Defence for court action

Coupon-mad

No, save the court rant for the day, as IamEmanresu said.

Email the other side and state that they have filed to serve their WS and evidence to you and you require their evidence that they sent this, and when & how?

Undisputed3001

Right, received the witness statement today. I've had quick glance and initial thoughts:

1. its a cut and paste of a WS - they can't even get my gender correct!
2. Being accused of staying on the land after the ticket had expired - err, wrong! They don't know what they are arguing about
3. The data protection breach and the DVLA. Nothing about the use of a secondary system
4. The signs - nice blown up images - none in context of where they are! And the best thing, they've submitted the sign next to the machine that specifies the criteria for which parking charges can be issued, which doesn't list the grace period at all!
5. The keep mentioning grace period with an explicit time interval of 10 mins. The IPC doesn't give a time at all,even though in the WS it says they do (no evidence to back it up)

Am I ok to scan it in, and upload it here. There's more stuff on legal cases they've quoted.

Coupon-mad

Sounds typical, do show us!

nosferatu1001

1) Expected!
2) You point that out to the court in your skeleton argument. POint out their witness statement is nothing of the sort - either the witness is deliberately misleading the court, or theyre incompetent. Either way it suggests their WS shoudl be struck, or the court at least gives it less weight
3) huh?
4) So you point out in the skellie that this doesnt show where the signs are. and again you point out that the parking machine sign does not mention this...
5) you ponit out this discrepancy

Of course, same as everyone does.

Undisputed3001

I'll upload it shortly - I just need to scan in and remove any personal information

System

You could write back to them and suggest a "drop hands" where both parties walk away.

If it goes to court with the WS, then you can argue for costs based on their unwillingness to walk away and the unreasonableness of sending in a cut and paste WS which a solicitor (and officer of the court) is supposed to have overseen.

Undisputed3001

Apologies for the delay in getting the WS from Gladstone's uploaded as I waiting on hubby to get it scanned and uploaded.

Here's the link:

My observations:

Page 2:

Point 4. - Is this not an acknowledgement of my defense that they are breaching DPA by linking two data streams together: "purpose of the ANPR system and the PDT system and how the data streams captured on both would be compared and used"

Point 5. -

a. It acknowledges I had a parking ticket (although gets my gender wrong!).
b. Mentions 10 mins grace period
c. States I was covered for parking between 18:00 and 06:00 (the following day)
d. States that I left at 21:02 (so I was covered according to them)
e. Then states that I had remained on the land in excess of 10 mins AFTER the expiry, which would have been after 06:10 the following day, even though they acknowledge that I left at 21:02. I've pointed out in my WS that they've never been clear on what time the alleged infringement took place, and again, they can't decide in their WS.

Point 6. - the signs can be seen on P11 - P14, with the parking/sign layout on P15. They've just printed signs without any context of how they appear to the user of the car park. For example, the one on P12 is placed so high its impossible to read, especially at night. In my WS I've shown the location from a users perspective. Similarly, the one on P13 is the one next to the payment machine, and this states under what conditions a PCN will be issued (doesn't mention grace period). The copy in my WS again shows it in perspective. The sign on P15, well, I had to drive back and see where that was by checking the map of signs the provided (P15). Its on the entrance, as you drive in. What am I supposed to be doing: watching out for pedestrians crossing the pavement, or reading the sign?

Point 7 & 8. - I'm not sure where they get the 10 mins from. The IPC doesn't specify a time, and plus the sign I read did not mention a time limit.

Point 9 - not sure if this has any relevance on grace periods. We're not arguing if the ticket was displayed or if the reg number was entered.

Point 10 - No I didn't. Prove to me that the sign on P13 mentions grace periods.

Then there is a whole lot on contract law.

Point 24 - I did send them a letter, unfortunately no proof of posting

Points 25 - 31 My view is that they did breach principle one of the DPA by linking two systems together. They are just waffling on about the DVLA

So what is my next step? I want to prepare something that I can just read in court (nervous enough as it is!)

Coupon-mad

I can see a file but can't seem to open or examine each image?

The sign is cluttered, very red, a lack of white space (nothing like the Beavis case sign you need to put in evidence, as an example of a brief & prominent parking sign).

The HX sign doesn't seem to say how much the 'parking charge' actually is...

Is this not an acknowledgement of my defense that they are breaching DPA by linking two data streams together: "purpose of the ANPR system and the PDT system and how the data streams captured on both would be compared and used"

Yes, but bear in mind it's not illegal or a breach (per se) to run two data streams, it's how they use that data to the detriment and imbalance against paying drivers that can be argued to be against the data principles.

A Judge might not get it...you can't just say this:

My view is that they did breach principle one of the DPA by linking two systems together.

You need to be able to explain your point, because a Judge might say ''oh this is very common, and certainly not illegal, how else could they tell who hadn't paid?'' and your answer would be...? what?

I know what my answer would be, but I'm asking you!


Sounds like their WS is a typical copy & paste mess:

c. States I was covered for parking between 18:00 and 06:00 (the following day)
d. States that I left at 21:02 (so I was covered according to them)
e. Then states that I had remained on the land in excess of 10 mins AFTER the expiry, which would have been after 06:10 the following day, even though they acknowledge that I left at 21:02. I've pointed out in my WS that they've never been clear on what time the alleged infringement took place, and again, they can't decide in their WS.

Undisputed3001

Coupon-mad wrote: »

I can see a file but can't seem to open or examine each image?

I've added zip file (all.zip) to the above location that contains the full WS.

Coupon-mad wrote: »

You need to be able to explain your point, because a Judge might say ''oh this is very common, and certainly not illegal, how else could they tell who hadn't paid?'' and your answer would be...? what?

I know what my answer would be, but I'm asking you!

My response would be that its a failure to comply i.e. the use of the two data streams that fall foul of at least principle one of the DPA. They haven't followed the Information Commissioners DPC, nor have they followed the IPC code. There should have been a privacy impact assessment, evaluation of proportionality and fairness, consideration of alternatives, clear signage on how the data from the two systems would be used, and lack of privacy notice to deliver mandatory information as required by the DPA via a Subject Access Request.

I hope I'm on the right track ...

Coupon-mad

My response would be that its a failure to comply i.e. the use of the two data streams that fall foul of at least principle one of the DPA. They haven't followed the Information Commissioners DPC, nor have they followed the IPC code. There should have been a privacy impact assessment, evaluation of proportionality and fairness, consideration of alternatives, clear signage on how the data from the two systems would be used, and lack of privacy notice to deliver mandatory information as required by the DPA via a Subject Access Request.

I hope I'm on the right track ...

Yes to all of that, plus the fact it is inherently unfair and contrary to the Consumer Rights Act 2015 and the CPUTRs, to use the hidden/unknown timing that most disadvantages a paying driver who has a tangible ticket produced by a machine that gives a different timing, that they would reasonably expect to rely upon.

And it's not 'an understandable ingredient of a scheme serving legitimate interests' (para 199 of the Beavis case decision) to punish paying drivers, treating them the same as a non-paying driver, with £100 fine. The PDT machine does not have a warning about the ticket not being reliable as the parking timing, nor do most PDT machines or phone apps even mention £100 in the large font list of possible tariffs.

I wrote this defence the other day re a PDT car park:

https://forums.moneysavingexpert.com/discussion/comment/74884739#Comment_74884739

Case law more relevant than Beavis applies:

Authorities other than Beavis, better apply to the instant case

8. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

8.1. Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

8.2. Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

8.3. Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.