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Gladstone Claim Form MB - Defence
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Dave1231
Posts: 7 Forumite
I decided to start a new thread as the last one was really poor from me. i have below a draft defence which i would like you to look at.
The Keeper (Mrs) received number of letters for parking at a car park (mecca Bingo, Oldham) that was previously used without any issues. The first letter showed a picture of the car parked there. However, the keeper could not have possibly been driving as she was heavily pregnant at the time of alleged offence. We now have been issued a claim form.
AOS has been done and we have a few days left to send the defence off. Thanks in advance.
Couple of questions
Point 7 where it states the costs from solicitors should that include the court fee of £25?
Point 25 is this the cost for everything minus the initial £100?
Where would i include the fact that she was heavily pregnant and could not possible be driving?
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 the driver’s alleged breach of contract when parking at xxxxxx xxxxxx retail car park on the xxth.
2. The defendant has 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’ line of sight, near give way lines before mini roundabout where a driver would ‘look right’ as per the Highway Code. 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. Minster Baywatch Ltd have only recently placed their signage on the walls within the car park creating new terms and conditions for motorists. The IPC Code of Practice states that;
“Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.”
There are no signs at the entrance at all and no additional signs or notices to alert drivers, even in adverse weather conditions.
6. The defendant submits that she was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the defendant from being able to get this charge cancelled by the Retailer, a right that is existed as an exemption clause for shoppers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers. If the defendant could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, the defendant would have done so.
7. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
·The Defendant has the reasonable belief that the Claimant has not incurred £50 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 £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
8. The allegation appears to be that the ‘vehicle was not authorised to use the car park’, 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 ‘No Authorisation’ 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.
9. 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 underacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
10. 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; “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 ‘Creditor’ 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’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.”
11. 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. 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 ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;
12. The Claimant’s representatives, Gladstones Solicitors Limited, have artificially inflated the value of the Claim from £100 to a total of £238.58. 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, Gladstones Solicitors Limited appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
13. 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.
14. 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.''
18. 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 iv 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.
19. 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.
20. 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.
21. Furthermore, 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.
22. 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.
23. 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.
24. 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).
25. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £138.58. 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.
26. 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.
27. 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.’
28. 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.
29. 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.
30. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Defence are true.
The Keeper (Mrs) received number of letters for parking at a car park (mecca Bingo, Oldham) that was previously used without any issues. The first letter showed a picture of the car parked there. However, the keeper could not have possibly been driving as she was heavily pregnant at the time of alleged offence. We now have been issued a claim form.
AOS has been done and we have a few days left to send the defence off. Thanks in advance.
Couple of questions
Point 7 where it states the costs from solicitors should that include the court fee of £25?
Point 25 is this the cost for everything minus the initial £100?
Where would i include the fact that she was heavily pregnant and could not possible be driving?
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 the driver’s alleged breach of contract when parking at xxxxxx xxxxxx retail car park on the xxth.
2. The defendant has 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’ line of sight, near give way lines before mini roundabout where a driver would ‘look right’ as per the Highway Code. 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. Minster Baywatch Ltd have only recently placed their signage on the walls within the car park creating new terms and conditions for motorists. The IPC Code of Practice states that;
“Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.”
There are no signs at the entrance at all and no additional signs or notices to alert drivers, even in adverse weather conditions.
6. The defendant submits that she was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the defendant from being able to get this charge cancelled by the Retailer, a right that is existed as an exemption clause for shoppers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers. If the defendant could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, the defendant would have done so.
7. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
·The Defendant has the reasonable belief that the Claimant has not incurred £50 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 £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
8. The allegation appears to be that the ‘vehicle was not authorised to use the car park’, 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 ‘No Authorisation’ 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.
9. 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 underacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.
10. 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; “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 ‘Creditor’ 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’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.”
11. 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. 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 ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;
12. The Claimant’s representatives, Gladstones Solicitors Limited, have artificially inflated the value of the Claim from £100 to a total of £238.58. 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, Gladstones Solicitors Limited appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.
13. 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.
14. 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.''
18. 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 iv 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.
19. 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.
20. 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.
21. Furthermore, 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.
22. 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.
23. 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.
24. 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).
25. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £138.58. 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.
26. 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.
27. 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.’
28. 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.
29. 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.
30. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Defence are true.
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Comments
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I would say as a second sentence in point 1.Where would i include the fact that she was heavily pregnant and could not possible be driving?
Something like - the Defendant denies being the driver at the time of the alleged incident (and will prove that she was elsewhere at the time).
It would be really useful to be able to add that bit in brackets.
Perhaps someone else can provide a witness statement saying she was elsewhere.0 -
You were given good advice in your other thread
So why ignore it and start a duplicate thread with the same basic errors?
Keep everything in the original thread - have the decency to take on board the advice you were given there and carry on in that thread!
You can see how busy this forum is!
Let this one die.0 -
No.Point 7 where it states the costs from solicitors should that include the court fee of £25?
Yes.Point 25 is this the cost for everything minus the initial £100?
Near the top, but being heavily pregnant doesn't stop women driving (never stopped me, back in the days when heavily 'with child' four times...).Where would i include the fact that she was heavily pregnant and could not possible be driving?
Just state that the Defendant was not driving at the time due to discomfort from the last stages of pregnancy.
And if she is saying she wasn't driving then she needs to follow that with a point putting MB to strict proof of compliance with Schedule 4 of the POFA.
There should also be a point distinguishing the facts of this case from ParkingEye Ltd v Beavis, as you will find in many defences.
If you have more than one thread about the same PCN, please ask Crabman or Soolin to merge them.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi guys, i have updated my defence with the above comments and comments from the other post. i have till tomorrow 4pm to send this off. many thanks for your time.
1. The Defendant is the registered keeper of the vehicle in question. This vehicle is routinely used by more than one individual. The Defendant denies being the driver at the time of the alleged incident due to discomfort from the last stages of pregnancy. The Claim relates to an alleged debt arising from the driver!!!8217;s alleged breach of contract when parking at xxxxxx xxxxxx retail car park on the xxth.
2. The defendant has 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, near give way lines before mini roundabout where a driver would !!!8216;look right!!!8217; as per the Highway Code. 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 Claimant has provided no evidence in pre-action correspondence or otherwise that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012.
5.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
There was a relevant obligation either by way of a breach of contract, trespass or other tort.
5.1.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.
5.2. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law whether in statute or otherwise that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
6. Minster Baywatch Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
6.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
6.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
6.3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.
7. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £238.58. This appears to be an added cost with apparently no qualification and an attempt at more than double the recovery, which the POFA Schedule 4 specifically disallows.
7.1. The Protection of Freedom Act Para 4 states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
7.2. The driver did not enter into any agreement on the charge, no consideration flowed between the parties and no contract was established.
8. The Defendant relies upon ParkingEye Ltd v Barry Beavis 2015 UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, woefully inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee Accredited Operators Scheme, an organisation to which the Claimant was a signatory.
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw 1956 EWCA Civ 3.
8.2. The signage where the vehicle was photographed is not at the entrance and to the back of the parking site therefore making it inadequate to see, the full terms are in small writing making it illegible and does not mention what restrictions apply to the carpark in question. The Code of Practice of the Independent Parking Committee Accredited Operators Scheme, an organisation to which the Claimant is a signatory, states that should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign. The signage in the area does not meet this requirement.
8.2.1. The signage states that it is for use of Banktop Tavern and Mecca Bingo patrons only, and that such patrons be on the authorised user list. The sign does not state how to be on the authorised user list but does state that customers can use the parking site so it is a frustration of contract.
8.2.2. It is therefore denied that the signs used by this claimant could have formed a fair or transparent contract with a driver or was capable of being formed in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case.
9. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
9.1. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
9.2. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
9.3. The Claimant described the charge of £50.00 "legal representative!!!8217;s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
10. 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.
11. 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;
12. 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. 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;
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:
13.1. Lack of an initial privacy impact assessment.
13.2. Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle.
13.3. 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).
13.4. 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.
13.5. 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.
14. 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.
15. 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.''
16. 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.''
17. 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 #13.4 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.
18. 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.
19. 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.
20. Furthermore, 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.
21. 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.
22. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £138.58. 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.
23. 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.
24. 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;
25. 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.
26. 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.
27. 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.0 -
The above suggests there are no signs AT ALL, which is not the case. And the word 'notifications' means nothing with regard to signage. So maybe:2. The defendant has 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.2. The defendant has visited the said car park as a result of this claim. It was noticed that there is no prominent 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 of the inadequate notice of any contract. [STRIKE]in this case, illustrating how the site suffers from poor signage and notifications.[/STRIKE]
Here, there is repetition. I would just have the para in blue:6. Minster Baywatch Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
6.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
6.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
6.3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge for trespass, and lacks any legitimate interest which would disengage the penalty rule and allow recovery of an otherwise unconscionable and punitive charge. .
This sentence:7.1. The Protection of Freedom Act Para 4
...should read:7.1. The Protection of Freedoms Act, Schedule 4, Para 4
Remove #11 which adds nothing and quotes from the wrong CoP. Minster Baywatch are in the BPA, not the IPC, so this is also wrong:8.2. The signage where the vehicle was photographed is not at the entrance and to the back of the parking site therefore making it inadequate to see, the full terms are in small writing making it illegible and does not mention what restrictions apply to the carpark in question. The Code of Practice of the Independent Parking Committee Accredited Operators Scheme, an organisation to which the Claimant is a signatory,PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hey really appreciate the feedback. Is there anything i should add regarding MB as a BPA or is this not necessary?.0
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Well where you put that the signage isnt compliant with the IPC CoP, you instead replace that with the relevant item from the BPA CoP....0
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Hi guys,
I've received gladstone DQ on the 21st but I've not received one that I can fill in.
Do I ring the court?0 -
If you like, or download a blank one from the courts form-finder webpages.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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