Gladstones LBC Reel Cinema Minsterbaywatch

amfw

Just received LBC from Gladstones. Their date 9th Jan - received yesterday 16th! Need to do 'acknowledgement' ASAP - advice please.

pappa_golf

please read this thread , regarding replying to court papers , once read , return if you need more info

https://forums.moneysavingexpert.com/discussion/5546325

Coupon-mad

amfw wrote: »

Just received LBC from Gladstones. Their date 9th Jan - received yesterday 16th! Need to do 'acknowledgement' ASAP - advice please.

Search the forum for LBCCC Gladstones and copy one.

amfw

Advice/comments on following appreciated please:
I am in receipt of your letter dated xxxx but delivered xxxxx.
I note the contents of your letter but categorically refute any of your clients allegations and will resolutely defend any such in due course if necessary.
I note that you bring to my attention the Practice Direction for Pre-Action Conduct under the Civil Procedures Rule. I assume you mean Practice Direction for Pre-Action Conduct and Protocols under the Civil Procedures Rule.
As you have brought it to my attention please could I request that you comply fully and completely the procedures laid down in the aforementioned Practice Direction and Protocols for Pre-Action Conduct. I therefore request that you comply with these Protocols and supply me with all the relevant and “sufficient” details as detailed in the Protocols. I require these within 14 days from the date of this letter.
It should not be for me, a lay person, to be pointing out to you your failings in following the court procedures as laid out by statute and approved by the Master of the Rolls. Any further failures in following the correct procedures will result in a complaint being forwarded to the SRA.
Regards

Coupon-mad

A good start but it is also an opportunity simply to deny liability, without saying who might have been driving. And to tell Gladstones (and the Judge reading it all later in any hearing) that you are aware of the conflict of interests re Gladstones controlling minds being the same as those who run the Trade Body the IPC and the IAS which is derided universally by motorists as not fit for ADR purposes.

You could add that you are aware of a flawed 'PCN' from MB which is certainly under dispute (if you have disputed it) but this undue haste to sue over a matter where the signage was incapable of forming a contract and the case has no similarity to ParkingEye Ltd v Beavis, smacks more of an aim to intimidate keepers into paying IPC member firms, rather than any genuine attempt to resolve a dispute.

Remind them of the 'overriding objective' within pre-court protocols (Google it so you know) and state you are aware Gladstones issue copy & paste claims with no due diligence and that they are on record as admitting that they do not bother to carry out any specific work before issuing robo-claims in their thousands, as it would not be cost effective. Clearly their interest is in scaring ordinary unrepresented people into paying unproven parking charges and this is a despicable admission from a firm of solicitors who don't come to this matter with clean hands due to a conflict of interests.

If this is a resident car park (flats, etc) add something about the resident having primacy of contract and that no third party parking firm can interfere with or disregards rights granted to residents under a lease.

(Tell us more about the location and PCN).

amfw

Thanks for the update. Will follow up.

amfw

Update:
Update: York Planning now served Enforcement notice for signs different to those consented - yet another criminal offence by MB!
MB via Gladstones now served Claim Form to take me to court. I have acknowledged service and have 15 days left to submit my defence.
ANY SUGGESTIONS ADVICE?
Gladstones reported to SRA for seeking to take unfair advantage and not following full pre-action protocols - SRA now investigating!


Defence statement - comments please?


In the County Court
Case Number: xxxxx
CLAIMANT: xxxx
DEFENDANT: xxxxx
CLARIFICATION REQUEST
A. Address for the Claimant on all prior communications has been xxx. Address for the Claimant on the Claim Form is xxx. Which is correct?
B. Address for the Claimant’s Solicitors in all prior communications has been a xxx postal address. Address for the Claimant’s Solicitors on the Claim Form is a xxx postal address. Which is correct?
DEFENCE FROM PARTICULARS OF CLAIM
1. The Claimant has not proved the vehicle in question was parked.
2. The Claimant refers to “breaching the terms”. Any terms of a contract are un-enforceable due to the illegal act of the installation of the ANPR camera on a listed building upon which the Claimant solely relies for evidence.
3. The Claimant has not proved who was driving the vehicle and has only persued the Keeper. Details of the Keeper have only been obtained from images recorded by equipment illegally installed on a listed building without proper consents.
4. The charges/damages are punitive as no loss has been proved. The Claimant is not the landowner. The Claimant has not proved a genuine estimate of loss. The charges/damages resulting are un-recoverable as the illegal installation of the ANPR camera negates the contract at its formation.
DEFENCE SUMMARY
5. Offer to pay made by the Defendant to the Claimant on xxx. Rejected by the Claimant. The Defendant made the Claimant’s solicitors aware of this Offer to pay in the Defendant’s letter of xxx and this was also ignored.
6. The Claimant, on the 28th December 2015, had installed an ANPR camera on the listed building that is xxx.
7. The Claimant had not sought Listed Building consent and a Enforcement Investigation commenced on xx.xx.xx
8. Planning Permission was not sought for the installation.
9. A criminal offence was committed by this installation, (6).
10. The Claimant’s signs erected in the car park as per planning application XXXxxXx differ to those currently displayed.
11. The Claimant’s current signs in the car park are subject to another (06/03/17) Enforcement Investigation.
12. A criminal offence was committed by this unauthorised change of signage.
13. The Claimant’s only “evidence” consists of a photograph of the front of a vehicle and a photograph of the rear of a vehicle. There is no evidence of the vehicle actually parked.
14. The Claimant is a member of the BPA which allows ten minutes to exit a members car park and an unspecified time to read and digest signs and notices present in the car park.
15. The two enlarged photographs of what is purported to be the front and rear number plates of the vehicle BOTH show black letters and digits on a WHITE background
a. UK licence plate backgrounds are white on the front of a vehicle and yellow on the rear of a vehicle.
b. Can the Claimant explain why the images are are identical in colouring and not black letters and digits on a white background for the front number plate image and black letters and digits on a yellow background for the rear number plate image?
c. Can the Claimant produce evidence that these images have not been tampered and/or altered in any way?
16. The Claimant’s only evidence is sourced from equipment illegally installed on a Listed Building in contravention of the Planning (Listed Buildings and Conservation Areas) Act 1990 and as such a criminal act.
17. The Claimant is trying to force a contract based on this “evidence”.
18. The Claimant is trying to force a contract based on an “immoral or illegal” act. Public Law principle going back over 200 years states that “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”
I believe the facts stated in this defence summary are true.

Coupon-mad

A. Address for the Claimant on all prior communications has been xxx. Address for the Claimant on the Claim Form is xxx. Which is correct?
B. Address for the Claimant’s Solicitors in all prior communications has been a xxx postal address. Address for the Claimant’s Solicitors on the Claim Form is a xxx postal address. Which is correct?

Red Cow Yard is their old address.

This (below) should surely read - ''Details of the car'' because cameras can't record details of the keeper, which comes from the DVLA.

Details of the Keeper have only been obtained from images recorded by equipment illegally installed on a listed building without proper consents.

Remove these two sentences, because you can no longer argue this point, following ParkingEye v Beavis, a Supreme Court judgment in 2015 that you should read & understand:

The charges/damages are punitive as no loss has been proved.

The Claimant has not proved a genuine estimate of loss.

You need to add something to say, even if the court decides that the lack of advertising consent does not affect the possibility of a contract being formed from signage, there was no contract formed with the driver because the signs fail to provide 'adequate notice' of the parking charge nor to communicate to a driver that there was a 'relevant obligation' or 'relevant contract' by which they (or the keeper) would later be bound. the signs are in minuscule font with the parking charge buried in small print so this fails to meet the bar for clear and prominent signs, as set in ParkingEye v Beavis [2015] UKSC 67.

Also, even if the court finds that the signs were capable of communicating a clear contract, the defendant puts the claimant to strict proof with evidence, that any contravention even occurred (ANPR images not discharging this burden of proof).

You also need point about the operator failing to serve a POFA compliant Notice to Keeper, without which keeper liability does not exist in law.

You should look at some other Gladstones defences which also raise the points about their incoherent particulars of claim and the fact that Gladstones is run by Mr Hurley & Mr Davies, who also run the parking firm's own Trade Body. You could find such defences by searching the forum for :

Gladstones Hurley conflict of interests defence incoherent or similar connotations!

amfw

Have spent quite some time reading MSE forums and pepi for info and examples.
Nest post will be Witness Statement then Skeleton Argument for comments and help please. (can't get onedrive to work on work pc nor get dropbox downloaded!)
What else should I include?
Can I email to MB or do I have to send all by paper?
Have to submit by 12th June.

amfw

WITNESS STATEMENT
In the County Court at xxxx Claim Number xxxx
Between:
Minster Baywatch
(Claimant)
-and-
xxxx
(Defendant)

Witness Statement of Defendant
1. My name is xxxxx I am the defendant in this case and litigant in person. I make this statement in defence of the Claim brought by Minster Baywatch, the Claimant. The facts in this statement come from my personal knowledge. Where they are not within my personal knowledge, they are true to the best of my information and belief.
2. 01-07-16: On or around the 1st July 2016 I received a Notice to Keeper letter from the Claimant. In that letter were two photographs of the vehicle xxxx, of which I am the keeper. Neither of the pictures showed the vehicle actually parked in a car parking space or anywhere else for that matter. The claimant is put to strict proof of evidence to show that the vehicle was parked.
3. However I did notice that the enlarged images of the number plates from the two photos did not seem right. The two enlarged photographs from the original letter from the Claimant of what is purported to be the front and rear number plates of the vehicle BOTH showed black letters and digits on a WHITE background. UK licence plate backgrounds are white on the front of a vehicle and yellow on the rear of a vehicle. I therefore became suspicious that I might possibly be about to become the unwitting victim of a fraud of some description. The Claimant is put to strict proof to explain this anomaly. The Claimant is additionally put to strict proof that the images have not been altered in any way.
4. The Claimant referred in their letter to having obtained my details from the “DVLA under a ““reasonable cause” request”. The issue of how my details were obtained from the DVLA and what had to happen prior to making such a request are crucial in this case.
5. The Claimant’s letter also referred to “breaching the stated terms” “clearly displayed via signage” in the car park. The issue of signage is also crucial to this case.
6. I therefore conducted some research on Minster Baywatch, the car park in question and the regulations that govern the car park in question and the management of car parks in general.
7. After much research of the York City Council Planning records I discovered that the car park was part of the Odeon Buildings on Blossom Street, York, YO2 2AJ. The building is a Grade II Listed Building in York City Centre Area of Archaeological Interest; within the Central Historic Core of the City’s Conservation Area and has 5 further Listed Building Constraints: no.s 0406, 0407, 0409, 0410 and 0411. Odeon Cinemas had been granted a Lawful Development Certificate for continued use as a car park under the Planning (Listed Buildings and Conservation Areas) Act and Regulations 1990 on the 15th September 2005.
Since that application all other applications regarding the car park have been retrospective.
8. 04-07-16: On the 4th July 2016 I emailed the Planning Enforcement department of York City Council enquiring whether Listed Building Consent had been granted for the installation of automatic number plate recognition cameras to the listed building that was Odeon Cinema in Blossom Street, York. I received a reply stating that the department was investigating this alleged breach of planning control. Subsequent emails revealed that “they do not have consent for camera” and that an application was to be submitted “to cover the unauthorised works at the cinema” and that they “would not look at taking enforcement action while ever an application is being dealt with”. Confirmation therefore that there was no Listed Building Consent, the works were unauthorised and that enforcement action was an option.
9. This means that signs in place at the time were illegal and “Ex turpi causa non oritur
actio” applies. The law does not allow a plaintiff to pursue ‘legal remedy’ when it arises from their own illegal act.
10. 05-07-16: I wrote to the Claimant, by email, on 5th July 2016 at 13:42, pointing out that the photographic evidence was obtained from a camera installed without the proper authorisation, permits or permission. I highlighted to them that Listed Building Consent is required for any works to listed buildings and that carrying out such works without consent was an offence. I informed them that unless they could provide documentary evidence of consent for the camera that could be verified with the Planning Department of York City Council I would not be paying this charge. I stated this to them as I did not want to become involved in what potentially could have been a possible illegal transaction. If they had had the proper official verifiable consents then I would have paid.
11. 06-07-16: On 6th July 2016 the Claimant sent me a letter which acknowledged my appeal of the 5th July 2016 and that a response would be forwarded as soon as possible.
12. [06-07-16]: On the 25th July 2016 I found in my junk email folder an email letter sent from noreply@minsterbaywatch.co.uk, the Claimant, which was dated 6th July 2016 which essentially said, to paraphrase, “we have noted your comments, your appeal has been reviewed along with ALL (my caps) evidence gathered at the time and have reached the end of our appeals procedure”. I was incredulous that their acknowledgment of my appeal and their decision about my appeal could have taken place on the same day! The Claimant’s so-called review process had taken less than a day to perform! The Claimant had not addressed the major point of my letter, see 8 & 9 above and that they had changed to a “noreply@”-type email address from their previous email address of appeals@minsterbaywatch.co.uk causing the email to be filtered as junk mail.
13. 01-09-16: The Claimant wrote to me again on the 1st September 2016 demanding payment of £100 and threatening to pass the charge onto a debt recovery company.
14. 12-09-16: I wrote an email letter to the Claimant on 12th September 2016 stating that I understood that they were to apply retrospectively for Listed Building Consent for the retention for the Camera on the cinema building. As this was the case, I reminded them, the proper authorisations were not current at the time of the issuing of the charge notice and therefore an offence had been committed. I also raised with them the matter of obtaining my data inappropriately by not having the correct consents in place for the camera; a criminal offence. I again urged them to cancel the charge.
15. 29-09-16: I wrote again to the Claimant by email detailing again that due to the illegal nature of the installation of their camera they had no grounds to pursue the charge against me because of their multiple failures to follow their legal obligations with regards to Listed Building Consent and their Trade Association’s Code of Practice. I also requested that they remove my data from their systems, under a section 10 notice (Data Protection Act 1998 – Section 10 Data Subject Notice) and inform me that they had done so. The Claimant ignored this request.
16. 04-10-16: The Claimant wrote to me again demanding payment of the charge notice.
17. 11-10-16: I wrote, by email, a letter to the Claimant yet again highlighting to them that their charge notice was unenforceable because it was based on an illegal act and asking them to stop harassing me. I reminded them that they had 10 out of the original 21 days of my Section 10 notice to remove my details from their systems. I received an acknowledgement on 13th October 2016. The Claimant again ignored my request.
18. The Claimant has ignored two specific requests of a Section 10 notice. As the Claimant has failed in its obligations to the letter of the law in regard to Listed Building Consent for the camera (and, see 24 below, displayed signs in contravention of specific Advertising Consents conditions) the Claimant has failed it’s legal obligations under its Trade Body’s Code of Practice. As it has failed in these respects it’s request to the DVLA was unsubstantiated and therefore the Claimant has accessed my data unlawfully.
19. 20-12-16: The Claimant wrote another letter on the 20th December 2016, demanding payment for the charge notice.
20. 22-12-16: I wrote an email letter to the Claimant
a. asking why I had not had a detailed response as promised in their response of 13th October 2016
b. telling them yet again that they had no legal recourse to demand payment of the charge notice because of the illegal nature of the installation of the camera upon which they relied for evidence.
21. 22-12-16: The Claimant replied to my email:
a. Admitting their failure to respond to me within their stated timeframe.
b. Admitting their failure to have in place the correct consents
c. Admitting that “it is the ANPR data that is being used to enforce Parking Charge Notice 5137284”
d. Very helpfully highlighting their signage on site.
22. 23-12-16: I wrote to the Claimants by email telling them that I assumed they were then continuing their demands for payment because they were in receipt of proper consents, albeit retrospectively, for the camera. I also genuinely offered retrospective payment of parking fees. I have heard nothing further from the Claimants.
23. The Claimant is not the landowner of the site in question and in addition to my requests to the Claimant to provide the consents and permissions by which they are pursuing their claim I also respectfully require them to provide strict documentary proof of their contract, contracts or string of contracts from and with the landowner that allows them and authorises them to pursue claims for parking charges. The Claimant is put to strict proof of this provision.
24. 19-01-17: Following the Claimant highlighting their signs in their correspondence of 22nd December 2016, I researched the Advertising Consents for the signage referred to. I discovered that the signage in place, and produced in the retrospective application for Listed Building Consent for the camera previously illegally installed, differed in size, colour and format to that for which consent was originally granted on 26th January 2009. I wrote, by email to the Planning Department of York City Council highlighting this and they are currently pursuing an enforcement investigation. This failure to comply with conditions is an offence, so too is installing advertisements without consent.
25. 09-01-17: The Claimant’s solicitors, Gladstones, wrote me on 9th January 2017 a Letter Before Claim. It was sent second class and arrived on 16th January 2017. It did not contain all the particulars as required by the Practice Direction for Pre-Action Conduct and Protocols specifically disclosure of key documents. I responded, first class, to the Claimant’s solicitors on the 18th January requesting they use first class post as a common courtesy for such time sensitive matters and requesting that they provide me with the relevant and sufficient details as laid out by the Protocols.
26. 30-01-17: The Claimant’s solicitors replied with a letter dated 30th January 2017, postmarked 2nd February 2017, sent second class and delivered 4th February 2017. In that letter they stated they believed their previous letter was compliant with the Practice Direction and that I had 14 days from the date of the letter to ‘make payment’.
27. 06-02-17: I replied by first class post on the 6th February 2017 re-iterating my request about timely use of the postal service, full and proper disclosure of key documents relevant to the issues in dispute. I also raised with them that their repeated delaying of postage and use of second class post I felt was a tactical device to secure an unfair advantage over me and therefore would result in my reporting them to the Solicitors Regulation Authority. I also raised with them the fact that I had made a genuine offer of payment to their clients on 23rd December 2016 which had been ignored. The Claimant’s solicitors have also ignored this offer. Furthermore I raised with them the fact that their client had had installed on the listed Building that is the Cinema on Blossom Street, York, an APNR camera, upon which they solely rely for their claim, without listed building consent and that the signage on the site is different to that for which Advertising consent and Listed Building Consent exists. Failures to obtain consents for such installations are criminal offences under the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Control of Advertisements regulations 2007.
28. The Claimant’s Solicitors have not responded to this letter to date. I have no further information regarding what exactly the Claimant is claiming nor what documents the Claimant will rely on.
29. I am at a serious disadvantage in this case.
a. The case involves a Claimant who is a serial litigant with access to the services of qualified legal professionals; against an unrepresented Litigant in Person with no legal knowledge or experience of court process.
b. The Claimant has issued vague and incoherent Particulars of Claim such that I do not have enough information to know how to properly defend this claim.
c. The Claimant has ignored my reasonable request for additional information, made so that I can properly understand the claim and respond/defend accordingly. This is contrary to pre-action protocols and the ‘Overriding Object’ (CPR 1)
d. I therefore reserve my position to add further points once I have seen the Claimant’s court bundle containing their evidence and Witness Statement.
30. Further to my complaint to the Solicitors Regulation Authority about the Claimant’s solicitor, the SRA have confirmed to me in writing that they are currently investigating the Claimant’s solicitors for “not following the pre-action protocol and procedure” and for seeking “to take an unfair advantage”.
31. In full and fair disclosure the Claimant has since had Listed Building Consent and Planning Permission granted for the ANPR camera. However, the permission was sought and granted retrospectively yet again. Despite this the fact is that “the works are authorised from the grant of that consent” only. (Planning (Listed Buildings and Conservation Areas) Act 1990 c.9, CHAPTER II, 8. (3)) The date of the incident upon which the Claimant is basing their claim was 25th June 2016 – consent was granted on the 2nd December 2016. Over 5 months later!
32. By failing to ensure that their camera equipment benefited from the legally required consents and that their signage benefited from the legally required consents the Claimant has failed to abide by their trade association’s Code of Conduct to observe the law and have therefore failed sections 2.4, 2.6, 4.3 of said Code.
33. Therefore the Claimant has failed to comply with the requirements of the KADOE contract to access the DVLA records for details of the Keeper of Vehicle thereby failing one of the requirements of processing data lawfully by not complying with statutory regulations and legal requirements.
34. On a number of occasions the Claimant referred me to the Beavis ruling. The Claimant relies on its signs, its ANPR camera and Beavis to justify all elements of its claim. At Beavis/111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.(1) In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced. (2)”(my emphasis)

I believe that the facts stated in this witness statement are true.

xxxxxx

amfw

Skeleton Argument
2. The Planning (Listed Buildings and Conservation Areas) Act 1990 states: “..no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.” Part I, Chapter II, Section 7.
3. The Planning (Listed Buildings and Conservation Areas) Act 1990 states: “Where— (a) works for the demolition of a listed building or for its alteration or extension are executed without such consent; and (b) written consent is granted by the local planning authority or the Secretary of State for the retention of the works, the works are authorised from the grant of that consent.” Part I, Chapter II, Section 8 (3)
4. The Planning (Listed Buildings and Conservation Areas) Act 1990 states: “If a person contravenes section 7 he shall be guilty of an offence.” Part I, Chapter II, Section 9 (1)
5. On the 28th December 2015 the Claimant had installed on the building that is Reel Cinema, Blossom Street, York, YO2 2AJ an Automatic Number Plate Recognition Camera. The building is a Grade II Listed Building in York City Centre Area of Archaeological Interest; within the Central Historic Core of the City’s Conservation Area and has 5 Listed Building Constraints: no.s 0406, 0407, 0409, 0410 and 0411. The ANPR camera was installed without consent. Therefore the Claimant committed an offence.
6. The City of York Council Directorate of City and Environmental Services Planning Enforcement Department commenced an investigation into the “Unauthorised installation of automatic number plate recognition cameras to listed building – Odeon Cinema Blossom Street York” on 8th July 2016.
7. The Planning Enforcement Officer for the case stated “They [the Claimant] do not have consent for camera” on 22nd August 2016.
8. The Town and Country Planning Act 1990 states “if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence” Part VII, Chapter III Section 224, (3)
9. The Planning (Listed Buildings and Conservation Areas) Act 1990 states: “Without prejudice to subsection (1), if a person executing or causing to be executed any works in relation to a listed building under a listed building consent fails to comply with any condition attached to the consent, he shall be guilty of an offence.” Part I, Chapter II, Section 9 (2)
10. Between the granting of consents for signage on 30th December 2008, 5th February 2009, as per the Listed Building Consent and Advertising Planning Applications 08/02277/LBC (retrospective) with conditions and 08/02615/ADV (retrospective) with conditions respectively and the Listed Building Consent Application 16/02363/LBC (retrospective) the signs were changed from the specifically approved, “sign type 4” to the yellow signs seen in the 16/02363/LBC (retrospective) Design and Heritage Statement pictures on page 19, pictures 2 and 3. Therefore the Claimant committed an offence.
11. The relevant specific conditions granted in Listed Building Application 08/02277/LBC (retrospective) were
a. “1 The development hereby permitted shall be carried out only in accordance with the following plans: 995/YO-002C and 0044C, Details of sign type 4” Sign type 4 was a sign of white lettering on a blue background, 400mm x 800mm.
b. “2 Sign type 4 shall be removed from the building either when the building is occupied, or within 2 years of this consent, whichever is the earliest, unless agreed otherwise in writing by the Local Planning Authority. Reason: In the interests appearance of the appearance [sic] of the building, as the sign is only considered to be appropriate given that the unit to which it is fixed is vacant.”
12. The City of York Council Directorate of City and Environmental Services Planning Enforcement Department commenced an investigation, because the “Car park signs fixed to the building in the car park to the rear have been changed without consent failing to comply with the conditions – Odeon Cinema Blossom Street York YO24 1AJ”, on 24th January 2017.
13. In the case of HOLMAN ET AL’ versus JOHNSON, alias NEWLAND. Wednesday, July 5th, 1775, Lord Mansfield, Chief Justice said this: “The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s [claimant’s] own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis [translation ‘ Better is the condition of the defendant, than that of the plaintiff’]. The question therefore is, whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.”
14. Attention is drawn to RTA (B/1). This case is highlighted for the purposes of evidencing paragraph 34 in which the Judge discusses the relevance of the public law principle going back well over 200 years that no man should profit from his crime – see 13 above; it is submitted that this is particularly relevant in this case. In this case there has been a transgression of two laws (The Planning (Listed Buildings and Conservation Areas) Act 1990 and The Town and Country Planning Act 1990) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.
15. Also of note is the Tinsley v Morgan judgement. In that case Ms Milligan won, because she could prove her interest in the property without needing to “rely” on her illegal conduct. However, in this case the Claimant cannot prove their interest without having to rely on their illegal conduct:
a. the installation of the ANPR camera without consents, an illegal act, and without which there is no proof of the presence of the vehicle
b. the installation/erection of the signs without proper consents, another illegal act, upon which the Claimant relies to form a contract.
16. It seems to follow from paragraphs 2 to 5 and 8 to 10 that, if there was a contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without the commission of two illegal acts (the erection of the ANPR camera on a listed building without consent and the erection of un-consented signs on a listed building, without consent, that state the terms and conditions relied on by the Claimant). Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced. Further, it is submitted, it must be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct.
17. The Claimant relies on its ANPR camera and its signs to justify all elements of its claim. The Judge in Beavis [see ref xx] helpfully explained how the contractual arrangements between a motorist and a parking enforcement company were created such that it must now be accepted that in this case there was a contract between the parties but demonstrably void at common law or otherwise unenforceable for reasons explained in paragraphs 2, 3, 4, 5, 8, 9, 10 and 13.
18. In a communication from the Claimant sent on 6th July 2016 the Claimant drew my attention to “a landmark Court decision” that the Claimant claimed supports their eligibility to pursue this charge. The case the Claimant referred to was of course ParkingEye Ltd v Beavis.
19. The Claimant has Approved Operator Status as a member of the British Parking Association and advertises this on its website and signage. Beavis/96 highlights the Code of Practice of the British Parking Association Limited. At Beavis/111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.(1) In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced. (2)” (Defendant’s emphasis of two key points). Paragraph 2.4 of the Code sets out how and in what circumstances a term may be enforced. It states: “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and in enforcing its contract with a motorist and in communicating the terms of that contract. The Claimant failed to do so in both respects. This failure to abide by the Code of Practice negates any ability the Claimant has to be able to obtain details of a registered keeper from the DVLA.
20. The Code also states in section 4.3: “Under the Code you must keep to all the requirements laid down by law”. Sections 2 to 5 and 8 to 10 show that the Claimant has failed to keep this standard also.
21. The Claimant also fails another section of the BPA’s Code. In section 21.1, with regard to ANPR cameras, the code states: “Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”. (Defendant’s emphasis) The entrance sign that the Claimant has erected only states: “This car park is controlled by ANPR cameras and / or warden patrol”. The Claimant fails to state what the data captured by the camera will be used for in contravention of his trade body’s Code of Practice.
22. The BPA’s Code of Practice Section states:
a. 2.11: “Private parking operators must be members of an Accredited Trade Association (ATA) that is recognised by the DVLA to request this information. The BPA has ATA status and, as all members of the AOS have to be members of the BPA, AOS membership allows you to request information from DVLA records.”
b. 4.3: “Under the Code you must keep to all the requirements laid down by law.”
c. 5.2: “..use your membership of the BPA and compliance with the Code as evidence of your intention to keep to DVLA procedures.”
d. 12.2: “When you apply to the DVLA you must confirm you are a member of the BPA and the AOS (quoting your BPA membership number). You also have to confirm that you will keep to the Code, the Data Protection Act and any other legislation that applies”.
With reference to 21.a, b, c and d above can the Claimant provide proof that they made this confirmation, referred to in d. above, to the DVLA when requesting the vehicle keeper information?
23. With regard to ANPR cameras the Home Office Surveillance Camera Code of Practice Guiding Principle 10 states that: “There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published.” (Defendant’s emphasis) The Claimant has failed to meet this standard required by the Home Office because of his failure to ensure the legal requirements for prior consent for the erection of signage and the installation of a camera on a listed building.
24. Paragraphs 2 to 5 and 8 to 10 above, show the failure of the Claimant to ensure that the relevant legislations had been complied with, thereby resulting in criminal conduct in their operation of parking enforcement. This is a clear breach of paragraph 2.4 of the Code of Practice. If there is any liability argued on the part of the Defendant then, in considering the paragraphs above, it is submitted that a contractual term cannot be fair if the requirements of the Code of Practice are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.
25. To further reinforce this point, rather helpfully, I also cite from ParkingEye v Somerfield Stores [ref xxx] which concerns an alleged illegal contract. Whilst the facts of that case are not relevant, the Judge’s comments at paragraph 29 of the Transcript of the Somerfield case are of importance: “At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently”. As has already been stated, in this case the problem arose at the formation of the contract: the erection of the unconsented signs relied upon by the Claimant and the unconsented installation of the ANPR camera; and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, the Claimant did deliberately break the law by erecting the parking signs that stated their contractual terms, without first having in place the mandatory prior consent required by law and then installing the ANPR camera, without first having in place the mandatory prior consent. Thus crimes were committed by them. By virtue of the nature of the car park area and the Listed Building Status of the building the Claimant must have known that Advertisement Consent is required for this site and the Claimant must also have known that Listed Building Consent is also required. The illegality in this action was not merely incidental to the creation and part of the performance of the contract as in Somerfield but, as indicated in the Claimant’s Particulars of Claim, it was central to it. In this case the illegality of the Claimant’s signage and the illegality of the Claimant’s ANPR camera that existed on the day of the alleged incident cannot be undone, even by any subsequent grants of advertisement consent or Listed Building Consent. At paragraphs 65-74 of the Somerfield transcript Laws LJ set out three factors which need to be considered in a defence of illegality. I submit that key issues in this case are that:
a. the commission of two illegal wrongs being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.
b. the illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.
c. the nature of the illegality: in this case both were crimes and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater
26. Furthermore it must be highlighted that the Claimant/Operator of the car park has repeatedly disregarded the requirements to obtain mandatory prior consent for signage and equipment at this car park. Every application for consents for signage and equipment for the site in question has been retrospective.
a. 08/02275/FUL (retrospective) Pay and Display Machine
b. 08/02276/ADV (retrospective) 7no. Proposed signage
c. 08/02277/LBC (retrospective) 5no. Proposed signage
d. 08/02615/ADV (retrospective) 5no. Proposed signage
e. 16/02363/LBC (retrospective) ANPR camera
f. 16/02461/FUL (retrospective) ANPR camera
The Claimant/Operator has erected signage and installed equipment over a period of almost ten years without first seeking the mandatory, required consents prior to erection and installation.
27. The casual disregard the Claimant has for the legal requirements of carrying out the Claimant’s business is also reflected in the Claimant’s disregard for the Code of Practice by which he operates and by which he is able to access official records via the DVLA – see (18) above. This highlights failings by the Claimant in respect of the Consumer Protection from Unfair Trading Regulations 2008.
28. By virtue of Regulation 3 of the 2008 Regulations a commercial practice is unfair if it contravenes two requirements. The first strand concerns the requirements of professional diligence; the second is that a failure of professional diligence materially distorts or is likely to materially distort the economic behaviour of the average consumer. By virtue of Regulation 5 of the 2008 Regulations a breach of Regulation 3 is an offence.
29. The Office of Fair Trading guidance on the 2008 Regulations (B/5) at paragraph 10.1 indicates that “Regulations 3(1) and 3(3) of the 2008 Regulations set out the general prohibition on unfair business to consumer commercial practices, also known as the general duty not to trade unfairly. This prohibition allows enforcers to take action against unfair commercial practices, including those that do not fall into the more specific prohibitions of misleading and aggressive practices, or into the very specific banned practices. This means it acts as a safety net. It is designed to ‘future-proof the protections in the CPRs, by setting standards against which all existing and new practices can be judged”. Paragraph 10.4 of the OFT Guidance indicates that professional diligence should evidence “(a) honest market practice in the trader’s field of activity, or (b) the general principle of good faith in the trader’s field of activity”. I submit that the first strand of Regulation 3 applies as a result of the criminal conduct involved in the Claimant’s parking enforcement. The second strand begs the question: “Would a consumer, myself, be likely to make a different decision about payment of fees or charges if he, I, were told that a crime had to be committed to eventuate in a demand for that payment?” It is averred that a car park operator who fails to secure the prior relevant mandatory Advertisement consent and the prior relevant mandatory Listed Building Consent required by law before managing the car park and thereby commits a crime, will be acting in contravention of Regulation 3 of the 2008 Regulations. For having done so the Claimant fell below the standards of a reasonably competent professional having regard to the standards normally expected in its profession with particular regard to the Code of Practice for Approved Operator Status of the British Parking Association. Further, by failing to advise the Defendant of the criminal conduct associated with its parking enforcement when demanding charges for an alleged breach of contract, it is averred that the Claimant has also been acting with a lack of professional diligence.
30. On the 1st October 2014, the Consumer Protection (Amendment) Regulations 2014 [ref xxx] came into force and extended the definition of “product” provided by the 2008 Regulations. It now includes after 1st October 2014 the settlement (rather than the demand) of actual or purported liabilities such as those that the Claimant is seeking to recover from me by way of alleged damages (see regulation 2(9) of the 2014 Regulations). Therefore, taking a decision to settle damages falls within Regulation 3 of the 2008 Regulations. I submit that it is incumbent upon the Claimant to show that he was acting with professional diligence.
31. Regulation 5(3)(b) of the 2008 Regulations indicates that it is a misleading action where there is any failure by a trader to comply with a commitment contained in a code of conduct that the trader has undertaken to comply with. The Claimant had, in respect of the British Parking Association’s Code, undertaken, as a condition of entitlement to operate private land parking enforcement, to comply with the law but has clearly failed to do so.
32. The BPA’s Code of Practice states that the operator, the Claimant, must have the written authorisation from the landowner to carry out parking management, section 7.1.
a. Can the Claimant provide this written authorisation from the landowner?
b. By this action the Claimant is taking legal action against the Defendant. Can the Claimant provide the specific written authorisation for this?
c. Can the Claimant provide the full specific authorisation from the landowner as detailed in the Code of Practice section 7.3?
33. In Beavis, see 18 above, the Claimant argued that a reasonable charge for an infringement is £85. The nature of the enforcement operation in Beavis is the same in this case with ANPR cameras recording vehicle movements. Can the Claimant produce any evidence to justify why it now runs with a different argument to that in the Court of Appeal and to charge £150? The Court of Appeal determined that £85 was reasonable and that it was neither exorbitant nor unconscionable. The sum of £150 – a huge 76% increase on the Beavis charge – seems unreasonable, exorbitant and unconscionable. It is submitted that, in the absence of evidence in this case to justify the £150 sum, the Claimant cannot be permitted to pursue a different argument in this case to that submitted to the Court of Appeal such that it may not recover the £150 claimed. If there is an actual liability it should be limited to £85.
34. I request clarification of exactly who is the Claimant. The address for Minster Baywatch on all prior communications has been Minster Baywatch Ltd, POBox 731, York, YO31 7WP. The address for the Claimant on the Claim Form is Minster Baywatch Ltd, Popeshead Court Offices, Peter Lane, York, YO1 8SU. Which is correct? Exactly who is the Claimant – the entity the Defendant has dealt with since July 2016 or this new entity as per the Claim Form?
35. I request clarification of the address for the Claimant’s solicitor. The Address for the Claimant’s Solicitors in all prior communications has been a Knutsford postal address. The address for the Claimant’s Solicitors on the Claim Form is a High Legh postal address. Which is correct?
36. On or around the 1st July 2016 I received a Notice to Keeper letter from the Claimant. In that letter were two photographs of the vehicle xxxxxxx, of which I am the keeper.
37. Neither of the pictures showed the vehicle actually parked in a car parking space or anywhere else for that matter.
38. However I did notice that the enlarged images of the number plates from the two photos were not right. The two enlarged photographs, from the original letter from the Claimant, of what is purported to be the front and rear number plates of the vehicle BOTH showed black letters and digits on a WHITE background. UK licence plate backgrounds are white on the front of a vehicle and yellow on the rear of a vehicle. The photographs of the vehicle were in colour but not the number plates. I therefore became suspicious that I might possibly be about to become the unwitting victim of a fraud of some description. Can the Claimant explain this anomaly? Can the Claimant prove that the images had not been altered in any way?
39. In the service of the Notice to Keeper the Claimant failed to satisfy the full conditions required to be able to have “the right to recover any unpaid parking charges”. (Protection of Freedoms Act 2012, Schedule 4, Section 4, (2) (a))
a. The Protection of Freedoms Act 2012, Schedule 4, Section 11, (3) (a) allows the creditor [the Claimant] to make an application to the DVLA for the details of the keeper. However this is reliant on the Claimant operating his business fully within the Code of the trade association to which he belongs. As shown above, (2, 3, 4, 5, 8, 9, 10, 17, 18) this is not the case. Therefore this condition has not been met.
b. The Protection of Freedoms Act 2012, Schedule 4, Section 12 requires the regulations of statutory instrument as to the display of notices to be followed. As shown above (2, 3, 4, 5) this is not the case either. Therefore this condition too has not been met.
40. The entrance signage relied upon by the Claimant does not meet the standards required to make obvious the potential penalty.