Parked on Private Property (QDR Solicitors)

KeithP

That letter dates from July 2016.
Can you find something more recent - perhaps using the search argument that C-M suggested?
Should be easy to find dozens of CEL LBC responses from October 2017 onwards.
Although not specifically CEL, there are at least two LBC robust responses linked from post #2 of the NEWBIES FAQ sticky thread.

Did you park at 169/193 Soho Road too?

greenbluegreen

KeithP wrote: »

That letter dates from July 2016.
Can you find something more recent - perhaps using the search argument that C-M suggested?
Should be easy to find dozens of CEL LBC responses from October 2017 onwards.
Although not specifically CEL, there are at least two LBC robust responses linked from post #2 of the NEWBIES FAQ sticky thread.

Did you park at 169/193 Soho Road too?

Will do another search, thank you. The details are to be changed, the main content is something that I was concerned about. Still not entirely sure that this relates to my case. Will try and find something more suitable. Thanks for your help guys!

Coupon-mad

I see that you enclosed a generic, misleading copy of a draft claim form

But they didn't. Please don't copy stuff that makes no sense - read it for yourself, clearly CEL did not enclose a draft claim form, that's something they did two years ago.

How is your search finding such old stuff? Don't even read something from 2016.

I put in CEL LBCCC and changed the default search to 'SHOW POSTS' (as you would, because you don't want entire THREADS, you want to see POSTS) and I get 38 results, the first one is your thread (obviously) then one from January, one from December, several from October, etc.

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

Parking Eye, COM, Smart,s and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose) and have been reported to the regulatory authority by an M.P.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

greenbluegreen

Hi Guys,

I am hoping for your guidance on this one. It is a frightening experience for me, but I am keen to take it to the end.

I've submitted AoS, now to the difficult part.
Particulars of claim is :

Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of terms + conditions of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site.

Time in :16:25 Time Out: 16:50

I am xxxx the Defendant in this matter and the registered keeper of vehicle xxxx. I deny that I am liable for the entirety of the claim made against me by Civil Enforcement Limited for each of the following reasons:

1. The Claim Form issued on the DD/MM/YYYY by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by Civil Enforcement Ltd (Claimant's Legal Representative).
2. This Claimant has not complied with pre-court protocol. 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 Court Claim, under the Practice Direction.
b) This is a speculative serial litigant, issuing a large number of identical draft particulars. The badly mail-merged documents contain very little information.
c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no clear idea what the claim is about; why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs or the Claimant's standing to bring this action.
d) The Defendant therefore asks the court to strike out the claim as having no reasonable prospect of
success as currently drafted.
e) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge.
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage).
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time).
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper.
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter.
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.
(vii) If Interest charges are being claimed, the basis on which this is being claimed.
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict Keeper liability provisions.
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's (or even admin) costs were incurred. In any event the Claimant is not using solicitors.
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) 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 contract formed to pay any clearly stated sum.
Non-existent ANPR data use signage breaching the ICO rules and the BPA Code of Practice. b) BPA CoP breaches this distinguishes this case from the Beavis case) The signs were not compliant in terms of positioning) The sum pursued exceeds £100.
7. It is believed the Claimant does 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 own name. Any action should be in the name of the landowner or occupier.
8. The Claimant suggests that Beavis sets a precedent. This is only true if the facts of the case are similar. In this case, none of the exceptions to disengage the penalty apply.
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.
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 Claim Form issued on DD/MM/YYY.
(b) Ignored 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. A Defendant is entitled to know the case they have to meet. The court is invited to strike-out the claim of its own volition under its Case Management powers (CPR 3.4) as having no merit and no reasonable prospects of success.
13. 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
12.1. This Claimant has therefore failed to meet its legal obligations under the DPA.
12.2. 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.
13. 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.''
13.1. 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.''
13.2. 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).
13.3. 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.
13.4. 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.
13.5. 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 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.
13.6. 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.
13.7. 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 7 and 8 above were argued.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed:
Name:
Date:

Let me know what you think and what should e corrected/removed that will be more relevant to my case.

Many many thanks in advance for your support on tackling the case.

Regards,

Redx

there is a forum issue that implants these spurious characters into certain words , for apostrophes etc, that MSE has not deigned to fix

so remove them and change the punctuation marks etc where necessary

they were never meant to be there, so edit the post above accordingly

also add in the name of the PPC and any solicitor involved in the opening statement , prior to the defence itself , also adding the actual infringement they claim was made (not paying for parking within 10 minutes ? or no permit ? or what ?)

KeithP

Is this related to either of your other two threads?
Do all three threads relate to the same alleged parking incident?

If so, can you please ask a board guide to merge the threads.

Thanks.

greenbluegreen

KeithP wrote: »

Is this related to either of your other two threads?
Do all three threads relate to the same alleged parking incident?

If so, can you please ask a board guide to merge the threads.

Thanks.

My apologies for that, yes all three treads are for the same alleged parking incident

@Board Guide - can these be merged? (is that the right way to call it?)

Redx

yes, try a pm to soolin or crabman

ask them to merge your 3 threads into one

greenbluegreen

Redx wrote: »

also add in the name of the PPC and any solicitor involved in the opening statement , prior to the defence itself , also adding the actual infringement they claim was made (not paying for parking within 10 minutes ? or no permit ? or what ?)

Can you advise if that is sufficient? On the particulars of claim it's only mentioned private car park and terms + conditions.

On the signs on the other hand is written : permit holders, so "no permit" I am guessing, its not mentioned in any of the letters so far . Where/how is the best way to word this ?