Two Offences in same parking session?

Sweller

Annoyingly the driver had even paid for several unused hours. I'll check the signage, although they seemed to have changed them as have no P&Ds now, just Ringo. They are also digging up bits of it, so interesting to see if the people parking on those bits will get tickets, as there are no marked bays.
You can see in the pictures that it was out of the bay, but only so the driver didn't have the bush next to the door. Being out of the bay didn't impact on anyone else.

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Coupon-mad

https://onedrive.live.com/?authkey=%21AM8Ppp9plp2GDkw&id=41F3BEFA5F5FCD2A%211437&cid=41F3BEFA5F5FCD2A

The wheels are within the bay (just) and there are no signs in view.

Did you know the Defendant could elect for a hearing 'on the papers' which has less chance of success but lots of evidence photos showing the lack of signs would be worth filing.

NO POINT just paying the stupid amount demanded.

[Deleted User]

TBH I think the car is ever so slightly over, but if it's not obstructing any other bay, one can ask the legitimate purpose of seeking a fee -
potentially grounds for the court to consider if this is an unfair penalty, which is your distinction as compared with Beavis.

Unless the signage states distinctly that you agree to pay £100 for each breach of the T&C's (which it won't) then I anticipate that they will struggle to recover 2 tickets for 1 parking event.

There is no loss in relation to the purchase of the ticket, because they were paid. You should be requesting confirmation that they have received payment for a car with a similar reg, that they know was not in the car park.

Sweller

OK, so working through various template defenses. I want to put something like this in the defense, but not sure if it is actually making a relevant legal point. Can anyone suggest any suitable approach please. This is where the driver selected the wrong car from the ringo app, it that helps. Thanks guys.

5. The defendant informed the claimant!!!8217;s client on 25/09/17, via their appeals process, that the alleged parking sessions was actually paid for by the use of the Ringo Application on a mobile phone and that an incorrect VRN had selected. The selected VRN was xx xTx where as it should have been xx xYx. Both VRNs are owned by the defendant!!!8217;s immediate family and APNR will confirm that xx xTx did not enter the car park on that day.

nosferatu1001

That is a fact, not an argument why payment isnt due

The arugment would be along the lines of:
1) Any alleged breahc of contract was unintentional and in any event de minimis, as the main requirement of the contratc was completed - payment was made fo rthe required duraiton via the RiNGO app.

Sweller

OK, so this is what I have. Much is taken from other defenses and I'm still really concern how much I'll need to know about the referenced cases. Any comments greatly appreciated and thanks in advance for your assistance.

Defence

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. I am the registered keeper of the vehicle in question. This vehicle is routinely used by more than one individual. The Claim relates to an alleged debt arising from my alleged breach of contract when parking at King!!!8217;s Meadow car park in Reading on the 14th September 2018.

2. The defendant has subsequently visited the said car park as a result of this claim. It was noticed that there is no signage at the entrances to the site from the main road and within the car park itself. Photos and video footage are to be presented as evidence in this case, illustrating how the site suffers from poor signage and notifications.

3. Any signage present is simply unreadable whilst driving. In addition it is placed in locations where it is not obvious to the driver i.e. blind spots from the drivers!!!8217; line of sight. Therefore the signage on this site is inadequate to form any contract with the motorist.

4. The defendant also argues that there are a great number of parking bays, proportional to the overall space within the car park that have no obvious adjacent or nearby signs in the line of sight of drivers who use the bays. Photos will be provided of the missing signage.

5. The Defendant informed the Claimant!!!8217;s client on 25/09/17, via their appeals process that the alleged parking sessions was actually paid for by the use of the RiNGO Application on a mobile phone and that an incorrect VRN had selected. The selected VRN was xx xTx where as it should have been xx xYx. Both VRNs are owned by the defendant!!!8217;s immediate family and APNR will confirm that xx xTx did not enter the car park on that day. Therefore any alleged breach of contract was unintentional and in any event de minimis, as the main requirement of the contract was completed as payment was made for the required duration via the RiNGO app.

6. The Defendant also disputes that the Claimant has incurred £110 solicitor costs.
The Defendant has the reasonable belief that the Claimant has not incurred £110 costs to pursue an alleged £100 debt.
Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
The Claimant described the charge of £110.00 "solicitors!!!8217; costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

7. The allegation appears to be that the !!!8216;vehicle was not authorised to use the car park!!!8217;, photographed by their ANPR camera at the entrance and exit to the site. This did not prove actual parking of the vehicle and is merely an image of the vehicle in transit. The allegation of !!!8216;No Authorisation!!!8217; is open to abuse by Claimants as it can be used in all cases regardless of the actual situation, this displays how the claimants claim is completely generic and not specific.

8. In order to issue parking charges, 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. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

9. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says; !!!8220;If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8216;Creditor!!!8217; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.!!!8221;

10. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is !!!8216;roboclaims!!!8217; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

11. The Claimant!!!8217;s representatives, BW Legal, have artificially inflated the value of the Claim from £100 to a total of £239.62. The defendant submits that the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, BW Legal appear to be in contravention of the Solicitors!!!8217; Regulation Authority Code of Conduct.

12. Under the Protection of Freedoms Act 2012, Schedule 4, a registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). Minster Baywatch Ltd do not use compliant NTKs, failed to serve one and cannot hold a registered keeper liable.

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:

a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) 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 This Claimant has therefore failed to meet its legal obligations under the DPA.

15. 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.

16. 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. 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 claimant.''

14. 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 #14 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).

15. 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.

16. 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 Data Protection Act.

17. 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 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.

18. 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:

(a) 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.
(b) 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.
(c) 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.

19. 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 14 and 18 above were argued.

20. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

21. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £139.62. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

22. In view of all the foregoing the court is invited to strike the matter out of its own motion. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

23. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their !!!8216;roboclaim!!!8217; particulars being incoherent, failing to comply with CPR. 16.4 and !!!8216;providing no facts that could give rise to any apparent claim in law.!!!8217;

24. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 !!!8211; 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

25. I would like the Court to take note that the defendant was then aggressively harassed by letter after letter from different collection agencies, despite not being liable for these made up costs.

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

I believe the facts stated in this Defence are true.

nosferatu1001

well you have literal months to read up on the linked cases, so do that. Dont complain about not knowing about cases, before spending the time reading them> they are discused ad nauseum on this forum!

5) All you did was mash what you wrote, which is a set of facts, and mine, whcih is an argument

A defence is a set of ARGUMENTS about why you are not liable. LEAD WITH ARGUMENTS not facts.

Sweller

I'm not complaining about doing the reading, it was just a query on how much detail you are expected to know on such matters.
Thanks for your note on point 5, I hadn't quite appreciated what you were saying. I shall amend.

Coupon-mad

poor signage [STRIKE]and notifications.[/STRIKE]

Remove 'and notifications' as I have no idea why the person who first wrote that one, used that weird word, and no-one should be copying it!

in Reading on the 14th September 2018.

In the future?! Or 2017?

4. The defendant also argues that there are a great number of parking bays, proportional to the overall space within the car park that have no obvious adjacent or nearby signs in the line of sight of drivers who use the bays. Photos will be provided of the missing signage.

Are there really a 'great number' of parking bays (it doesn't look like that sort of site). Don't copy stuff that makes no sense, if it's not relevant to your car park then remove it.

APNR

Change to ANPR in #5.

Remove these two, as yours are NOT Gladstones!

[STRIKE]23. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their 'roboclaim' particulars being incoherent, failing to comply with CPR. 16.4 and 'providing no facts that could give rise to any apparent claim in law.'

24. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 & 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.[/STRIKE]

Change 23 and 24 to:

23. The added 'legal' 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 ANPR ticketing regime, and it was held that the claim could not have been further inflated, nor pleaded as damages, and would have failed.

23.1. Similarly, in Somerfield, a £75 parking charge was not held to be a penalty but the Judge remarked that a sum mentioned in the harassing letters of double that amount, almost certainly would be.

24. 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.

Let's see the next draft defence after you've changed those bits.

BW Legal for Premier Parking

There is no company called 'Premier Parking' so who exactly is the PPC, and make sure in your headings in the defence, you state the claimant as their full name.

Also tell us who you mean please, and whether they are IPC or BPA?

there is no way she will go to court

Then at DQ stage you will have to ask for the case to be heard 'on the papers' if she really will not attend in due course, but having it heard on the papers is more likely to LOSE.

Whereas people who turn up after being coached here, normally win.

Sweller

Thanks, that is really useful. Do you think it needs both 21 & 23?

PPS is Premier Parking Solutions Ltd, who are IPC members now. I had appealed this directly with PPS before I started looking into it in detail and as expected they rejected it. On advise from this forum I didn't bother with IAS.

Revised words are hear:

5. The Defendant also disputes that the Claimant has incurred £110 solicitor costs.
The Defendant has the reasonable belief that the Claimant has not incurred £110 costs to pursue an alleged £100 debt.
Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
The Claimant described the charge of £110.00 "solicitors!!!8217; costs" not "contractual costs". Civil Procedure Rule 27.14 does not permit these to be recovered in the Small Claims Court.

6. The allegation appears to be that the !!!8216;vehicle was not authorised to use the car park!!!8217;, photographed by their ANPR camera at the entrance and exit to the site. This did not prove actual parking of the vehicle and is merely an image of the vehicle in transit. The allegation of !!!8216;No Authorisation!!!8217; is open to abuse by Claimants as it can be used in all cases regardless of the actual situation, this displays how the claimants claim is completely generic and not specific.

7. In order to issue parking charges, 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. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

8. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says; !!!8220;If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the !!!8216;Creditor!!!8217; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.!!!8221;

9. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is !!!8216;roboclaims!!!8217; and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

10. The Claimant!!!8217;s representatives, BW Legal, have artificially inflated the value of the Claim from £100 to a total of £239.62. The defendant submits that the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, BW Legal appear to be in contravention of the Solicitors!!!8217; Regulation Authority Code of Conduct.

11. Under the Protection of Freedoms Act 2012, Schedule 4, a registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). Minster Baywatch Ltd do not use compliant NTKs, failed to serve one and cannot hold a registered keeper liable.

12. 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 International Parking Community (IPC) 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:

a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) 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 This Claimant has therefore failed to meet its legal obligations under the DPA.

13. 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.

14. 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.''

15. 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 claimant.''

14. 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 #14 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).

15. 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.

16. 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 Data Protection Act.

17. 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 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 IPC member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

18. 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:

(a) 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.
(b) 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.
(c) 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.

19. 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 14 and 18 above were argued.

20. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

21. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £139.62. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

22. In view of all the foregoing the court is invited to strike the matter out of its own motion. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.

23. The added 'legal' 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 ANPR ticketing regime, and it was held that the claim could not have been further inflated, nor pleaded as damages, and would have failed.

23.1. Similarly, in Somerfield, a £75 parking charge was not held to be a penalty but the Judge remarked that a sum mentioned in the harassing letters of double that amount, almost certainly would be.

24. 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.