Gladstones LBC received for residential parking spot (New World Facilities East Essex LTD)

BlueNine

Umkomaas wrote: »

1. Your WS is immense (3,000+ words) plus a supplementary WS (2,990+ words) and at least 16 evidence exhibits? Do you really need to give a very busy (and sometimes grumpy) Judge even more to read and ingest?

Well when you put it like that...:laugh:


One other thing to check as I'm getting together my bundle to take to court - It's a good idea to bring the full versions of documents I've used excerpts from in my WS right? eg: bring the whole Schedule 4 of POFA, not just the pages I've mentioned?
Only reason I ask is that the guidance for unfair contract terms is 144 pages, which seems a bit excessive to print when I'm pointing to 5-6 pages of it. (somebody think of the trees!)

BlueNine

I'm writing up a crib sheet to help me during the hearing and wanted to get some input on one of my defence points:


I'm saying I had primacy of contract demised to me through the tenancy - they have provided a signed contract between them and the property management company giving them authorisation to carry out parking management and enforcement on the site. They also have an "opt-in, opt-out" letter sent to the owners saying if they don't hear from them, its assume that they want the parking patrolled, and a letter to owners introducing the scheme.


Does this trump my primacy of contract defence? There isn't a signed chain from landlord to property management to parking company, but I'm not sure if their opt out letter counts?

Coupon-mad

eg: bring the whole Schedule 4 of POFA, not just the pages I've mentioned?

Yes, take the POFA Sch 4, which is not very long.

Only reason I ask is that the guidance for unfair contract terms is 144 pages, which seems a bit excessive to print when I'm pointing to 5-6 pages of it. (somebody think of the trees!)

I agree. No need for all that - Judges have statute law books to grab, which DJ Grand did, in the 11th November Southampton case. With me, I just had the POFA Sch4, the 3 Beavis case para 98, 193 and 198 copied onto a single sheet of A4, and the CRA Schedule 2 'the grey list' that was 1.5 pages long, only.

And I made a note to point the Judge to para 71 of the CRA about the duty on the courts to consider fairness/Schedule 2 (but I didn't bother to print it). I was just ready in case the other side had tried the old chestnut of saying 'but this stuff about the CRA is irrelevant and wasn't in the defence'.

Oh, I also had about 3 pages of the CRA 2015 Govt (written by the CMA) Guidance about the legislation, the bits that explain about consumer notices NEVER falling within the 'core exemption', and nor do price terms if they are not transparent or prominent.

I'm saying I had primacy of contract demised to me through the tenancy - they have provided a signed contract between them and the property management company giving them authorisation to carry out parking management and enforcement on the site. They also have an "opt-in, opt-out" letter sent to the owners saying if they don't hear from them, its assume that they want the parking patrolled, and a letter to owners introducing the scheme.

Does this trump my primacy of contract defence? There isn't a signed chain from landlord to property management to parking company, but I'm not sure if their opt out letter counts?

Hmmm, we've discussed this before and there IS case law that holds that a person cannot be deemed to have accepted an onerous contract due to having it foisted upon them and not 'opted out'. Perceived 'inaction' by a consumer, or missing the small print option to opt out, is not acceptance of hidden contract terms.

I can't recall the case law. I will take a look using Auntie Google unless another poster like LOC123, Johnersh or bargepole comes along and knows. Maybe it's in Chitty on contracts, not sure.

Coupon-mad

The CRA Guidance says terms relating to a linked contract - 'incorporated' solely 'by reference' within a primary contract (the permit scheme which was offered by the landowner as if it was a good thing) are potentially unfair:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

5.20.2 and 5.20.3

Also grab a page of the CPUTRs 2008 which sets out 'MISLEADING OMISSIONS' as a hidden or unfair term that causes a person to take a transactional decision that they would not otherwise have done (such as accept a permit, not knowing they were also accepting a truly awful amendment to their rights and easements and enjoyment of the property, costing a non-accepted £100 per day) IS unfair and the charge unrecoverable.

Ah, found something else useful, in the GDPR EU law about consent to data processing within an agreement, scheme or service:

https://gdpr-info.eu/issues/consent/

''Last but not least, consent must be unambiguous, which means it requires either a statement or a clear affirmative act. Consent cannot be implied and must always be given through an opt-in, a declaration or an active motion, so that there is no misunderstanding that the data subject has consented to the particular processing.''

Now, in fact in a car park scenario consent to a parking charge can be 'implied' by the conduct of parking.

However, the above EU summary (unofficial webpage by hey!) makes it clear that a passive 'you can opt out' is NOT acceptable when an MA is basically telling you 'here's your permit and ...blah blah...(small print about the scheme, that looks innocuous)...opt out if you wish'.

Also, I bet the piece of paper with the permit didn't say 'the terms on the car park signs must also be read and they form part of this contract and the parking charge for any breaches, even by permitted residents, is £100 per day, so by accepting this permit you also agree to the linked contractual terms on the signs.'

BlueNine

Brilliant stuff as always Coupon.


Would the GDPR stuff still apply even though my PCN happened before May 2018 when it was implemented?

Also, I bet the piece of paper with the permit didn't say 'the terms on the car park signs must also be read and they form part of this contract and the parking charge for any breaches, even by permitted residents, is £100 per day, so by accepting this permit you also agree to the linked contractual terms on the signs.'

Of course not, think it had a little note saying "please find your parking permit attached". Even when we got our new permit (lost the old one, got a ticket for using a fake copy and paid it, not that it was my choice) it didn't come with any "oh btw you need to display this".


Also it looks like I'm going to have more time to digest these new bits of information than I thought...just got told that my hearing has been vacated due to lack of judicial time. - Was getting myself all pumped up as well! :mad:

Coupon-mad

Prior to GDPR, it was the previous Data Protection Act and no, it wasn't stringent about opt-outs, AFAIK, so stick with the CRA and CPUTRs.

cooldude255220

Coupon-mad wrote: »

Ah, found something else useful, in the GDPR EU law about consent to data processing within an agreement, scheme or service:

https://gdpr-info.eu/issues/consent/

''Last but not least, consent must be unambiguous, which means it requires either a statement or a clear affirmative act. Consent cannot be implied and must always be given through an opt-in, a declaration or an active motion, so that there is no misunderstanding that the data subject has consented to the particular processing.''

Now, in fact in a car park scenario consent to a parking charge can be 'implied' by the conduct of parking.

However, the above EU summary (unofficial webpage by hey!) makes it clear that a passive 'you can opt out' is NOT acceptable when an MA is basically telling you 'here's your permit and ...blah blah...(small print about the scheme, that looks innocuous)...opt out if you wish'.

Also, I bet the piece of paper with the permit didn't say 'the terms on the car park signs must also be read and they form part of this contract and the parking charge for any breaches, even by permitted residents, is £100 per day, so by accepting this permit you also agree to the linked contractual terms on the signs.'

Sorry if I've misunderstood your post, but the text you've quoted specifically applies to the lawful basis of consent under the GDPR with regards to the processing of personal data. A passive you can opt out is not acceptable for consent to process personal data, but it says nothing about the standard of consent required in other circumstances.

KeithP

cooldude255220 wrote: »

A passive you can opt out is not acceptable for consent to process personal data...

Isn't that all that's needed?

A vehicle's Registration Mark is personal data.

cooldude255220

KeithP wrote: »

Isn't that all that's needed?

A vehicle's Registration Mark is personal data.

No, because there are other lawful bases for processing personal data, consent is not needed.

Regardless, my understanding of Coupon's post was that they were applying it to consenting to the parking charge.

BlueNine

Hello again all. I've had the court date re-booked for Friday so I'm back scouring for any extra defence points I can find. I haven't had any luck looking elsewhere for something to trump their letter to the landlord saying "we're going to patrol your space unless you say no in 7 days" so thats going to be in the lap of the gods.

I did want to ask about VCS vs HMRC which they've mentioned twice in their witness statement - basically saying that it says that they never had to prove they had a right to patrol the spaces and that the agreement between operator and landowner is of no relevance.

I've had a look at it myself and it seems to be that the argument is essentially that anyone can make a contract to do anything, but if they fail to honour it then they are liable to be sued for damages...I don't really see how it's relevant, but want to double check with you guys just in case.

Also their last point on the WS says the debt has arisen as a result of my contract breach and want "this element" (they didn't specify which) to be awarded as damage - does this change my potential defences at all?

Thanks