NCP Court Claim defence

adam1308

It is not a Matalan car park, or a retail car park. I'm not sure if this affects anything. The thread you have provided was really useful. Here are the parts I have adapted. I have removed some parts about Odeon that were in the other thread. I have also added a bit more about ANPR in part 8.

6. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case.
6.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

7. According to the sparse, unlit signs in this car park, to avoid a Parking Charge, users of the service must either purchase a ticket by machine or phone.
7.1. Prior to the Defendant's visit, National Car Parks had only recently placed their signage within the car park creating new terms and conditions for motorists. The BPA Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''
7.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use a PDT machine that requires the motorist's registration number or risk a £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

8. This Claimant uses both ANPR camera systems and Pay and Display ticket machines to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
(i) lack of an initial privacy impact assessment, and
(ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
(iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR and Pay and Display ticket machines, 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 patrons), and
(iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR and PDT machines and how the data captured on both would be used. An icon that presumably represents a camera (though this looks nothing like the cameras installed at the site in question) and the words "ANPR in operation in this car park" on the signs say nothing at all about the ANPR system works or how the data would be used. Assuming another motorist saw this, they most likely would not know what the acronym ANPR stands for. The claimant is in clear breach of Section 21.1 of the BPA Code of Practice.
(v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
The Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.

Allypo

My daughter received a fine during lockdown. I was with her so took change to pay then realised it was card only. I was apprehensive about touching the keyboard during the height of covid 19 but entered her Reg number and, as far as I knew, paid the charge. However the payment wasnt taken. She received a £100 fine which was put on hold until things returned to somewhere near normal. She has now been told that the fine stands and that there is no evidence of her number being entered on that day. I know for a fact that I entered her Reg no. In fact if they check their cctv they would know that I fully intended to pay the fee. They are now threatening court action. £100 is a lot for a 21 Yr old to pay and she's just moved into her first house too. I want to take them to court as I know the cctv evidence will prove what I've done. What do others think please? 

KeithP

What 'cctv evidence' do you have?

Le_Kirk

You seem to have chosen a random thread from 2018 to hi-jack.  Best to read the NEWBIE sticky  the one that states READ THESE FIRST and then, if you still have a question, please start your own thread where you will receive bespoke advice.

Coupon-mad

Allypo said:

My daughter received a fine during lockdown. I was with her so took change to pay then realised it was card only. I was apprehensive about touching the keyboard during the height of covid 19 but entered her Reg number and, as far as I knew, paid the charge. However the payment wasnt taken. She received a £100 fine which was put on hold until things returned to somewhere near normal. She has now been told that the fine stands and that there is no evidence of her number being entered on that day. I know for a fact that I entered her Reg no. In fact if they check their cctv they would know that I fully intended to pay the fee. They are now threatening court action. £100 is a lot for a 21 Yr old to pay and she's just moved into her first house too. I want to take them to court as I know the cctv evidence will prove what I've done. What do others think please? 

They don't have CCTV.

Why post or even start to read an archive, ancient 2018 thread?   We have twenty or thirty new ones, daily!  See my signature and CLICK TWO CLICKS BACK and read the NEWBIES thread.  On forums you always need to get to page one and my signature tells you where to click,. top of any page.

AND - get ANGRY and GET EVEN about this scam!   Please now make a real difference:

A TASK FOR SEPTEMBER:

The Government is (this month only) consulting about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

At the very least, we say the parking charge level should be £50/£25 or higher level £70/£35, as per Council PCNs in E&W.  

And we say the added fake 'debt recovery' costs are just double counting the cost of letters, and MUST GO because that is unfair and illegal.

Please be heard.  You can bet the hundreds of PPCs will be commenting.

No apologies for repeating this vital 'call for action' to consumers, on every thread this month!