Morning All -
Here is Draft 3, not sure if it is easier for you in this format or as a PDF? I have been organizing the exhibits etc but not yet redacted any personal information. Wherever I have referenced a specific part of a document, I have included the whole document in my evidence bundle.( ie, GDPR Article 5.1(b) 2018).
In the County Court of *TBC* Claim Number *XXX*
Vehicle Control Services Ltd (Claimant)
1. I, (*NAME*) of (*ADDRESS*) am the Defendant in this claim. The facts and matters stated are true and within the Defendant’s knowledge unless otherwise indicated.
2. The Defendant has included a pack of evidence with this statement and this evidence will be referred to as Exhibit Ev.01 and so on.
3. The Defendant does not believe that the Claimant has a cause for action because the Claimant has failed to produce any evidence under CPR31.14 (Exhibit Ev.01) of a contract with the landowner demonstrating that Vehicle Control Services Ltd has the right to enter into contracts with the public and make civil claims as per the IPC Code of Practice Part B11.1.(Exhibit Ev.02) The Claimant has also failed to provide any proof of planning permission granted for signage under the Town and Country Planning Act 2007 (Exhibit Ev.03). According to the Parking Prankster’s blog from 16th December 2017 (Exhibit Ev.04) relating to private research undertaken in (Exhibit Ev.05) regarding private car parking sites that lack planning approval, the author who refers to himself as shuteyepark states that ‘to date 133 LPAs (Local Planning Authorities) have responded and almost without exception they state that ANPR cameras require planning permission (as land is being developed), and parking signs are classed as advertisements and normally require advertisement consent, a completely separate and parallel system to planning permission. Almost invariably the LPAs consider parking signs each smaller than 0.3sqm in area as having ‘deemed consent’, and signs exceeding this size as not having deemed consent but requiring ‘express consent’ under Class 2, Schedule 3 of the Town and Country (Control of Advertisements) (England) Regulations 2007 (or the Welsh equivalent, the 1992 Regs).” DO I NEED TO PUT THIS IN MY EVIDENCE BUNDLE AS I I AM QUOTING FROM SOMEONE ELSE HERE? In addition, if said signage is too small to require planning, it would therefore be too small for a motorist to read. The Defendant also attempted to locate any planning permission on the Local Planning Authority’s website for any such signage or ANPR cameras on the piece of land in question and unsurprisingly, this search was unsuccessful.
4. The Claimant has also not provided copies of the notice to driver, notice to keeper and any other correspondence from Vehicle Control Services Ltd to the Defendant that they intend to rely upon in court. As the Claimant has not provided any evidence to the contrary, the Defendant believes they do not have locus standi in this matter.
5. The Claimant has failed to give sufficient information with regards to the Particulars of Claim. The Claimant has disclosed no cause of action to give rise to any debt. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. The Particulars of Claim simply states “contravention” which does not give any indication of what basis the claim is brought and in what capacity, whether it is for monies owed under a contractual term or a breach of contract – both of which the Defendant denies.
6. On the date of the alleged contravention, the Defendant was driving down the A639 (Exhibit Ev.06) towards Pontefract when the Defendant’s vehicle became unresponsive and sluggish. As the vehicle progressed towards to roundabout, (Exhibit Ev.07), the traffic was very dense and at the approach of the roundabout, it became very clear that the vehicle was beginning to fail and if the Defendant did not take action and try to find a safe place to stop, the Vehicle would breakdown at a busy roundabout on a road with a 40mph speed limit. The Defendant made the decision to turn left at the roundabout (Exhibit Ev.08) onto Park Road (Exhibit Ev.09) to enter the Pontefract Retail Park Industrial Estate. At no point upon the approach did the Defendant see any of the Claimant’s signs and seconds after entering the industrial estate, at approximately 12:30pm the Defendant’s vehicle lost all power and ground to a halt on the access road between Currys PC World and Pets at Home (Exhibit Ev.10). Immediately after breaking down the Defendant phoned the Green Flag Roadside Recovery. Whilst on the call an ANPR vehicle promptly arrived onto the site and initially stopped at a distance from the Defendant. The ANPR vehicle then drove forward closer to the Defendant’s vehicle, continued beyond and turned around. The ANPR vehicle was in this zone for some time as the Driver of the ANPR vehicle stopped to eat his lunch. At no point did the Driver of the ANPR vehicle or Warden explain that they had been taking photographs of the Defendant or the Defendant’s vehicle, nor did they ask if there was a problem or if they could be in any assistance in any way to move the vehicle. The Defendant was clearly in distress and the vehicle’s hazard lights were switched on so it was very apparent that there was an issue of some sort. The Green Flag Roadside recovery arrived by 14:15, see (Exhibit Ev.11) and (Exhibit Ev.12), and provided copies of the Roadside Report and Waiver Report from Mansfield Rescue & Recovery acting on behalf of Green Flag dated 25/09/18 indicating that the car “cut out whilst driving” and the outcome was to “tow to an independent garage”.
7. The Claimant failed to mitigate any supposed damages by failing to question the Defendant as to why the Defendant was there, nor did the Claimant offer the Defendant any assistance in moving the vehicle or in fact warn the Defendant that it is not permitted to breakdown on this roadway without incurring an unlawful penalty charge for doing so. As in the case of VCS V Ibbotson Claim Number 1SE09849 Scunthorpe, 16/05/2012 (Exhibit Ev.13), the Judge highlighted that “he [the warden] is a lawful authorised member of the company at the time he is there and there is a duty to mitigate the loss.”
8. The Defendant believes that the Claimant has abused their Contract with both their employer and the data subject as there should be a minimum of a warning that the Claimant is taking pictures of people for this purpose rather than just the anonymised number plate capture that is covered by a different section of the law. As Per the Surveillance Code of Practice 3.1.3 (Exhibit Ev.14) “A surveillance camera system should only be used in a public place for the specific purpose or purposes it was established to address. It should not be used for other purposes that would not have justified its establishment in the first place. Any proposed extension to the purposes for which a system was established and images and information are collected should be subject to consultation before any decision is taken.”
Failure to Set out Clear Terms
9. The Claimant should comply with the code of practice for either the British Parking Association or the Independent Parking Committee as these are the main trade associations in this field.
10. (Exhibit Ev.09) At this point at the roundabout, there is no indication that at the left turn there is a prohibitive sign. This is the point at which the vehicle had begun to fail and this was the point at which the decision was made to turn left into a quiet and safe side street rather than attempt to continue onto the dual carriage way with a speed limit of 40mph and where a broken down vehicle would cause a major obstruction and pose a danger not only to the driver but also to other road users.
11. (Exhibit Ev.15) depicts the first glimpse of the Claimant’s entrance sign - this road is also shared by high sided vehicles such as lorries and vans, this sign is regularly obscured by such vehicles due to the height of the sign. (Exhibit Ev.16) indicates the height of this sign, which is approximately 3m off the ground. (Exhibit Ev.17) As per the British Parking Association AOS Code of Practice Appendix B, “Signs should be readable and understandable at all times” and “any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.” As the Claimant’s signage falls foul of both of these points, it appears that the Claimant therefore does not intend for the sign to be read from a moving vehicle which is the crux of this alleged contravention.
12. (Exhibit Ev.16) Prior to the imposed speed limit of 10mph which begins after the entrance sign is situated, the speed limit on this road is 40mph. As highlighted in the Parking Prankster’s Blog regarding the signage used by Vehicle Control Services Ltd at Liverpool Airport, dated 9th March 2015 (Exhibit Ev.18) “The first observation is that drivers must be able to read signs without moving their head more than 10% from the road. This is for safety reasons. Both the Independent Parking Committee and the British Parking Association agree with this in their respective code of practices”.
13. There are 13 lines of text on the Claimant’s entrance sign (Exhibit Ev.16), made up of over 50 words not including the very small print. As per (Exhibit Ev.18) the blog points out that “Department for Transport’s guidelines state that a sign should contain no more than 6 words or directions. This is the number that can be scanned safely in 4 seconds. Any more than that and the driver's eyes are off the road for too long.”
14. Based on the calculation in (Exhibit Ev.18) that the “Reading time R is given as 2 + N/3 seconds, where N is the number of words or directions on the sign. 2 seconds are given for the eyes to settle on the sign and start reading.” This means this sign takes 17.3 seconds to read and the only possible way to read it would be to stop and read it, by which point it would be a breach of the alleged contract.
15. As per the Standards of Vision for driving on the gov.uk website, (Exhibit Ev.19) a driver must be able to read an 8cm number plate from 20metres away, thus 4cm letters from 10m at 3cm letters at 7.5m. So, if the vehicle managed to slow down to 10mph prior to the sign, according to the Bristol Advanced Motorist’s website (Exhibit Ev.20), a vehicle travels 4.5m per second at 10mph which means if the smallest words on the Claimant’s sign are 3cm, they are only visible for approximately a second and a half before passing the sign.
16. At the point of entering the alleged “No Stopping” zone, other road users as well as the engine failure of the vehicle were the Defendant’s focus as the vehicle was at this point completely unresponsive and out of control.
17. Not only was there insufficient time for the Defendant to view or indeed read the sign but also insufficient time to consider the contract and then decide to accept or decline. There were also extenuating circumstances relating to the vehicle. (Exhibit Ev.21) Text messages received from Green Flag dated 25th September 2018 starting at 12:34pm as well as the previously mentioned Roadside Report and Waiver Report (Exhibit Ev.11 & Exhibit Ev.12) from Mansfield Rescue & Recovery acting on behalf of Green Flag dated 25/09/18 indicating that the car “cut out whilst driving” and the outcome was to “tow to an independent garage”.
18. (Exhibit Ev.22) This is the photograph of the vehicle taken by the Defendant on the date of the alleged contravention, it is taken from the location in which the Defendant waited for the Green Flag Recovery service – it clearly indicates that none of the Claimant’s signs are visible.
19. (Exhibit Ev.23) This is the photograph of the vehicle being turned manually by the Mansfield Rescue & Recovery worker, as the vehicle was no longer serviceable and thus if the vehicle stopped and would have been able to move again the Defendant would have done so had the alleged contract been considered.
20. (Exhibit Ev.24) These are the Claimant’s sign that were positioned closest to the Defendant’s vehicle once broken down, it is positioned on the left-hand curb and does not face oncoming traffic. On the larger of the two signs there over 288 words across 28 lines which, based on the above calculation, would take 96.6seconds to read. But more to the point is, in order to read this Prohibitive sign that states “Private Land no waiting or stopping” one would already be on the site by the time the terms are presented to you, so you would be entitled to stop your vehicle on any non-permitted area for a reasonable amount while you inspect the offer and terms being made. (Exhibit Ev.25) Further highlights the illegible sign which, when standing across the road from the sign, is completely unreadable.
21. No contravention occurred as no promise was made because there was no offer known or accepted, therefore this supposed claim is for an unlawful penalty and not a contractual sum. A relevant contract means a contract between the driver and a person who is the owner of the land, or authorised under or by virtue of arrangements made by the owner and occupier of the land. Vehicle Control Services Ltd are not the lawful occupier of the land. The defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
22. As the claimant is not the landowner as verified by the Land Registry obtained by the Defendant (Exhibit Ev.26) the Claimant therefore suffers no loss whatsoever as a result of a vehicle stopping or parking at the location in question. The Claimant is put to 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. As a third-party agent, the Claimant may not pursue any charge.
23. To form a contract there must be an accordance and in order for this accordance to take place there must be adequate time to read the sign, but also time to consider the contract and then decide to accept or decline.
24. There can be no contract which gives agreement to a contractual break – there is no way that Vehicle Control Services Ltd can offer the driver an opportunity to stop or park on a road that it strictly forbids parking on.
25. Stopping is not a genuine offer of a contract to park and as indicated in the British Parking Association AOS Code of Practice 13.2 (Exhibit Ev.27) “you should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go”. However, in this instance although the vehicle stopped due to a breakdown, there was no opportunity for the Driver to “go”.
26. For PCNs issued by local councils such Cheshire East (Exhibit Ev.28), section MC22 states that breakdowns are sufficient mitigating circumstances for appeal as long as evidence of any kind is provided that the motorist’s vehicle had broken down. The Defendant also contacted Wakefield Council, and they further corroborated this response. (Exhibit Ev.29) Furthermore, as per Section 62 of the Consumer Rights Act 2015 (Exhibit Ev.30) “An unfair term of a consumer contract is not binding on the consumer… A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.”
27. The Defendant’s name, address information (together with other information, including the Defendant’s image) is classified as personal data within the meaning of GDPR Article 4.1 and under GDPR Article 5.1(b) (Exhibit Ev.31)should only be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); the Claimant is misusing this data by attempting to claim a charge is due when there is no possibility a lawful reason exists.
28. The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016 (Exhibit Ev.32) while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The signage there has the equivalent forbidding wording to the signage in this case. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success. I HAVE WRITTEN TO THE DVLA, NO RESPONSE YET
29. The Court is invited to dismiss this Claim and to allow the full costs recovery order due to the Claimant’s unreasonable claim as per CPR 27.14.2(g) (Exhibit Ev.33). The Defendant’s costs schedule will be submitted separately, dependent upon whether a hearing is scheduled.
30. The Defendant believes the facts stated in this witness statement are true.