Excel PCN NTK

poundofcarrots

Update: After some to-ing and fro-ing regarding the SAR, I finally received (some of the information) I was hoping for from Excel. The SAR showed that one ticket had been purchased for my wife's registration number rather than the car she had parked in (mine).

However, the SAR seems to be incomplete. This happened on two occasions (hence two PCNs) but the SAR has showed that a ticket was purchased only once (the first) occasion and not the second time for which we still have the ticket as proof. There seems to be an error in their SAR records (deliberate or otherwise).

Should I point this out to them or sit tight and wait to see what they do next?

Thanks in advance.

poundofcarrots

Ok, no need to sit tight as I've now received a Claim Form. I will complete the acknowledgement of service online then post my defence up here to get some feedback on it.

Can I just clarify at what stage I could expect to see their evidence? I did request to see 'all data held and all evidence Excel will rely on" in my SAR.

Redx

read the posts by BARGEPOLE & LOC123 in the newbies thread , post #2

KeithP

poundofcarrots wrote: »

I've now received a Claim Form.

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

poundofcarrots wrote: »

I did request to see 'all data held and all evidence Excel will rely on" in my SAR.

But some of that will not be personal data and therefore they are not obliged to supply that as a response to a Subject Access Request.

poundofcarrots

Thank you. The issue date was 21/2/19 and it did come from CC Business Centre NN1.

Thanks for the reference to the posts above; I had checked earlier but had some how missed the Bargepole one.

KeithP

poundofcarrots wrote: »

Thank you. The issue date was 21/2/19 and it did come from CC Business Centre NN1.

With a Claim Issue Date of 21st February, you have until Tuesday 12th March to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 26th March 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

poundofcarrots

Hello all

I've done my AOS and although I have a few weeks until my defence is due, I have been reading avidly over the last few days and prepared a defence below.

To clarify the current situation, I have received two PCNs but at this stage, only received one court claim. This is for the occasion which we do not have a ticket as evidence. However a SAR did reveal that a ticket had been purchased by my wife at the time of the alleged infringement which was mistakenly input as her VRN.

I have tried to use this as evidence that I was not the driver but this risks revealing her as the driver because she had to give her name in the SAR in order to prove that she owned the car that was mistakenly input into the PDT machine! However, the driver has never been explicitly named. Very confusing I know but I hope you can follow this.

---

1The Defendant is the registered keeper but was not the driver of the car at the time of the alleged infringement and denies any liability in this claim.

1.1The Claimant has been informed that the Defendant was not the driver.

1.2 The Defendant cannot be held liable under any applicable law. The 'Notice to Keeper' sent by the claimant does not establish keeper liability, but incorrectly presumes the keeper as being the driver.

1.3 ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. The Claimant has written to the Defendant stating that they have not cited POFA or that the Defendant is liable for the Charge as the vehicle Keeper. This is in breach of the IPC Code of Practice to which the Claimant subscribes.

1.4 Liability can not be transferred to the Registered Keeper and the Claimant can only pursue the driver. As the driver has not been identified there should be no grounds to pursue the Defendant as the Registered Keeper.

1.5 The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, 'There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort' (2015).

1.6 The SAR provided by the Claimant shows that the Defendant’s partner’s car registration was paid for during the time of the alleged contravention but there is no evidence that this car had ever entered the car park. It is requested that this be considered as evidence that the Defendant was not the driver at this time.

2. Any alleged breach of contract was de minimis. Parking was paid for for the entire duration of the stay. The Claimant has been made aware of this and evidence has been provided but the Claimant has chosen to ignore it to pursue an unnecessary and inflated claim

2.1 The Defendant's partner paid for parking but entered her own registration number in error, instead of the registration number of the Defendant's car which she was driving.

2.2. The PCN stated that the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it has been shown in the SAR that the correct parking charge (tariff) had already been paid.

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

2.4 In the absence of the original paid parking ticket as evidence, a SAR request provided by the Claimant shows that payment was made for the vehicle owned by the partner of the Defendant. However, there is no evidence that her vehicle entered or left the car park.

2.5 Excel Parking has issued another PCN to the Defendant for an identical circumstance to this case for which a ticket was produced as evidence that parking was paid for. This ticket was missed from their records requested in a SAR demonstrating that the Claimants record keeping cannot be relied upon. This has been deliberately ignored by the Claimant in order to pursue an inflated claim. In this case, the SAR acts as proof in the absence of a ticket.

3. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on 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 actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


3.1 The Claimant has added £60 to the original Parking Charge Notice for ‘debt collection costs’. No communication has been sent or received about debt collection. Considering the parking charge was fully paid for in the first place, this attempt to inflate the claim further is cynical and has no legal justification.

3.2 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.


4 As the Defendant was not the driver of the vehicle, it cannot be accepted that any contract was entered into with the Claimant.

4.1 The Unfair Terms in Consumer Contract Relations 1999 states 5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

4.2 The amount claimed by the Claimant is unfair. It is unfair because the parking charge has already been paid but the Claimant is requiring the Defendant to fulfill an obligation to pay a disproportionately high sum in compensation.


5 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 unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

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 IPC 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.

6.1 The Claimant states there was a breach of contract yet 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 6 a) – e) 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)

7. 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.

8. The Defendant wishes the Court to take note of the serious distress and alarm caused to the Defendant and their family, as a direct result of the unwarranted and aggressive harassment by letter after letter from different collection agencies, despite the fact there can be no 'keeper liability' out with the POFA 2012, and the Claimant is already aware from the appeal that the Defendant keeper was not the driver.


9. The Court is invited to dismiss the Claim

Umkomaas

I have tried to use this as evidence that I was not the driver but this risks revealing her as the driver because she had to give her name in the SAR in order to prove that she owned the car that was mistakenly input into the PDT machine! However, the driver has never been explicitly named. Very confusing I know but I hope you can follow this.

I may have indeed not 'followed this', as I've not read back through 58 prior posts, but if your wife 'owned' the car, is she the car's registered keeper?

Against whom is the PPC claiming in all their paperwork?

poundofcarrots

No, the PCN was sent to me as the registered keeper of the vehicle that was photographed in the car park. It was my wife who had borrowed it who entered the VCN of her vehicle by mistake. The SAR has shown that a ticket was purchased for this VCN, not mine.

Thanks for your reply.

Umkomaas

poundofcarrots wrote: »

No, the PCN was sent to me as the registered keeper of the vehicle that was photographed in the car park. It was my wife who had borrowed it who entered the VCN of her vehicle by mistake. The SAR has shown that a ticket was purchased for this VCN, not mine.

Thanks for your reply.

It could be covered by a statement that 'the driver of the vehicle at the time erroneously entered the VRM of another vehicle used within the family', which personally identifies no one.