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  Vehicle Control Services Ltd v Ozog  [2026] EWCC 12 (30 March 2026)

URL: https://www.bailii.org/ew/cases/Misc/2026/C12.html
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[2026] EWCC 12 | | |
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Neutral citation number: [2026] EWCC 12

? Claim Nos: L8QZ5848 & L8QZ5846 ****

?

IN THE COUNTY COURT AT WAKEFIELD ON APPEAL FROM DISTRICT JUDGE JAMES Sitting at Leeds Combined Court ****

?

The Combined Court Centre, Oxford Row, Leeds

Date: 30 th March 2026?

?

| ?

Before:

?

HIS HONOUR JUDGE D. WALSH

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Between:

? | |
| ???????????????????????????????????????? VEHICLE CONTROL SERVICES LTD?

? | Appellant |
| ????????????????????????????????????????????????????????????????????? - and -

? | ? |
| ???????????????????????????????????????????????????????? MOROSLAW OZOG? | Respondent |
?

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?

Ms Catrin Gregory-Wallace (instructed by VCS Ltd) for the Appellant?

The Respondent did not appear and was not represented?

Hearing date: 5 th February 2026

?

?

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Judgment Approved

His Honour Judge Walsh:?

Introduction?

1. This appeal, brought with the permission of District Judge James from his Order, dated 24 th June 2025, concerns the circumstances in which a contract may be formed by a motorist entering onto private land in the face of a sign governing its use.
3. The Appellant (hereinafter 'the Claimant'), provides and manages parking facilities on behalf of private landowners at various sites throughout Great Britain. One of those sites is the roadways surrounding Leeds Bradford Airport ('the Land').?
5. The Claimant brought two actions against the Respondent ('the Defendant') for stopping his vehicle in a zone on the Land where stopping is prohibited ('a Prohibited Zone').?
7. Both alleged contraventions occurred on 5 th August 2023, the first at 16:41 ('the First Contravention') and the second, at 20:52 ('the Second Contravention'). The claims were consolidated.
9. The Claimant alleged that the parties had entered into a contract pursuant to which the Defendant agreed to pay a contractual charge of ?100 if he stopped his motor vehicle in a Prohibited Zone, and a further charge of ?70 if he failed to pay the first charge within 28 days.??
11. It is further alleged that the Defendant stopped his Citro?n motor vehicle in a Prohibited Zone on the two occasions mentioned. The Defendant was therefore liable to pay the contractual charges.??
13. In a reserved written judgment, the District Judge held that no contract had been formed between the parties. If, contrary to that determination, there was a contract, he held in the alternative, that the contract had not been breached on either occasion.
15. The appeal took place before me on 4 th February 2026. I heard focussed oral submissions from Counsel for the Claimant, Ms Gregory-Wallace, and had the benefit of the Claimant's detailed written argument. The Defendant did not appear, and has played no part in the appeal process.?
17. Material Background
18. The First Contravention occurred on the roadway known as the Free Parking Entry Road. The Second Contravention occurred on the roadway known as the Security Gatehouse Access Road.
20. Notices were prominently displayed at the entrance to each of these roadways, and at regular intervals along them. The entrance signs and the repeater signs (for ease 'the Signs') contained some differences in their layout and content, but were substantially the same terms in all material respects.?
22. In bold lettering, the Signs stipulated the following:?
24. ' No Stopping, Picking Up or Dropping Off
25. ?100 Charge if you fail to comply'
26. After that, the Signs stated:
28. 'Non-payment within 28 days will incur an additional ?70 charge
29. Traffic Compliance Cameras in Operation
30. PRIVATE PROPERTY
31. Vehicle Keeper details may be requested from the DVLA
32. 'VEHICLE CONTROL SERVICES LTD 'The Creditor' control this Area'
33. On 16 th August 2023, the Claimant issued two 'Charge Notices' in respect of each alleged contravention requiring the Defendant to pay the ?100 charge within 28 days (reduced to ?60.00 if paid within 14 days) ('the Charge'). The Charge Notices go on to state:
35. ' Failure to make payment within 28 days of the Issue Date of this Notice will result in the full charge of ?100.00 being applied plus additional costs incurred through debt recovery and/or court action. Where debt recovery action is taken, further charges may be incurred that will be added to the value of the CN up to the value of an additional ?70.00. '
36. The Defendant did not pay either charge, and the Claimant issued proceedings. In the
38. Particulars of Claim, and more fully set out in the Amended Particulars of Claim, the Claimant alleged that the Signs constituted an offer to contract on the terms and conditions stipulated therein, which was accepted by the Defendant's conduct in driving onto and continuing over the Land.?
39. The Defendant did not, by way of defence, admit or deny that allegation as to the formation of contract by conduct. In addition, he made no challenge to the fact that the Signs were displayed, or as to the sufficiency of notice of their terms.
41. Furthermore, the Defendant did not deny being the registered keeper of the motor vehicle, or the driver, or alternatively, deny stopping on the Land on either occasion.?
43. The Defendant, however, notified an intention to defend each claim in its entirety. In relation to the First Contravention, he raised two defences. First, that he thought this to be a duplication of the other claim. Second, that:?
45. ' I could not move or get out since the road this happened on was a one-way and I was waiting for someone to let me get in, not knowing that one of the gateways was closed.'
46. As to the Second Contravention, the Defendant asserted that he misunderstood the situation, believing that this was an action brought on behalf of Leeds City Council. His defence was, therefore, that he had in fact paid ?35 on a specified date.
48. The trial of the consolidated actions was heard on 1 st May 2025. The Claimant was represented by Counsel, and the Defendant appeared in person with the aid of a Polish interpreter.?
50. In evidence, the Claimant relied upon the witness statement of Mr Jake Burgess, an Associate Legal Executive and one of the Claimant's employees. Mr Burgess exhibited a number of documents to his witness statement.?
52. That evidence included, inter alia, plans showing the position of the Signs on the Land, and photographic evidence of the Defendant's vehicle allegedly in situ on the Land in respect of each alleged contravention.
54. Despite being directed to do so, the Defendant did not file a witness statement. The District Judge, however, permitted him to provide oral evidence. In a reserved written judgment, the Judge dismissed both claims.
56. Grounds of Appeal
57. 23. By way of Appellant's Notice, dated 14 th July 2025, the Claimant raises two grounds of appeal:
58. DJ James erred in law by concluding that the relevant signage could not be effective as a contractual term or and that there was therefore no valid contract between the parties. There are various authorities from Circuit Judge level which have repeatedly upheld the enforceability of such signage. These should have been treated as highly persuasive by DJ James. The fact there were not renders his decision wrong in law.
60. DJ James erred in law by giving consideration in any form to the fact that the Defendant was legally unrepresented, contrary to the legal position relating to litigants-in-person established in Barton v Wright Hassall LLP [2018] UKSC 12.
62. Jurisdiction
63. 24.????? I record first, that as this is an appeal, the test to be applied is governed by CPR r.52.21:?
64. '(1) Every appeal will be limited to a review of the decision of the lower court unless??
65. (a) a practice direction makes different provision for a particular category of appeal; or?
66. (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.?
67. (2) Unless it orders otherwise, the appeal court will not receive??
68. (a) oral evidence; or?
69. (b) evidence which was not before the lower court.?
70. (3) The appeal court will allow an appeal where the decision of the lower court was??
71. (a) wrong; or?
72. (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.'
73. Approach to the Appeal
74. Neither party has suggested that this Appellate Court should do anything other than review the decision of the learned Judge. Accordingly, I remind myself that the Claimant can only succeed if they establish that the District Judge's decision was wrong, or unjust because of a serious procedural or other irregularity.
76. In determining the appeal, I will incorporate the relevant extracts of the Judgment along with Counsel's submissions as necessary. It is convenient to deal with Ground 2 first as,? if established, at first instance, it infects the whole of the proceedings with procedural unfairness.
78. Ground 2
79. The Claimant alleges that the District Judge erred in law by giving consideration ' in any form ' to the fact that the Defendant was not legally represented, contrary to the legal position relating to litigants in person ('LIP'),? established in Barton v Wright Hassall LLP [2018] UKSC 12.
81. I am satisfied that Ground 2 is based on a misreading of Barton v Wright Hassall. The Supreme Court did not hold that there should be no consideration ' in any form ' to the fact that a party is not legally represented. To the contrary, in giving the majority judgment, Lord Sumption held at [18]:
83. 'Their lack of representation *will often justify making allowances in making case management decisions and in conducting hearings*. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court.' (my emphasis) **
84. To add to that misunderstanding, the challenge made here is, in fact, unhelpfully broad and somewhat vague. The Claimant has not specifically contested any of the District Judge's procedural decisions made during the course of the hearing below.?
86. Ms Gregory-Wallace, through no fault of her own, was somewhat hampered in what she could say as a result. The height of her submission was that the District Judge's ' thinking ' was influenced by factors that should not be within his consideration.?
88. As set out in the Claimant's Skeleton Argument for appeal, such factors included the fact that the Defendant was a foreign national requiring the aid of an interpreter.
90. The problems with such a sweeping assertion are obvious. The Claimant has not identified the decisions complained of, nor advanced any reason why overall they were either wrong in law, or outside of the generous ambit of the District Judge's discretion.??
92. The Claimant has not suggested that it made any complaint at the hearing before the District Judge about any specific decision. Nor has the Claimant alleged that it was
94. denied the opportunity to make representations about any particular decision, or suffered any other form of prejudice.?
95. Similarly, nowhere has the Claimant sought to identify the considerations that were relevant to those decisions and alleged that they were not taken into account.
97. In short, there is simply the bald, and legally incorrect, assertion that the District Judge was not permitted to have regard to the fact that the Defendant was an LIP at all.???
99. I will proceed on the basis that the essential thrust of the allegation is that the hearing was procedurally unfair as the District Judge was unduly lenient towards the Defendant, and impermissibly so, by reason of him being a LIP.
101. I have, therefore, considered carefully the determinations that the District Judge made during the conduct of the proceedings, and examined whether they have been improperly influenced by undue leniency granted to the Defendant as a LIP.??
103. I have not, however, considered whether those decisions were susceptible to challenge on any other grounds, for no such grounds formed any part of the appeal.
105. The most significant criticism levied against the District Judge is that he ' permitted flexibility ' to the Defendant by allowing him to advance positive grounds of defence at the hearing even though he had, ' failed to file a defence'.?
107. The factual basis for that contention is, as seen above, inaccurate in part. The Defendant had, in fact, filed a Defence in both actions. The argument must be taken to be that the District Judge allowed the Defendant to pursue grounds which were not contained in either of his Defences.
109. In dealing with the criticisms levelled against the District Judge I will make some remarks about the treatment of the statements of case, which are of general application, and I will then go on to consider the Judge's approach to each of the alleged contraventions in turn.
111. Matters put in issue by the statements of case
112. As noted above, both the Particulars of Claim and the Amended Particulars of Claim allege that a contract was entered into by conduct. Nowhere in either Defence does the Defendant admit or deny that allegation, expressly or impliedly.?
114. Further, nothing in either Defence can be taken to expressly or impliedly require the Claimant to prove that allegation. In short, therefore, the Defences are silent on the issue.?
116. CPR r.16.5 provides:
118. (1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating?
119. (a)which of the allegations are denied;
120. (b)which allegations they are unable to admit or deny, but which they require the claimant to prove; and
121. (c)which allegations they admit.
122. (3) If a defendant?
123. (a)fails to deal with an allegation; but
124. (b)sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation.
125. (4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation.
126. (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
127. I consider that, on a straightforward reading of CPR r.16.5(5), the Defendant was deemed to admit the existence of a contract. It appears, however, from the Judgment below, that this point was not taken by the Claimant before the District Judge.?
129. On the contrary, the Claimant appears to have positively accepted that it was required to prove the existence of a contract. The Judge recorded at [23] that: ' the claimant properly accepted the burden of proving each element of its claim '. The Claimant has not challenged that statement as incorrect.
131. Further, the Claimant has not contended on appeal that the District Judge erred in law, or committed a serious procedural irregularity, in allowing an unpleaded, arguably deemed admitted ground to be relied upon as a total defence to the claim. The Claimant has not made any challenge on that basis at all.
133. Therefore, there has been no suggestion on appeal that the Claimant did not bear, at trial, the legal burden of proving formation of a contract and breach in relation to each alleged contravention.
135. Given the Claimant's stance, it is difficult to see how the Claimant might frame the Judge's approach to the burden of proof as an instance of the Judge permitting the Defendant to take an unpleaded point by reason of the Defendant's status as a LIP.
137. The Defences as evidence
138. The Defendant filed no witness evidence as directed. Although the District Judge does not say so expressly, it appears implicit from his Judgment that he allowed the Defendant to rely upon the contents of his Defences, as verified by statements of truth, to stand as his evidence in the claims.
140. I am quite satisfied that to do so was undoubtedly within the permissible bounds of a district judge's discretion on the hearing of a small claim, and is a practice that is routinely applied. In any event, the Claimant quite properly makes no complaint about this specifically.
142. First Contravention
143. As noted above, the Defendant raised two defences - first, that he thought this to be a duplication of the other claim, and second, that: ' I could not move or get out since the road this happened on was a one-way and I was waiting for someone to let me get in, not knowing that one of the gateways was closed.'
145. The Defendant was permitted to provide oral evidence which amplified his case that ' one of the gateways was closed'. The Judge summarised that evidence at [20]:
147. ' In relation to the first in time of the alleged breaches, the defendant pleaded and gave evidence that he had attempted to enter the free stay car park at the airport. This is controlled by barriers and ANPR. The procedure is that the car drives up to a barrier. A camera records its registration number and operates the barrier to allow access. When the defendant did so, the barrier did not operate and he was not able to proceed and so had to remain stationary for fear of damaging the barrier by driving forwards. It appears from the imagery that his passenger exited his car.'
148. The Claimant does not assert, in the Grounds of Appeal, that in deciding to allow that evidence to be given, the District Judge exceeded the generous ambit of his discretion, or exceeded his power to control evidence.?
150. Further, the Claimant does not say that it was not afforded the opportunity to make representations about whether the Judge should have allowed oral evidence to be given.
152. Moreover, the Claimant does not say that it suffered any prejudice by being denied the opportunity to investigate the more specific allegation that there was an inoperative barrier before trial, as distinct from the general allegation in the Defence that one of the gateways was closed.?
154. Indeed, the Claimant has not even stated whether this was the first time that the Claimant had been made aware of the allegation as to the inoperative barrier, or whether the Defendant had put the Claimant on informal notice of it at some earlier time.?
156. In fact, the Claimant itself relied upon photographic evidence that was potentially consistent with the Defendant's case that the barrier was inoperative - the stills from the Claimant's traffic cameras showed that a queue of traffic had formed at the barrier.?
158. The Judge, after summarising the Defendant's evidence, continued at [20]:
160. 'The claimant did not challenge this evidence and had had notice of the point, at least to some extent, by the wording of the defence which had been filed and by the imagery upon which the claimant itself relied, establishing exactly where on the site the defendant was stationary.'
161. Not only did the Claimant not challenge the Defendant's evidence as to the inoperative barrier at trial, it has not on this appeal alleged any procedural unfairness in the decision to allow the Defendant to provide evidence (other than the broad suggestion that undue leniency was afforded to the Defendant as a LIP).?
163. The Claimant having failed to identify any of the factors relevant to the exercise of the District Judge's discretion, and to adduce any reason why the decision to allow the Defendant to give evidence is procedurally unfair, it is impossible to conduct any review of the Judge's exercise of discretion.?
165. In circumstances where the District Judge was entitled, even if only at the margins, to have regard to the Defendant's status as a LIP, and where no other factors for or against the exercise of discretion in his favour have been identified, there are no grounds to justify interfering with that decision.
167. It is, in any event, worth remembering that, in a small claim, the strict rules of evidence do not apply - CPR r.27.2(1)(c). Pursuant to CPR r.32.1 (which does apply), the District Judge had a complete discretion to control the evidence, and the way in which the evidence was put before the Court.
169. Even if CPR Part 32 applied in its entirely, the grant of permission to the Defendant to amplify his evidence in this way was well within the discretion afforded by CPR 32.5(3)(a) in any event. Accordingly, I am satisfied that Judge did not exceed the generous ambit of his discretion.
171. Second Contravention
172. The Defendant filed a Defence where he asserted that he misunderstood the situation, believing that this was an action brought on behalf of Leeds City Council. His defence was, in short, that he had, on 18 th August 2025, in fact paid a parking fine of ?35, ' online on the Leeds website '.?
174. In his Judgment at [41], the District Judge held:
176. ' In terms of the second instance of stopping, the Court is hampered by the lack of a plan showing where this takes place. The plans provided by the claimant show the location of each of the road signs, but they do not show where the car itself is said to be. The plans helpfully mark the direction in which the signs are placed but *it has not been established on the evidence, either from the statement made by Mr. Burgess or from a plan exhibited to a statement, **that the defendant had in fact passed a sign. It is clear that the car is stationary adjacent to the double red lines, but as these in themselves do not have contractual effect and are not argued to do so, I cannot find that being stationary at whatever location that may have been constitutes a contractual breach*.' (my emphasis)
177. Although at [41], the Judge finishes with a reference to contractual breach, my reading of that passage as a whole, is that the Judge found that the Claimant had failed to establish the existence of a valid contract.?
179. To my mind, the Judge did so as, in essence, the Claimant had not produced cogent evidence to establish the exact location of the Defendant's motor vehicle relative to the Signs. Accordingly, the Judge was not satisfied that the Defendant had passed a Sign so as to have accepted its terms by conduct.
181. The Claimant's objection to the District Judge's approach to this issue, consistent with the stated terms of Ground 2, must be taken to be limited to the assertion that the District
183. Judge erred in the exercise of his discretion in allowing the Defendant to rely upon an unpleaded ground of defence by reason of his being a LIP.?
184. To succeed, the Claimant would have to establish that, in accordance with the principle set out in Barton v Wright Hassall, the Judge took into account the Defendant's status as a LIP to an extent that went beyond that to which he was entitled.
186. I have considered carefully the terms of the Judgment, and the evidence relied upon by the Claimant in reviewing the District Judge's decision in this regard.?
188. I begin with the obvious point that, whenever a judge is considering whether to allow an unpleaded point to be run at trial, prejudice to the other party is a highly material consideration.??
190. It is, therefore, relevant to consider whether the Claimant had had the opportunity to deal with the formation of the contract in its evidence. I consider it plain from the evidence before the Judge, that the Claimant quite obviously had such opportunity.
192. On behalf of the Claimant, Mr Burgess's witness statement deals extensively with the issue. He explains that the Defendant's vehicle was, ' identified in breach ' of contract, and that it had been ' identified on private land '. The land in question he described as, ' Leeds Bradford Airport Roadways ' [4].
194. Mr Burgess provided evidence that, when the Defendant's vehicle entered the Land, he became bound by the advertised terms. The terms were advertised by signs which were, ' prominently displayed on the Land ' [6].??
196. Mr Burgess also referred to and exhibited numerous site plans. Those plans included the ' Leeds Bradford Airport (LBA) Roadway Site Plan ', showing the whole of the site, and individual plans for each of the access roads to the site. Each of the plans was marked with a description of and the location of the contractual signs.
198. Mr Burgess states that the Defendant's vehicle was, ' recorded at 20.52 the same day at the Security Gatehouse Access Road ' [15], and ' that the vehicle was stopping in a zone where stopping is prohibited ' with documents exhibited at 'JB2' and 'JB3' as ' evidence of the vehicle in breach ' [13]. The exhibits contain the parking charge notice, reminders, plans and photographs.
200. When evaluating that evidence, it is difficult to see how the District Judge could have concluded anything other than that the Claimant's witness had comprehensively dealt with the issue of contact formation, and the Claimant had come to trial prepared to deal with that issue.
202. I am fortified in that conclusion by the fact that, as noted above, the Claimant accepted the burden of proving the existence of the contract. In those circumstances, it is difficult to conclude that the District Judge permitted the Defendant to take an unpleaded point as he was showing undue lenience to a LIP.??
204. Further, even if I assume that the District Judge did take into account the Defendant's LIP status as a relevant factor (as he was entitled to do at the margins), the Claimant has failed to identify the factors relevant to the exercise of the discretion, and establish that the decision was wrong in all the circumstances.??
206. Impression of favourable treatment
207. It is implicit, in Ground 2, that the Claimant has formed the distinct impression that the District Judge granted undue leniency to the Defendant by reason of his status as a LIP.??
209. Whilst, on a careful analysis, I have found that Ground 2 has not been made out, in that the material does not establish that the District Judge was improperly influenced by that factor, there are various statements in the Judgment that are capable of creating that impression:
211. ' It is almost invariably the case that claims of this nature are typified by the claimant being professionally represented and the defendants representing themselves. These claims involve matters of legal doctrine, potentially of both common law and statute. Courts are placed in an invidious position. Defendants are poorly equipped to interrogate the claim that is brought, leading to a significant risk of an unfair outcome. A county court judgment is not a trivial matter. It can be entered on the court register, with substantial consequences in future transactions. Credit checks brought by financial institutions or landlords may reveal the existence of the judgment and this in turn may lead to the refusal of loans, mortgages and tenancies of residential properties... ' [7]
212. '... This was clearly a dispute between a business and a consumer and the consumer was unfamiliar with the English language and, one might reasonably presume, entirely unfamiliar with the principles of English law and the formation of contracts. The claimant had chosen to be limited by the number of characters available when lodging the claim online rather than attaching a more fully pleaded set of particulars. I was concerned that although this approach is permissible, it places most defendants at a substantial disadvantage.' [8]
213. ' The defendant had failed to produce a statement as directed by the court...Because of the obvious limitations on the defendant's ability to comply with the direction concerning the exchange and filing of evidence, I gave more latitude than I otherwise might in permitting him to give oral evidence. What he had to say was consistent with the limited information in his defence and expanded on it to a limited and predictable extent only... ' [13]
214. '... Given the fact that the claimant is a professionally represented business suing an unrepresented consumer who has little English at his command...' [23]
215. ' Although the vast majority of consumers will be unaware of the principles of contract law, especially those who hail from Poland...' [25]
216. Taken in isolation, these observations may be thought to contain expressions of judicial sympathy for the Defendant, not by reference to the merits of his Defences, but due to the fact that he is a LIP, with little grasp of the English language, being sued by a professionally represented company.
218. With the benefit of further reflection, the District Judge may consider it advisable to avoid a proliferation of statements such as these which can, understandably, cause the other party to form the impression of favourable treatment.??
220. It is not, however, enough that the District Judge expressed himself in such terms. Taking the above into account, and taking the Judgment as a whole, I am not satisfied that it demonstrates that the Judge was improperly influenced in his decision-making by concerns for the Defendant as a LIP.??
222. Ground 1
223. Ground 1 alleges that the District Judge erred in law by concluding that, ' the relevant signage could not be effective as a contractual term or and that there was therefore no valid contract between the parties '.?
225. Furthermore, the Claimant argues that, in not treating as highly persuasive, ' various authorities from Circuit Judge level which have repeatedly upheld the enforceability of such signage ', the Judge was also wrong in law.??
227. The ' authorities ' relied upon are the unreported appeal decisions of HHJ Wood QC in Vehicle Control Services Limited v Crutchley (County Court at Liverpool, 21.07.17) and HHJ Saffman in Vehicle Control Services Ltd v Ward (County Court at Leeds, 18.09.19). Both cases made reference to ParkingEye Ltd v Beavis [2015 ] UKSC 67; [2016] AC 1172.
229. On the face of Ground 1, it was not entirely clear whether there was also a challenge to the District Judge's alternative finding that there was no breach. During the course of the appeal, I heard submissions as to the same, and out of deference to those submissions, I will deal with it.
231. The Law
232. It does not appear that the District Judge was taken to any of the classic authorities on the formation of contracts found in the legal texts. Neither was I. That may be as the basic principles are well established and uncontroversial.??
234. The learned Judge correctly identified that a contract is formed when an offer is made and accepted, and is supported by valuable consideration, in circumstances where there is an intention to create legal relations.
236. Beavis was a parking case that was not concerned with contractual formation. The existence of a contract was common ground.?
238. It is nevertheless instructive to consider what the Supreme Court said about contractual formation, not least as it was material to one of the questions that it did need to decide - whether the charge in that case was an unlawful penalty.
240. In Beavis, large, prominent and legible signs were placed around a car park.? The signs communicated that there was a, ' 2 hour max stay ' and that ' Failure to comply with the following will result in a Parking Charge of ?85'.
242. The said signs were positioned in such a way that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them.
244. Mr Beavis drove his motor vehicle into the car park and parked there for 2 hours and 56 minutes. ParkingEye Ltd, the parking management company with control of the site, pursued him for the sum of ?85 on grounds that it was due under a contract.?
246. At [94] the Supreme Court observed:
248. ' Mr Beavis had a contractual licence to park his car in the retail park on the terms of the notice posted at the entrance, which he accepted by entering the site. Those terms were that he would stay for not more than two hours, that he would park only within the marked bays, that he would not park in bays reserved for blue badge holders, and that on breach of any of those terms he would pay ?85. Moore-Bick LJ in the Court of Appeal was inclined to doubt this analysis, and at one stage so were we. But, on reflection, we think that it is correct. The ?85 is described in the notice as a "parking charge", but no one suggests that that label is conclusive. In our view it was not, as a matter of contractual analysis, a charge for the right to park, nor was it a charge for the right to overstay the two-hour limit. Not only is the ?85 payable on certain breaches which may occur within the two-hour free parking period, but there is no fixed period of time for which the motorist is permitted to stay after the two hours have expired, for which the ?85 could be regarded as consideration. The licence having been terminated under its terms after two hours, the presence of the car would have constituted a trespass from that point on. In the circumstances, the ?85 can only be regarded as a charge for contravening the terms of the contractual licence. '
249. Significantly, in that case, the ?85 charge was not deemed to be the consideration payable for overstaying. It was a charge payable in the event of a breach of contract, and thus in principle capable of constituting an unlawful penalty as distinct from the price paid for the other party's contractual performance.
251. The analysis was developed further at [189]-[190]:
253. ' ...The terms of the signs which Mr Beavis must be taken to have accepted by conduct in entering and parking in the car park are to that effect. Mr Beavis thereby expressly agreed to stay for two hours maximum, and to comply with the other parking restrictions, such as parking within a marked bay and not using a blue badge holder's bay, and to pay the stipulated sum if he failed so to comply.
254. 'It may be suggested that Mr Beavis thereby promised nothing which can in law constitute valuable consideration. He was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site?the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract. Even if no parking charge had been stipulated, enforcement would still have been possible in law, even if a claim for damages or for an injunction might not in practice have been likely. With the stipulated parking charge, the nature of the intended contract is even clearer, although the question arises whether the parking charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis's promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration. '
255. Of relevance, the Supreme Court endorsed the traditional offer/acceptance analysis. The term ' contractual licence ' at [94] is to be contrasted with the grant of a mere gratuitous licence canvassed, but ultimately rejected, at [190].??
257. In contrast to Beavis, which concerned parking charges, both Crutchley and Ward, upon which the Claimant relies heavily, concerned charges for stopping in a prohibited zone.
259. In Crutchley, the defendant entered onto and drove along a private access road forming part of a business park in order to pick his son up from work. He stopped his vehicle for approximately 30 seconds on the private road while his son entered the vehicle.
261. Near the entrance to the business park a large sign was displayed informing visitors to the business park that there should be ' No Stopping ' and that there would be a ' ?100 charge if you stop '.??
263. There were also smaller repeater signs present throughout the site, which made specific reference to a contract and to terms and conditions, although they were not readable unless the motorist exited his vehicle to examine the fine print.??
265. HHJ Wood QC held that the signs should be read together.? It is not necessary, in this case, to consider that particular aspect of the decision. Of relevance, HHJ Wood QC continued at [31]:
267. ' I agree that it is unnecessary to consider principles of offer/acceptance/consideration...because this is a case, as in Beavis, of a contractual licence with terms and conditions attached. '
268. I confess that I do not find that part of the analysis easy to follow. It is not clear from his decision that HHJ Wood QC was taken to Beavis at [189]-[190] which, as I have already noted, deploys the traditional offer/acceptance orthodoxy.??
270. The term contractual licence is a convenient term to express that permissive use has been granted pursuant to a contract, rather than gratuitously. It is not a relationship sui generis, exempt from the usual requirements for a binding contract.
272. On the issue of breach, no discernible statement of legal principle can be derived from Crutchley. There was simply a finding at [36] that on the facts there was a breach by Mr Crutchley, ' bringing his car to a halt to collect his son '.
274. In Ward, the defendant entered and continued along a private access road to a commercial trading estate, the entrance to which was immediately off a roundabout.??
276. Mr Ward stopped his vehicle on the access road for no longer than 4 seconds. He did so as his engine management light illuminated and, on satisfying himself that it required nothing more than a reset, he drove off again.?
278. Just as in Crutchley, at the entrance to the road large signs were displayed informing visitors to the park that there should be ' No Stopping ' and that there would be a ' ?100
280. charge if you stop '. Smaller repeater signs were posted at intervals along the roads within the estate.?
281. Whilst HHJ Saffman cited Crutchley at [31], as set out above, it is clear that he adopted the traditional offer/acceptance analysis as explained in Beavis:?
283. ' I think it is essentially axiomatic, on the basis of the authorities, that the signage is an offer. The offer being that the motorist will be granted a contractual licence to use the private road network on the basis that in doing so he would not bring his car to a standstill and that if he did he would be charged ?100. It seems to me that it is equally axiomatic that that offer is accepted by driving past the sign onto the estate. '
284. On the issue of breach, HHJ Saffman was referred to Beavis at [111]:?
286. ' First, Mr de Waal relied on the fact that [the parking charge] was payable by a motorist who overstayed even by a minute. The Consumers' Association expanded on this point by observing that there are many reasons why a motorist may overstay, some of which may be due to unforeseen circumstances. We cannot accept this. ParkingEye's business model could have had a graduated charge for overstayers based on how long they overstayed, but the fact that it did not do so does not render it unfair. Even if it had done, it would presumably have involved a specific sum for each hour or part of an hour, in which case the same complaint could be made. More fundamentally, as we have explained, the ?85 charge for overstayers was not a payment for being permitted to park after the two hours had expired: it was a sum imposed for staying for more than two hours. The notion of a single sum between ?50 and ?100 for overstaying even by a minute, appears to be a very common practice, in that it is adopted by many, probably the majority of, public and private car park operators. *As for the suggestion that the overstay may have arisen from unforeseen circumstances, we find it hard to regard that as relevant.** The object of the ?85 charge is simply to influence the behaviour of motorists by causing them to leave within two hours. It is reasonable that the risk of exceeding it should rest with the motorist, who is in a position to organise his time as he sees fit....* " (emphasis of HHJ Saffman)
287. Alighting on the highlighted part of that passage, HHJ Saffman held at [33] that:
289. 'It is right to point out that in this case Mr Ward stopped his vehicle because he thought he may have a mechanical fault. Nevertheless, the clear message from this passage in Beavis is that a breach caused by unforeseen circumstances, *certainly a breach that is not caused by the conduct of another** 2, is no defence.* (my emphasis)
290. ...
291. ______________
292. ???????????????????????? 2 ??? Such as, for example, being obliged to stop because somebody is crossing the road.'
293. There are a number of points to be made about this passage in Ward.
295. First, although HHJ Saffman expressed himself in terms of a ' breach ' being caused by unforeseen circumstances, I understand the point being made here to be that a 'stoppage' caused by unforeseen circumstances may still be a stoppage that is prohibited by the 'no stopping' term.??
297. Therefore, the mere fact of unforeseen circumstances does not, in and of itself, exempt the stoppage from constituting a breach.?
299. Second, that is not to say that, as a matter of generality, unforeseen circumstances can never exempt an act or omission from amounting to a breach of contract. That depends on the proper construction of the term in question.?
301. Third, HHJ Saffman does not go so far as to suggest that unforeseen circumstances are irrelevant to whether or not there has been a breach. The part of the passage I have emphasised expressly left open the question of whether stopping caused by the conduct of another, for example, being obliged to stop as someone is crossing the road, is conduct which would constitute a breach of such a term.?
303. Fourth, although HHJ Saffman places reliance on Beavis at [111] in his determination of what conduct constitutes a breach of a 'no stopping' term, I do not derive the same assistance from it.?
305. The passage in Beavis is taken from the section of the Supreme Court judgment dealing with the assessment of fairness of the contractual term for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999.?
307. The Supreme Court was concerned there with whether the parking charge of ?85 imposed for overstaying was an unfair term. It found that the fact that a breach by overstaying may be caused by unforeseen circumstances was not relevant to the question of the fairness of the term.
309. To the extent that HHJ Saffman held that Beavis at [111] is authority for the proposition that a stoppage caused by unforeseen circumstances is a breach of a 'no stopping' term, I respectfully disagree. Beavis ** was not in that passage dealing directly or indirectly with either the construction of the terms of parking or their breach.
311. To conclude, the relevant principles are these:
313. (1) A contract is formed when an offer is made and accepted, and is supported by valuable consideration, in circumstances where there is an intention to create legal relations.
314. (2) An offer to enter into a contract governing the user of private land may be made if the person in control of the land displays signs which, on their proper construction, communicate the terms of an offer to contract to visitors to the land.
315. (3) To constitute a contractual offer the signs must be sufficiently prominent so as to communicate their existence and nature to a reasonable user of the land and be positioned in such a way that the offeree has a fair opportunity to read them and decide whether to enter into a contract.
316. (4) Acceptance of the terms of the offer may be communicated by the visitor's conduct in entering onto the land, in the face of a sign which is found to make an offer.?
317. (5) Such offer and acceptance will give rise to a binding contract provided that there is an intention to create legal relations and the agreement is supported by valuable consideration.
318. (6) Permission to use the land is valuable consideration passing from the offeror. Promises by visitors to comply with the terms imposed by the signs are valuable consideration, at least when they are given to an offeror who is merely in control of the use of the land, and has no right to possession. That is because the offeror has no legal right to prevent a trespass and thus the visitor provides enforceable rights to the offeror that he does not otherwise have.
319. (7) This analysis could not, by definition, apply to traffic and parking controls exercised by a landowner or tenant with the right to possession. It is not necessary in this case to explore the issue of consideration passing from a visitor to a claimant in possession and I prefer to express no view on it.
320. (8) Where, on a proper construction of the offer, the contract provides for a charge to be levied in the event of breach, the charge is not part of the consideration for the contract. That is to be contrasted with a conventional parking contract, where a motorist agrees to pay a fixed amount per hour, or other increment of time, for the right to park. The promise to pay for the right to park is consideration as the promise is provided in exchange for the use.??
321. (9) Whether an obligation to pay is part of the consideration, or a charge payable in the event of breach, is a matter of construction in any given case.
322. (10) When a binding contract is entered into in this manner it may properly be described as a contractual licence, provided that it is understood that for a contractual licence to arise the essential requirements of offer, acceptance, consideration and intention to create legal relations must be established.
323. (11) There is no authority, binding or persuasive, which dictates that in the case of a 'no stopping' contract, any stoppage must necessarily constitute a breach. Whether there has been a breach is a matter of construction in all cases.
324. The District Judge's analysis of contract formation
325. The District Judge's discussion of the applicable legal principles was wide-ranging and took into account a number of factors.?
327. The Judge identified that the Claimant's case as advanced was that the contractual offer was made by the Signs displayed on the site, the act of acceptance by the Defendant was passing the Sign and entering on the Land, and that the Claimant's permission to allow entry on to the Land was valuable consideration.??
329. With regard to ascertaining the terms of the contract, the Judge acknowledged that terms may be express or implied, and that an express term may, on its proper construction, be given a more limited meaning than its otherwise wide words may suggest.
331. With regard to the offer, the Judge, in essence, held that the Signs did not objectively communicate the terms of a contractual offer to a reasonable driver in the position of the Defendant, as they contained an absolute prohibition and did not, in any way, express a willingness to enter into any form of contractual arrangement.
333. For that conclusion, the District Judge relied first, upon the expressly prohibitive terms of the Signs and, second, upon the absence of any other terms. In particular, there is no reference to any terms and conditions, nor to permission being granted to enter onto and pass over the Land.?
335. In simple terms, the Judge held that the Signs do not state what the Claimant and what the Defendant were receiving as part of any agreement. At [31] he held:
337. ' The signs do not say what is being conferred upon the driver / defendant by way of benefit.? They do not say that the driver is being permitted to have access, they merely say, "private property". In terms of communicating an offer, it seems to me that the words would have to employ some sort of formula to the effect that the driver may carry out some permitted act, which would be specified (in a parking case this would stipulate the time period of which parking is allowed by way of example).'
338. The absence of any indication to the motorist as to what benefit he was receiving was a key part of the District Judge's decision that the Signs could not be construed as communicating anything other than an ' absolute prohibition ' as opposed to an offer to enter into a contractual arrangement.?
340. The Judge made further reference at [35] to the absence of any express mention of the benefit that the motorist is said to be receiving.?
342. The learned Judge also points out that it cannot necessarily be inferred from the fact that it is private land, that the motorist did not have a right to pass over it for there may be a public right of way in any event.
344. Accordingly, the Judge appears to have considered it necessary for the sign to adequately explain the consideration in order for it to be construed as having made an offer to contract.?
346. In other words, the Judge appears to have decided that there was no offer as its terms were not adequately expressed, not that there was, as a matter of fact, no consideration (to the extent I am wrong in that interpretation, I will deal with the issue of consideration in more detail below).
348. Finally, whilst the District Judge correctly identified that a reasonable motorist should understand that the Signs were intended to have legal effect, he did not consider that they conveyed an intention to enter into a contractual relationship.??
350. Was there an offer to enter into a contract?
351. As noted above, in bold lettering, the Signs stipulated the following:?
353. ' No Stopping, Picking Up or Dropping Off.'?
354. '?100 Charge if you fail to comply.'
355. Below that, the entrance signs (which are not materially different from the repeater signs) continued:
357. 'Non-payment within 28 days will incur an additional ?70 charge. Traffic compliance cameras in operation. PRIVATE PROPERTY. Vehicle keeper details may be requested from the DVLA. Vehicle Control Services Ltd 'The Creditor' control this area.'
358. I am quite satisfied that the reasonable person would realise that, at its heart, the Signs provided that a motorist was being allowed to enter onto and pass over the Land on terms that (1) they did not stop, pick up or drop off passengers, and (2) that if they did stop, they agreed to pay the Claimant a charge of ?100 for the contravention.
360. It is so obvious as to go without saying that permission to enter onto and pass over the Land was being offered, that it was being offered on terms and that those terms were intended to have legal effect.?
362. I consider that that the Signs were sufficient indication that those were the terms, and the only terms, upon which the Claimant would permit use of the Land by motorists and that what was on offer was a contractual, as opposed to gratuitous, licence.?
364. I am equally satisfied that for the formation of contract, it was not necessary for the Signs to explain the consideration in any further detail. I have no doubt, therefore, that this was an offer intended to be and capable of acceptance.
366. Was the offer objectively communicated?
367. The question then arises as to whether the Claimant took all necessary steps to provide the Defendant with notice of those terms. Further, when there is a term which is particularly important or onerous, the offeror is under a duty to draw the offeree's attention to it.
369. The essential terms here were indeed, important and onerous. The motorist must not stop or face a not insignificant financial charge for doing so. Therefore, the Claimant must not only show that proper notice of the terms was provided to the Defendant, but also that that condition was fairly brought to the Defendant's attention.
371. The District Judge noted that Mr Burgess's evidence exhibited plans and images of the Signs displayed on different parts of the Land. The Judge recorded that the Signs were identical in wording and appearance, [1] and that the Defendant did not challenge the accuracy of the same.
373. It would also appear implicit from the Judgment, that the Defendant did not challenge the Claimant's evidence that the Signs were ' large, clear and repeated throughout the site '.?
375. The Signs appear in four different sizes over five different access roads:
377. (1) The largest measures 6.5 feet (2000mm) x 3.6 feet (1100mm) (for ease, size 'A'),?
378. (2) 4.4 feet (1335mm) x 2.5 feet (750mm) ('B'),?
379. (3) 3.6 feet (1100mm) x 2.0 feet (610mm) ('C'), and;?
380. (4) 2.2 feet (660mm) x 1.6 feet (500mm) ('D').?
381. ?
382. ?
383. First Contravention
384. From the evidence, the Defendant's vehicle was captured on a still taken from CCTV. It was positioned on the access road titled 'Free Car Park Road'.?
386. Looking at the relevant plan from above, with Whitehouse Lane directly in front, it can be seen that on this access road there are two Signs situated on either side of the road? - a 'B' Sign at the mouth of the junction on the left hand side, and an 'A' Sign on the right hand side, albeit slightly further back into the access road.
388. Accordingly, on approach from either direction of Whitehouse Lane, the Signs are there to be seen at the mouth of the junction. Further along the access road, moving away from the mouth of the junction, there is also a single 'B' Sign, and two repeater 'D' Signs.
390. As noted, the Defendant did not challenge the Claimant's assertion that the Signs were ' large, clear and repeated throughout the site '.?
392. No doubt, therefore, this would lead a reasonable person in the position of the Defendant to realise, at or before the time of making the contract, that the Signs were sufficiently clear to be read by motorists, and that the term had adequately and fairly been brought to his attention before the contract was made.?
394. Second Contravention
395. The Defendant's vehicle was captured on a still taken from CCTV on 'Security Gate House Road'.?
397. Again, looking at the plan from above, with Whitehouse Lane directly in front, it can be seen that near to the mouth of this access road there are two 'A' Signs situated on either side of the road.?
399. The one nearest to Whitehouse Lane appears slightly back from the mouth of the junction on the right hand side, and the other slightly further back from that on the left hand side. Further along the access road, moving away from the mouth of the junction there are a number of repeater Signs B to D.
401. Again, on approach from either direction on Whitehouse Lane, the Signs? are sufficiently clear to be read by motorists, and would adequately and fairly bring the term to their attention before the contract was made.
403. Acceptance?
404. First Contravention
405. The evidence clearly established that the Defendant chose to enter past the Signs onto the Land and had reached the point of the barrier. No doubt an objective observer would deem that a positive act that showed an unqualified acceptance of the terms proposed.
407. The District Judge held at [22]:
409. '...In Beavis, as I pointed out in VCS v. Ward, the driver had ample opportunity consider and accept the terms put forward by the claimant. *In the no stopping cases, the driver has no realistic option to do this. In VCS v. Ward, for example, the first road sign with alleged contractual force appeared at the exit from a roundabout, meaning that the driver had no realistic opportunity to come to a halt and take a reasoned decision as to **whether to accept a contractual obligation or not...'* (my emphasis)?
410. I read the above as indicating that the District Judge took the view in Ward that it was practically impossible for the motorist to withdraw from entry at the point of first sight of the notice.?
412. To the extent the District Judge was holding here, that in all no stopping cases, a motorist has ' no realistic option ' to consider the terms before accepting the offer, I respectfully disagree. Each case turns on its facts, and I note that, in Ward, the contravention occurred on a commercial estate accessed directly from a roundabout.?
414. Here, the Signs were displayed on each side of the road at the mouth of each junction leading off Whitehouse Lane onto the Land via various access roads.??
416. The Defendant, upon seeing these entrance signs, therefore, had a choice - he could have continued on Whitehouse Lane and not entered the Land, or turned onto the access road and entered beyond the signs.?
418. The Defendant elected to enter and continue along the access road past the Signs. In doing so he accepted the terms of the offer, displayed on the Signs, by conduct. The District Judge's conclusion to the contrary, with respect, cannot stand.
420. Second Contravention
421. As noted, the District Judge held that no contract was formed.?
423. The Notice to Keeper dated, 16 th August 2023, provides the site name and location as 'Leeds Bradford Airport Roadways, Leeds, LS19 7TU'. Nowhere is it specified in that document or in any of the other written documents on which part of the site the Defendant's vehicle was captured.
425. I have already explained how this was dealt within Mr Burgess's witness statement. The significant point about his evidence is that nowhere does he state the precise location of the Defendant's vehicle beyond the vehicle being captured on the Security Gate House Road.
427. Mr Burgess states that the Defendant's vehicle was, ' found in breach of the Contract ' and that the evidence relied upon shows, ' that the vehicle was stopping in a zone where stopping is prohibited '.?
429. The photographic evidence, exhibited as 'JB3', which are stills taken from CCTV, show part of the Defendant's vehicle at a standstill at the mouth of a junction with Whitehouse Lane. That evidence, however, is simply not capable of establishing that the Defendant passed any of the Signs.?
431. Ms Gregory-Wallace, doing the best she could, highlighted that the image shows the Defendant exiting the vehicle. Whether that was the Defendant or not, that does not
433. answer the question as to whether the Defendant passed the Signs or, for example, simply U-turned in front of them.?
434. Accordingly, the Judge's finding that there was no acceptance of the offer is unimpeachable.
436. Consideration
437. From the wording of the Signs, I consider a proper inference can plainly be drawn that the Claimant was permitting the Defendant access onto its private land. That is a valuable benefit.?
439. Without that right being granted under a contractual licence, the Defendant could not enter the Land other than as a trespasser.
441. Equally, the benefit to the Claimant is plain on a straightforward application of the analysis in Beavis. By promising to comply with the terms of the Signs, the Defendant subjected himself to a prohibition on stopping.??
443. That term was enforceable by the Claimant in circumstances where it would otherwise have no right to prevent the Defendant from coming onto and stopping on the Land. Valuable consideration therefore moves from both parties.
445. If a motorist wishes to contend that there is no consideration as he has the benefit of a public right of way over the Land, the motorist bears the evidential burden of proving the same.??
447. There is no suggestion in this case that there was any such right, and it is unnecessary to consider the effect of the existence of a public right of way on the presence of consideration.??
449. I do not consider that, in the circumstances of this case, the District Judge was correct to take the possible existence of a public right of way into account when the same had not been asserted or proved.
451. Intention to create legal relations
452. There is no difficulty in inferring the requisite intention in this case.? The Signs are expressed in formal language, communicate the exchange of rights and obligations, and impose financial charges, which are plainly intended to be enforceable.??
454. The Signs, and the relationship to which they are intended to give rise, are quite obviously intended to have legal effect and a reasonable motorist in the position of the Defendant would objectively understand that failure to comply with the terms would have legal consequences.??
456. The District Judge drew a distinction between an intention for the Signs to take legal effect and an intention to create legal relations. That distinction flowed from his analysis that the Signs communicate only prohibitions contravened on pain of penalty.??
458. Since I have found that the Signs do communicate an intention to enter into a contract, the legal effect that they are intended to create is of a legal relation.
460. Conclusion on contractual formation
461. I have sympathy with the District Judge's approach to the formation of contract. At first blush, in these no stopping cases, the elements of offer, acceptance, consideration and intention to create legal relations are not as readily identifiable as they are in parking cases.
463. I am satisfied, however, on the evidence before the learned Judge that the basic structure for a contract was discernible, and was made out in relation to the First, but not the Second, Contravention.?
465. Breach
466. In construing what ' No Stopping ' means in this context, the question is whether it means ' no stopping for any reason whatsoever ', or whether it admits, even if only at the margins, of some exceptions.?
468. When I suggested to Ms Gregory-Wallace that the term may not, on its proper construction, be completely unrestricted, she conceded, quite sensibly, that there ' may well be exceptions ', and she added that ' an emergency is a different thing '.??
470. The examples I canvassed with Ms Gregory-Wallace were a child choking in the back seat of a motor vehicle, a motor vehicle engine fire, a child falling in the road in front of the vehicle, or a protestor lying on the road.?
472. Ms Gregory-Wallace also accepted, again quite sensibly, that there may be a scenario where a driver may have to stop due to a bus broken down in front, or traffic coming to a halt. Stopping for those reasons would not necessarily be within a 'no stopping' term.
474. I am quite satisfied that Ms Gregory-Wallace was correct to accept that ' No Stopping ' does not mean ' no stopping for any reason whatsoever ', and that there are at least some limits to the very wide, ordinary meaning of the words that should be implied.
476. It is not necessary, to determine this appeal, to provide a precise definition of that term. Nor would it be wise to do so. No stopping restrictions should be considered by the courts on a case-by-case basis. This Appellate Court only has to consider, based on the factual matrix in this case, on which side of the line the case falls.?
478. It is, however, a useful starting point to consider where the legal and evidential burdens lie. As noted, the Claimant as the traffic controller has the legal and evidential burden to establish that a contract has been entered into and that it has been breached.??
480. In the case of a 'no stopping' term, the traffic controller has prima facie made out its case if it establishes both the existence of a contract, and the fact that the motorist has stopped his vehicle in a prohibited zone.?
482. The evidential (but not legal) burden then shifts to the motorist to establish that the stoppage was in circumstances that do not come within the meaning of the term. If the motorist successfully discharges that evidential burden, the traffic controller will fail to discharge its legal burden of proving breach.
484. Therefore, I consider, for example, it quite clear that, if a motorist brought his vehicle to a stop so that he may check the football scores on his mobile phone, or to rifle through his glovebox for a mint, he would not shift the evidential burden, and his conduct would amount to a clear breach of the prohibition on stopping.
486. On the other hand, I consider it equally clear that, if the motorist can establish that he brought his vehicle to a standstill out of necessity, due to the conduct of a third party over which he had no control, or due to an emergency which posed a risk to life or limb, a stoppage in those circumstances would not be within the meaning or purport of the term, and would not constitute a breach thereof.
488. In seeking to persuade the Court that the stoppage in this case fell within the term, Ms Gregory-Wallace prayed in aid the decision of HHJ Saffman in Ward. However, as I have explained, Ward is not authority for the proposition any stoppage for any reason is necessarily a breach of a 'no stopping' term.?
490. In that case HHJ Saffman was concerned with a motorist who stopped voluntarily, and the question of stopping involuntarily did not fall for determination.?
492. In this case, it is no doubt relevant that the 'no stopping' restriction is imposed in relation to land in the vicinity of an airport, where traffic management in a high demand, high volume area is of paramount importance. That is a good reason for construing the term ' No Stopping ' widely.??
494. In the context of these signs, in this location, therefore, it would not be enough for a motorist to prove that stoppage in a Prohibited Zone was in unforeseen circumstances to satisfy the evidential burden and displace the prima facie case of breach.??
496. If the motorist can, however, prove that there were circumstances of emergency or other exigency, such as where there is an immediate risk to life or limb, or where the motorist is compelled to stop by a breakdown, or physical obstruction through or around which he cannot safely pass, I am satisfied that that would be enough to discharge the evidential burden to show that the stoppage was not of a kind to constitute a breach of contract.?
498. The question of breach only arises in relation to the First Contravention. As noted, the District Judge expressed his conclusions in the alternative. In the event that, contrary to his determination, a contract had been formed, he considered that additional terms would have to be implied, such as that the Claimant had to, ' ensure very effective operation of all barriers on site ' [40].
500. The Judge's reasoning for implying such a term was due to the fact that it would be ' wholly inappropriate for the claimant to manufacture or be complicit in circumstances which cause cars to become stationery on the roadways, thereby incurring a penalty '.
502. I understand the Judge to be saying here that, in such circumstances, it would, in essence, be absurd to suggest that the Claimant could rely upon its own breach to establish liability against the Defendant.
504. I agree with the learned Judge that there are implied qualifications in the express terms, but I prefer to rest my decision on the basis that, on a proper construction of the express
506. terms, they are to be given a more restricted meaning than the natural and ordinary meaning of the words.?
507. I do not consider that it is necessary, therefore, to imply additional terms. Since the implication of terms and contractual construction are, essentially, part of the same exercise in ascertaining what the contents of the agreement are, it may be that nothing turns on the difference.??
509. The Defendant's unchallenged evidence was that he could not move his motor vehicle as the road was blocked due to a malfunctioning barrier preventing him from entering the free parking area. He stopped as he did not have the option to keep going forward.
511. If the Claimant had wished to assert that the Defendant coming to a standstill was not caused by an inoperative barrier, but was due to a voluntary act for his own convenience, it was incumbent on the Claimant to test that evidence in cross examination.??
513. The Claimant not having done so, the District Judge was entitled to accept the Defendant's evidence that the barrier was malfunctioning. The stoppage, therefore, cannot be described as a matter of choice, and can only be regarded as a matter of compulsion, and thus not within the 'no stopping' term.?
515. I am quite satisfied, therefore, that while I would not have expressed the matter in quite the same way as the District Judge did at [40], the learned Judge was correct to find that, in short, the contractual licence was not contravened by the Defendant, and no breach had been established.
517. I note that, in Mr Burgess's witness statement at [15], he asserts that the Defendant was ' first observed dropping off a passenger on 5 August 2025 at 16.41 at the Free Parking Entry ' (my emphasis).?
519. While it is clear from the images that a passenger exits the Defendant's vehicle while at the barrier, whether the Defendant was ' dropping off ' a passenger as asserted, or the passenger exited as a result of the barrier being inoperative, was not an issue before the learned Judge. The Claimant's claims were premised on the basis of an allegation of ' failing to stop ' only.
521. Conclusion
522. For the reasons given, the Appeal is dismissed.
524. ?
525. ?

[1] As noted above, there were some slight differences in the wording on the Signs, but nothing material.

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