Fine from Civil Enforcment **HELP**

Loadsofchildren123

I just think if they can show you bought a ticket then it rubbishes your arguments that the signage was inadequate.


I think it's better to make your primary argument that driver complied with the t&cs by purchasing a ticket and there was clearly a machine error. Technically you don't have to out the driver (if you haven't already - I haven't gone back over the thread), but it's much stronger if the driver him/herself confirms that they input the reg (I thought you couldn't get a ticket out of these machines if the reg is not inputted?). Then it's for the PPC to prove the driver didn't and the machine was working.
Do you know the error in the reg that they are claiming? Is their photographic evidence sufficiently high resolution to show what was on the ticket?


The arguments about signage can be made but I think they are secondary points.

kayjones83

@Loadsofchildren123


I stupidly fest up to being the driver. I entered a 6 instead of a 0. I still have the ticket which shows the error.


Sounds to me like I have a lot of tweaking to do in my draft defence.

Loadsofchildren123

So the only mistake was 6 instead of 0.
Is that because the 6 is above the 0 on the keypad, or was the keypad worn and you couldn't read it, or just a random error?


If I were you I'd defend on two alternatives:
1. you complied with the t&cs. You made a human error which is de minimis. the Claimant should not be bothering the court with what is a trifle to unjustly enrich itself: it's clear you paid for the parking, your breach was so de minimis as to render it irrelevant.
2. you drew this to their attention as early as [x] yet they have proceeded to pursue you in a wholly unreasonable manner.


In the alternative, their signs are inadequate to have formed a contract. I think this alternative is weak though, I think you're better of arguing de minimis. Look for other posts/threads on de minimis here, and google the legal principle and read up on it.


See if others agree. I just think if you argue no contract due to insufficient signage, they'll just say "but look, D bought a ticket, so obviously saw the signs and continued to park, thereby accepting the terms and entering into a contract. By wrongly entering their reg they breached the contract" and I think it's a dead argument.


I would keep it simple and argue de minimis. This will make it a very short defence.


As this is CEL, their MO is to chase and chase you then issue proceedings. 99% of people (my made up statistic, but it will be similar) pay up because they're scared and don't have the wherewithal or the time to defend. But when someone does defend, they give up eventually, before having to incur a hearing fee and attend court. But they will take you right past the WS stage so be ready. Where CEL differs from other PPCs is that they shy away from attending court because, even if they win, they recover less than they pay to see the proceedings through to the end. So they cut their losses and run when they see you defending. Other PPCs will treat cases that go all the way to court as a loss leader and just blindly proceed. So you are lucky you've got CEL and not one of the others. This has probably been mentioned already upthread.

Coupon-mad

I entered a 6 instead of a 0. I still have the ticket which shows the error.

And you DO NOT KNOW if that was your error, or a faded or faulty keypad. Start thinking outside the box, but your defence is basically fine for CEL, who always fold even when people have said who was driving.

Just add a point that the keypad appears to have been faulty and the Defendant puts the Claimant to strict proof to the contrary, because it is highly unlikely that the Defendant made an error in their VRN and more likely that the keys on the old, worn PDT machine were faded or sticky. Even if the Defendant made the error of their own volition, this is de minimis and a reputable parking operator would easily be able to match up the correct VRN when carrying out the manual checks that the BPA requires of any ANPR operator before enforcing an unfair PCN for a trifling issue.

kayjones83

Thank you so much @loadsofchildren and @coupon-mad for your advice.

So just to confirm , the draft to defence that I have done is fine to use and I should just add the point that the keypad appears to have been faulty.....

Should I not remove the point where I make about the signs being inadequate?

Coupon-mad

the draft to defence that I have done is fine to use and I should just add the point that the keypad appears to have been faulty.....

Yes, add it near the top where you explain more about the event.

Should I not remove the point where I make about the signs being inadequate?

Never remove that point, never.

kayjones83

@coupon-mad thank you. I have updated my defence. Please let me know if this is ok?




Thanks Coupon-mad for taking the time out to read my defence.


I've made a few changes and added the ICO CoP breach defence points.


Draft Defence-




I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

I deny I am liable for the entirety of the claim on the following grounds:

1. The ClaimForm issued on the 17 April 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited; as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. There was no compliant Letter before County Court Claim under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

c. The Schedule of Information is sparse of detailed information.

d. The ClaimForm Particulars were extremely sparse and divulged no cause of action nor sufficient detail. Furthermore, the ClaimForm Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

iv. support the efficient management of proceedings that cannot be avoided.
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted

3. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representatives costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £333.81 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage, none of this applies in this material case.

5. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

c. Inadequate signs incapable of binding the driver ; this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.


vi. The keypad appears to have been faulty and the Defendant puts the Claimant to strict proof to the contrary, because it is highly unlikely that the Defendant made an error in their VRN and more likely that the keys on the old, worn PDT machine were faded or sticky. Even if the Defendant made the error of their own volition, this is de minimis and a reputable parking operator would easily be able to match up the correct VRN when carrying out the manual checks that the BPA requires of any ANPR operator before enforcing an unfair PCN for a trifling issue.

d. BPA CoP breaches this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

6. No standing this distinguishes this case from the Beavis case:
It is believed Civil Enforcement Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

7. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 14 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed ClaimForm issued on 17 April 2018.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.



8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

9.1. This Claimant has therefore failed to meet its legal obligations under the DPA.

9.2. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.

10. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''



10.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''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 [...] 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.''

10.2. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #8 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

10.3. 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.



10.4. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

10.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of theSomerfield 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 (and before) the formation of the alleged contract 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, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

10.6. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) 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.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

10.7. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 8 and 9 above were argued.
STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

Coupon-mad

Looks fine as a CEL defence.

They will get past DQ stage but won't pay a hearing fee and it will all be over in the Summer.

kayjones83

Thank you so much for your help on this.
Can I just confirm that there is nothing else for me to do once I!!!8217;ve emailed this to ccbcaq@hmcts.gsi.gov.uk

Should I also post this?

Coupon-mad

No don't post it.

Have you missed the threads talking about the new CCBC email addy? No links...