign! Its not feasible to read it while driving at 30 mph. 

2) At no point have i said that I was the driver. i honestly do not know if I was even driving as no communication has been received from VCS about this.

3) I failed to settle outstanding liability because I was never given a chance to. All i am getting was an intention to recover followed by a CNBC

I am going to update my defence as per the comments above but please feel free to add suggestion on how I can strengthen my defence. 

KeithP

What is the Issue Date on your Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

KeithP

@AA00112233, I see that you have suddenly popped up on another thread.

In case you are thinking about getting around to answering my above questions anytime soon... forget it, far too late for that.

AA00112233

Hi Keith P,

Apologies for not getting back to you sooner. I have a few updates regarding my case.

I had prepared a defense, but the case was assigned for telephone mediation in December. After reviewing the forum, I was made aware that telephone mediation tends to favor the claimant and I tried to cancel mediation but was advised to attend and simply state that I did not agree to any mediation and wished to proceed to the small claims court. This is what i went with and the case was transferred to a small claims court near me. Due to the chrismas and new year holiday there was a delay but I have finally now received a notice of allocation to the small claims track which states that a hearing will be held over the phone in Early match.

Following this, I received the usual letter from VCS stating that ELMS Legal is no longer representing them and offering an option to pay £195 or face court proceedings.

As of now, I have a court hearing scheduled for early March at a small claims court near Liverpool, which will be conducted over the phone. VCS has submitted their written evidence, upon which they intend to rely, and they have stated that they are confident in their case. Its simply a collection of all the correspondence they claimed that they have sent but half of which hasn't been received by me. There is also a still image of my car which shows the driver out of the car at double red lines. I have until 4:00 PM on February 11 to submit my response. Additionally, VCS must pay the court fee by February 7 for the claim to proceed.

I have been reviewing various forum posts, particularly those by Router66, MCAN541908, and Wilkis1402 to prepare my defence upon which I intend to rely on.  From the data uploaded by Router66, it appears that there was a contract between VCS and JLA in 2013 for two years, which is no longer valid. I am using this as my main defence. Please let me know if this is naive of me.  Please correct me if I am wrong, but how can VCS issue me a PCN and pursue it to small claims court when no valid contract exists granting them the authority to do so?

Looking forward to your thoughts.

Kind regards,

Coupon-mad

I have until 4:00 PM on February 11 to submit my response. Additionally, VCS must pay the court fee by February 7 for the claim to proceed.

OK, so prepare your WS and evidence now and assume they will pay.

I don't know about the contract...is it the same Airport as in the case by @RRTechie ?