Bylaw county court case in favour of defendant but right to appeal granted Options

[93c]

Hi
I received a parking charge notice in 2018 and followed all the advice on this forum at the time. It was in a railway car park that is covered by a byelaw and the advice was to appeal on the basis that they should have issued a penalty charge notice, not a parking charge notice. The 6 months passed and they didn't pursue through the magistrates court. However, they proceeded with their claim to the County Court and I complied with all the papers etc and I thought when it came close to the court date they would probably pull out, but they have decided to follow through. I received a chunky set of papers in the post today which is their evidence (84 pages in total) with lots of legal speak and reference to case histories.

They are claiming that my defence is irrelevant and say that just because a byelaw exists, doesn't mean it has to be enforced, and it is the decision of the landowner (Centro at the time) how they charge for parking. They say the railway car park is not shown on the list of highways under the Highways Act 1980 and there's no public right of way and therefore it is private land. They have cited ParkingEye v Beavis 2015 UKSC 67 to say a contract was in place, but that's not my main point.

They have then cited Jones & Tighilt (on behalf of National Taxi Association) v First Greater Western Ltd [2013] EWHC 1485 to say that the byelaw is not compulsory. They are also citing Perth General Station Committe v Ross [1897] AC479 regarding right of way and Baker v Midland Railway Company [1856] 18 CB 46 regarding right of access. They've also cited HHJ McCahill paragraphs 390 and 402 (of which I have no idea what this is referring to). Their conclusion is that byelaws are arbitary and they make reference to the First Greater WEstern Ltd case paragraph 195.

They are seeking £100 for breach of contract and an additional £60 for debt collection fees. My argument on this point is that they haven't mitigated their costs if they have instructed a debt collection agency, although I don't know if they did or not. All the letters have been from VCS. They are also asking for costs, although I know this is unlikely to be awarded in the County Court.

They are also arguing that I chose not to engage in arbitration because they adhere to the IPC code of practice and not the BPA and although they offered IAS, I offered POPLA which they didn't even reply to. They also failed to give me an IAS number. They also claim I didn't engage in communication with them but they have even included in their evidence the emails that I sent them that they failed to respond to throughout the process.

I also haven't had a VAT invoice from them.

I will have to submit my evidence to the court and so I'd really appreciate some help in how to respond to their citations and the matter of the Byelaw in particular. Has anybody won or lost a case based on this defence and are their any past cases I can use to offer my defence?

Thanks (name witheld as I know VCS may be watching this forum)

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[Jlc]

I see no reason why they can't offer a contract on land with byelaws. However, I presume they are not using the Protection of Freedoms Act to pursue the keeper? (As it's not relevant land)

I also haven't had a VAT invoice from them.

What do you want one of those for?

They are also asking for costs, although I know this is unlikely to be awarded in the County Court.

They are allow fixed costs, such as £25 filing fee, £50 solicitors and hearing fee + statutory interest. The £60 is challengeable - what do the signs say?

[The Slithy Tove]

an additional £60 for debt collection fees

If they could prove that they had actually incurred this £60 fee, they may have a point. But they won't be able to as they haven't. The judge needs to be made aware of this attempt at claiming additional money they have no right to. Won't make them look good.

In any of your correspondence, did you admit to who the driver was? If not, they can only pursue the unknown driver. The opportunity to hold the keeper liable is absent, as it's not relevant land for POFA.

Oh, and forget mitigation of loss. That argument is dead and buried.

[Gary Bloke]

Just because its a station car park where Byelaws apply, that does not mean they have to use Byelaws to manage the parking. They can use contract law if they want to. They can only choose one or other method and they cannot swap between methods. If using Byelaws, their ability to prosecute would have expired after 6 months. If using contract law, they have up to 6 years.

There is no keeper liabillity at station car parks. Are they prosecuting you as the keeper or the driver? The former is not possible at all (Byelaws or parking contract) so presumably they think they know who the driver was (ie you)?

You could argue that the amount they are requesting as damages for for breach of contract is not a Genuine Pre-Estimate of Loss (GPEOL). Many people will say that this defence is as dead as a Dodo after the decision by the Supreme Court in the PE versus Beavis case. But...this ruling applied to a totally different situation and the judges agreed that their ruling was specific to those circumstances. In the PE versus Beavis case, the car park was free for a fixed period of time. PE's only source of revenue was the parking fines they imposed on motorists who overstayed the free period. Further, the car park served a shopping centre. So the judges ruled that PE had a commercial justification in making charges greater than their actual loss incurred, because they had a commercial justification as it was their only source of income. Further they ruled that there a justification for charges which could be seen as "penalties" because there was a need to maintain parking availability for customers of the nearby shops.

In this situation, the parking is not free (typically paid in advance per 24 hours) and the parking operator typically receives a predetermined fee for their management of the station car park from the landowner, irrespective of whether any parking tickets are issued. So they don't rely on parking fines for their revenue. Also, station car parks typically don't serve shopping centres. So, in this situation they cannot argue that there is a commercial justification for parking charges for breach of contract which vastly exceed their actual loss incurred. In other words, there is no justification in this case for the parking charge to exceed the GPEOL and hence qualify as a penalty (= a punishment).

[Sheffield Dave]

What was the exact text of the defence you submitted? You can't now raise new defence points, although you can sometimes sneak in new bits in your witness statement. If your only defence point was byelaws, you're in trouble.

[The Rookie]

While they can use contract law to make a recovery, they can't enter into a contract with you IN ADVANCE that if you agree to pay for the parking if you park illegally, that would put limitations on what they can claim under contract law. That's my viewpoint anyway.
Two examples
1/ P&D, driver fails to pay which is a byelaw offence, can the driver enter a contract at that time to pay £100 and then they are allowed to commit a criminal act? My belief is no, but there could be a claim (contract) for the amount they should have paid.
2/ P&D, driver pays but fails to display, not a byelaw offence so the driver could have entered a contract to pay £100 for the pleasure of not displaying.

Of course the claim can only be against the driver.

[93c]

Hi Everyone

Thanks for all the replies.

I'll answer the queries as best I can.

I see no reason why they can't offer a contract on land with byelaws. However, I presume they are not using the Protection of Freedoms Act to pursue the keeper? (As it's not relevant land)

All the advice I was given on this forum was to defend on the basis that there was a byelaw in place and therefore a penalty charge notice should have been issued. I'm not sure what the PoFA and relevant land bits mean but I know I put it in my defence (below) because that was some advice I was given.

What do you want one of those for?

Because that's the advice I was given on these forums that if there's a contract then I should be served with a proper invoice. It's also in some of the stickies. There is also a notice that says "This site is subject to the Railway Byelaws 2005 (as amended), Any vehicle which contravenes the Byelaws may be liable to incur a Penalty as outlined in Section 14(4)(i) or be subject to being clamped and/or removed for storage as outlined in Section 14(4)(ii). All rights to rely on the Byelaws are reserved. Nothing within the car park Terms and Conditions of use shall prejudice or restrict these rights.

They are allow fixed costs, such as £25 filing fee, £50 solicitors and hearing fee + statutory interest. The £60 is challengeable - what do the signs say?

It says "If payment of the Parking Charge is not made in accordance with the payment terms, Vehicle Control Services Ltd (VCS) and/or its agents will be entitled to take debt recovery & legal procedings to recover any outstanding charges, including interest and any additional costs incurred."

In any of your correspondence, did you admit to who the driver was? If not, they can only pursue the unknown driver. The opportunity to hold the keeper liable is absent, as it's not relevant land for POFA.

A have never at any time identified the driver. But surely I'll be asked at court to identify the driver?

Oh, and forget mitigation of loss. That argument is dead and buried.

How do I argue that in court?

Just because its a station car park where Byelaws apply, that does not mean they have to use Byelaws to manage the parking. They can use contract law if they want to. They can only choose one or other method and they cannot swap between methods. If using Byelaws, their ability to prosecute would have expired after 6 months. If using contract law, they have up to 6 years.

See above about the Byelaw sign. Does this show that they were using both methods as it talks about clamping etc? Also, I was advised on these forums to use the Byelaw defence.

In this situation, the parking is not free (typically paid in advance per 24 hours) and the parking operator typically receives a predetermined fee for their management of the station car park from the landowner, irrespective of whether any parking tickets are issued. So they don't rely on parking fines for their revenue. Also, station car parks typically don't serve shopping centres. So, in this situation they cannot argue that there is a commercial justification for parking charges for breach of contract which vastly exceed their actual loss incurred. In other words, there is no justification in this case for the parking charge to exceed the GPEOL and hence qualify as a penalty (= a punishment).

The car park is free. The car wasn't parked in a marked bay though. How can I find out if VCS's only source of income is from parking fines in which case I assume you're saying that PE vs Beavis would mean they are allowed to charge an excessive amount of £100? The driver of the vehicle was using the train and so there was no financial loss to Centro (now called West Midlands Trains I believe).

What was the exact text of the defence you submitted? You can't now raise new defence points, although you can sometimes sneak in new bits in your witness statement. If your only defence point was byelaws, you're in trouble.

"The land where my vehicle was parked at Centro Wylde Green Station
Park and Ride is subject by the railway byelaws. The claimant
should therefore have issued a PENALTY charge notice and not a
PARKING charge notice. The claimant should also have made a
prosecution trough the magistrates court and not used the small
claims court. POPLA, an independent appeals process, ruled that
any penalties or charges issued before 1st November 2018 should be
cancelled. The parking charge notice did not indicate how Byelaws
were brought to the motorist's attention or state that it was a
penalty notice. As the land is not relevant land covered by The
Protection of Freedoms Act, no claim can be laid against the
registered keeper and the claimant has not identified the driver
of the vehicle. There is a sign at the car park that states the
site is subject to the Railway Byelaws 2005. That sign does not
indicate any penalties that could be imposed. Section 14(4) states
that the owner may be liable to pay a penalty, but no penalty has
been issued. Section 14 also states that the penalty must be
displayed and no such penalty was displayed, just charges. Since
the claimant made their first demand for payment, I have entered
into correspondence with them at all stages and replied to all of
their letters. However, the claimant has ignored most of my
letters and replies and instead used an automated system to send
threatening letters. My latest correspondence was sent by email
on 13/05/2019 and by post on 15/05/2019 offering them the
opportunity to cancel their claim in knowledge that prosecution
can only be brought in a magistrates court and it must be within 6
months of the initial penalty. The claimant has not responded to
either the email or letter. I followed their appeals process but
the claimant failed to address the point I raised about byelaws. I
offered alternative dispute resolution through POPLA but the
claimant failed to acknowledge my request. The claimant has
already received evidence that I have provided to them that the
land is subject to a Byelaw but they have continued to attempt to
extort money from me."

While they can use contract law to make a recovery, they can't enter into a contract with you IN ADVANCE that if you agree to pay for the parking if you park illegally, that would put limitations on what they can claim under contract law. That's my viewpoint anyway.
Two examples
1/ P&D, driver fails to pay which is a byelaw offence, can the driver enter a contract at that time to pay £100 and then they are allowed to commit a criminal act? My belief is no, but there could be a claim (contract) for the amount they should have paid.
2/ P&D, driver pays but fails to display, not a byelaw offence so the driver could have entered a contract to pay £100 for the pleasure of not displaying.

Of course the claim can only be against the driver.

It was a free car park not P&D. If the claim can only be against the driver and I haven't identified the driver, then can the court force me to identify the driver or will the case be thrown out because the claim has been made against the registered keeper and not the drive

[Jlc]

can the court force me to identify the driver or will the case be thrown out because the claim has been made against the registered keeper and not the drive

The Judge can always ask.

The claimant would have to show, on the balance of probabilities, the keeper was driving.

[93c]

can the court force me to identify the driver or will the case be thrown out because the claim has been made against the registered keeper and not the drive

The Judge can always ask.

The claimant would have to show, on the balance of probabilities, the keeper was driving.

I've just seen this document https://assets.publishing.service.gov.uk/go...ing-charges.pdf and it looks like they can go after the registered keeper anyway

[The Rookie]

Try reading it PROPERLY. the answer is no, as we’ve told you.

[bobthesod]

Would i be correct in saying that the 6 months window to prosecute under by laws is the prerogative of the land owner only

After 6 months only the PPC has 6 years to claim for payment.


Surely the PPC cannot raise a 'court case' for bylaw infraction, All that would mean is that then constitutes a fine and the PPC gets nothing, Hence the thought said on this forum that
What the PPC are saying is 'You pay us X pounds and we will not take you to court,( reading between the lines i think that reads pay us the money now and we will not recommend to the landowner to take you to court, but we wont, because if we did we wouldn't get a penny)

But they can still chase the driver, and if it gets to court, unless there is cast iron evidence the the RK is not the driver, and would you lie to the bench? they win

If i have this wrong please let me know where i have gone wrong

[Gary Bloke]

It would help to see a photo of the car park signage. If the signs go on about Byelaws, then really they should have issued you with a "penalty" notice. However, they have said something about reserving the right to apply Byelaws, which I think means they may choose to use contract law instead. As long as they choose one or other and stick to it, they are operating as they should do. Should be the same method for all customers. Still, it's *very* naughty for them to not be clear with customers, via the signage, which method they are using.

This car park offers 2 hours of free parking. It only serves the station, so no commercial justification for charges greater than GPEOL in order to promote space availability for customers of nearby shops. However, we don't know if VCS get a management fee in addition to the revenue from the parking charge notices they hand out. If not, then they could claim commercial justification for charges in excess of GPEOL in order to make a profit from their business.

Irrespective of whether they use Byelaws or contract law, your best defence is that there is no keeper liability at station car parks. On this type of land, Schedule 4 of the POFA does not apply. So only the driver could be found guilty of either breach of the parking contract or breach of a parking Byelaw. They don't know who the driver was and you are under no legal obligation to tell them. In a court case, they would have to prove that you as keeper were the driver at the time of the alleged incident. For a civil case (contract law) the burden of proof is less strict than in a criminal case (Byelaws). So the County Court judge may decide they you were indeed the driver, on the balance of probabilities, and find you guilty. In a criminal case in a Magistrates' Court, guilt must be proven beyond reasonable doubt, which is much harder.

Anyway here are my top tips for your defence:
(1) No keeper liability
(2) Misleading signage which does not make clear whether VSC are using Byelaws or contract law to manage the car park. DVLA state that this is a requirement for them to issue personal details of keepers to parking companies.
(3) The charges for alleged breach of a civil parking contract are in excess of a GPEOL and therefore qualify as a punishment - not allowed under contract law. This car park only serves a train station so the situation is completely different to the one covered by the "PE versus Beavis" ruling of 2015.
(4) VCS have no legal standing to manage the car park - force them to produce an unredacted contract which proves they have this written authority from the landowner.
(5) Nowhere on the signage does it say that parking outside a marked bay is an offence. (?) Maybe possible to claim this if they did not make it clear.

[93c]

Try reading it PROPERLY. the answer is no, as we’ve told you.

Hi. Please there's no need to be rude, I was merely asking a question I don't know the answer for and am confused about. The document says "7. Why should the registered keeper be held to be liable if he/she was not
responsible for incurring the charge?
Schedule 4 gives the registered keeper the choice of naming the driver at the
time the parking rules were broken or paying the charge him or herself. Without
this provision the enforcement of parking on private land could be
unmanageable as both registered keepers and drivers could avoid liability and
therefore disregard any parking conditions". I can't see anywhere else where it says the registered keeper won't be held liable. I would love to be wrong on this as it would help my defence, but I'm not a lawyer and there has been some conflicting advice so I don't know what I can say in court without looking stupid.

[Gary Bloke]

Would i be correct in saying that the 6 months window to prosecute under by laws is the prerogative of the land owner only

After 6 months only the PPC has 6 years to claim for payment.


Surely the PPC cannot raise a 'court case' for bylaw infraction, All that would mean is that then constitutes a fine and the PPC gets nothing, Hence the thought said on this forum that
What the PPC are saying is 'You pay us X pounds and we will not take you to court,( reading between the lines i think that reads pay us the money now and we will not recommend to the landowner to take you to court, but we wont, because if we did we wouldn't get a penny)

But they can still chase the driver, and if it gets to court, unless there is cast iron evidence the the RK is not the driver, and would you lie to the bench? they win

If i have this wrong please let me know where i have gone wrong

Anyone can bring a private criminal prosecution - not just the landowner. Six months is a time limit set by statute for Byelways prosecutions (Magistrates Court). Six years applies as the time limit only if it's a civil prosecution (eg for breach of parking contract or for trespass) in a County Court. If it's a trespass prosecution only the landowner can bring this not the parking operator.

Only a Magistrates Court can impose a legally enforceable fine for a breach of Byelaws. So in theory the parking operator or the TOC or the landowner would have to go to court. But as you say they would get none of the money, so they need a way to extract cash without going to court. Which is where their "penalty" comes it. It is indeed a contractual offer whereby the motorist pays them £100 and in return they promise not top prosecute. Nobody has any legal obligation to accept an offered contract - you are quite within your rights to decline the offer and wait to be prosecuted. Which is unlikely to ever happen as they see no benefit from doing this.

Try reading it PROPERLY. the answer is no, as we’ve told you.

Hi. Please there's no need to be rude, I was merely asking a question I don't know the answer for and am confused about. The document says "7. Why should the registered keeper be held to be liable if he/she was not
responsible for incurring the charge?
Schedule 4 gives the registered keeper the choice of naming the driver at the
time the parking rules were broken or paying the charge him or herself. Without
this provision the enforcement of parking on private land could be
unmanageable as both registered keepers and drivers could avoid liability and
therefore disregard any parking conditions". I can't see anywhere else where it says the registered keeper won't be held liable. I would love to be wrong on this as it would help my defence, but I'm not a lawyer and there has been some conflicting advice so I don't know what I can say in court without looking stupid.

At station car parks Schedule 4 of POFA does not apply. So, at station car parks, there is no possibility of transferring liability from the driver to the keeper.

[93c]

It would help to see a photo of the car park signage. If the signs go on about Byelaws, then really they should have issued you with a "penalty" notice. However, they have said something about reserving the right to apply Byelaws, which I think means they may choose to use contract law instead. As long as they choose one or other and stick to it, they are operating as they should do. Should be the same method for all customers. Still, it's *very* naughty for them to not be clear with customers, via the signage, which method they are using.

This car park offers 2 hours of free parking. It only serves the station, so no commercial justification for charges greater than GPEOL in order to promote space availability for customers of nearby shops. However, we don't know if VCS get a management fee in addition to the revenue from the parking charge notices they hand out. If not, then they could claim commercial justification for charges in excess of GPEOL in order to make a profit from their business.

Irrespective of whether they use Byelaws or contract law, your best defence is that there is no keeper liability at station car parks. On this type of land, Schedule 4 of the POFA does not apply. So only the driver could be found guilty of either breach of the parking contract or breach of a parking Byelaw. They don't know who the driver was and you are under no legal obligation to tell them. In a court case, they would have to prove that you as keeper were the driver at the time of the alleged incident. For a civil case (contract law) the burden of proof is less strict than in a criminal case (Byelaws). So the County Court judge may decide they you were indeed the driver, on the balance of probabilities, and find you guilty. In a criminal case in a Magistrates' Court, guilt must be proven beyond reasonable doubt, which is much harder.

Anyway here are my top tips for your defence:
(1) No keeper liability
(2) Misleading signage which does not make clear whether VSC are using Byelaws or contract law to manage the car park. DVLA state that this is a requirement for them to issue personal details of keepers to parking companies.
(3) The charges for alleged breach of a civil parking contract are in excess of a GPEOL and therefore qualify as a punishment - not allowed under contract law. This car park only serves a train station so the situation is completely different to the one covered by the "PE versus Beavis" ruling of 2015.
(4) VCS have no legal standing to manage the car park - force them to produce an unredacted contract which proves they have this written authority from the landowner.
(5) Nowhere on the signage does it say that parking outside a marked bay is an offence. (?) Maybe possible to claim this if they did not make it clear.

Thank you. I'll post an image of the signage later.

[anon45]

The mere existence of a byelaw governing parking on a piece of land does not necessarily preclude the creation of a valid civil contract for parking on that land.

However, for what it's worth, I agree with The Rookie that if a byelaw exists making it a criminal offence to park in a certain manner, then:
1) contrary to VCS's apparent assertions, the byelaw in question cannot be waived by the PPC, meaning;
2) that there is no RK liability, and;
3) a person cannot enter into an (enforceable) civil contract to commit a criminal offence, so that you, the RK cannot enter into a valid contract with VCS in which you agree to pay £100 in return for being permitted to commit a criminal offence (VCS have no right to validly permit the commission of criminal offences by others).

In this case, byelaw 14 states: https://www.gov.uk/government/publications/...railway-byelaws

14.2 no person in charge of any motor vehicle, bicycle or other conveyance shall leave or place it on any part of the railway:
(1) in any manner or place where it may cause an obstruction or hindrance to an operator or any person using the railway or (2) otherwise than in accordance with any instructions issued by or on behalf of an operator or an authorised person

In my view, the driver likely committed a criminal offence by parking outside of a marked bay in the presence of instructions from an authorised person (VCS) mandating that such parking be within the bay. If so, VCS could not validly offer an enforceable parking contract for £100 to permit parking otherwise than in accordance with their instructions.

However, we need to see the signage to be sure.

This post has been edited by anon45: Sun, 9 Feb 2020 - 18:44

[93c]

However, we need to see the signage to be sure.

Thanks for the advice. Here's the signage (x3):

Ts & Cs:


Entrance sign:


Ts & Cs with Byelaw underneath

[anon45]

In my view, that signage prohibits parking outside of marked bays, such that it is a criminal offence under byelaw 14(2) to park outside of a marked bay in that car park, such that VCS cannot offer an enforceable contract to park outside of a marked bay in exchange for £100.

VCS, on the other hand, will doubtless argue that they are not prohibiting parking outside of a marked bay at all, but offering the right to park outside of a marked bay in exchange for £100, such that byelaw 14(2) does not come into play at all.

The confusing and contradictory signage is in your favour, in that, in my view, it is not clear to the average motorist/ consumer whether enforcement will take place by way of civil contract (as per the earlier signage) or by way of statutory penalty under byelaw (as per the final sign), such that an an average consumer would likely assume that he or she is committing a criminal offence by parking "otherwise than in accordance with instructions" rather than entering into a contract to pay £100 in exchange for the privilege of parking outside of a marked bay.

I've read the Jones & Tighilt case, and that case concerns the ability of a TOC to make waiting (and, by extension, parking) subject to a permit scheme; it did not directly address the question of whether and how the TOC could penalise the taxi firm for non-compliance, and the case has nothing to do with the question of whether a TOC or PPC may offer the right to commit a criminal offence in exchange for payment (to which the answer is clearly in the negative).

If FGW had attempted to argue that they were entitled to charge a punitive sum to non-permit holders, then the case, however decided, would have been highly relevant, but as it is, it seems to be an attempt by VCS to muddy the waters and to confuse the ignorant.

This post has been edited by anon45: Sun, 9 Feb 2020 - 19:38

[Gary Bloke]

3) a person cannot enter into an (enforceable) civil contract to commit a criminal offence, so that you, the RK cannot enter into a valid contract with VCS in which you agree to pay £100 in return for being permitted to commit a criminal offence (VCS have no right to validly permit the commission of criminal offences by others).

If VCS were using Byelaws to manage the car park, they *could* offer a motorist a contract such that the motorist would pay them £100 in return for them not prosecuting a breach of those Byelaws which they would allege had already happened. They would not be offering a contract which permits a future criminal offence in return for £100. They would allege that the criminal offence happened before they offered the contract to avoid prosecution. That is totally different to what anon45 has written.

But VCS are not, in this case, using Byelaws to manage the car park. So all this is irrelevant. They choose to manage the car park using civil contract law. The parking charge represents a damages claim for alleged breach of a civil parking contract and Byelaws have nothing to do with it (apart from the fact that Schedule 4 of POFA does not apply to any land where Byelaws are defined, even if not used, so there is still no possibility of keeper liability).

This post has been edited by Gary Bloke: Sun, 9 Feb 2020 - 20:31

[The Rookie]

But VCS are not, in this case, using Byelaws to manage the car park. So all this is irrelevant.

I disagree, the law exists, you can't 'unexist' it.

Could VCS waive the laws for murder and permit you to commit a murder there is you paid them £100? Clearly not.

HOWEVER this would only apply to the specific offences listed in the byelaws. They could try and make an argument that outside a marked bay isn't a bylaws offence, however

in any manner or place where it may cause an obstruction or hindrance to an Operator or any person using the railway

is....... noting that any parked car creates and obstruction, but not necessarily an unnecessary one (as would be an offence under RTE's on roads).

As such they are trying to offer to let you break the law in exchange for their gain, in effect I'd suggest they could be guilty of a conspiracy to pervert every time they make the offer.

This post has been edited by The Rookie: Mon, 10 Feb 2020 - 05:08