SCS Law & Smart Parking

manwyl

Hi all. Sorry for the delay replying. It's been a busy week.

AOS online has been completed.

I have started to draft my defence. I've read through the newbies thread and looked at the various links. There are a couple that look similar to my circumstances so I've picked out the parts I think that are relevant and merged them together.

Please ignore the numbering for now. I'll tidy it all up at the end.

The parts I feel this doesn't cover is -

1. we bought a ticket
2. the car park isn't just for Matalan customers
3. making a counterclaim

Your advice and suggestions, as always, are very welcome :T :beer:

In the County Court Business Centre
Claim Number: ___

Between:

Smart Parking Limited v ___

Defence Statement

I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

I deny I am liable for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the ____ by Smart Parking Limited was not
correctly filed under The Practice Direction as it was not signed by a legal person but signed by Smart Parking Limited Claimant’s Legal Representative
4. 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 representative (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

5. 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. None of this applies in this material case.

6. In the absence of any proof of adequate signage that 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 that 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) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage 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.
(iv) 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.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
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 locus standi - In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Smart Parking has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.

7. No standing - this distinguishes this case from the Beavis case:
It is believed Smart Parking 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.


8. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Smart Parking, all too often at this location, unfairly ticket a patron of Matalan, any commercial justification in the form of support by Matalan for such unfair ticketing is absent.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

11.1 If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

11.2 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

11.3 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

Data Protection Act and BPA Code of Practice breach
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' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.
8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

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, together with a ticket machine requiring manual vehicle registry number entry as a secondary data processing system at this 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 patrons), and
iv) Failure to consider the number of complaints from Matalan and other businesses, which would have alerted this Claimant to the fact that their 'system' and woeful signs were not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Matalan patrons, and

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

vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) 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 specifically illegal; breaching principle one of the DPA.

11. 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.''
11.1. 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.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).
12.1. 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.
12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''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''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.
12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.
12.2.2. 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.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).
13.1. The excessive, inappropriate and unjustified use of ANPR alongside a flawed ticket machine system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.

Unconscionable and unrecoverable inflation of the 'parking charge'
14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.
14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.
15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date

Coupon-mad

Defence

[STRIKE]Statement[/STRIKE]

I am ___, the defendant in this matter and registered keeper of vehicle ___. [STRIKE]I currently reside at ____.[/STRIKE]

Above, it's a DEFENCE not a defence statement and you do not put your address.

Technically the court rules say you should put your date of birth but no-one here ever does!

8. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Smart Parking, all too often at this location, unfairly ticket a patron of Matalan, any commercial justification in the form of support by Matalan for such unfair ticketing is absent.

More to the point, Smart's contract was ended across the UK several months ago, so this case is clearly a 'revenge claim' and has no 'legitimate interest' excuse in pursuing it to court, distinguishing it from Beavis.

manwyl

Thank you for the amendments. I have made these to my draft.

Does anyone have any advice for the following points? Many thanks

1. we bought a ticket
2. the car park wassn't just for Matalan customers
3. making a counterclaim

Coupon-mad

What's the counter claim for? Not your costs.

DPA data breach?

manwyl

In my last letter to them I explained the following (which is completely true) -

"I will not be replying again but I will be keeping a record of this unwarranted harassment in pursuit of a meritless 'parking charge' that has none of the elements of legitimate interest that saved the Beavis case charge from falling foul of the penalty rule. The continued unfair demands are causing significant distress (distress to my family, insomnia, spending hours researching the law and replying to your letters, losing precious family time, upset & disagreements within the family about whether to just pay the scam to make it go away)."

But if I can claim for my time spent dealing with this along with DPA data breach then why not - I'm happy to claim whatever is available. These thieves need teaching a lesson.

nosferatu1001

No, yuo cannto claim for costs. YOuve been told that. Costs of a claim are dealt with WITHIN the claim.

What you can do is harassment, DPA breach etc.

manwyl

The counter-claim looks like a very complicated process. I doubt I have the time to do it justice and don't want to waste anyone's valuable time on here.

So I guess the only points that remain are -

1. we bought a ticket
2. the car park wasn't just for Matalan customers

Please can someone suggest the best way to incorporate this information into my defence?

Thank you

Coupon-mad

Just draft something and you will get comments; we almost never write from scratch.

[Deleted User]

To misquote the late, great, Michael Hutchence and INXS:

Simplify
Simplify for me
Simplify
Simplify when you plead...

There's A LOT of boilerplate guff in that defence. Here you've got an argument thats about as strong as it gets - you paid didn't you? In such circumstances, were it my case, I would abandon a technical POFA defence and go with something much clearer (and easier to argue). Others may disagree, but I think this is a quite different case to the norm.

You need to draft this as a direct response to the particulars (currently ignored). If the PoC don't tell the story, then you should. In particular you need to rely on the pre-action admission that they received payment for a car not in the car park, with a bloody similar registration to yours. This leads you neatly to the misquoted Black Eyed Peas defence "where is the loss?"

Try again and we can play with that. Clear out a lot of the case references, but leave in Beavis - the point is that the penalty rule was engaged (but no penalty found) in that case, here they want £100 for a typo that manual cross referencing has identified even before proceedings were issued. It's unconscionable.

The place for oodles of case references (if needed) is your skelly not the defence - explain your case, not everyone else's!

That is all. Apologies if those songs now go round your head for the rest of the day

[Deleted User]

Ps. Happy to suggest formatting on a counterclaim, but I don't think the original request for details and letter to you constitutes a data breach.

You may also struggle to show your recent distress is beyond any normal debt worry to the extent that damages should be awarded, but you can certainly run an argument provided the additional fee is paid and the counterclaim is lodged at the same time as the defence.