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Hello,
a few months ago I received a parking charge from VCS for parking in an incorrect bay at the train station. Following advice from researching online, i ignored those letters, i actually threw them away, i received three letters in total. I have now received a letter from the court dated 13th may claiming £185 but my concern is that I didnt received the pre-court letter that is mentioned in other forums. I have gone online and and done MCOL AOS and I have now put together a defence which i shall post below.
Please can someone have a look at the defence and advice on any changes, i have never done anything like this before.
Thanks in advance
Here is my defence:
DEFENCE
1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date, which the Claimant has stated as 9th January 2019. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
The location is subject to statutory control and the parking charge is statute barred
2. The facts regarding this location – *Rowley Regis Park and Ride Car Park* - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').
3. The current national Railway Byelaws ('RB2005') apply to this land:
https://assets.publishing.service.go...ay-byelaws.pdf
The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.
4. Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.
5. Therefore the Claimant is in difficulty regarding their claim, due to these facts:
(i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event,* ie by xx January 2018*.
(ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005. *Evidence of VCS being a private company is from its statutory filings at Companies House, using Company Registration number 02498820.*
(iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.
(iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. [...] Centro's legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.
(v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro. At Rowley Regis Park and Ride Car Parkk, the parking is provided under terms agreed with WMCA, a 'strategic authority' with powers over transport, economic development and regeneration, established by statutory instrument under the Local Democracy, Economic Development and Construction Act 2009.
Liability cannot be transferred to the registered keeper
6. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2017 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.
7. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2017.
8. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.
9. The Defendant was under no legal obligation to disclose the name of the driver and can prove to the Court that more than one person had access to and was insured to drive the vehicle at the time of the alleged breach of contract, so the balance of probabilities is not tipped in the Claimant's favour.
10. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.
11. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at
https://assets.publishing.service.go...ng-charges.pdf
12. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''
Alternative defence - unclear signs & contractual terms
13. The Defendant is aware from visiting the site as a result of this claim, that *the sign at the time of the alleged contravention and* the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by VCS are considerably less prominent, *are partly obscured by railings from driver line of sight * and indeed entirely unreadable by the driver of a moving vehicle.
14. There appears to be a small, non-prominent VCS sign advising of the rules of the car park, with a lack of white space/large lettering. Regarding the £100 (described not as a contractual charge but as a 'penalty' by the WMCA on their website) there is a minuscule small print paragraph at the foot of the sign, in the smallest of the fonts used. *Photographic evidence is available.*
It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.
15. The signage fails to communicate that a contract or licence to park is on offer in areas of faded/no markings, and this Claimant offers nothing of value by way of consideration to drivers parking there.
16. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.
17. There would not have been an informed decision to risk or agree to paying £100 to use the local 'park and ride' when parking on street and/or getting a taxi instead would have cost ten times less. Thus the Defendant avers that there was a lack of transparent consumer contract terms and information capable of binding a driver, and the elements of a contract did not exist.
18. Deterrence, in these circumstances, is inappropriate. By failing to provide enough spaces - even temporarily due to re-painting faded lines - it is unconscionable that a park & ride service (either by themselves or through their agents) should penalise drivers for their own failure to fulfil the 'park' element of the advertised 'free' service. This Claimant is put to strict proof regarding the signs and markings not just around the car, but in the surrounding car park to show the conditions and spaces on offer or not, on the material date.
No standing
19. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).
20. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.
ParkingEye Ltd v Beavis [/I][2015] UKSC 67 is fully distinguished
21. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:
(i) The land, as mentioned previously, is covered by byelaws
(ii) The driver has not been identified
(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.
(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.
Added costs - disproportionate and unrecoverable
22. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £160, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.
Summary - the claim discloses no legal basis or cause of action.
23. The Defendant invites the court to dismiss the claim as having no prospect of success.
24. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and/or to attend a preliminary hearing regarding the fundamental matter of keeper liability. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.
Statement of Truth: I believe that the facts stated in this Defence are true.
Name
Signature
Date
a few months ago I received a parking charge from VCS for parking in an incorrect bay at the train station. Following advice from researching online, i ignored those letters, i actually threw them away, i received three letters in total. I have now received a letter from the court dated 13th may claiming £185 but my concern is that I didnt received the pre-court letter that is mentioned in other forums. I have gone online and and done MCOL AOS and I have now put together a defence which i shall post below.
Please can someone have a look at the defence and advice on any changes, i have never done anything like this before.
Thanks in advance
Here is my defence:
DEFENCE
1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date, which the Claimant has stated as 9th January 2019. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
The location is subject to statutory control and the parking charge is statute barred
2. The facts regarding this location – *Rowley Regis Park and Ride Car Park* - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').
3. The current national Railway Byelaws ('RB2005') apply to this land:
https://assets.publishing.service.go...ay-byelaws.pdf
The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.
4. Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.
5. Therefore the Claimant is in difficulty regarding their claim, due to these facts:
(i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event,* ie by xx January 2018*.
(ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005. *Evidence of VCS being a private company is from its statutory filings at Companies House, using Company Registration number 02498820.*
(iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.
(iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. [...] Centro's legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.
(v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro. At Rowley Regis Park and Ride Car Parkk, the parking is provided under terms agreed with WMCA, a 'strategic authority' with powers over transport, economic development and regeneration, established by statutory instrument under the Local Democracy, Economic Development and Construction Act 2009.
Liability cannot be transferred to the registered keeper
6. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2017 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.
7. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2017.
8. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.
9. The Defendant was under no legal obligation to disclose the name of the driver and can prove to the Court that more than one person had access to and was insured to drive the vehicle at the time of the alleged breach of contract, so the balance of probabilities is not tipped in the Claimant's favour.
10. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.
11. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at
https://assets.publishing.service.go...ng-charges.pdf
12. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''
Alternative defence - unclear signs & contractual terms
13. The Defendant is aware from visiting the site as a result of this claim, that *the sign at the time of the alleged contravention and* the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by VCS are considerably less prominent, *are partly obscured by railings from driver line of sight * and indeed entirely unreadable by the driver of a moving vehicle.
14. There appears to be a small, non-prominent VCS sign advising of the rules of the car park, with a lack of white space/large lettering. Regarding the £100 (described not as a contractual charge but as a 'penalty' by the WMCA on their website) there is a minuscule small print paragraph at the foot of the sign, in the smallest of the fonts used. *Photographic evidence is available.*
It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.
15. The signage fails to communicate that a contract or licence to park is on offer in areas of faded/no markings, and this Claimant offers nothing of value by way of consideration to drivers parking there.
16. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.
17. There would not have been an informed decision to risk or agree to paying £100 to use the local 'park and ride' when parking on street and/or getting a taxi instead would have cost ten times less. Thus the Defendant avers that there was a lack of transparent consumer contract terms and information capable of binding a driver, and the elements of a contract did not exist.
18. Deterrence, in these circumstances, is inappropriate. By failing to provide enough spaces - even temporarily due to re-painting faded lines - it is unconscionable that a park & ride service (either by themselves or through their agents) should penalise drivers for their own failure to fulfil the 'park' element of the advertised 'free' service. This Claimant is put to strict proof regarding the signs and markings not just around the car, but in the surrounding car park to show the conditions and spaces on offer or not, on the material date.
No standing
19. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).
20. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.
ParkingEye Ltd v Beavis [/I][2015] UKSC 67 is fully distinguished
21. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:
(i) The land, as mentioned previously, is covered by byelaws
(ii) The driver has not been identified
(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.
(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.
Added costs - disproportionate and unrecoverable
22. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 4(5), states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £160, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.
Summary - the claim discloses no legal basis or cause of action.
23. The Defendant invites the court to dismiss the claim as having no prospect of success.
24. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and/or to attend a preliminary hearing regarding the fundamental matter of keeper liability. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.
Statement of Truth: I believe that the facts stated in this Defence are true.
Name
Signature
Date
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