9 months after alleged parking contravention I get a Final Reminder from Excel!

Coupon-mad

Haha, typical mess up!

grumpyawldwifey

Thanks to Upsidedowner, I got the details of the landowner and agent so I sent a strongly worded email to the agent asking him to intervene.
Here's his response:

I would confirm that we act as managing agent for the site. However unlike other locations, where a car parking company is employed to ensure people do not abuse the car parking on a premises, Excel parking have a lease of the parking area and as such they have full control of this area. It is akin to the Premier Inn who have a lease and where we have no legal right to comment on their internal policies

However as long as you are happy for us to pass on your email to Excel we will do so, and we will ask them to consider the matter especially in light of your mothers condition. I would also enquire as to whether or not you have appealed to the car parking regulators on this matter?

I look forward to hearing from you

rod

There's a quick hand-wash!

KeithP

grumpyawldwifey wrote: »

I would also enquire as to whether or not you have appealed to the car parking regulators on this matter?

Perhaps you could ask Rod for more information about 'the car parking regulators' he mentions.
Like... who on earth are they?

Umkomaas

KeithP wrote: »

Perhaps you could ask Rod for more information about 'the car parking regulators' he mentions.
Like... who on earth are they?

Like... who on earth do they regulate?

grumpyawldwifey

If he means the IPC, he's deluded

grumpyawldwifey

I think it's got a bit too long. What do you think? Can I submit it?


1. I am the Defendant having been the registered keeper of the vehicle in question. The claim relates to an alleged debt arising from said vehicle breaching the Terms and Conditions situated in XXXXXXXXX Car Park on four separate occasions between X XXX 2017 and XX XXX 2017.

2. The Defendant has prepared these submissions at this stage to assist the Court but please note, has not been provided with all of the documentation from the claimant and therefore reserves the right to amend the submissions subject to any further documentation being presented to the court.

3. Despite requests, and contrary to Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has refused to provide the Defendant with a copy of their written contract with the landowner. No indication is given as to the Claimant!!!8217;s contractual authority to operate on this land as required by both ATAs the British Parking Association (BPA) and the Independent Parking Community (IPC) of which the claimant is a member. The IPC!!!8217;s code of practice explicitly states !!!8220;If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8216;Creditor!!!8217; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.!!!8221; The BPA!!!8217;s code of practice requires similar.

4. The Claimant has provided evidence of the Defendant's vehicle being driven into and out of the car park on the occasions in questions but not by whom it was driven and has not provided evidence that the vehicle was parked and unattended in the car park during the periods in question, in fact it is this point that is contended by the Defendant: that the Terms and Conditions were not breached as the vehicle did not park on the dates but was forced to drive through the car park in order to facilitate the collection and dropping off of a disabled patron of the XXXX XXX hotel.


Background

5. The Defendant's mother, currently aged 77 years, has extremely restricted mobility and is wheelchair dependant having amongst others, severe arthritis which has caused her hip and femur to fuse.

5.1 On X April 2017, the Defendant's mother moved into the HOTEL, ADDRESS whilst their new house was being adapted for her use. She stayed there until XX May 2017.

5.2 The HOTEL is located within a leisure complex containing a cinema, a pub and a number of restaurants. The complex is situated on a busy dual-carriageway road and roundabout. There are two entrances to the hotel, one faces the busy dual carriageway and is not accessible by vehicle due to pedestrian barriers. The second entrance is accessed through the XXXX XXXXX car park which is controlled by the Claimant. This is the only way to gain vehicular access to the hotel.

5.3 On an almost daily basis, members of the family visited the Defendant's mother, if, however, she had, for example, medical appointments or needed larger amounts of shopping than she could carry on her electric wheelchair, a family member would be required to take her out by car.

5.4 Due to the Defendant's mother's disabilities, she is incapable of getting into vehicles that are high from the ground and this meant that the only family vehicle she could get into was the Defendant's, the vehicle in question. The Defendant's brother and his wife both had SUV type vehicles that the Defendant's mother was unable to get into so would swap cars with the Defendant if they were looking after her needs whilst the Defendant was otherwise engaged. Both had fully comprehensive insurance policies that allow them to drive any vehicle with the owner's permission and they both had permission to drive the Defendant's car.


Defence

The Defendant asserts that the Defendant is not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

6. On the dates in question, the car was not parked or using a space, it was near to the Hotel entrance for the sole purpose of disability access to the premises, at an area which is beyond the bays.

6.1 The Defendant has photographed the area around the hotel entrance beyond the parking area for illustration and will provide these photographs as evidence. They clearly show a large unmarked area in front of the hotel entrance that, the Defendant believes, is used for deliveries but is not a designated parking area.

6.2 The Claimant is put to strict proof that the vehicle was parked.

7. On the four occasions in question, due to the Defendant's mother being particularly slow getting out of the vehicle and into her chair and then having to be pushed to her room, the drivers HAD attempted to pay, despite not actually being parked. They realised that the insufficient 10 mins 'grace' would likely be exceeded but were given no advice by the Hotel or any offer of exemption or an extension of time.

7.1 Feeling intimidated into paying for the time they spent in the area (due to their knowledge of the poor working practices of private parking companies such as the Claimant company) they tried to pay by phone, only to find that the advertised 'Pay Go' app did not recognise the location.

7.2 Attempts were made to contact the number advertised on the Claimant's payment machine but these were not answered in a timely manner.

7.3 The failure of the payment service to accept payment is not the Defendant's responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.

7.4 In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

8. When the Defendant received a 'Notice to Keeper' the Defendant contacted the Claimant immediately and explained the circumstances. The Defendant offered to send photographic evidence of the issue with the 'PayGo' app. The Defendant will also provide a copy of this evidence to the Court. The Claimant's response was to reject the Defendant's evidence and appeal outright unless the Defendant notified them of the name of the driver(s) who - apparently - could then submit the appeal and photographic evidence all over again.

8.1 The Defendant was told that the Claimant could not consider the Defendant's appeal as keeper and that under Schedule 4 of the Protection of Freedoms Act 2012 (POFA), the Defendant 'must' name the driver. The Defendant asserts that this is incorrect as an alleged breach of contract does not meet the conditions for s172 Road Traffic Act 1988 and by stating this, the Claimant has attempted to intimidate/scare the Defendant into naming a driver who the Defendant was unable to name.

8.2 The Claimant has breached its own regulatory body, the IPC's Code of Practice !!!8211; 6.2 states "If an appeal is unsuccessful then you must notify the appellant, at the same time you reject their appeal, that they have the right to further appeal to the IAS and you must allow them a further 21 days to pay the charge or to exercise this right of appeal. During this period, you may not add on any additional fees for non-payment." The claimant did not advise the Defendant that they had the right to further appeal to the IAS.

9. The Defendant asserts that the Claimant has not met the conditions for POFA and puts them under strict proof to demonstrate that they have.

9.1 By its failure to meet the conditions of POFA, the Claimant has no claim on the Defendant.

9.2 The Claimant has threatened the Defendant that, if the Claimant is unable to rely upon POFA to pursue the Defendant, they will revert to the Law of Agency and pursue the Defendant under this common law. This case, however, this does not involve employer/employee vicarious liability and is therefore not relevant.

10. Notwithstanding the above the Defendant again denies that the vehicle was parked but was being used solely to facilitate a disabled person's access to the hotel.

10.1 Whether the Claimant is in the BPA or the IPC, they must fairly consider appeals by registered keepers, and they must investigate any matters involving disability, to avoid discrimination.

10.2 The Claimant has breached the IPC's code of practice in its failure to assess the car park's impact. Para 7.1 states "Under the Equality Act 2010 it is your duty to make !!!8220;reasonable adjustments!!!8221; to assist disabled people to use any services you provide. It is incumbent on operators to determine what is necessary on their individual sites." The Claimant has, by its actions, prevented a disabled person from accessing a hotel entrance. It is asserted that the Claimant, by its actions, is intent upon forcing people transporting those with disabilities to pay to access the hotel by car as if it were a privilege rather than a necessity.

10.3 The Claimant has failed to do such a risk assessment and has also ignored suggestions made by the Defendant as to how reasonable adjustments could be made. As a result, the Claimant has breached the Equality Act 2010 and has directly discriminated against the Defendant's mother and indirectly against the Defendant and the Defendant's family and continues to discriminate against any other disabled person who requires vehicular access to the hotel.

10.4 Service Providers, which include Hotels and parking firms, have legal duties under statute, to ensure that:
- disabled people can access services/premises
- 'reasonable adjustments' are made to policies that would otherwise cause disadvantage
- no detriment is caused to the disabled person and their carers
- the disabled person/their carers are not harassed as a result of anything connected to the disability.

10.5 Charging for the time taken for the purpose of assisted boarding/alighting, as if it was 'parking' time, is without a doubt in breach of the Equality Act 2010.

11. The Defendant asserts that, in their failing to provide the Defendant with any details of the landowner which would allow the Defendant the opportunity to complain directly to them, the Claimant has prevented the Defendant from being able to get this charge cancelled by the hotel or landowner, a right that the Defendant believes existed as an exemption clause for patrons written into the landowner contract manual but a material fact which is withheld from motorists. If the Defendant had been informed that the hotel/landowner could deal with such complaints and cancel charges, the Defendant would have done so.

11.1 The Defendant submits that the Claimant does not have contractual right to recover the parking charge from the Defendant and that, if the landowner were aware of the Claimant's actions and the Defendant's circumstances would likely intervene.

12. The claimant has raised a claim for four unpaid 'parking charges' yet has only notified the Defendant that they had become liable for one of these charges which led the Defendant to believe at the time that the Claimant had accepted the Defendant's appeal for the other three. It was not until the Defendant received a letter claiming to be a 'Notice Before Claim' that it became apparent that this was not the case.

12.1 The above failure by the Claimant contravenes the IPC's Codes of Practice paras 6.1 and 6.3 "Where a parking charge remains unpaid and the keeper has failed to identify the driver within 28 days of the notice to keeper, you should send a notification letter to the keeper confirming they are now liable for the charge, the amount of the charge, the time frame for making payment and how payment should be made." And "The letter should offer the keeper a minimum of a further 14 days to pay."

13. Notwithstanding the above, it is denied that, on those occasions stated by the Claimant that the vehicle was parked.

13.1 Therefore, it is denied that a contract was formed.

13.2 It is denied that there was an agreement to pay a parking charge, this was a case of the Defendant's family being sufficiently intimidated into attempting to pay for parking, even though they were not parked, due to their awareness of the poor practices demonstrated by private parking companies in general. This matter has been highlighted by Rt. Hon Sir Greg Knight MP in the Parking (Code of Practice) Bill - 2nd reading on 2 February 2018 in the House of Commons. He describes these companies as !!!8216;cowboy!!!8217; private parking companies.

13.3 It is denied that the Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

14. The Claimant has breached its contract with the DVLA regarding the Keeper of a Vehicle at the Date of an Event using an Electronic Service (the !!!8220;KADOE Service!!!8221;). The contract expressly states: "The Customer must not unlawfully discriminate either directly or indirectly or by way of victimisation or harassment against a person on such grounds as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, colour, ethnic or national origin, sex or sexual orientation, and without prejudice to the generality of the foregoing the Customer must not unlawfully discriminate within the meaning and scope of the Equality Acts 2006 and 2010, the Human Rights Act 1998 or other relevant or equivalent legislation, or any statutory modification or re-enactment thereof."

15 The Defendant asserts that the Claimant's signage is unclear and therefore does not meet the requirements of the Data Protection Act, of the Information Commission Officer's Code of Practice nor does it meet the IPC's Code of Practice

16. 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 IPC 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

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

16.2. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance, Hertfordshire Constabulary was issued with an enforcement notice. The force was 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.

17. 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.''

17.1. 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.''

17.2. 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 #16 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).

17.3. 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.

17.4. 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.

17.5. 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 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 (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 an IPC 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.

17.6. 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.

17.7. 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 16 and 17 above were argued.

17.8 The Claimant has breached its contract with the DVLA and the Data Protection Act by its misuse of the Defendant's data. The DVLA KADOE contract explicitly states that "The Customer shall use each item of the Data only for the Reasonable Cause for which it was provided. The Customer understands that each item of the Data may be used only in relation to the particular date, event and purpose for which it was requested and must not be re-used for any other date, event or purpose. The Claimant has used the same data items to cover four separate dates and times.

17.9 The Claimant has breached the fourth data protection principal, "Personal data shall be accurate and, where necessary, kept up to date." The Defendant explicitly notified the Claimant of a change of address after all four Notices to Keeper were redirected but, until receipt of the Claimant's 'Letter Before Claim' had received no further correspondence regarding the three other incidents therefore the Defendant asserts that the Claimant did not meet its duties under the Act and update its records for those claims.

18. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

19. I would like the Court to take note that this whole process has adversely affected the Defendant's mother, the Defendant's family and the Defendant and has caused undue distress to them all.

20. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.

Coupon-mad

It will be long with the ICO ANPR points, but I think they are worth testing this year.

the fourth data protection principal,

= principle

grumpyawldwifey

Am I being totally thick? Have I missed something in the Newbies? The MCOL site will only allow a max of 122 lines. Mines about 3 times that!

grumpyawldwifey

I found it in the Newbies. Ignore me for a bit.
My brain's totally fuzzed up from all the reading and writing etc. The whole thing's taking me back to dissertation days

grumpyawldwifey

I've submitted my defence.
For info, I emailed it to 3 different email addresses just to be on the safe side.

I originally sent it to two, these were

ccbcaq@justice.gov.uk (suggested new addy)
ccbc@hmcts.gsi.gov.uk (addy advertised on their website)

I got a response from the first email address which included:

IMPORTANT

You will need to send any ‘claim response’ which includes the acknowledgment of service, part admission or defence /counterclaim forms as well as directions questionnaires (DQs) directly to ccbcaq@hmcts.gsi.gov.uk to ensure that they are filed correctly. Your email has not been forwarded.

So, I sent it to that email address too :beer: