Excel PCN NTK

poundofcarrots

Thank you. Although this sounds like a great idea, I have already mentioned that my wife borrowed my car at the beginning of my appeal (as this was advised to me in post #6). I'm not sure whether I could still therefore take this approach?

Umkomaas

poundofcarrots wrote: »

Thank you. Although this sounds like a great idea, I have already mentioned that my wife borrowed my car at the beginning of my appeal (as this was advised to me in post #6). I'm not sure whether I could still therefore take this approach?

What I suggested is still factually correct, I wouldn't worry too much about it.

They can't identify your wife, all they know it is 'Mrs poundofcarrots', not enough for them to take action against her.

poundofcarrots

Ok, thanks again. I'll adapt as suggested. Have you had an opportunity to read any of the rest of my defence? I hope I am barking up the right trees!

Umkomaas

poundofcarrots wrote: »

Ok, thanks again. I'll adapt as suggested. Have you had an opportunity to read any of the rest of my defence? I hope I am barking up the right trees!

Sorry, I don't advise on defences. If I spend any more time on this forum I'll be dealing with my own defence - in the divorce courts.

poundofcarrots

Ah, fair enough; thanks anyway. I'll await somebody else's perusal.

poundofcarrots

Good evening. I've made a small change as suggested by Umkomaass. I would be very grateful some feedback on my defence. Thanks in advance:

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 is 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 A member of the Defendant’s family paid for parking but entered his own registration number in error, instead of the registration number of the Defendant's car which he 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 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 fulfil 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

Coupon-mad

2.1 A member of the Defendant’s family paid for parking but entered his own registration number in error, instead of the registration number of the Defendant's car which he was driving.

His? Keep it consistent, it is OK to say the Defendant's wife, or relative.

poundofcarrots

Thank you. I'll change that. How does the rest seem?

Le_Kirk

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

Should be: -

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

poundofcarrots

Good afternoon. I'd just like to seek clarification on the forum etiquette for asking for further comment on my evidence. I'm grateful for the input so far but, other than a couple of small corrections, there hasn't been any further comment.

I know there are many many people on here seeking advice but I'd just like to know whether the absence of any substantial comments is because my evidence seems good to go, or because the regulars are too busy?

Thanks in advance.