Question about identifying driver

jessie_jean

Good morning, I just wondered if anyone had any suggestions before i send this off?

bargepole

It should be headed 'Defence', not 'Defence Statement'.

The first sentence containing your name and address should not be there, that goes in the Witness Statement, not the Defence.

Unless you weren't the driver at the time, Section 3 about POFA should be cut out altogether. If you were the driver, then your case is simply "I parked, I paid, and I made a minor error when entering the number, So what".

The Judge will be far more interested in this aspect than anything else.

jessie_jean

Thank you Bargepole.

I have carried out the changes you suggest and have removed point 3. regarding POFA and keeper liability and replaced it with the BPA code of practice and the quality checks required that are supposed to detect minor errors - something which i hope is a bit more relevant to my case.

Do you think this is acceptable?

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

XXXX (Defendant)

________________________________________
DEFENCE

I deny I am liable for the entirety of the claim on the following grounds:

I would also like it noted that when submitting the acknowledgement of service I requested to dispute jurisdiction in error. To clarify, I do not wish to dispute jurisdiction.

1. The Claim Form issued on the 28th June 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited; as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

1.1. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

2. The driver complied with the terms and conditions offered by the Claimant, save for a small and insignificant error in the entry of the vehicle's VRN into the Claimant's machine, to which the doctrine Maxim de minimis non curat lex applies;

2.1 On the date of the parking, the driver complied with the terms and conditions of parking by purchasing a ticket and entering the vehicle registration number.

2.2 The well worn keypad and display on the Claimant's pay and display machine was poorly laid out and positioned and for some inexplicable reason the machine failed to produce a ticket with full registration number on it.. It is common ground between the parties that the Claimant was aware of this error, and that the driver had in fact paid the relevant parking charge, before it chose to issue proceedings. Indeed, the ticket itself was produced during the initial internal appeal process, which proved futile..

2.3 The "de minimis" doctrine (literally "the law cares not for small things") provides that the court should refuse to consider trifling matters. This is a case where the court should apply the doctrine in order to avoid the resolution of trivial matters that are not worthy of judicial scrutiny.

2.4 In fact, the Lead Adjudicator of one of the two trade bodies for private parking companies has advised its members that such small errors should be forgiven, saying that motorists are being "unfairly penalised for the most trivial of mistakes when entering their vehicle registration numbers.... where the mistake is so trivial that even someone applying their full attention might not realise.... then it is...unfair to enforce a charge".


3. The BPA Code of Practice indicated at paragraph 21 (ANPR) contains the following:

21 Automatic number plate recognition (ANPR)

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.

3.1. Had the claimant followed the code of practice regarding quality checks as detailed above in 3. then the minor error would have been spotted immediately.


4 The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative's costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £328.07 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this case.

6. 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

d) 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

e) 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.


Statement of truth

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

bargepole

jessie_jean wrote: »

I deny I am liable for the entirety of the claim on the following grounds:

I would also like it noted that when submitting the acknowledgement of service I requested to dispute jurisdiction in error. To clarify, I do not wish to dispute jurisdiction.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Should all be in the third person, apart from the Statement of Truth.

So:

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

For the avoidance of doubt, an error was made upon filing the Acknowledgment of Service. The Defendant does not dispute the Court's jurisdiction.

I confirm that the facts stated in this Defence are true.

Fruitcake

Should reference to the DPA now be replaced by GDPR?

jessie_jean

Fruitcake wrote: »

Should reference to the DPA now be replaced by GDPR?

Ah right, i hadn't realised things had changed, should i indeed replace the reference from DPA to GDPR then?

Thanks Bargepole, i have now changed it to third person.

bargepole

jessie_jean wrote: »

Ah right, i hadn't realised things had changed, should i indeed replace the reference from DPA to GDPR then?

Thanks Bargepole, i have now changed it to third person.

If the events in question occurred before 25 May 2018, then the GDPR wasn't in force, so the DPA 1998 would still have been applicable.

jessie_jean

Thank you, i will leave it as it is then. If it all looks good then I think i'm ready to sign and print!

jessie_jean

Hello.

I just wanted to post an update to thank everyone for their help and advice and to let you know that upon logging into my MCOL account this morning I discovered that Civil Enforcement have discontinued with the case.

Thank you so much for all your help, templates and advice - it really is invaluable!

Le_Kirk

Good result - well done!