CNBC received preparing defence... Would welcome your feedback

AA00112233

Coupon-mad said:

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 ?

Hi yes it is. its Liverpool John Lennon airport

AA00112233

Please see my Draft WS here and please let me know your feedback. I have looked at multiple WS and tried to use t what i felt is relevant to me 

WITNESS STATEMENT

1.             I, …, am the Defendant in this claim. The facts in this statement come from my personal knowledge. My account has been prepared upon my own knowledge.

2.             In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page, reference numbers and excerpts where appropriate. My defence is repeated, and I will say as follows:

No keeper liability

3.             The vehicle keeper is not obliged to name the driver to a private parking company (“PPC”). Had this been the intention of Parliament, they would have made such requirements part of The Protection of Freedoms Act 2012 (“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 with both VCS and its sister company, Excel.

4.             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 POFA and no adverse inference can be drawn, if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because 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 (Exhibit 1).

5.             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 POFA. Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then 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. Mr Smith's appeal was allowed, and Excel's claim was dismissed (Exhibit 2).

6.             VCS have not provided any evidence regarding the identity of the driver. It is my honest belief that no evidence exists, it being well within VCS’s interest to deliver it.

7.             POFA provides a statutory tool to enable private parking companies, such as VCS, to transfer liability for parking charge notices to the registered keeper of the vehicle (Exhibit 3).

8.             VCS have averred that they are not relying on keeper liability and are relying on a speculative “reasonable assumption” that I was the driver (Exhibit 4). However, I was one of four people permissible to drive the car at the time, giving VCS’s “reasonable assumption” that I was the driver a mere 1 in 4 chance of being correct.

9.             Notwithstanding that VCS have averred that they are not relying on POFA, the land on which the vehicle was photographed is land subject to statutory control and so is not relevant land within the scope of POFA Schedule 4, 3(1)(c). Additionally, the original “Charge Notice” letter, were it ever delivered, could never be a valid notice to keeper as it was issued outside the 14 day deadline stipulated in POFA Schedule 4, 9(5) (13th December 2022, some 33 days after 10th of November 2022 – Exhibit 5).

Sequence of events

10.         I confirm that the vehicle was used to transport a relative to Liverpool John Lennon airport on 10th November 2022 and that I was the registered keeper of the vehicle with the registration mark xxxx at the time.

11.         I was not driving and was not in the vehicle at the time alleged by VCS. I was at home at the time. On the day in question there would have been four people permitted to drive the vehicle. It is noted that the POC makes a broad and imprecise claim that “At all material times the Defendant was the registered keeper and/or driver”. I categorically deny being the driver and VCS is put to strict proof otherwise.

12.         I have been able to ascertain that the driver of the vehicle at the time stopped near the airport access road. I understand that when the vehicle stopped the passenger opened the car door and stepped out of the vehicle (Exhibit 6).

13.      I received a demand for payment letter from VCS dated 31st January 2023 which asked for a payment of £170. No option was given to appeal this decision or dispute the additional £70 debt collection cost. I categorically deny that I received any previous communication on this matter.

14. I responded to VCS’s Letter from 31st January to state that  that:

(i)         there is no keeper liability;

(ii)        there is no legal obligation on me, the registered keeper, to name the driver;

(iii)       there is no application of agency;

(iv)       airport byelaws apply; and,

(v)       continued processing of my personal data is in breach of the UK Data Protection Act 2018 due to a lack of lawful basis. No response to this letter was received.

15. VCS issued several threatening follow-up letters. Having already told VCS that I was not driving, and that there was never a cause of action, I did not see any reason to respond.

16.   I received a notification of Instruction letter form ELMS legal dated 31st March 2024 advising that they represented VCS and were instructed to recover the cost.

17. I responded to ELMs Legal Letter from 14th October to state that  that:

(i)          there is no keeper liability;

(ii)         there is no legal obligation on me, the registered keeper, to name the driver;

(iii)       there is no application of agency;

(iv)       airport byelaws apply; and,

(v)        continued processing of my personal data is in breach of the UK Data Protection Act 2018 due to a lack of lawful basis. No response to this letter was received from ELMS legal.

18. I received a Notification of Issue of proceeding letter from ELMS legal dated 30th August with an even inflated demand of payment for £255.  I once again wrote to ELMS to state that

(i)        there is no keeper liability;

(ii)        there is no legal obligation on me, the registered keeper, to name the driver;

(iii)       there is no application of agency;

(iv)       airport byelaws apply; and,

(v)        continued processing of my personal data is in breach of the UK Data Protection Act 2018 due to a lack of lawful basis. No response to this letter was received.

19.     I received a letter from VCS on 14th of October informing that ELMS Legal were no longer representing them. A telephone mediation was scheduled on 28th of November 2024 but I asked to end the mediation as I did not feel properly represented and an acute work commitment meant that I could not reschedule.

20.      At all times and in all correspondence received from VCS, only the term “Charge Notice” was used and the industry standard term “Parking Charge Notice” was not used once..         VCS’s legal representative, ELMS Legal, issued a Notification of Instruction to recover the sum of £170 for the alleged debt and referencing a “Parking Charge Notice” for the first time.

21.     In all the correspondence received from VCS and even in the witness statement submitted by the claimant, VS has not used the industry standard term “parking charge notice” once.

Impossibility of contract

22.        The PoC claim is for “breach of contract for breaching terms and conditions”. It is trite law that, for a contract to exist, there must be an offer, an acceptance, and a consideration. The prohibition offers nothing and so can never be a contractual term.

No offer is defined.

23.       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.

No option to refuse the contract.

24.        There is no way or space to stop before the sign, red lines indicate you are not permitted to stop, read and understand and certainly no method to refuse and turn around because it's a dual carriageway (Exhibit 7). The next set of sign’s are placed on a roundabout, again with no place to stop, on red lines and are visually obstructed (Exhibit 8 / 9).

25.        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.

26..        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. (Exhibit 10)

Primacy of statutory powers

27.         The Liverpool John Lennon Airport Byelaws 2022 (“LJLA Byelaws” – Exhibit 9) are in force and the statute has primacy in this matter. The vehicle was within the red boundary (Exhibit 11) that constitutes the land subject to statutory control in the LJLA Byelaws 2022. Were it within the airport’s genuine interest to control traffic within this area then a clear, legally enforceable option is available that is directly enforceable by the airport owners. VCS have no standing (as a bare license holder) to prosecute alleged breaches of the in-force statutory laws. For the avoidance of doubt, the byelaws are statutory, not advisory.

28.         In a similar case dismissed at Leicester County Court on January 7, 2022, Deputy District Judge Wigham upheld that East Midlands Airport statutory byelaws, confirmed by the Secretary of State, are binding, contrary to VCS’s claim of them being advisory, adding “these byelaws are there to protect the public from firms like you”. The court dismissed VCS’s claim, refusing permission to appeal.

29.         Furthermore, and by way of alternative defence, airport approach roads are subject to road traffic enactments (public highway). Even if VCS are able to overcome the difficulties they face in showing that:

(i)          they have locus standi to sue in their own name regarding this location, and;

(ii)         they offered a parking space with value, and a licence to park there, and;

(iii)       the driver was afforded the opportunity to accept all contractual terms, and;

(iv)        these terms were prominently displayed and well lit, and;

(v)          their charge notice can override statutory byelaws and has sufficient contractual, commercial and ‘legitimate interest’ to save it from falling foul of the penalty rule, and;

(vi)         the driver was in breach, and;

(vii)        there is some way that, despite the two persuasive appeal judgments against VCS and their sister company Excel, they can hold the me, the registered hirer, liable outwith POFA, then;

VCS are also put to strict proof that:

(viii)      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 VCS is put to strict proof to the contrary.

VCS’s unreasonable behaviour and breach of code of practice

30.         As a litigant-in-person I seek fixed witness costs for time spent on legal research and preparation. I understand that costs in Small Claims are limited unless “wholly unreasonable conduct” is found.

31.         I attach a detailed costs assessment and request the court to award costs for misconduct under CPR 44.11.

32.         VCS were made aware of the fact that I was not the driver at the outset. I maintain that VCS unconscionably issued the Charge Notice in the complete absence of reasonable cause or evidence and that VCS fully intended to progress to Small Claims ‘come-what-may’.

33.         VCS have harassed me by sending me threatening letters for a non-existent debt and escalating to legal proceedings within the space of three months.

34.         VCS have inflated the claim amount and are engaging in “double recovery.”

35.         VCS did not make any initial communication before a final demand was issued and VCS have used misleading terminology to validate their claim.

36.        I was not given a chance to appeal and no further evidence provided by VCS.

37.         VCS are in breach of the Code of Practice of the International Parking Community (“COP” – Exhibit 13), the applicable Accredited Trade Association (“ATA”) to which this operator signs up to and which was in force on the date in question by:

(i)            issuing a “Charge Notice” – the COP only uses the precise term “Parking Charge Notice” (12 times) and the term “Charge Notice” is never used, and;

(ii)         expressly excluding me, the registered keeper, from further appeal and there being no genuine offer of appeal (Exhibit 5) – VCS’s appeal service is widely considered a kangaroo court (Exhibit 14).

AA00112233

( Continued )

Airport signage and other matters

34.         Schematic diagram within the lease boundary at the area where the vehicle is shown in the photographs provided by VCS (Exhibit 11) is supposed to have multiple no stopping repeater board but in all the pictures the vehicle is captured by the claimant, no such signed can be seen, and so the claim by the claimant that there are multiple no stoppage and repeater signs is not true and is wholly inconsistent with the claimed POC breach (Exhibit 12).

35.         All VCS signage at the airport is prohibitive and it is impossible for VCS to conclude any contract at Liverpool John Lennon Airport, there being no areas within the Airport boundary where VCS offer parking for a price. VCS are put to strict proof that they offer parking for a price within the airport lease boundary.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

36.       Given the considerable time and effort in researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay  another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred plus the court may award a set amount allowable for loss of earnings or loss of leave.

37.       The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings). are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing. a sum not exceeding £95 per day for each person.'' 

Statement of Truth

I believe that the facts stated in this witness statement 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.

AA00112233

I intend to submit this tomorrow and send a copy to VCS via email. Please let me me know your thoughts and please provide feedback on the WS above 

AA00112233

This has taken me about 4 hours o prepare and its gone past 3:30 am ....work tomorrow is going to be long day!

Bazarius

do you still have a copy of  the original (“CN”) ? 

It is likely that the CN does not rely on PoFA because VCS are aware it’s not relevant land , and it probably does not  convey  the statutory warning in accordance with Para 9.2(f) to hold the keeper liable if the driver isn’t identified  . 

 It probably has something along the line of “the right to pursue the keeper on  reasonable assumption that the keeper was the driver” .  This is nonsense - parking operators should never suggest anything of the sort . 

If confirmed , it’s probably worth addressing this in your WS 

1505grandad

"23.       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."

Should that be "driver"?

Bazarius

IMO Technically it would not a forbidding signage if this was at an industrial estate roadway  because it is a contractual licence to pass on the roadway as long as all the conditions have been compiled with .  There is offer that has value . 

But it’s an airport .  No such licence is needed because under the Bylaws where there is public access  gives a de facto right of way as long   it is  complied with.  

Coupon-mad

Did you pm @RRTechie re the contract?

AA00112233

Bazarius said:

do you still have a copy of  the original (“CN”) ? 

It is likely that the CN does not rely on PoFA because VCS are aware it’s not relevant land , and it probably does not  convey  the statutory warning in accordance with Para 9.2(f) to hold the keeper liable if the driver isn’t identified  . 

 It probably has something along the line of “the right to pursue the keeper on  reasonable assumption that the keeper was the driver” .  This is nonsense - parking operators should never suggest anything of the sort . 

If confirmed , it’s probably worth addressing this in your WS 

I now have a copy of the Claimant's WS. i have omitted some points but this is what they are saying 

Background

 3. The Claimant is engaged in providing and managing private parking facilities on behalf of Clients throughout Great Britain. At all material times, the Claimant has been an Accredited Member of Approved Trade Associations certified by the Driver and Vehicle Licensing Agency (DVLA).

 4. A vehicle bearing the registration number of XXX  was identified in breach of the advertised Terms and Conditions ("Contract'') known as Liverpool John Lennon Airport on the 10 th November 2022. Whilst the vehicle was identified on private land the Defendant is alleged as the driver of the vehicle.

 The Contract
 
5. At the time the Charge was issued; my Company was prominently displaying signs on the Land stipulating the terms of parking. A copy of the content of the signs is exhibited to this Statement at "JB1". The signs formed the basis of the contract with the driver of the Vehicle ("the Contract''). The following was a term of the Contract: - No Stopping £100 Charge if you Stop 2

6. Upon the vehicle entering the Land, the driver accepted the Contract and agreed to be bound by those terms advertised. The Contract provides that a charge is payable by the driver if it is breached; with payment falling due within 28 days. The Contract (i.e. the signs) was prominently displayed on the Land and in this regard a site plan showing the positioning is exhibited to this Statement at "JB1".

7. Amongst other things the above signs specifically detail the Terms and Conditions of parking and the consequences of failure to comply with these Terms and Conditions. In particular the signs specifically state that a charge is levied for breaching the Terms and Conditions.

8. This is a contractual clause which specifies the amount owed. There is sufficient and adequate signage for the Terms and Conditions to have been brought to the attention of any motorist wishing to use the car park. Breach of Contract

9. The Defendant became liable for the parking charge as the vehicle to which they are responsible for was found in breach of the Contract. The evidence adduced to this statement identifies that the vehicle was stopping in a zone where stopping is prohibited. The documents adduced at "JB2" are evidence of the vehicle in breach.

10. In light of the breach of the Contract, the Claimant is entitled to levy a charge against the Defendant and therefore the Defendant is liable to the Claimant. The Defendants' Defence

11. The Claimant alleges that the Defendant is the driver of the vehicle upon reviewing the CCTV footage that falls part of the evidence. The vehicle was 3 identified stopped on a red route, where stopping is prohibited, picking up passengers. This is a breach of the advertised terms and conditions to which the Defendant accepted when entering the private roadways. Conclusion

12. Accordingly the Claimant is entitled to a Judgment. It is a matter of agreement that the instance of parking in contravention of the Terms and Conditions of the signs. Liability is agreed to be the sum contained in accordance with the amount stated on the signs. 

They are accusing me of being the driver but I was not the driver at the time. Their entire defence alleges that as a keeper I must have been the driver!