Bristol Airport Hearing Points
1) Reliance on Protection of Freedoms Act (2014) for Keeper liability.
I am the vehicle keeper and, since this is a contract dispute, there is no legal requirement to reveal who was driving at the material time - this position is fully reinforced by solid case law which I will cover shortly.
The claimant's Particulars of Claim appear to be defective and not in keeping with the Witness Statement (WS) subsequently provided by Jake Burgess (JB) - the basis of the claim is therefore fundamentally flawed.
In his WS, JB clearly states that his company ARE NOT RELYING ON PROTECTION OF FREEDOMS ACT TO HOLD THE DEFENDANT LIABLE yet, an examination of the Particulars of Claim, as set out on the Claim Form, shows, at Point 4, that the defendant is being pursued by a claimant WHO IS using PoFA to invoke keeper liability.
JB appears to inadvertently sabotage his own claim in that respect since the claimant appears unable to prove who was driving on the day in question - that only leaves the PoFA based 'keeper liability' route when trying to establish the basis of his claim.
In his WS, JB states at point 23(v) that my defence comments on PoFA reliance are "baseless", yet the Particulars of Claim expressly set out his company's intention to rely on PoFA in order to transfer liability onto me as the vehicle keeper and as such JB's comments appear somewhat confused.
I would respectfully draw the Court's attention to the fact that JB appears very critical of my initial defence - I find it ironic that JB is being so critical of me when his behaviour appears to be so haphazard and lacks the professional attention to the detail which is needed when presenting evidence to the court.
This confusing situation is clearly detrimental to the defendant's position since it is now unclear how the claimant is actually holding the defendant liable when it is openly acknowledged, by the claimants head of legal and only witness, that PoFA keeper liability is not being relied upon - these 'shifting sands' make it far more difficult for the defendant to properly plead their case.
I had initially prepared my defence in order to rebut the claimant's reliance on PoFA as specifically set out on the claim form - I have subsequently been forced to re-jig my defence at very short notice - I am a litigant in person and not a legal professional.
A few questions to put before the Court in order to seek clarity on the nature of this claim;
Is the claimant pursuing me in the manner set out in the original County Court Claim or is the claim now being pursued in the alternative manner which is subsequently being put forward by JB in his witness statement?
Is the claimant using PoFA to invoke keeper liability or not?
Is the claimant allowed to retrospectively alter the nature of their claim after the claim form is issued?
After reading JB's WS it has become apparent that the claimant is seemingly altering the basis of the claim which is actually set out in the Particulars of Claim - he has replaced pursuit under PoFA keeper liability (point 4 on the claim) with some kind of twisted 'balance of probabilities' argument which appears to deliberately ignore the requirements of PoFA.
I believe that litigation exchanges have made the claimant aware of the fact that PoFA keeper liability cannot occur at the location in question and this has caused them to materially alter the basis of their claim.
Unfortunately, it appears that the claimant has only noticed the considerable errors in their PoC AFTER the claim was issued - they are now trying to cover these errors up.
2) Completely false assertion of keeper liability - a clearly deliberate attempt to circumvent the requirements of PoFA in order to establish keeper liability in circumstances where the vehicle driver is not known to them.
In his WS, and now seemingly aware of the fact that he cannot use PoFA to legally establish keeper liability at this location, JB appears to assert some kind of 'twisted legal logic' in order to deliberately circumvent the very strict requirements needed when establishing keeper liability under PoFA - with due respect, this seems like desperation on the claimant's part.
JB acknowledges that the driver is not known to the claimant but asserts that the keeper can still be pursued on the grounds that the keeper has not nominated any other driver - JB provides no legal basis for such an outrageous claim since there is absolutely no legal requirement for a vehicle keeper to nominate a driver to an unregulated parking operator - if the requirements of PoFA could so easily be circumvented in such a manner then PoFA need not exist?
Critically, PoFA does exist and performs without issue when correctly applied.
Essentially, JB asserts that the keeper can be 'presumed to be the driver in the absence of evidence to the contrary' - again, no recognised legal basis is set out - instead, a 'balance of probabilities' argument is presented - the argument is easily rebutted since there is no legal requirement for a vehicle keeper to engage with the private parking operator if they choose not to do so.
In both instances, JB's assertions actually reverses the recognised legal principles which requires that the claimant must prove who was driving - JB's assertion cannot be regarded as 'legal proof' and, as such, in the absence of any specific evidence, there is nothing for the defendant to rebut.
With all due respect, in simple terms, JB's assertions are a clear attempt to 'manufacture' his own synthesized version of PoFA where he sets the rules which are deliberately designed to fit with his weak legal position.
JB's assertion totally ignores the fact that a keeper may simply be exercising their right to say nothing - no adverse conclusion can be drawn from a keeper who remains quiet when there is no legal requirement to provide information to a private parking operator - once again, and again with all due respect, JB's WS evidence illustrates someone who is desperate to remove an individual's recognised legal right purely because it does not suit his own legal position when that individual exercises such a right.
CRITICALLY, all of JB's 'legal assertions' have already been fully tested AND DEFEATED in the Appeal Court, ironically, by exactly the same claimant, namely; VCS Ltd.
JB is well aware of this Appeal Court defeat and as such his behaviour appears completely unreasonable and, if I may say, disrespectful.
Not only does JB ignore the clear outcomes of that case, his comments appear to completely reverse the Judge's decision - from his comment's you'd think that VCS had actually won that case!
VCS Ltd v Edward [H0KF6C9C] is the persuasive case evidence in this matter and its outcome is compelling - in the case the Judge concludes that no assumption can be made (by VCS Ltd) on who was driving a particular vehicle at a particular time - it can not be 'assumed' that the keeper was the driver - the claimant must prove who was driving at the material time - the vehicle keeper is entitled to keep the driver details secret - the 'balance of probabilities' argument is completely dismantled and subsequently dismissed.
In particular I would like to draw the Court's attention to a number of the Judge's comments in that particular case;
Paragraph;
34 I am persuaded by Mr Yamba that the evidential effect of establishing that the defendant
was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the
defendant was driving on this particular occasion. Therefore, there is no material
inference for the defendant to rebut. As there was nothing for him to rebut, it does not
seem to me to be right to draw an adverse inference from his failure to engage in seeking
to rebut it. Therefore, I find that the learned district judge fell into error in making the
finding she did.
35 I am fortified in my decision for three other reasons:
35.1 the finding I make is consistent with the underlying purpose of Schedule 4 to the
Protection of Freedoms Act, namely, that it was necessary to bring in keeper
liability pursuant to that legislation, because liability could not be established. If
this were not the case car parking companies could have simply have obtained the details of
the registered keeper, launched proceedings and waited to see whether or
not there was a positive defence put forward, and in the absence of a positive
defence they would have succeeded. If the court took such an approach, it would
have been imposing a duty on the registered keeper identify the driver, or at least
set out a positive case in order to avoid responsibility himself. In my judgment that
was not the position before the Protection from Freedoms Act was in force;
35.2 my decision preserves and respects the important general freedom from being
required to give information, absent a legal duty upon you to do so; and
35.3 it is consistent with the appropriate probability analysis whereby simply because
somebody is a registered keeper, it does not mean on balance of probability they
were driving on this occasion, because one simply cannot tell, For example, there
will be companies who are registered keepers of vehicles where many drivers have
the use of the vehicle from time to time. There will be individual employers are
the registered keeper but who allow a number of people who may drive their
vehicles. There may be situations where husband and wife are each registered
keepers of their respective vehicles but for some reason drive the other. Or there
may be situations where husband/wife is the registered keeper of both family cars
and the registered keeper regularly drives one car and their spouse regularly drives
the other. These are all possibilities which show that it is not appropriate to draw
an inference that, on balance of probability, the registered keeper was driving on
any given occasion.
36 Therefore, for these reasons, I take the view that the appeal succeeds, and the judgment
must be set aside. The claim must be dismissed, as must the material order for costs.
At this point I would respectfully ask the Court to dismiss this case - the claimant has provided no evidence as to who was driving - the claimant has stated that they do not wish to rely on PoFA after all - as such, there is no remaining method by which they can prove that I am liable.
(If the case is not dismissed at this point then carry on with evidence below)
3) Road classification.
Although it is accepted that the airport area is 'private land', the airport access road is actually classed as a road as defined by Section 142 of the Road Traffic Regulations Act (1984) (RTRA) - there are in fact no barriers or other obstructions which either exclude or limit access to the road network which serves the land-side areas of the airport - as a result all roads are roads to which the public would reasonably have access - this is the clear definition in section 142 of RTRA and as such those airport roads have exactly the same legal classification as any public highway.
This means that any 'traffic penalty' would only be enforceable by Traffic Officers as set out in the Traffic Management Act (2004).
The claimant is therefore attempting to enforce traffic contraventions on what legally amounts to a public highway via the convoluted use of 'contract law' instead of normal traffic law - this behaviour is highly questionable due to the legal classification of these particular roads.
In his Witness Statement (WS), Jake Burgess (JB) continually refers to his company (VCS Ltd) 'managing the land' when talking about their enforcement activities - however, none of JB's evidence addresses the key legal fact that the enforcement is clearly taking place on the established road network which is passing over that land - the law makes clear distinction between 'car parks' and 'roads' in that respect - namely section 142 of RTRA.
JB's WS implies that the total airport area amounts to, in legal terms, one large car park - this is clearly not the case and I believe that JB is deliberately projecting his very specific narrative because acknowledging the true legal status of the airport roads would be fatal to his company's activities.
4) No valid contract formation.
In the first instance I would draw the Court's attention to the fact that none of the claimant's signage is illuminated - the claimant's pictures appear to be taken at 2am in the morning.
Could I ask the claimant to point out (on their provided plan) the locations of the three alleged contraventions - in JB's WS it says that these locations have been marked but all we appear to have is a generic plan showing all sign locations rather than the specific locations of the alleged contraventions?
The signs appear to be unilluminated and parallel to the road rather than facing traffic?
JB's claim of contract is made out of necessity and desperation rather than being based on any recognised contracting method - he simply recognises the fact that he MUST find a way to get all drivers under some kind of contract.
JB's WS appears to ignore any requirements or rules set out in consumer legislation regarding the formation of contracts between a business and a consumer - once again, this appears deliberate since consumer legislation is extremely detrimental to his company's activities.
In this instance, consumer legislation is again fatal to the claimants position.
When examined closely, JB's claim actually amounts to the concept of 'instant contract' based on conduct where the driver has no choice to either consider the contract terms or to DEMONSTRATE ALTERNATIVE CONDUCT.
It is claimed, that by driving past a sign at the airport entrance, all drivers instantly agree to all of the terms set out on the entrance signage and immediately become contracted parties.
This concept is in clear contravention of relevant consumer legislation.
In particular, Schedule 2 Paragraph 10 of the Consumer Rights Act (2015) specifies that, "A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract" is to be considered an UNFAIR TERM.
Paragraph 10 appears to be fatal to the claimants case as the claimant is reliant on a contract being immediately enforceable without the driver having time to consider its terms - most drivers would pass the airport entrance sign in just a few seconds and would then instantly be considered, by VCS, to be a contracted party.
Furthermore, the allegation of 'contract through conduct' is highly questionable in this situation.
I have examined a number of contract through conduct cases.
In the first instance, contract through conduct normally requires a series of interactions between the two contracting parties - in this instance, VCS Ltd appear to be relying on one specific action by the driver to constitute sufficient conduct - this is legally unacceptable because one specific action by one party does not adequately demonstrate the intention to enter a contract - by way of example, a transaction in a shop is 'contract through conduct' - such a contract is formed by a series of several actions made by both parties and NOT BY ONE SINGLE ACTION BY ONE PARTY.
Secondly, in various cases, Judges have indicated that conduct which leads to contract must constitute conduct which is regarded as being 'traditional' in nature - meaning that the conduct being examined must be conduct which is openly recognised as being conduct which leads to a contract being formed.
I this instance, the alleged conduct of the driver does not pass either of the aforementioned tests - there is no multiple 'back and forth' between the two parties and the action of driving past a road sign is not openly recognised as being conduct which traditionally leads to contract - in this case it is clearly arguable that the vast majority of drivers would not even realise that their behaviour had allegedly formed such a contract.
Furthermore, the method used by VCS to establish contract would demonstrably constitute a 'pressure sales technique' - each driver entering the airport is given no choice but to drive past the entrance sign and thus become instantly contracted - this method establishes a 100% conversion rate from perspective client to contracted client - the consumer is pressured into forming the contract due to the deliberate layout of the claimant's signage.
5) Unlawful and unfair contract terms.
The claimant's contract term, "No Stopping" is both an unlawful term and an unfair contract term.
In the first instance, the term "No Stopping" is a contract term that the driver of a motor vehicle could never legally agree to - the law in this country makes vehicle drivers responsible for avoiding accidents in all circumstances regardless of who might be at fault - the primary method of accident prevention is stopping - any driver who agreed to such a contract term would therefore be breaking the law in doing so.
Notwithstanding the first point, the term "No Stopping" would be a clearly unfair term in a consumer contract - VCS have openly stated that, "Any reason for stopping is legally irrelevant" - this demonstrates the severity of the unfair nature of such a contract term - the term is a blanket unquantified term which leaves the consumer totally at the mercy of the claimant and is therefore a term that creates a massive imbalance in the rights of the two parties.
Furthermore, such a term leaves the driver in a position where they could receive a charge for events that are far beyond their control - once again the unfairness of the term is clearly demonstrated.
6) No valid or recognisable offer of contract.
There are a number of compelling reasons why the contract claimed by JB is invalid.
The signage set out in the operators evidence is not capable of forming a contract as the signage does not offer anything.
All signage is prohibitive in nature.
Alleged contracts between VCS Limited and a vehicle driver would clearly constitute a 'consumer contract' as defined in consumer legislation.
To be a valid consumer contract offer, the signage must offer something; either goods, digital content or services - no such description is set out and as such it would be impossible for the consumer to establish what is actually being offered as no clear offer is ever made.
Furthermore, legislation makes it clear that, in order for a valid contract to be formed, there must be 'an intention to form a legal relationship' by both the consumer and the trader.
In all instances, intention on the part of the driver can only occur if the driver clearly recognises that a contract offer has been made in the first instance.
Logic dictates that there can be no 'intention to form a contract', via conduct or otherwise, if the driver doesn't recognise that the signage is making a contract offer in the first place.
In this instance, the claimant cannot prove that each driver recognised that the signage actually represented a 'contract offer' rather than just being a normal road warning sign of some description - this is again fatal to the claimants case.
I therefore ask the claimant to prove that the driver recognised that a contract offer was being made in the first instance?
Obviously they are unable to do that.
********* SUPER CRITICAL *********
It is notable that, in his evidence, JB sets out a number of signs which threaten penalties of £100 etc - however, none of those signs would reasonably be recognised by drivers as constituting an 'offer of contract'.
In all instances, drivers would simply view the signage as being a normal road sign - this further reinforces the point regarding 'intention to make a contract' - namely, that there can never be 'INTENTION to accept an offer of contract' if the 'contract offer' is not recognised as being a contract offer in the first instance.
This destroys the basis of the claimant's entire case.
In his WS evidence, JB never explains how he thinks that drivers would differentiate the VCS 'contract offer' signage from a normal 'non contract offer' based road signage which might also, in certain circumstances, specify a particular charge, fine or penalty based in statute law / road traffic law rather than contract law.
Although JB claims that the signage constitutes and offer of contract (in his mind), this does not automatically mean that the average driver would immediately recognise the same - 99% probably would not.
Additionally, ironically, JB's own evidence further underlines this point; in his evidence JB specifies that his signage is supplemented by both 'Urban Clearway' signs along with 'Double Red Lines' - All of these are statutory road markings and symbols which further evidence the fact that drivers would not consider that statutory markings and signs would reasonably be setting out an offer of contract.
Ultimately, the claim of contract can never succeed because the claimant can never prove that any particular driver regarded the signage, symbols and markings as being an offer of contract as apposed to being a normal road sign and markings etc.
Critically, a driver, receiving a postal demand for £100, will only come to realise that the matter was, legally, a 'breach of contract' in retrospect.
At that point, the driver would be well within their rights to question the nature of the alleged contract which the claimant was seemingly reliant on - if the driver only reaches this point of understanding in the weeks following the event then how can the claimant claim that a contract was in fact formed at the material time - by definition, there could not have been any intention on the part of the driver at the material time?
The evidence offered by JB clearly outlines a situation where the formation of the contract is not an 'intention' of both parties - in fact, the evidence shows a scenario where only VCS shows any intention - this actually illustrates a situation where VCS are trying to force a contract regardless of the intentions of the counter-party - this is clearly contra to the balanced nature of contract formation where both parties must show clear intention.
As previously stated, the claimant must prove that all drivers recognise the signage and markings etc as being an offer of contract in the first instance - clearly they are unable to do this and as a result their claim must fail as no contract is ever formed.
