ParkingEye Claim Defence - Overstay Welcome Break

WalkAbout13

Hi guys,

Basically the situation is: Free car park at Welcome Break service station. I arrived after a 7 hour drive from Scotland. Was so tired and drove straight in and slept. When I woke up, I went into the services and used the toilet and ate some food. I did not even know that service stations had a 2 hour limit (I thought they were for resting!). I ended up overstaying by 38 minutes.

Anyway, I'm a student so my car is registered to my home address but whilst living at my student accommodation, I obviously was not receiving any of the correspondence. (I checked with DVLA already and because the home address is my MAIN address it is a legal requirement that I keep it at that address) So I'm not in the wrong at all for not updating my address.

I have therefore had no chance to contact anybody previously. The first time I know of all this is when I go home and read all my post and there's the claim form.

I contact WelcomeBreak who say they could've cancelled it if it was earlier in the process. They say because its at the court stage there's nothing they can do (I know this is misinformation)

So here I am, I have written a defence using the Odeon template that is on this forum. Could you tell me what you guys think? I also was wondering whether to include the Bowen case somewhere but unsure how to fit it in.

I've been on holiday/graduation and not been able to dedicate as much time as I would have liked so my defence is due in Saturday by 4pm! ahhhhh!

Thanks in advance guys.

WalkAbout13

DEFENCE




Background - the Defendant was an authorised patron of Welcome Break
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at xxxxx car park on XX/XX/XX. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the vehicle overstayed the free parking period based on images by ANPR cameras at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of whether the vehicle was parked the whole time. The Welcome Break service area includes many other amenities such as a petrol station and side roads and as the ANPR cameras are not positioned exclusively on the car parking spaces, the time calculated by the Claimant for the parking charge would include time driving around the car park and using other services and is therefore unfair to include in the minimum time that is legally required to be offered free, under the MSA rules from the Department for Transport

3. The Defendant has already proved that he was a patron of the Welcome Break, and it is the Claimant's own failure, caused by their deliberately obscure terms that has given rise to a 'PCN' that was not properly issued from the outset.


Unclear terms - no agreement to pay a penalty
4. According to the sparse, unlit signs in this car park, to avoid a Parking Charge, users of the service station must purchase a ticket within the WH Smith store if staying more than two hours. The text that includes the T&C!!!8217;s (alleged contract) on these signs is smaller than recommended by the DVLA for road signs and so are impossible to see whilst driving past. The Defendant was completing a drive from Scotland, seven hours long, and had pulled in to the service station to rest after following recommendations from signage on the motorway saying !!!8216;Tiredness Kills !!!8211; Take a Break!!!8217;.

4.1. At the time of parking on XX/XX/XX, the Defendant had a sleep in order to rest before entering the Welcome Break, using the services in the main concourse before filling up with petrol and the Defendant has a transaction on a bank statement which shows payments.

4.3. It is contended that the signage failed to alert visitors that a charge is payable after two hours or risk £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.'' Whilst the signage on this car park is in the red, on the route the Defendant took from the car parking space to the entrance, there is no visible signage. Whilst there are other signage around the car park, these are usually badly lit, covered by trees or facing directions that means no patron would look at them.


Consumer Protection from Unfair Trading Regulations - breach
5. Upon receiving the claim, the Defendant contacted Welcome Break and over email correspondence, a team member at Welcome Break suggested they would cancel the charge but were then told by the Claimaint that it is too late in the process for them to cancel.

5.1. The Defendant was here told for the first time, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the business had the authority to cancel the charge, but that it is now 'too late'. However, I refer to Sadler v Leigh, which indicates that the principal may intervene at any time.

5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the onsite businesses could very easily cancel a charge, apparently with one email. By withholding the Welcome Break route of cancellation/complaint from a consumer are 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

5.3. The only route offered was an 'appeal' to ParkingEye themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.


No locus standi
6. In order to issue 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. ParkingEye has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. 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. When ParkingEye, all too often at this location, unfairly ticket a patron of the Welcome Break, any commercial justification in the form of support by Welcome Break for such unfair ticketing is absent.

7.1. 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.


Data Protection Act and BPA Code of Practice breach
8. 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' (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 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 consider the number of complaints from the Welcome Break and other businesses, which would have alerted this Claimant to the fact that their signage was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against patrons.

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data captured on both would be used, and

vi) 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.

9. This 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.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) 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 specifically illegal; breaching principle one of the DPA.

11. 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.''

11.1. 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 plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12.1. 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.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''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''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. 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:

(i) 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.

(ii) 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.

(iii) 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.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside a hidden iPad system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.


Unconscionable and unrecoverable inflation of the 'parking charge'
14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. 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 ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

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

16. 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

KeithP

A Defence is never due on a Saturday, or any other non-working day.

What is the Date of Issue on your Claim Form?

Have you done the Acknowledgement of Service? If so, when?

WalkAbout13

Yes I've done the Acknowledgment of Service. I rang the courts yesterday and she said 28th 4pm.

I did think it was weird being Saturday, I'll give them another call and ask again.

KeithP

So just two questions remaining...

KeithP wrote: »

What is the Date of Issue on your Claim Form?

[STRIKE]Have you done the Acknowledgement of Service?[/STRIKE] If so, when?

WalkAbout13

25/06/18 is the date of issue on the claim.
Acknowledged on 28/06, acknowledgment received on 29/06.

KeithP

With a Claim Issue Date of 25th June, and the AoS done in a timely manner, you have until 4pm on Monday 30th July 2018 to file your Defence.

If the calculated due date falls on a non-working day, as it does in your case, one is allowed until 4pm on the next working day to file the Defence.

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

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

WalkAbout13

Thank you very much KiethP! Anyone able to offer feedback on the defence I have posted?

Coupon-mad

Unlit signs/no agreed contract is your main defence.

Cite the Bowen case as well, it's well known and at (later) Witness Statement stage, you can use the newspaper advert as evidence or try contacting Nicholas Bowen QC (not too formally, just as a fellow victim of PE!) to see if he will give out the Claim Number and if he obtained a transcript that he would be happy for others to use/to be shown in the public domain on MSE forum here.

Nothing to stop you asking politely...he obviously feels strongly about this.

WalkAbout13

Thanks Coupon-mad! Excellent advice. I will try contacting Bowen. I see he has a Twitter account that he posts strong words about PE on.

Do you think the defence I have posted is okay to submit to the court?

Coupon-mad

A few changes suggested:

Background - the Defendant was an authorised patron of Welcome Break
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to [STRIKE]an alleged debt[/STRIKE] an unexpected postal Parking Charge Notice ('PCN'), arising from the driver's alleged breach of contract, when parking at xxxxx car park on XX/XX/XX. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the vehicle overstayed and contravened the hidden term of an unknown '2 hour free parking period' based on images by ANPR cameras at the entrance and exit to the site.

2.1. This is merely an image of the vehicle in transit and is no evidence of whether the vehicle was parked the whole time.

2.2. The Welcome Break service area includes many other amenities such as a petrol station and side roads and as the ANPR cameras are not positioned exclusively on the car parking spaces, the time calculated by the Claimant for the parking charge would include time driving around the car park and using other services and the time to leave the site, and is therefore unfair to include in the minimum parking/rest time that is legally required to be offered free, as the Defendant now discovers is set as a minimum, under the MSA rules from the Department for Transport.

3. The Defendant has already proved that he was a patron of the Welcome Break, and it is the Claimant's own failure, caused by their deliberately obscure terms that has given rise to a PCN that was not properly issued from the outset.


Unclear terms - no agreement to pay a penalty
4. The Defendant was horrified to now discover that, [STRIKE]according to the[/STRIKE] there were sparse, unlit signs in this car park.

4.1. Unbeknown to the Defendant, [STRIKE]to avoid a Parking Charge, [/STRIKE] hidden unlit terms say that users of the service station must purchase a ticket within the WH Smith store if staying more than two hours.

4.2. The text that includes the T&C's (alleged contract) on these signs is smaller than recommended by the DVLA for road signs and so are impossible to see whilst driving past.

4.3. The Defendant was completing a drive from Scotland, seven hours long, and had pulled in to the service station to rest after following recommendations from signage on the motorway saying 'Tiredness Kills - Take a Break'.

4.4. At the time of parking on XX/XX/XX, the Defendant had a sleep in order to rest before entering the Welcome Break, using the services in the main concourse before filling up with petrol and the Defendant has a transaction on a bank statement which shows payments.

4.5. The Claimant is put to strict proof to differentiate the parking event from the time spent in the petrol station dealing with the vehicle in readiness for the onward journey, activity which cannot possibly be included in the free 'parking time' required by the statutory DFT rules for any Motorway Service Area (MSA).

4.6. It is contended that the signage failed to alert visitors that a charge is payable after two hours or risk £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.''

4.7. [STRIKE]Whilst the signage on this car park is in the red, on[/STRIKE] On the route the Defendant took [STRIKE]from the car parking space to the entrance,[/STRIKE] there is no visible signage in hours of darkness and nor are there any signs warning people filling up at the petrol station that the time spent there is counted by ParkingEye (who have no signs at the petrol pumps) as if it were part of the allowed parking/rest time. Whilst there are other signage around the car park, these are believed to be [STRIKE]usually[/STRIKE] badly lit, covered by trees or facing directions that means no patron would look at them, and the Claimant is put to strict proof of their signs inside WH Smith, and outside in hours of darkness.


Consumer Protection from Unfair Trading Regulations - breach
5. Upon receiving the claim, the Defendant contacted Welcome Break and over email correspondence, a team member at Welcome Break suggested they would cancel the charge but were then told by the Claimant that it is ''too late'' in the process for them to cancel.

5.1. The Defendant was here told for the first time, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the business had the authority to cancel the charge, but that it is now 'too late'. However, I refer to Sadler v Leigh, which indicates that the principal may intervene at any time.

5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the onsite businesses could very easily cancel a charge, apparently with one email.

5.2.1. [STRIKE]By[/STRIKE] Withholding the Welcome Break route of cancellation/complaint from a consumer is a [STRIKE]are[/STRIKE] 'misleading omission[STRIKE]s[/STRIKE]' of material facts. [STRIKE]These breaches[/STRIKE] Along with the hidden unlit T&Cs, this too is a breach of the CPUTRs 2008 [STRIKE]have[/STRIKE] which caused the unfair PCN and prevented its cancellation before proceeding started. This conduct by the Claimant in suppressing key information about a cancellation route, has severely disadvantaged the Defendant.

5.3. The only route offered was an 'appeal' to ParkingEye themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists [STRIKE]and ordinary residents[/STRIKE] [...] should not have to put up with this''.


No locus standi
6. In order to issue 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. ParkingEye has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.

6.1. Even if they show general authority for 'parking management' regarding this site, it is in the public domain that a Schedule addendum in the Welcome Break/ParkingEye contract states that Welcome Break's agreement must be obtained before court action in every case. The Claimant is put to strict proof that they obtained this landowner agreement specific to this case, in advance of filing this claim.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. 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. When ParkingEye, all too often at this location, unfairly ticket a patron of the Welcome Break, any commercial justification in the form of support by Welcome Break for such unfair ticketing is absent. Moreover, the Defendant was told by Welcome Break that they wanted this PCN cancelled.

7.1. 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.

7.2. 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, neither of which exist to save this case from the penalty rule.


Data Protection Act and BPA Code of Practice breach
8. 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' (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 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, or re-positioning the cameras to cover the parking bays only, so that petrol station activity and driving through the MSA roadways is not presumed to be, or negligently allowed to eat into, the time spent parked/resting), and

iv) Failure to consider the number of complaints from the Welcome Break and other businesses, which would have alerted this Claimant to the fact that their signage was not being seen by all genuine patrons and that ANPR at the entrance/exit was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against patrons.

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data captured on both would be used, and

vi) 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.

9. This 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.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) 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 specifically illegal; breaching principle one of the DPA.

11. 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.''

11.1. 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 plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12.1. 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.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''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''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. 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:

(i) 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.

(ii) 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.

(iii) 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.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside a hidden iPad system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.


Unconscionable and unrecoverable inflation of the 'parking charge'
14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. 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 ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

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

16. 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.