VCS Letter Before Claim

rb331

Many thanks for your help, I literally have a few hours to submit this now :-(, please let me know if it looks good.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (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, registration ———, of which the Defendant is the registered keeper, was parked in the ‘free to use’ car park at Berkeley precinct , Sheffield.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). The vehicle has more the one driver and the claimant has not provided any evidence as to who was driving. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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. CPS Ltd v AJH Films Ltd 2015 is not valid here as there was no contractual relationship between the driver and the keeper. If the Claimant wants to pursue the defendant as keeper, the Claimant MUST comply with the requirements of POFA.

5. Due to the sparseness of the 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, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. 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 one sign to the left of the car park upon entry states ‘2 Hrs Max Stay’ can be blocked by standing pedestrians on the footpath and contains no terms and conditions. There are no signs in any of the bays on the side of the car park where the vehicle was parked. The terms on the claimant's signage on the other side of the car park are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand within inches directly in front and below the sign.

7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 “POFA 2012” Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict ”keeper liability” provisions:

The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

8.The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper’s vehicle over stayed the maximum time of 2 hours. The 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

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

9.2. 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.


10. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

11. 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.

12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated 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.

13. 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 its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

rb331

I found a better paragraph for section 4 , I needed to search the forum using "CPS v AJH" not 'vs' then everything came up Please find revised:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

xxxxxxxxxxxx (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, registration ———, of which the Defendant is the registered keeper, was parked in the ‘free to use’ car park at Berkeley Precinct , Sheffield.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). The vehicle has more the one driver and the claimant has not provided any evidence as to who was driving. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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. Should the Claimant attempt to rely yet again on the irrelevant case of CPS Ltd v AJH Films Ltd, in an attempt to suggest to a Court that a driver 'acts on behalf of' an individual consumer registered keeper, using their well-documented and twisted interpretation of the law of agency, the Defendant points out that that there can be no agent/principal relationship between individual drivers and keepers in a family.


5. Due to the sparseness of the 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, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. 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 one sign to the left of the car park upon entry states ‘2 Hrs Max Stay’ can be blocked by standing pedestrians on the footpath and contains no terms and conditions. There are no signs in any of the bays on the side of the car park where the vehicle was parked. The terms on the claimant's signage on the other side of the car park are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would need to stand within inches directly in front and below the sign.

7. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 “POFA 2012” Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict ”keeper liability” provisions:

The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled “Parking Charge Notice” which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

8.The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper’s vehicle over stayed the maximum time of 2 hours. The 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

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

9.2. 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.


10. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

11. 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.

12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated 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.

13. 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 its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

rb331

I notice on MCOL it states a maximum of 122 lines, it appears I am over this, any way around this? Thanks

rb331

Sorry I also found the answer on the forum advanced search, I can submit by email. I think thought as I have left it so late in the day I will submit online but remove the spaces so it then fits (have tested this)

KeithP

What is the Date of Issue on your Claim Form?

Submitting via MCOL destroys formatting making it difficult to read.
Do you want to subject a Judge to that?

When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out what to do with it.

rb331

Thank you date of issue was 31st August I did AOS in time , does that give me until 4pm today or midnight ? Thanks

KeithP

With a Claim Issue Date of 31st August you have until 4pm on Wednesday 3rd October 2018 to file your Defence.

So the absolute limit is 4pm tomorrow.

Best to get it in before midday tomorrow and ring the CCBC to get them to confirm receipt that same day.

rb331

Thanks Keith, much appreciated, I most definetly will. If my defence above looks good I will follow your guide above and submit via email.

rb331

Coupon-mad wrote: »

Just noticed you posted a draft defence while I was typing.

Remove this, as no PPC has to show LOSS:



Replace it with what you find about these points I just made:

Coupon-Mad thank you for you help, does my latest defence look ok to send? Many thanks

Coupon-mad

It's very good IMHO.

The only thing I would change is this, as it sort of suggests you were the driver:

There are no signs in any of the bays on the side of the car park where the vehicle was parked.

Maybe:

There are no signs in any of the bays on the side of the car park where it is believed that the vehicle was likely to have been parked on the material date, if indeed this was one single visit and one parking event (the Claimant is put to strict proof from ANPR images throughout the period in question).

I would also send this week, to VCS, a SAR to their Data Protection Officer (see their 'privacy' page for contact details on their website, probably). Had it up Subject Access Request - all ANPR images for VRN xxx xxxx.

Attach a copy of your V5 to show the VRN is your personal data.

Ask for their DPO to interrogate all the VRN data captured that day and show you the times this VRN went past a camera, in or out, and their evidence that the cameras were synchronised with each other as well as GMT. Say that if they fail, within 30 days, to show all images of this VRN captured (or partially captured, including obscured photos, in or out that day) you will complain to the ICO.

You never know, maybe this was a day when the car went back in and never overstayed.