Legal claim ANPR TICKET

KeithP

It would be good to know which questions your latest post is attempting to answer.

tri_girl

Sorry, I can't seem to work the responses. The previous post was to Keith's question.

NCP is company
BW legal attorneys

I have only cut and pasted most of my response so don't really have a clue about any of it. I'll change whatever you all tell me to change and add what you suggest. I'm just happy to have the help!

tri_girl

OMG
How do I reply to the person I want to respond to. I tap quick reply under their post but not addressing them????

Umkomaas

NCP is company

NCP are BPA operators, so you need to get rid of anything in your defence that refers to the IPC.

Umkomaas

tri_girl wrote: »

OMG
How do I reply to the person I want to respond to. I tap quick reply under their post but not addressing them????

Press the 'Quote' button at the bottom of their post.

Le_Kirk

tri_girl wrote: »

OMG
How do I reply to the person I want to respond to. I tap quick reply under their post but not addressing them????

Umkomaas wrote: »

Press the 'Quote' button at the bottom of their post.

.... or if that is not available due to being on a phone, just say
@Umkomaas in answer to your question OR
@KeithP in answer to your question

tri_girl

Thanks to all that have helped me so far.
Im hoping this is ready to send to court. Please let me know if it needs further editing.

==
In the County Court Business Center
Claim Number: ______________

Between:

________________ V __________________

The defendant, who is the registered keeper of vehicle in question, denies that the Claimant is entitled to relief in the sum claimed, or at all.

The Defendant denies liability for the entirety of the claim for each of the following reasons:

1. The Claim Form issued on the 30 August, 2018 by National Car Parks Limited 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. The claim states that it has been issued by BW Legal as the Claimant's 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.

2. The British Parking Association Code of Practice regarding grace periods was not followed. This was the first time the defendant had used the car park since it had been taken over by NCP. All of the signs were new. It took considerable time to read all of the information. The terms and conditions were on the outside of the entrance opposite the driver and high on the wall in very small print After attempting to read all the necessary information the defendant then stood in the queue to get a ticket. There was a long wait as several of the people in the queue were struggling with the new system. The defendant and her daughter even had to help an elderly couple put their license plate in the machine.

a) ANPR evidence shows only entry and exit of the car park. There are signs stating ANPR is used but nowhere on any of the signs does it state that the timing they base their fees on is from entry to exit. It does not state a time limit on purchasing a ticket or exiting the premisses. It does not tell you to purchase a ticket for the exact time from entrance to exit.

b) The Claimant’s timing system does not take into account that the defendant spent time driving round the car park trying to find a parking place, time to sort through change, time to read the required information, time to queue and purchase a ticket, time to get out of the car, time to load the car, time to get back into the car and time to exit the car park.. The defendant had no reason to rush as she thought the allotted time was taken from when she entered the information into the ticket machine.

c) The terms and conditions which are displayed at the car park state "Pay & Display” – you must purchase a parking ticket from the ticket machines at the Car Park either with cash or a credit/debit card, before leaving your vehicle and ensure that the parking ticket is clearly displayed in the windscreen of your vehicle.

d) The British Parking Association(BPA) Code of Practice states the following regarding grace periods:
“13.2 and 30.2 If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
“13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
“18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

e) The Claimant’s signs did not state the car park’s terms and conditions had changed and that a new system was in place. Thus resulting in more time required to orient the driver to the new system.

f) Kelvin Reynolds of the BPA says there is a difference between grace periods and observation periods in parking and that good practice allows for this: “The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket … No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.” britishparking.co.uk News good-car-parking-practice-includes-grace-periods

3 .The BPA Code of Practice regarding predatory tactics was not followed by the Claimant.
a) “Clause 9.5 You must not use predatory tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanctionable instance of non compliance and my go to the Professional Conduct Panel.” The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after permitted time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site. The driver is led to believe that they are following the times given on ticket that they obtain from the ticket machine.

b) In the case 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage. The judge also stated that in any case £100 was not likely to be a true estimate of loss. The signage only required payment for times parked, and therefore there was no contravention of the terms and conditions.

c) The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of the Information Commissioner's 'Data Protection Code of Practice for ANPR and Surveillance Cameras and Personal Information' (the ICO Code) thus breaching the KADOE rules and the BPA Code of Practice.
a) The constant ANPR data stream, collects irrelevant and distorted ‘time of arrival’ data on every vehicle, every day, basing the charges on the point of driving in, despite tariff payments being made at a time that is also within the NCP’s data records. In terms of timing data NCP has both the time of arrival and the time of payment at the machine in their data, the latter being the point when a contract is made (the authority for the fact is Thornton V Shoe Lane Parking [1971] 2WLR585 at the Court of Appeal, where it was held that in a pay and display car park, the contract is made when the coins enter the machine.)
b) The ANPR photos show a moving vehicle in and out. A moving vehicle is not parked and the court notes that it can take time to locate and park in a parking space and also exit the parking space and car park.
c) NCP has the defendants individual ‘contract formed’ time as recorded by the PDT machine and can have no reasonable justification under the DPA to instead use the ANPR entry time. NCP merges two data systems and chooses to use time that the driver has no idea about and which acts most disadvantageously against the interests of consumers, rather than the tangible point of contract at the point of sale/ the machine. This practice fails to meet the tests of ‘fairness and transparency’ in the Consumer Rights Act 2015 and breaches the CPUTRs 2008 as an unfair commercial practice and a ‘Misleading Action’.
d) The two types of data processing(the ANPR and the PDT machine) should under their duty as a data controller, be considered as separate data streams and it is their duty to ensure that irrelevant or excessive data is not obtained and held.
e) Unlike in a free car park, as was the case in the completely different and fact-specific Beavis case, ANPRs use is not a proportionate response to collect data about genuine, paying motorists in a pay and display car park since it provides for, collects and processes charges based on irrelevant and inaccurate timings before a driver has even had a chance to read any terms and conditions, let alone find a space, park and use a machine.
f) Arrival times will always differ significantly from the time prominently printed on the PDT ticket/on the PDT screen, which is the time any average circumspect driver will rely upon. NCPs use of ‘arrival time’ data is excessive, irrelevant and a serious breach of the DPA.

5. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it in order to meet there legal obligations as a data processor.

a)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 Surveillance Camera privacy impact assessment, lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle.
ii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR or to continue using it in it’s current location, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues.)
iii) Failure to prominently inform a driver in visible & legible lettering on clear signage, of the purpose of the ANPR system and how the data stream captured would be used.
iv) 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.

6. 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 plus 'initial legal costs' of £60, which the Defendant submits have not actually been incurred by the Claimant and constitute an attempt to achieve double recovery.

a) The added 'legal' costs are in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules. The Claimant's solicitors, BW Legal, recently admitted in court that their company handles millions of what are effectively cut and paste robo-claims, at any one time. The Defendant reasonably concludes that no supervising solicitor is likely to have provided legal advice for a fee or in any way supervised this claim.

7. In ParkingEye v 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 sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed because ParkingEye suffered no loss.

a) It was also held by the Judges in Beavis, at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case.

b) In all other 'parking charge' cases which turn on different signs and different facts, the penalty rule was held by the Supreme Court Judges to remain engaged, and that such charges cannot be enforced merely as punishment. The £85 charge in Beavis was saved from being struck out as an unenforceable penalty due to a specific legitimate interest in a quick turnover of spaces in a free car park where no tariff owing could be quantified.

c) In this case, the Claimant is put to strict proof of its legitimate interest in charging an unconscionable penalty for the time taken driving around the car park before/after the parking event, which is not conduct that falls within a reasonable person’s concept of ‘parking on private land’ at all.

d) Further, given that the Claimant is merely an agent/contractor company not in possession of the land and with no locus, they are put to strict proof of the terms of their contract with the landowner, and that it authorizes this Claimant to sue in their own name, and that the landowner contract does not conflict with the Claimant’s own interpretation on signage and/or in any PCN issued for ‘driving i/out time’.

e) It is reasonable to expect that the ‘parking enforcement’ regime that was in the contemplation of the landowner at the time, was one which intended for penalties only for actual parking contraventions, such as exceeding a parking period by staying in a bay well beyond paid-for time and a period of grace, or not purchasing a PDT at all, leaving the tariff unpaid. It is averred that such details are kept to the claim, and may well allow more time than the 10 minutes in the BPA CoP and/or may state clearly that the expectation within the contract is not to time ‘total stay’ at all.

8. In the Hansard Report Bill, debated in the House of Commons at 12:43pm on February 2, 2018 a number of the tactics used by NCP in this response were raised in the report. I quote the following directly from the report. “Poor signage, unreasonable terms, exorbitant fines, aggressive demands for payment and an opaque appeals process.
“My Honourable Friend is absolutely right. In some cases it appears that confusion is designed to ensure that a parking ticket is issued against the unsuspecting motorist.”
“Self-Regulation has obviously failed dramatically. The British Parking Association is as much use as a multi-story car park in the middle of the Gobi dessert. The parking cowboys hide behind the BPA membership to give a veneer of Legitimacy.”
“As we have heard, there is currently no standardized, central and independent regulation of private parking operators. Today there are two different trade associations, each with its own code of practice.”
These quotes demonstrate parliaments clear intentions to enact legislation to prevent these practices and remedy the short comings of the current system of self regulation.

9. 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.

a) In the alternative, given that the issue will turn on the fact that the Defendant made reasonable endeavours to comply but any alleged contract the defendant entered into was when she purchased a ticket from the ticket machine not when she entered the car park. The Defendant requests a preliminary hearing to examine the same, to save burdening the court with a claim that has no merit.

I believe that the facts stated in this defence are true.

Coupon-mad

This should be a separate numbered point, not buried where these 3 paragraphs are:

“18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

The Claimant’s signs did not state the car park’s terms and conditions had changed and that a new system was in place. Thus resulting in more time required to orientate the driver to the new system.

c) The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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.''

orientate not 'orient' which is clunky as a verb and I think, an Americanism.

tri_girl

Late 2018 I followed everything instructed here. I assumed I’d be called to court but I heard nothing so assumed it was over. Then Sept 9, 2020 I received a notice of proposed allocation to the small claims track. I followed your instructions from someone else with same circumstances and sent this letter(below) you suggested as well as cc to my MP and have filled out DQ form and mailed to court and NCP. 

Newbies info says it could be months before I hear anything but I think this case has been reopened so is it the same?

FORMAL COMPLAINT ABOUT A PROCEDURAL ERROR BY THE CCBC 
CLAIM NUMBER XXXXXXX

Dear Sirs,
This is a formal complaint and I wish that this letter to be put before a Judge, please.  

I believe a serious procedural error has occurred within the CCBC and it affects dozens of consumer Defendants at a time when they are very likely to end up with a default CCJ as a direct result of the CCBC's actions.

It appears that several 2018 (long since stayed) 'unfair parking charge' inflated claims have been reinstated by the CCBC and mine is one of them.  I received your Directions Questionnaire out of the blue last week.  Luckily in my case, I had not moved in the past two years.

The case was stayed in 2018.  How can it be resurrected with no checks, now?  I believe this has either happened:
(a) in error by the CCBC
(b) as a result of a letter from a robo-claim solicitor, whose clients have taken no steps to re-check Defendant addresses.

In either case, it seems unlikely that the robo-claim solicitors have paid the requisite court fee or filed N244 applications to lift each and every stay.   Please correct me if I am wrong because I am struggling to understand how the CCBC can do this.

Even if the Claimants have applied and paid all fees applicable (£100 per claim), I object to the CCBC's decision to allow this, on the basis that this is likely to cause CCJs and offends against justice.  

At the very least, claims that are statute barred should have been excluded and the applicants should have had case management Directions requiring them to firstly supply evidence that the Defendants' addresses have been checked in 2020. The Claimants must be held to account, to ensure that Defendants who have moved are not all about to lose by default.

I remind the CCBC that the Government is still extremely concerned about the level of default CCJs and this action is likely to cause more.    Not only was there a review of processes, but the MHCLG are currently offering a public consultation about private parking charges which makes it clear that they are very concerned about the level of claims andCCJs, so this - plus the fact that we are in the middle of pandemic - makes it an wholly inappropriate time for the CCBC to resurrect 2018 claims from rogue Claimants, knowing the Defendants are likely not to be able to respond in all cases.

Surely you are not going to support a rogue industry to inflict default CCJs on all the Defendants, who can't return their DQ after this two year delay?  Where will this end?  Are parking company Defendants likely to see claims resurrected ten or twenty years in the future?

I am not in a financial position to throw £100 at an application to object to the Order the CCBC sent me.  What I want to know is, what has happened and has the Claimant made such an application after all this time, or is this a procedural error by the CCBC?

I am copying in my MP and will urge them to take this up with the MHCLG, who are currently consulting about the parking industry and who I am sure, will be alarmed to learn that archive cases (even some that are statute barred) are being resurrected without so much as an address check or (possibly) not even a fee being paid by the rogue industry to achieve this monumental feat, without a Judge even looking at the situation.

Yours sincerely ]

Your name (don't put 'Mr' as that is not part of your name).

nosferatu1001

An actual hearing will be months away. 
You are basically in the "normal" process now, so follow the newbies. 
See if anything comes from that complaint.