PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

VCS COUNTY COURT CLAIM FOR STOPPING AT HUMBERSIDE AIRPORT
Babyshark
post Fri, 31 Aug 2018 - 15:32
Post #1


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Hello
I’m hoping that I am posting this in the correct place the correct way (trying to do along this on my phone) I’m unlucky enough to have received County Court Claim form today for what seems to be an 11 second stopping spell in the renowned bus stop lay-by trap at Humberside Airport. I’ve thrown all I have at VCS since November last year, failed the appeal, received god knows how many debt collection letters, responded to their letter before claim and now this. So I believe I now need to acknowledge this claim and send my defence. So what I’m really looking for is some help on the defence, as I suppose this is now my last chance to shake VCS off. I’ve not drafted anything yet but will get onto it ASAP. I’m thinking of following along the lines of my response to the letter before claim which I have copied below. Any help/pointers/advice will be gratefully received.







I am in receipt of your letter before claim dated 22nd July 2018. I was surprised to receive this correspondence as since your last correspondence I have received no less than 5 letters from your debt collection agencies Zenith and DRP for this alleged 11 seconds worth of “parking charge” which allegedly took place on 7th November 2017.

After what can only be described as 10 months worth of relentless threats and harassment from yourselves and your partner “debt collectors” with their threatening correspondence even in the absence of a County Court Judgement against me. I am once again having to spend quite some time away from my infant son to defend myself from what can only be classed as extortion. It has only this past year, been suggested by our very own members of Parliament that parking outfits such as yourselves be further regulated as poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and opaque appeals processes indeed have no place in 21st century Britain and quite frankly you have no place persistently interfering with my day to day life. To date you have served to be nothing short of a noose around my neck during a time when I should be focusing on life as a new mother and I should be directing all of my attention toward my infant son. You may, or may not be interested to know that I am not of the type of person that goes out of their way to take my chances in relation to the rules of the road and their respective laws. You certainly seem to be quite insistent that I am indebted to you because you seem to believe you have some sort of level of authority.

I am copying into this response to you, Humberside Airport also, as I am sure it will be in their commercial interests to see why perhaps members of the public aren’t utilising their services. Since the beginning of your harassment campaign for an alleged 11 second long carparking charge, it appears that you have inflicted your “carparking charge” reign of terror on many many people around me also. I for one, certainly won’t be paying Humberside Airport a visit any time soon to utilise any of their services for fear of being held liable by yourselves for undertaking some sort of innocent action which you may disguise as a “parking charge”.

I do not accept liability of the said debt or “parking charge”. No doubt you are still in possession of all the correspondence in relation to this matter to date dated 21st November 2017 and 28th November 2017. To summarise my reasons for not accepting liability:-

Protection of Freedoms Act 2012 does not apply as Humberside Airport is subject to Humberside International Airport Bylaws 1999 which are clearly stated on their website and enshrined in law. As a result you are not legally entitled to pursue me for any sort of “parking charge” under the Protection of Freedoms Act 2012.
A parking charge for a period of parking cannot cannot apply to the stopping a vehicle. Your notice to keeper states “stopping” as the reason for your “parking charge”. A “parking charge” can also not apply to any area of land which is not a car park. Your charge notices appear to be nothing more than an attempt to impose a fixed penalty in which you have no authority in law to do so. The photographs you have provided on your two charge notices show a vehicle that cannot even be identified as the one I am registered keeper of with it’s brake lights and rear number plate lights clearly illuminated. A parked car does not have illuminated lights.
The amount charged does not represent a genuine estimate of loss. Nothing has been provided to me to date to state yours or any land owner or Humberside airports particular losses arising out of this specific alleged incident. It is unreasonable for you to pursue “parking charges” for the stopping of vehicle for a mere 11 seconds given that 15 minutes free parking is indeed available a matter of meters away from where you claim the said incident occurred. You have repeatedly stated that you consider your charges not extravagant or unconscionable as supported by the Supreme Courts decision in the case of ParkingEye v Beavis. However I fail to see any similarity between the individual circumstances here and this case that you repeatedly refer to.
There is no contract with the registered keeper as per ‘The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013
To date you have not provided me with evidence that you are legally entitled or contracted by the registered owner of the land to pursue charges/penalties/raise invoices for alleged incidents. Indeed such time has now passed in that a Landowner can no longer make a claim.
You are trying to enforce an unfair contract as per ‘Unfair Terms in Consumer Contracts Regulations 1999’ & OFT ‘Unfair Contract Terms

I would also point out that you have claimed within your two charge notices to have obtained my details from the DVLA Road Vehicles (Registration and Licensing) Regulations 2002. However, as the registered keeper of the vehicle, you are not entitled to pursue me under the Protection of Freedoms Act 2012, as this Act does not apply to the land on which the alleged offence took place. You have unlawfully obtained and then misused my personal information and this is a breach of DVLA Road Vehicles (Registration and Licensing) Regulations 2002. You have utilised information from the DVLA to undertake your campaign of harassment and extortion for your own financial gain. I reserve the right to pursue a complaint in this regard to DVLA.

Should you continue to insist that you will commence legal proceedings against myself, I shall of course ask the Judge to consider all of the above and all that stated on my previous correspondence to you to date.
Go to the top of the page
 
+Quote Post
3 Pages V  < 1 2 3  
Start new topic
Replies (40 - 59)
Advertisement
post Fri, 31 Aug 2018 - 15:32
Post #


Advertise here!









Go to the top of the page
 
Quote Post
henrik777
post Tue, 4 Sep 2018 - 11:39
Post #41


Member


Group: Members
Posts: 1,671
Joined: 16 Nov 2008
Member No.: 24,123



QUOTE (nosferatu1001 @ Tue, 4 Sep 2018 - 10:57) *
They need to pay £100 to file an application for the court to Hear their claim that the E&W court has no jurisdiction over this matter
It of course, if granted, becomes a cost payable to the Defendant, usually, and as this claim will not have been Allocated to any Track, there is no costs protection and as such the D can claim their full costs at £19 per hour on top of the £100.



The courts don't always award costs for that on the basis if you'd have contacted MCOL they'd have booted the claim out. (Yes &*^$£"! really)

Go to the top of the page
 
+Quote Post
nosferatu1001
post Tue, 4 Sep 2018 - 11:43
Post #42


Member


Group: Members
Posts: 17,616
Joined: 27 Nov 2007
Member No.: 15,642



OK so you contest
Contact MCOL
Get told you need to file an application because thats what the CPRs say, and theyre not legally trained. AT BEST they might agree to talk to a judge but this is usually when it is THEIR cock up.
So you end up with needing to file an application...
Go to the top of the page
 
+Quote Post
henrik777
post Tue, 4 Sep 2018 - 11:46
Post #43


Member


Group: Members
Posts: 1,671
Joined: 16 Nov 2008
Member No.: 24,123



QUOTE (nosferatu1001 @ Tue, 4 Sep 2018 - 12:43) *
OK so you contest
Contact MCOL
Get told you need to file an application because thats what the CPRs say, and theyre not legally trained. AT BEST they might agree to talk to a judge but this is usually when it is THEIR cock up.
So you end up with needing to file an application...



Been there, paid my money didn't get costs. I'm still outraged and believe i followed the rules correctly. I applied 3 times to vary the order. I didn't get my costs of a successful initial application to contest jurisdiction.
Go to the top of the page
 
+Quote Post
Babyshark
post Mon, 10 Sep 2018 - 21:00
Post #44


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Hello

I have drafted a defence based on the defence provided by schoolrunmum. Thank you it’s been really helpful.

I will post the draft defence shortly and would be grateful for your comments/suggestions etc.

One point I am unsure on is, to date no driver identity has been admitted.

I also understand that there may have been two cases heard regarding Humberside Airport VCS V Oughton and VCS V Bycroft. I can’t get any information on these cases. Is anybody able to point me in the right direction? It might be helpful for me to look at those.

As always, very grateful for your input



This post has been edited by Babyshark: Wed, 12 Sep 2018 - 22:08
Go to the top of the page
 
+Quote Post
Cuthbert
post Tue, 11 Sep 2018 - 08:27
Post #45


Member


Group: Members
Posts: 197
Joined: 27 Dec 2014
Member No.: 74,894



You never disclose who the driver was, you need to edit.
Go to the top of the page
 
+Quote Post
Babyshark
post Tue, 11 Sep 2018 - 08:53
Post #46


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks for your feedback Cuthbert. Are there any reasons why I should submit defence as registered keeper only?

I’m interested to know as I was unsure about admission of driver liability at this point as VCS have pursued Registered Keeper using POFA when POFA does not apply as the airport is subject to by laws. VCS have assumed to date that the Registered Keeper is the Driver as stated in previous correspondence from them. However the particulars of claim reference NTK. I understand it is for the landowner to pursue the Driver and the landowner is now out of time for that as this “parking offence” took place last year
Go to the top of the page
 
+Quote Post
ostell
post Tue, 11 Sep 2018 - 09:10
Post #47


Member


Group: Members
Posts: 8,146
Joined: 8 Mar 2013
Member No.: 60,457



It is byelaw land and therefore they cannot use POFA to chase the keeper. They can only chase the driver, who they do not know unless you tell them. Get editing before they find your post. The standard statements that VCS use to show that they can assume that the keeper was the driver have been rejected many times in court, as you should have found in other threads.

Have you had a letter from VCS saying that they are not relying on POFA?
Go to the top of the page
 
+Quote Post
Babyshark
post Tue, 11 Sep 2018 - 09:27
Post #48


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks Ostell. I have edited the post. Will have a rethink and redraft. No VCS have not stated that they are not relying on POFA
Go to the top of the page
 
+Quote Post
cabbyman
post Tue, 11 Sep 2018 - 16:46
Post #49


Member


Group: Members
Posts: 5,805
Joined: 15 Dec 2007
From: South of John O'Groats, north of Cape Town.
Member No.: 16,066



You need to read that and edit again. EG, point 3.8 classically mixes identities for the opposition to leap on. There may be many other instances.


--------------------
Cabbyman 10 PPCs 0
Go to the top of the page
 
+Quote Post
Redivi
post Tue, 11 Sep 2018 - 17:30
Post #50


Member


Group: Members
Posts: 1,873
Joined: 31 Jan 2018
Member No.: 96,238



It also needs to be a lot "colder" in its tone

In 2 The Defendant denies that the driver entered into any contract

In 3.7 in what way was any contrast frustrated ?

You've failed to explain why VCS is in breach of its Code of Practice. The visibility of the signs would be an obvious example to use when you say they couldn't be seen or read

If the location is within Humberside Airport, the enforcement is according to the Humberside Airport Byelaws Part VII, not a contractual charge

Vehicle Control Services v Carly Oughton concerned a young lady that repeatedly parked in a residential car park when she had no right to
VCS was awarded more than £20 000 that it was never going to recover but the award would encourage others to pay

VCS v Mick Bycroft concerned this bus stop but was a POPLA appeal case not a court case
POPLA decided that the charge was a penalty. Since the Beavis case this defence has gone out of the window

Go to the top of the page
 
+Quote Post
Babyshark
post Wed, 12 Sep 2018 - 10:06
Post #51


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks for the pointers. I managed to get a few hours on this last night. Hopefully will get more time tonight. Unfortunately having a 5 month old attached to me for most of the day doesn’t help. I’m very mindful I need to get this defence in before 1st Oct and time is a real issue for me right now.
I’ve read the LJLA post. Do I have time to wait for the outcome of this case? I don’t know when it has been adjourned until. (I understand why with it being ongoing)
Are there any other Humberside Airport examples that actually went to Court? I can’t find any.
Understandably I feel very out of my depth here. I’m trying my best. If I am the first to court at Humberside, this makes me feel very uneasy.
Go to the top of the page
 
+Quote Post
Babyshark
post Thu, 13 Sep 2018 - 14:22
Post #52


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



I am pressing on. I have nothing to lose by trying at least now I’m being taken to Court.

Is anybody able to give me their opinions on the use of forbidding signs. I have come across Parking Control Management V Bull. The judge concluded in 2016.

“On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.”

Is this still relevant to argue in your opinion? I have photographs of signage provided by VCS from my IAS appeal of what I think may be forbidding signs at Humberside but don’t want to put in my defence and look stupid if it is considered the signs are not forbidding! Can upload the photograph if necessary.
Go to the top of the page
 
+Quote Post
Sheffield Dave
post Thu, 13 Sep 2018 - 19:37
Post #53


Member


Group: Members
Posts: 63
Joined: 20 May 2013
Member No.: 62,052



QUOTE (Babyshark @ Thu, 13 Sep 2018 - 15:22) *
IIs anybody able to give me their opinions on the use of forbidding signs.

In the ongoing case at Liverpool Airport, VCS have been trying to get round this by claiming that the contract entered into was in fact one which gave the driver permission to enter the private property of the airport. One of the conditions of that contract being to be to obey no-stopping signs etc.

If they try that on you, then you need to be prepared for that: the signs at the entrance to the airport become important - would they be readable, and would a person at that point be able to understand that they they were accepting a contract in order to be able to enter the airport? And do they need to accept the contract in order to enter the airport? And is there a way of declining the offered contract?

From a distant glance at the signs via GSV, it looks like the signs wouldn't be readable at speed, and there is no opportunity to decline the contract.

This is all untested in court as far as I'm aware.
Go to the top of the page
 
+Quote Post
Babyshark
post Thu, 13 Sep 2018 - 20:07
Post #54


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks SheffieldDave I will take this into account. VCS have provided photographs of the signage at the entrance of Humberside Airport. . I will have to go and have a look for myself too. I've tried gsw and can't see photographs of them on there. One thing I have noted though (please tell me to edit this post if you think I'm putting myself at risk by posting it) is that VCS use "no stopping signs" on this site and also use a mixture of double yellow lines and double red lines which causes confusion in my opinion. This also may be worth a shot. I'm not familiar with LJLA do do not know if the same is applicable there.

This post has been edited by Babyshark: Thu, 13 Sep 2018 - 21:36
Go to the top of the page
 
+Quote Post
ostell
post Thu, 13 Sep 2018 - 21:47
Post #55


Member


Group: Members
Posts: 8,146
Joined: 8 Mar 2013
Member No.: 60,457



The only thing on GSV is a "welcome to Humberside Airport with a No Parking sign in front of it, and lots of double yellow lines whose normal meaning is no parking, which does not mean no stopping. Any other signs after that would be difficult to read because of approaching a roundabout and having to concentrate.

This post has been edited by ostell: Thu, 13 Sep 2018 - 21:47
Go to the top of the page
 
+Quote Post
Babyshark
post Thu, 13 Sep 2018 - 21:55
Post #56


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks ostell. I had noted this tonight on reviewing the images uploaded by VCS on ias appeal. There's no way of any motorist reading the signs and simultaneously approaching the roundabout whilst looking to give way. It's going in my defence.
Go to the top of the page
 
+Quote Post
Babyshark
post Wed, 19 Sep 2018 - 20:56
Post #57


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Here I go with another Defence, will post shortly. Your advice is always greatly appreciated.




Number:********

BETWEEN:
Vehicle Control Services Ltd
Claimant

vs

********* ******
Defendant


Defence

1. The Defendant is the registered keeper of the vehicle ________.

2. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.

3. The Claimant is pursuing the Defendant as Registered Keeper of the vehicle after issuing two Identical Charge Notice, Notice to Keeper referred to as (CN) in the Claimants particulars of claim.

4. The Charge Notice, Notice to Keeper shows 3 still images. According to the timings on the date stamps on the images the images are taken within 11 seconds. The first two images are of a vehicle in the dark. On the first two images the vehicle cannot be identified, nor can it’s location. The third image is of an illuminated number plate bearing a registration only. The amount of the Charge Notice, Notice to Keeper is for £100 and states the reason for the Charge being 47) Stopping in a Restricted bus stop/stand. It appears that this is what the Claimant refers to as ‘contravention’ within the Particulars of Claim.

4. The Claimant now claims the sum of £160 and alleges the debt is for £160. The Claimant has not directly indicated to the Defendant or the Court why the alleged debt is now £160 rather than £100 as previously stated in their initial (CN).

Registered Keeper liability

5. The Claimant is pursuing the Registered Keeper on the assumption only that the Registered Keeper is the Driver.

5.1 On the ——————- the Registered Keeper responded to the Claimant stating that the Defendant was unable to identify the Driver from the photographs provided. The Claimant responded to the Registered Keeper on ————stating “Please note that the responsibility for this Charge lies with the driver of the vehicle at the time the Contravention was observed. However, we are unable to ascertain who the driver was on the date in questions given within your appeal.” Regardless of this, the Claimant continued to pursue the Defendant and stated in their letter of ———————- “In your appeal you state that you were not the driver when your vehicle was seen to be stopped on the access road. It is important that we highlight that we will continue to pursue this matter on the reasonable assumption that you were the driver of the vehicle on the date in question until information/evidence to the contrary is provided”.

5.2 Further, in Independent Appeals Service (IAS) appeal regarding this matter it was stated by the Claimant “The adjudicator will note that the appellant has not denied being the driver on the date and time in question and it is reasonable to believe that the appellant as registered keeper of the vehicle would have knowledge of the events of the day in relation to the vehicle”. However the Defendant would point out the Defendants comments in relation to the identity of the Driver in their letter of __________ and further in their letter of ___________whereby the Defendant clearly stated that they were unable to identify the Driver utilising the evidence provided.

5.3 The Claimant would bring to the Courts attention that, rather than relying on assumptions, that they the Claimant also state that they are unable to identify the Driver utilising the evidence provided.

5.4 Further In IAS appeal the Claimant confirmed that they were unable to view the CCTV footage of the alleged incident due to some sort of file error. The Defendant failed to address this issue. To date the Claimant has not been able to view the CCTV footage.

Protection of Freedoms Act 2002

6. The Charge Notice Notice to Keeper, appears to have been issued in accordance with Schedule 4 of Protection of Freedoms Act 2002.

6.1 The Claimant appears to be pursuing the Registered Keeper under Protection of Freedoms Act 2002. The Defendant contends that in any event the Protection of Freedoms Act 2002 is not applicable in that the location of the alleged ‘contravention’ is not relevant land within the meaning provided by paragraph 3 of schedule 4 of the Protection of Freedoms Act 2002. The site of Humberside Airport is subject to statutory control by virtue of Humberside International Airport Byelaws 1999.

6.2 It is further contended that the act of stopping a vehicle does not amount to parking.

6.3 The Defendant contends that the Protection of Freedoms Act 2002 is not applicable and that the Claimant is therefore unable to pursue the Registered Keeper in respect of the alleged debt.

6.4 The Claimant appears to have issued (CN) in accordance with the Protections of Freedoms Act 2002. However in the IAS appeal the Claimant stated “As previously noted we would refer the Adjudicator to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that we are the principal (not an agent) in the contract.

6.5 The Claimant appears to be misleadingly giving the impression that they are pursuing the Registered Keeper under Freedoms of Protection Act 2002 when in fact they are not, as the Protection of Freedoms Act 2002 does not apply to the site of Humberside Airport. It is reasonable for the Claimant to be aware of this. This no doubt forms part of the covert and underhanded methods of the Claimant in collecting their parking charges utilising this particular site, by relying upon the lack of knowledge on this issue by unsuspecting members of the public.

Ambiguity surrounding the charge notice, Notice to keeper

7.1 It is noted and brought to the Courts attention that since issue of the the (CN) its amount requested by the Claimant has taken several guises to which the Claimant has failed to attend to. The Claimant now refers to the charge or debt being due as a result of ‘contravention’ within the particulars of claim.

7.2 In the CN the incurrence of debt is simultaneously and ambiguously referred to as 47) stopping in a Restricted bus stop/stand as well as parking charge for period of parking.

7.3 The Claimant made several attempts to ascertain as to what the charge was and exactly how it was incurred. Firstly in their letter of _________ and again in their IAS appeal dated ___________. The Claimant has failed to date, to provide any information as exactly was the charge is for. To date the ambiguity still remains as to whether this is for:

a) stopping in a restricted bus stop/stand
b) a parking charge
c) a contravention

No agreement/breach of terms and no contract

8. The Claimant states in IAS appeal that the issue of the CN arose due to “contravention of the contractual Terms and Conditions displayed”

8.1 The Defendant denies entering into any contract with the Claimant.

8.2 The Defendant does not see how as Registered Keeper, they can be expected to have formed a contract with the Claimant.

8.3 The Defendant believes that there was no 'parking event', and neither was there any agreed parking contract. If the Court is minded to consider that there was, then any contract was frustrated and outside of the control of the Defendant, because:

8.4 At the time of the alleged stopping of the vehicle which the Claimant now refers to as a “contravention” within the particulars of claim. The Defendant cannot see how stopping a vehicle for a matter of seconds can constitute parking of the vehicle, particularly as it is alleged the vehicle was stopped in area which is not a car park.

8.5 As such, the elements of a contract were absent. No consideration flowed between the parties; there was no acceptance of any terms by performance or express or implied agreement and the Defendant has been given no opportunity to read any terms.

8.6 The Claimant evidenced signage photographs within the IAS appeal the photographs are dated 20th October 2017. It’s is noted and brought to the Courts attention the case of Parking Control Management V Bull in 2016 where it was found and stated “On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.”

8.7 Furthermore, there is evidence of confusion of contract. The Claimant has provided photographs of “no stopping signs” in various positions around the site and it is noted from the photographs that there are double yellow lines in the background of the photographs in which the “no stopping sign” is situated which undoubtedly causes confusion of any motorist utilising the site. The Highway Code clearly states that double yellow lines represent “no parking” whereas double red lines, represent “no stopping”. It is not specifically stated in any signage that the double yellow lines also represent “no stopping” which is contrary to what is stated within the Highway Code,

8.8 It is brought to the Courts attention that the photographs provided on IAS appeal show the bus stop in which it is alleged the “contravention” took place is delineated with double red lines. This photograph is date stamped by the Claimant at 20 October 2017. The rest of the roadways evidenced by the Claimants photographs on IAS appeal show all other parts of the roadway delineated with double yellow lines. It is clear to see that confusion as to terms, conditions or rules of the road is inevitable as “no stopping signs” are placed in areas where according to the Highway Code, roadmarkings indicate “no parking”.

8.9 In this particular case, from the photographs on the CN, the lines of the roadway or bus stop of where vehicle which is alleged to have stopped appear to be double yellow lines in the photographs provided by the Claimant, they appear to be red. There is inconsistency in the evidence provided by the Claimant.

8.10The Claimant argues that the initial signage at the entrance to the site is the size of a standard door and legible. However, the Defendant would argue

a) the sign may be as big as a door, but the text is not and the text is not legible by anybody passing the sign at speed or in poor conditions such as night time
b) the signage is placed alongside 3 other signs causing significant cluttering of varying information in one place
c) the no stopping sign is placed directly above double yellow lines causing further confusion
d) the cluster of signage of which the Claimants sign forms part at the entrance to the site is placed just 2 meters away from the entrance of a roundabout
e) on approach to the roundabout there are no less than 14 signs in various positions on display from the vantage point of approach by road
f) It cannot be expected of or physically possible for any motorist approaching the site to read all of this information whilst moving at speed and simultaneously negotiating and approaching a roundabout where they are expected to give way to any approaching traffic
g) all other prohibitive signage at the site does not face any vehicle as they negotiate or travel the site

CPR breach

9.1 The Defendant has no idea what terms appear to have been breached given in the particulars of claim.

9.2 The Claimant has also failed to provide the reason for the claim, or any detail of the terms breached and failed to disclose any cause of action that could give rise to any claim in law. The Particulars of Claim are sparse and so devoid of detail that the Defendant has had to cover any number of possible defence issues at this point, for fear of typical parking operator 'ambush' with photos.

ParkingEye Ltd v Beavis[2015] UKSC 67

10. This predatory 'parking charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver.

10.1 It is noted from Humberside Airports website that there is an important notice where it is stated “Important Information, CAR PARKING. Please do not stop or park on any of the airports roads which are marked with yellow lines or within the bus stop area. You may be liable for a fine”

10.2. It was stated that the penalty rule was 'engaged' in all private parking ticket cases and that what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.

10.3 The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.

Trespass is a matter for a landowner only - the Claimant has no locus

11. Due to the lack of Particulars of Claim, it is difficult for the Defendant to understand the cause of action, given that the Claimant does not own the land in question.

11.1 If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Humberside Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.

11.2 In the Beavis case it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye could not have recovered monies for unauthorised parking/trespass. It was only because they were able to offer something of value (a parking space) and that the charge was part of that contractual licence, that ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.

11.3 If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any Driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.

11.4 It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name.

11.5 The Claimant is put to strict proof of their locus and cause and right of action in their own name, and to disclose the unredacted contract with the Airport, before any hearing.

Airport approach roads are subject to road traffic enactments (public highway)

12. 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
© the Defendant was afforded the opportunity to accept contractual terms and that
(d) this charge which is is somehow saved from the penalty rule

the Claimant is also put to strict proof that:

(e) 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.

13. The road comes off a roundabout and is not clearly marked as is 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 'CN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

14. 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.

Excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

15. This Claimant uses CCTV camera systems (365 days a year, 24 hours a day, seven days a week) and processes personal data excessively and disproportionately, and thus fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code').

15.1 The ICO Code applies to all CCTV systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the International Parking Community ('IPC') trade body are required to comply fully with the Data Protection Act ('DPA') and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system to harvest VRN data, including the addresses of registers keepers.

15.2 Whilst CCTV has its uses to keep Airport approach roads clear - to stop drivers from choosing to park and leaving their vehicles - this must be with reasonable and proportionate application, with sufficient checks and balances being an ICO Code requirement when operating such a data-intrusive regime.

15.3 The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial Surveillance Camera privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it is necessary and proportionate use CCTV to issue penalties in all cases, applying no human intervention or common sense approach (e.g. having no checks and balances to exclude from the 'immediate penalty' approach, cases where the van driver/CCTV operator would have seen and heard.

iv) Failure to prominently inform users in large lettering on clear signage, of the 'commercial intent' and purpose of the hidden van CCTV system and how the data captured would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant and indeed the Defendant has been furnished with no images, information about the terms or the alleged breach, or any data at all.

15.4 This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the IPC and the ICO Codes of Practice.

Illegal conduct and 'unfairness' breach of the Consumer Rights Act 2015

16. In a similar instance of excessive and inappropriate use of ANPR surveillance cameras 24/7 (confirmed on the rival Trade Body (BPA) website, in a 2013 article urging its members to comply) Hertfordshire Constabulary was issued with an enforcement notice by the ICO. The force were ordered to stop processing people's information via surveillance cameras until they could comply. The ICO ruled that the collection of the information by constant streaming of data from cameras was excessive and illegal; breaching principle 1 of the DPA.

17. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

18.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

19. Even if there was a purported contract between the Claimant and the Defendant, the part that relies upon excessive data streaming of CCTV images for automatic instant penalties, regardless of circumstances, was illegal at its formation because it was incapable of being created without an illegal act.

19.1. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

19.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

19.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA by setting out to issue instant predatory penalties, regardless of circumstances. Being an IPC member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & legal advice for members, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid 'excessive' and 'unjustified' use of CCTV leading to just this sort of unfair charge.

19.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong - excessive CCTV operation and data processing contrary to the ICO Code - being present at the time of the alleged contract, means that the Claimant will not be able to enforce that alleged contract.

(ii) the illegality around the excessive and unjustified constant use of CCTV to issue penalties regardless of mitigating facts, is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

20. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by CCTV, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

20.1. In any case involving a consumer contract, Courts must evaluate and apply a test of fairness, whether the Defendant raises the issue or not, and transparency of terms must also be considered carefully in every case.

20.2. It is averred that this Claimant at this location, fails on both counts and therefore the charge is unjustified and just the sort of 'unconscionable' parking charge that the Supreme Court had in mind when retaining the 'penalty rule' for use in cases such as this, where the facts are less complex than in Beavis.

20.3. Further, the IPC Code of Practice specifically prohibits 'predatory tactics', therefore this Claimant is operating in breach of the effectively 'regulatory framework' of their trade body code that the Supreme Court in Beavis found was a pre-requisite of a transparent and lawful operation.

Added costs have not been incurred - attempt at double recovery

21. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported costs which the Defendant submits have never actually been incurred.

22. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent 'charge'. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.

22.1. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

23. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts contained in this Defence Statement are true.



*Signed*

*Date*


Go to the top of the page
 
+Quote Post
ostell
post Wed, 19 Sep 2018 - 21:28
Post #58


Member


Group: Members
Posts: 8,146
Joined: 8 Mar 2013
Member No.: 60,457



In various sections it is Protections of Freedoms Act 2012

6.1 add after "Protectionf of Freedoms act 2012" and therefore there can be no transfer of liability from the driver to the keeper.
Go to the top of the page
 
+Quote Post
Babyshark
post Wed, 19 Sep 2018 - 21:44
Post #59


Member


Group: Members
Posts: 15
Joined: 31 Aug 2018
Member No.: 99,657



Thanks Ostell. Noted, will amend my hard copy.
Go to the top of the page
 
+Quote Post
Churchmouse
post Yesterday, 09:37
Post #60


Member


Group: Members
Posts: 1,870
Joined: 30 Jun 2008
From: Landan
Member No.: 20,731



QUOTE
5.3 The Claimant would bring to the Courts attention that, rather than relying on assumptions, that they the Claimant also state that they are unable to identify the Driver utilising the evidence provided.

5.4 Further In IAS appeal the Claimant confirmed that they were unable to view the CCTV footage of the alleged incident due to some sort of file error. The Defendant failed to address this issue. To date the Claimant has not been able to view the CCTV footage.

I think you need to toughen these up a bit.

5.3 The Claimant has admitted that they have been unable to identify the Driver utilising the evidence available. The Claimant would bring to the Courts attention that, accordingly, there is no basis for the Claimant's pursuit of the Defendant in the absence of any evidence that the Defendant was the Driver of the vehicle at the time of the alleged breach of contract. Several individuals have access to the Defendant's vehicle and the Defendant is under no obligation to identify the driver to address the Claimant's lack of evidence or assist the Claimant's case.

5.4 Further, in the IAS appeal the Claimant confirmed that they were unable to view the CCTV footage of the alleged incident due to some sort of file error. To date the Defendant's request to view the CCTV footage has been ignored.


QUOTE
6.4 The Claimant appears to have issued (CN) in accordance with the Protections of Freedoms Act 2002. However in the IAS appeal the Claimant stated “As previously noted we would refer the Adjudicator to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that we are the principal (not an agent) in the contract.

6.5 The Claimant appears to be misleadingly giving the impression that they are pursuing the Registered Keeper under Freedoms of Protection Act 2002 when in fact they are not, as the Protection of Freedoms Act 2002 does not apply to the site of Humberside Airport. It is reasonable for the Claimant to be aware of this. This no doubt forms part of the covert and underhanded methods of the Claimant in collecting their parking charges utilising this particular site, by relying upon the lack of knowledge on this issue by unsuspecting members of the public.

I'm not sure where these two are going. 6.4, in particular, is a non sequitur. 6.5 is just a prod at the Claimant's character, which is probably unnecessary. I would delete both 6.4 and 6.5. I'd suggest the following for 6.3:

6.3 Accordingly, as the Humberside Airport is not 'relevant land' for purposes of the Protection of Freedoms Act 2012, the Claimant is unable to transfer the alleged liability of the Driver to the Defendant (the Registered Keeper) in respect of the alleged debt.

7.3 should refer to the Defendant, not the Claimant!


QUOTE
ParkingEye Ltd v Beavis[2015] UKSC 67

10. This predatory 'parking charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver.

10.1 It is noted from Humberside Airports website that there is an important notice where it is stated “Important Information, CAR PARKING. Please do not stop or park on any of the airports roads which are marked with yellow lines or within the bus stop area. You may be liable for a fine”

10.2. It was stated that the penalty rule was 'engaged' in all private parking ticket cases and that what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.

10.3 The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.

This is not all bad, but it needs to be re-written. 10.1 is irrelevant. Something like this:

10. The predatory 'parking charge' sought by the Claimant is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver.

10.1 In Beavis the Supreme Court stated that the penalty rule was 'engaged' in all private parking ticket cases and that in order to 'disengage' the penalty rule what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.

10.2 The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, disengaging the penalty rule after considering the specific facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. The £85 parking charge was not excessive, as it was in line with other car parks in the area, the £85 charge was justified in large part by the commercial need of the landowner to have sufficient free parking available for customers of the retail park, i.e., turnover, and the signage was clear and understandable.

10.3 In Beavis, therefore, there was a meeting of minds: a free licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge, in that particular case, from being struck out as an unenforceable penalty. In the present case the Claimant's £160 charge is clearly excessive, there is no similar commercial justification for the prohibition of loading and unloading of passengers at an airport and the signage employed by the Claimant would have been impossible for the Driver to read and agree prior to the alleged acceptance of the contract by performance by the Driver of the Defendant's vehicle.

10.4 Accordingly, in this case the circumstances differ substantially, compared with Beavis, and the penalty rule has not been disengaged, so the Claimant's claimed £160 charge remains an unenforceable penalty.


QUOTE
11.3 11.3 If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any Driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.

Just a couple of wording changes to the above:

11.3 If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty because the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any Driver conduct in breach of that rule could not on the other hand be allowed by a private company offering to permit the prohibited behaviour under a pseudo contract.

QUOTE
Airport approach roads are subject to road traffic enactments (public highway)

12. 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
© the Defendant was afforded the opportunity to accept contractual terms and that
(d) this charge which is is somehow saved from the penalty rule

the Claimant is also put to strict proof that:

(e) 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.

13. The road comes off a roundabout and is not clearly marked as is 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 'CN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

14. 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.

The formatting is a bit off. Let's try:

Airport approach roads are subject to road traffic enactments (public highway)

12. 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 Defendant was afforded the opportunity to accept contractual terms and that
(d) this charge which is is somehow saved from the penalty rule,

the Claimant is also put to strict proof that this access road is not part of the public highway.

12.1 A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle.

12.2 The approach road in this case comes off a roundabout and is not clearly marked as is 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 'CN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

12.3 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.


None of section 15, relating to CCTV and Data Protection, is relevant to this PCN, except to show that the PPC *may* be in breach of the ICO and (therefore) IPC guidelines. This is (a) speculative and (b) distracting from the main thrust of the parking-based arguments included so far and, therefore, of very questionable benefit to the Defendant's case. I would ditch all of 15.

Without 15, basically everything following that (up to 20.3) is word salad that is not going to assist the court in deciding this case.

In 22.1, if the above advice is heeded, add back the Somerfeld citation from (now deleted) 19.2: ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338.

--Churchmouse
Go to the top of the page
 
+Quote Post

3 Pages V  < 1 2 3
Reply to this topicStart new topic
2 User(s) are reading this topic (2 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Friday, 21st September 2018 - 16:45
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.