SCS Law & Smart Parking

manwyl

Thank you again for the suggestions. I have made the amendments.

Johnersh wrote: »

I don't know what your case is, exactly, or what amount you claim.

To be honest, I'm not sure either. I've read the link provided by Coupon-Mad earlier in this thread but on that occasion it related to Data Protection breaches and Trespass.

http://forums.pepipoo.com/index.php?showtopic=114450

As much as I'd like to stick it to them I'd rather not waste any more time if I'm unable to claim for the obvious things like loss of time and the aggro it's caused at home. I'm not sure what else I could claim for.

Coupon-mad

I agree. Don't try a counter claim if you do not have grounds.

But your loss of time (of course, along with loss of salary/leave, and travel and parking for the trial) is claimed in your costs schedule before and at the hearing.

YOU DO GET TO ASK FOR THAT, LATER.

manwyl

Thanks to all once more. Here is the draft defence all tidied up, numbered correctly and amended as suggested. I will follow the steps on the newbies thread unless anyone shouts before this evening :-)

Few questions I do have - evidence/supporting docs. Should I include the photos of the signs indicating the car park is for anyone to use, a map showing where the signs lived and the transaction log showing the payment for a similar registration? Should I also include copies of the anpr photos showing when we entered and left? Oh, and the statement from SCS admitting the incorrect registration hadn't entered the car park? Should I also explain why the incorrect registration was entered (keypad wasn't working properly at the time)?

Thanks

In the County Court Business Centre
Claim Number: ___

Between:

Smart Parking Limited v ___

Defence

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

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

1. A parking ticket was paid for and displayed in the car. A mistyped but similar vehicle registration number meant Smart Parking received payment for a vehicle that wasn!!!8217;t in the car park at the time. Manual cross referencing by Smart Parking has identified the payment before proceedings were issued.

1.1 The car park at Matalan Cheltenham wasn!!!8217;t just for Matalan customers. Signs on display within the car park stated !!!8220;Refunds for Matalan Customers!!!8221; rather than !!!8220;Parking for Matalan Customers Only!!!8221;. This means both customers and non-customers were entitled to park there. Therefore there is no additional value of the space over and above the value of the pay and display ticket bought.

2. 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. SCS Law 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.

3. Smart Parking's contract with Matalan ended on the 4th March, as confirmed by this Claimant's own (publicly-available) accounts for the year ended 30th June 2017. This contract for 'parking management' had ended on the same day of the alleged incident.

3.1. It is averred that Smart Parking knew, or should have known, that the contract across all Matalan store locations had terminated (reported in the press as being in the main part, due to their aggressive ticketing of customers), and as such, this Claimant can offer the court no 'legitimate interest' excuse to save this punitive charge from the penalty rule.

3.2. In this regard, ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is distinguished and indeed positively supports this defence. With no commercial justification in the form of landowner/retailer authority to pursue customers of Matalan, the charge is unconscionable and indeed this has all the hallmarks of a 'revenge claim' against Matalan customers after this Claimant lost the contract. Given these facts, this charge is the epitome of an extortionate, punitive and unrecoverable penalty.

3.3. It is averred that the Claimant must have been under notice that the contract was ending that day, so the penalty rule remains engaged, as it was initially in the Beavis case. Further, it is averred that as the Matalan contract had ended that day and was not continuing/being renewed, it was no longer current at the actual time of the parking event and the Claimant is put to strict proof to the contrary.

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. None of this applies in this material case.

5. 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.

6. 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.

7. 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. On this occasion, the parking fee was paid and Smart Parking are able to marry up the payment with my vehicle despite the incorrect registration having been entered.

7.1 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.

7.2 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.

Unconscionable and unrecoverable inflation of the 'parking charge'

8. 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.

8.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Smart Parking 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.

8.2. 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.

9. 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/

nosferatu1001

as you will have spotted, from reading post 2 of the newbies thread, a defence is just a single document with your defence on it, no links to any evidence etc. that all comes later.

Stating that the machine was faulty is of course a defence, so why woiuld you not put it in there? You can also include that the C has admitted the incorrect registration was never parked, therefore no loss was made by them - the contract was completed in its essential elements, as payment was made. The need for a VRM is to match payments, well they could have done so here, trivially.

manwyl

nosferatu1001 wrote: »

as you will have spotted, from reading post 2 of the newbies thread, a defence is just a single document with your defence on it, no links to any evidence etc. that all comes later.

Stating that the machine was faulty is of course a defence, so why woiuld you not put it in there? You can also include that the C has admitted the incorrect registration was never parked, therefore no loss was made by them - the contract was completed in its essential elements, as payment was made. The need for a VRM is to match payments, well they could have done so here, trivially.

Thank you. I have amended section 1 as follows -

1. A parking ticket was paid for and displayed in the car. The vehicle registration number was typed incorrectly due to a temporary technical issue with the ticket machine keypad. Smart Parking have admitted they received payment for a similar vehicle registration number to my own but this vehicle wasn’t in the car park at the time. Manual cross referencing by Smart Parking has identified the payment before proceedings were issued therefore no loss was made by them.

Coupon-mad

to my own

All needs to be in the third person. Not 'me, my, myself or I' in a defence. You should write 'the Defendant's own'.

And don't forget Johnersh (a solicitor) suggested you drop my words about revenge ticketing, and I don't disagree with him if he feels it's too inflammatory:

I would also (sorry CM) omit her wording about revenge ticketing.

manwyl

Coupon-mad wrote: »

All needs to be in the third person. Not 'me, my, myself or I' in a defence. You should write 'the Defendant's own'.

And don't forget Johnersh (a solicitor) suggested you drop my words about revenge ticketing, and I don't disagree with him if he feels it's too inflammatory:

Thank you. I have amended the sections mentioned above. I've gone through the entire defence and altered the wording to the third person (with the exception of the first main line "I am_____, the Defendant.....) -

In the County Court Business Centre
Claim Number: ___

Between:

Smart Parking Limited v ___

Defence

I am ___, the Defendant in this matter and registered keeper of vehicle ___.

The Defendant denies any liability for the entirety of the claim for each of the following reasons:

1. A parking ticket was paid for and displayed in the car. The vehicle registration number was typed incorrectly due to a temporary technical issue with the ticket machine keypad. Smart Parking have admitted they received payment for a similar vehicle registration number to the Defendant's own but this vehicle wasn't in the car park at the time. Manual cross referencing by Smart Parking has identified the payment before proceedings were issued therefore no loss was made by them.

1.1 The car park at Matalan Cheltenham wasn't just for Matalan customers. Signs on display within the car park stated "Refunds for Matalan Customers" rather than "Parking for Matalan Customers Only". This means both customers and non-customers were entitled to park there. Therefore there is no additional value of the space over and above the value of the pay and display ticket bought.

2. 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.

3. Smart Parking's contract with Matalan ended on the 4th March, as confirmed by this Claimant's own (publicly-available) accounts for the year ended 30th June 2017. This contract for 'parking management' had ended on the same day of the alleged incident.

3.1. It is averred that Smart Parking knew, or should have known, that the contract across all Matalan store locations had terminated (reported in the press as being in the main part, due to their aggressive ticketing of customers), and as such, this Claimant can offer the court no 'legitimate interest' excuse to save this punitive charge from the penalty rule.

3.2. In this regard, ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is distinguished and indeed positively supports this defence. With no commercial justification in the form of landowner/retailer authority to pursue customers of Matalan, the charge is unconscionable. Given these facts, this charge is the epitome of an extortionate, punitive and unrecoverable penalty.

3.3. It is averred that the Claimant must have been under notice that the contract was ending that day, so the penalty rule remains engaged, as it was initially in the Beavis case. Further, it is averred that as the Matalan contract had ended that day and was not continuing/being renewed, it was no longer current at the actual time of the parking event and the Claimant is put to strict proof to the contrary.

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. None of this applies in this material case.

5. 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.

6. 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.

7. 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. On this occasion, the parking fee was paid and Smart Parking are able to marry up the payment with my vehicle despite the incorrect registration having been entered.

7.1 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.

7.2 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.

Unconscionable and unrecoverable inflation of the 'parking charge'

8. 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 the Defendant submits have not actually been incurred by the Claimant.

8.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Smart Parking 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. The Defendant puts 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.

8.2. 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.

9. 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.

The Defendant confirms that the facts in this defence are true to the best of the Defendant's knowledge and belief.

Name/signature

Part 2. troubles me. Does it read right? "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."

Please can you tell me if this is ready to submit?

Coupon-mad

I would add the DPA stuff from this one, the fact that one set of data (the data from the PDT machine keypad) significantly conflicts with the other data processing system (ANPR) etc:

https://forums.moneysavingexpert.com/discussion/comment/74254129#Comment_74254129

Paragraph 2 from your draft, is standard and doesn't trouble us at all. They should be put to strict proof (especially in your case) that Matalan actually authorised them on that day.

But I reckon you need more which is why I am showing you that one above, that I wrote recently that deals with a data misuse argument/breach of the ICO rules for ANPR. Adapt the points there, they suit your case too because two data processing sets are being used detrimentally against drivers, and that breaches the ICO CoP for ANPR Surveillance Cameras, as well as the CPUTRs and the Consumer Rights Act.

When you have your final draft, print & sign & date the defence, then scan the signed version as a PDF and email it to the CCBCAQ email address this weekend.

Then refer back to post #2 of the NEWBIES thread for the next stage/what to do.

manwyl

Coupon-mad wrote: »

I would add the DPA stuff from this one, the fact that one set of data (the data from the PDT machine keypad) significantly conflicts with the other data processing system (ANPR) etc:

https://forums.moneysavingexpert.com/discussion/comment/74254129#Comment_74254129

Paragraph 2 from your draft, is standard and doesn't trouble us at all. They should be put to strict proof (especially in your case) that Matalan actually authorised them on that day.

But I reckon you need more which is why I am showing you that one above, that I wrote recently that deals with a data misuse argument/breach of the ICO rules for ANPR. Adapt the points there, they suit your case too because two data processing sets are being used detrimentally against drivers, and that breaches the ICO CoP for ANPR Surveillance Cameras, as well as the CPUTRs and the Consumer Rights Act.

When you have your final draft, print & sign & date the defence, then scan the signed version as a PDF and email it to the CCBCAQ email address this weekend.

Then refer back to post #2 of the NEWBIES thread for the next stage/what to do.

Shall I add the following to my defence above?

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.

manwyl

Sorry to chase everyone. I only have a few days left to get this submitted. Please can you confirm I should add the content in my last post? I had been advised to remove it previously. I understand the more arguments and angles the merrier but only if it won't hinder my case.

Many thanks to all