Euro Car Parks Popla Appeal

nick_968

Hi

This is my first post here so I have been reading through the various guidance and successful appeals.

I thought I would post a new new thread so I can clarify the angles I should be going for.

I sent the recommended standard letter to start with and did not ID the driver and this is the response I got:

"Please be advised that it is the registered keepers responsibility to inform of the full name and address within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012, Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid."

"As the drivers details have not been provided you as the registered keeper are now liable for the outstanding amount. Prompt payment is now advisable."

"The car park in question is on private land and upon entering such land vehicles are subject to the terms and conditions of parking as shown on the signage. This signage quite clearly states that if your vehicle is in breach of the terms and conditions of the car park then a parking charge notice (PCN) will be issued."

"On entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has been correctly parked. Any vehicles found not adhering to the signage will be issued with a parking charge notice (PCN)."

"Please be advised that there are a number of signs around the car park indicating the restrictions of the site and it is the responsibility of the driver to read them when parking."

"The car park is operated by Automatic Number Plate Recognition (ANPR)."

"The car park in question is on private land and upon entering such land vehicles are subject to the terms and conditions of parking as shown on the signage. The signage quite clearly states that if your vehicle is in breach of the terms and conditions of the car park then a Parking Charge Notice will be issued."

"On entry to private land it is the responsibility of the driver to check for signage and ensure that your vehicle has been correctly parked. Any vehicles found not adhering to the signage will be issued with a Parking Charge Notice."

"The signage onsite clearly states Authorised Vehicles Only, your vehicle was not authorised to park in xxx Health Centre therefore the Parking Charge Notice was issued correctly and remains payable."

1. I cannot quite get my head round whether I have the easy win argument of them not having done what they need to to be able to pursue me as the keeper with what they say above?

2. The signage is in my opinion contradictory as the largest font at the top says you (Patients) can park there for two hours but then lower down in a smaller font is all the more detailed wording about having to register your plate and the fine etc. I think this could be a good example of confusing signage with too small fonts to be fully read and understood when driving in such as the recent McDonalds case posted up on the Popla appeals thread.

3. There is no proof the NTK was issued in time - they are just relying on the date in their NTK and the postal service. I asked for proof of postage but none was given.

4. I am also unsure about any Data Protection angles and the ANPR issues.

I am fairly confident I can piece this all together I just wanted to make sure that I go for the easiest win/ angle and don't miss anything out.

Unfortunately the clinic refuse to get involved in any parking ticket disputes so there does not appear to be any short cut other than getting into the appeal process.

Coupon-mad

There is no proof the NTK was issued in time - they are just relying on the date in their NTK and the postal service. I asked for proof of postage but none was given.

They don't have to prove the date of posting, and you can't prove it was late, so that argument goes nowhere. As long as it was dated in time to have been served to you in time, POPLA will say it's OK. Why do you think it's not compliant with the POFA?

This is not likely to be an easy win (but even if you lose, you won't PAY them!).

I am also unsure about any Data Protection angles and the ANPR issues.

You don't need to be sure, you can just copy the template written recently for ANPR ICO issues. No PPC is compliant, IMHO.

This is possibly a decent appeal point to add to the templates from the NEWBIES thread:

The signage is in my opinion contradictory as the largest font at the top says you (Patients) can park there for two hours but then lower down in a smaller font is all the more detailed wording about having to register your plate and the fine etc. I think this could be a good example of confusing signage with too small fonts to be fully read and understood when driving...

And re this, have you pointed out that the NHS car park is in breach of the Government policy that's been in place since 2013?

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles

Of course they can cancel these for genuine patients, push again, escalate the complaint, that's the 'easiest win' if you are robust and insistent:

Unfortunately the clinic refuse to get involved in any parking ticket disputes so there does not appear to be any short cut other than getting into the appeal process.

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, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another 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 lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

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 they will be out of business by Christmas.

nick_968

Coupon-mad wrote: »

You don't need to be sure, you can just copy the template written recently for ANPR ICO issues. No PPC is compliant, IMHO.

Is this the relevant template?

“
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 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

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 - 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.

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 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.

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.

Coupon-mad

Well yes that's just the ICO argument, of course. That's not an entire POPLA appeal (and the ICO breach of the DPA point has never been tested yet) but you'll know that from all the other POPLA threads here to crib from and from the NEWBIES thread post #3, where the POPLA templates are.

What is your answer to my question about the NTK, or do you accept it's compliant?

As long as it was dated in time to have been served to you in time, POPLA will say it's OK. Why do you think it's not compliant with the POFA?

nick_968

Coupon-mad wrote: »

Well yes that's just the ICO argument, of course. That's not an entire POPLA appeal (and the ICO breach of the DPA point has never been tested yet) but you'll know that from all the other POPLA threads here to crib from and from the NEWBIES thread post #3, where the POPLA templates are.

What is your answer to my question about the NTK, or do you accept it's compliant?

Based on what you say I accept it is compliant. I am not an expert in these matters but if they don't have to prove it has been posted on a given date then not much point in pursuing it as the issue date is within the required period.

I will see if I can locate the template for the ICO/ DPA point and prepare a response.

From what I can see I have two clear points so far to put into my appeal:

1. Unclear signage
2. The ANPR/ Data protection issue.

Coupon-mad

I will see if I can locate the template for the ICO/ DPA point and prepare a response.

You quoted it in post #4!

What about landowner authority (don't assume).

nick_968

Coupon-mad wrote: »

You quoted it in post #4!

What about landowner authority (don't assume).

Ok! I gotcha. I thought when you said that was not the entire POPLA appeal that there was anther template for this argument that had more in it.

I will add in the landholder authority argument as well.

With the signage argument is it sufficient to submit the wording as per the template or does all the sizing/ font size etc. need to be specific to the signs in question?

Coupon-mad

With the signage argument is it sufficient to submit the wording as per the template or does all the sizing/ font size etc. need to be specific to the signs in question?

It's a template to copy, doesn't matter what font size is on the signs and no-one goes & measures it! The purpose is to make life difficult for the PPC to rebut.

nick_968

First Draft:

Please find below my appeal against the Parking Charge xxxx.

1. Inadequate Signage
2. Contradictory Signage
3. No evidence of Landowner Authority
4. Failure to comply with the Data Protection Act

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

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In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

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This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

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As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

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''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

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''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

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This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

2. The wording within the signage is contradictory

The signage is misleading and contradictory. The largest, clearest and easiest writing to read from any great distance states !!!8216;Patient Parking Only Maximum Stay 2 Hours!!!8217;. This is 3 times larger than any other font used and likely to be the only thing you manage to read when driving past even when moving slowly when entering the car park.

Beneath that is wording that could at best be described as small print. Within the small print and not in bold is the !!!8216;failing to comply with the following will result in the issue of a £85 parking charge notice!!!8217;. It does not say !!!8216;failure to comply with ALL of the following!!!8217;. Furthermore the first of the statements says again as per the large font statement quoted above, !!!8216;Parking limited to 2 hours for patients only!!!8217;.

Although the next of the statements does then say !!!8216;patients must register their full and correct vehicle registration via the console!!!8217; this is a most unclear instruction as there is no description of exactly where in the health centre the console is located in order to be able to complete this process. For a first time visitor this whole process is confusing and the operator is clearly not doing its best to make it easy for genuine patients to know what they need to do to comply with the process.

So on the one hand the sign says patients can park for two hours but buried in the small print is the parking charge. This goes against the principles in my point 1 above and as above does not meet the requirements set out in the case law quoted above. This is both contradictory, unfair and misleading.


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

4. This operator 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 operators 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 have I 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

The operator has therefore failed to meet its legal obligations under the DPA.

In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on an operators trade body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The operator in question 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.

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.''

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.''

Even if there was a purported contract between the unidentified driver and the operator, 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).

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.

In this case it was not lawful for the operator 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.

To add weight, I would also cite the case of 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 operator 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 operator cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. I submit 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 operator 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.

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 my points above were argued.

Redx

why is there no POFA2012 and transfer from driver to keeper arguments in the above appeal ?

if the driver has not been IDd , then add POFA2012 in and make them prove they had the correct POFA wording, plus met POFA timescales etc