Incomplete vrn entered

Ibcus

To save people downloading the PDF documents.
The land owner is Lichfield Machine Tools 1990 Limited Company number 01217291

Correct as of 20 SEP 2018 at 22:56:28



55-59 King Street Wigan (car park in question)




49 King Street Wigan (Revolution Bar)





Overlayed, Car park land changed to a purple/blue colour






HX CPM's own plot picture


I'm no expert but it would appear to me that the enforcement area includes land owned by SHARP'S INVESTMENTS LIMITED (Co. Regn. No. 066466235) - currently Revolution Bar.


The entrance to the car park, the place ANPR takes it's arrival picture is not on their land so doesn't show you entering the car park.


So, in theory, could you say that you stayed on the land not controlled by them for x amount of minutes and triggered the exit ANPR when you passed through the car park to exit, the only way out once you have turned in, as it's to narrow to turn around and reversing onto a main road is dangerous?

Pjr1525

Hi, this is the defence that I hope to use. I would be obliged for any help many thanks


In the County Court

Claim Number: xxxxxxx

Between
Xxxxxxxxxxxxxx

V

Xxxxxxxxxxxxx


DEFENCE




Background – The defendant parked in the car park in question. A ticket was purchased for the correct amount and displayed in full view on the vehicles dashboard. The car was parked correctly and there was no overstay.

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at xxxxx car park on x/x/xxxx and, any breach is denied, and it is further denied that there was any agreement to pay the claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that a full VRN was not entered into the pay and display machine. The obvious reason to enter a vrn into a ticket machine is to prove by cross referencing between the ANPR camera and the ticket machine that the correct tariff is paid. It is the gift of the claimant to check their own records to make sure that the partial vrn that was entered xxxx matched the only vehicle xxxx xxx in that small car park that contained the partial vrn xxxx, so proving that payment was made. It is the defendant’s contention that sufficient characters were entered to positively identify the vehicle on which is was displayed and that the full tariff was paid.

The defendant has requested confirmation from the claimant that the correct fee was taken in and kept. The claimant says that they do not have that information. The defendant requires from the claimant’s solicitor, a list of all tariffs paid and recorded by the ticket machine for the time of the alleged breach together with a list of all vehicles captured by ANPR for the same period, partially redacted to conform with DPA, except for the VRN that resembles the defendant’s VRN.

2.1
On the claimant’s website and also in their letter to the defendant’s MP, refusing the defendant’s appeal, they state that they recognise human error when inputting a VRN and do not issue a PCN , they specify allowing a digit or 2 being wrongly entered, but surely as long as sufficient characters were inputted to positively identify that the fee had been paid, as in this case, then they must abide by their own statement of recognising human error and not issuing a PCN.

3. The Defendant has already proved that the full fee was paid by sending a copy of the ticket to the claimant and it is the Claimant's own failure, caused by their deliberately unclear signage and obscure terms that catch out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.


Unclear terms - no agreement to pay a penalty for failure to enter full VRN
4. The terms and conditions must state that it is an obligation to enter a full VRN or run the risk of it being compared to the ANPR for the purpose of imposing a PCN. If this had been made clear at the point of payment,then the defendant would have thought twice about entering a full VRN.

4.1 It is contended that the Claimant failed to alert patrons of the car park sufficiently of the obligation to enter a full VRN or risk a £100 penalty. The Claimant is put to strict proof of this, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'

No locus standi
5. 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. The claimant has taken no steps to provide evidence that such authority has been supplied, either by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
6. 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 the claimant, all too often at this location, unfairly tickets paying patrons for incomplete VRN, any commercial justification in the form of support by the land owner for such unfair ticketing is absent, because the land owner has already received the parking fee, also ticketing paying patrons does not act as a deterrent, because the tariff has been paid, so there is nothing to deterr.


6.1 With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.


Data Protection Act and BPA Code of Practice breach.
7. 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.

7.1. 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.

7.2. 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 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 patrons, as reported in the WIGAN POST newspaper on at least two occasions, which would have alerted this Claimant to the fact that their systems and woeful sign was 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 paying users of the car park.

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the pay and display machine system and how the data captured on both would be used.
The main sign at the entrance to the car park states ‘Full terms and conditions at ticket machine’ no such ‘terms and conditions’ are at the ticket machine, so this is misleading information. The full terms and conditions are displayed some distance away above head height with the mandatory information required under BPA CoP in small print at the bottom of the ‘terms and conditions’ and not given the same prominence as the entrance sign.

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. The defendant was obliged to find this information out from another source.
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
8. 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.

9. 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.''

9.1 Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

10. 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.

10.1 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

10.2 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 access to a 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.


11. 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).

11.1 The excessive, inappropriate and unjustified use of ANPR together with a pay and display machine 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'
12. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Additional Costs of £60 which the defendant submits have not actually been incurred by the Claimant.


12.1 Whilst £60 may be recoverable in an instance where a claimant has used an outside firm to progress a claim, the claimant has not expended any such sum in this case. This Claimant has salaried in-house Staff who just send emails incurring no additional expense in their 'cut & paste' robo-claims. The defendant puts the Claimant to strict proof of this additional cost because the salaried in-house staff cannot possibly be believed to be paid in the millions per annum for their services.


12.2 The added additional 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.

13.Not fit for purpose
Invalid ticket issued against rules of Consumer Rights act 2015
The reason given by the claimant for the defendant’s penalty is that the ticket that was issued was an invalid ticket. This ticket was bought and paid for in good faith. According to the Consumer rights act 2015, any goods purchased should be ‘fit for purpose’ The ticket that was issued was not ‘not fit for purpose’. The claimant took the defendant’s money to issue an invalid ticket and now want to charge the defendant a penalty for having an invalid ticket.
The invalid ticket was issued due to the machine allowing the transaction to complete when an invalid VRN had been entered. The technology exists for the ANPR to be linked to the ticket machine to match the VRN of cars in the car park with that entered into the ticket machine and only allow the correct details, or warn of incorrect or invalid VRNs, before accepting money. The defendant has a ‘test’ ticket from the ticket machine in question with a VRN that is not allowed by the DVLA ( the capital letters ‘II’ ) to prove that a ticket will be issued when anything above one digit is entered, without a warning, even if is impossible for that VRN to be on a car in the car park, thus generating a PCN. It is the claimants obligation to ensure that a failsafe method is used so that paying patrons are not penalised.

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 xxxxxx

Umkomaas

I don't get heavily involved in assessing Defences, but I can spot glaring copy and dump errors.

Data Protection Act and BPA Code of Practice breach.

This is both a specific Data Protection and BPA Code of Practice breach.

Members of the BPA are required to comply fully with the Data Protection Act (DPA)

the mandatory information required under BPA CoP in small print at the bottom of the ‘terms and conditions’ and not given the same prominence as the entrance sign.

confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply

....... and there are a number of other BPA references. Why? HX Parking are IPC members. And in trying to put this right, you can't simply do a Find and Replace to change BPA to IPC, or it will be even more messed up.

This Claimant has salaried in-house Staff who just send emails incurring no additional expense in their 'cut & paste' robo-claims. The defendant puts the Claimant to strict proof of this additional cost because the salaried in-house staff cannot possibly be believed to be paid in the millions per annum for their services.

But this is a standard from a ParkingEye Defence, where PE have in-house lawyers working on this stuff. HX Parking - you gotta be kidding! One man and his dad outfit.

This needs a re-working (have you studied the example defence put together by legally qualified poster 'bargepole' to help in putting your defence together?).

MODEL DEFENCE BY BARGEPOLE

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

Pjr1525

Many thanks, back to the drawing board!

Coupon-mad

also ticketing paying patrons does not act as a deterrent, because the tariff has been paid, so there is nothing to deterr.

That's a good point to distinguish your case from Beavis.

'Deter' has one 'r' though (it only takes a 2nd 'r' in deterrent or 'ing' or 'ed' endings).

And here is a recent defence where I cut out a lot of that template:

https://forums.moneysavingexpert.com/discussion/comment/74824471#Comment_74824471

Might help you see the wood for the trees.

Pjr1525

I'm floundering now. Do I tidy up and shorten this long defence, or completely re-work it by using bargepole's concise defence as a guide?
I've got 'till 8/10 to submit a defence. I will post an altered version in a day or so. Regards.

nosferatu1001

How abou tyou use Bargepoles concise defence as a starting point,and work out using your own critical thinking ability whether elements of the other defence posted by C-M can be added?
given this is YOUR defence, you need to take charge and work out YOUR plan for this/.

Pjr1525

Many thanks for that. I've already did exactly as you suggested and used bargepole as a framework, slotting in some thinking of my own and also some of coupon's advice, still keeping it (I hope) concise. Will post tomorrow. Regards.

Pjr1525

In the county court
Claim No xxxxxx
Between
Xxxxxxxxxx (claimant
And
Xxxxxxxxxx ( defendant )

Defence
1.The defendant denies that the claimant is entitled to relief in the sum claimed, or at all.

2.the facts are that the vehicle xxxx xxx of which the defendant is the registered keeper, was parked on the material date correctly and that a ticket was purchased and displayed in full view and there was no overstay. Proof of payment was supplied to the claimant in the form of the parking ticket.

The ticket was valid in as much as the correct tariff was paid and sufficient VRN was entered to positively identify the vehicle in question.

The Claimant’s website states that they recognise human error and do not issue PCNs if a digit or two is incorrectly inputted.
If the VRN entered is sufficient enough to identify the vehicle, then they must abide by their own statement of recognising human error and not issue a PCN.

3.The particulars of claim state that the vehicle xxxx xxx incurred the charge for breaching the terms of parking on the land at xxxxxxxx. The particulars of the claim do not meet the requirements of practice direction 16 7.5 as there is nothing which specifies how the terms were breached.

4.Due to the sparseness of particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability or trespass. However, it is denied that the defendant entered into any contractual agreement with the Claimant, whether express, implied or by conduct.

5.Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The important requirement of entering a full VRN into the ticket machine should be made clear to patrons in prominent lettering at the ticket machine, that failure to do so would incur a parking charge of £100.

6.The important and mandatory information regarding the fact that ANPR is used for enforcement purposes in the terms and conditions, are in such a small font at the very bottom of the signage as to make it unreadable. Also it does not state specifically that the ANPR images will be compared to data from the ticket machine for the purpose of issuing a £100 penalty. There is also misleading information on the main sign at the entrance to the car park which states ‘Full terms and conditions at ticket machine, there are no such ‘Full terms and conditions’ at the ticket machine. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

7.the claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. Even if it is proven that the Claimant has the necessary authority then it cannot be claimed that there is a commercial justification for issuing parking charge notices to paying patrons, as distinguished from Parking Eye v Beavis, because The defendant finds it hard to believe that the landowner would support the ticketing of fee paying patrons, thus risking further revenue. Also there is no deterrent value, because the patrons have already paid, so there is nothing to deter.

9. According to the consumer rights act 2015, any goods purchased must be ‘fit for purpose’. The Ticket that was issued was not ‘fit for purpose’ The claimant took the defendant’s money to issue an invalid ticket and now wants to charge the defendant a penalty for having an invalid ticket.

10.The Protection of Freedom act 2012, schedule 4, at section 4(5) states that the maximum sum that may be recovered from the keeper is the charge on the notice to keeper, in this case £100. The claim includes an additional £60 for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

11.in summary, it is the defendant’s position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the court is invited to strike out the claim of its own initiative, using the case management powers pursuant to CPR 3.4

I believe the facts contained in this defence are true

Xxxxxxxxx
Xxxxxxxxx
Date.

I’ve tried to get in all the points that I consider important, so that I can expand on them in my witness statement. The majority of the defence was lifted from bargepole’s post, I’ve tried to make it relevant to my own case, but not sure if I’ve got it right, some of the points got away from me a bit. I would appreciate any pointers. Regards.

Ibcus

It seems HX has added a new sign to the PD machines.
If the signage complied why go to expense of adding more?