Writing a defence for this seems tricky

FamousFred

Hi All, here is my draft defence. Your critique would be welcomed. I have used the defence quoted by Coupon Mad, all about registering VRN but not realising the new regime existed. I looked at the NHS guidelines for car parks, but struggled to find something worth including there. Perhaps I am missing something? Also, does this read like a copy and pasting of someone elses defence? Would this go against me if it ended up in court? I have tried my best to read and understand each argument and I believe they are relevant to my case, but i'm no solicitor.

In the County Court
Claim Number: xxxx
Between
CEL
V
My name

Background - the Defendant was a legitimate authorised patient of the Health Centre
1. The Defendant is the driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at the Health Centre car park on xx/xx/xx. Any breach is denied and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patient of the Health Centre.

3. The Defendant has already proved that he was a patient on the day at the Health Centre, and it is the Claimant's own failure, caused at the time by their deliberately small signage and discreet registering system that catches out far too many victims at this location, that has given rise to a 'PCN' that was not properly issued from the outset.


Unclear terms - no agreement to pay a penalty for failure to use a touch screen
4. According to the tiny signs in this car park, to avoid a Parking Charge, users of the service must register on a touch screen inside the health centre.

4.1. At the time of parking on 14/04/16, the Defendant was a patient of the Health Centre, and the Defendant has a letter which confirms he was attending an appointment at the time of the alleged breach.

4.2. Sometime between the Defendant's last visit & the visit in question, Civil Enforcement Limited had placed their signage within the car park creating new terms and conditions for motorists. The BPA Code of Practice v6 which applied in December 2017, states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.3. It is contended that the Claimant failed to alert visitors to an onerous change and unexpected obligation to use a registering system at the Health Centre or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in 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.''


Consumer Protection from Unfair Trading Regulations - breach
5. Upon receiving the PCN, the Defendant went straight to the Health Centre and the staff member on duty confirmed that this had become a regular occurrence since the new system was put in place, and that such demand had led them to set up a letter template that they could use to provide proof that the defendants’ “attendance at Burnham Health Centre was legitimate and therefore they had permission to use the car park”.

5.1. The appeal route offered was an 'appeal' to Popla, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.2. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.


No locus standi
6. In order to issue 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. Civil Enforcement has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


No 'legitimate interest' or commercial justification - Beavis is distinguished
7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Civil Enforcement, all too often at this location, unfairly ticket a patient of the Health Centre, any commercial justification in the form of support by the Health Centre for such unfair ticketing is absent.

7.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest.


Data Protection Act and BPA Code of Practice breach
8. 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' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

8.2. 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 privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a registering system as a secondary data processing system at this 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 patrons), and

iv) Failure to consider the genuine reasons for patrons not registering their vehicle, which would have alerted this Claimant to the fact that their 'registering system' and woefully small signage was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Health Centre patients, and

v) Failure to prominently inform a driver in large lettering on large clear signage, of the purpose of the ANPR system and the registering system and how the data captured on both would be used, and

vi) 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.

9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''

11.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

12.1. 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.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside a registering system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.


Unconscionable and unrecoverable inflation of the 'parking charge'
14. 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, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In 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 pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name

Date

FamousFred

hi all, is there any one here that has 5 minutes to give me some feedback on my draft defence above?

thanks again!

FamousFred

hi all, is there any one here that has 5 minutes to give me some feedback on my draft defence above?

thanks again!

Coupon-mad

You would have won the appeal first go (with one template email) had you come here & used the template appeal as keeper, and never said who was driving. NEVER tell a private parking scammer who the driver was and NEVER appeal on mitigating circumstances.

Next time...come here first!

Anyway:

Also, does this read like a copy and pasting of someone elses defence?

Yes but that's OK as long as you have relevant facts there, which you do.

Would this go against me if it ended up in court?

No, but you do need the facts in your defence. The NHS Parking Principles are relevant as the entire regime is not considered lawful or reasonable, by Government:

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Contracted-out car parking
NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.

Contracts should not be let on any basis that incentivises additional charges, e.g. ‘income from parking charge notices only’.

‘Reasonable’ implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances).

None of the above was met, was it? Say so in defence.

Fair enough as I didn't use the number plate screen in the surgery. My argument is simply a case of fairness

No it isn't, albeit there is a requirement for fairness and transparency in consumer contracts law.

Your very valid argument is that this was quite a new regime, that goes completely against the NHS Car Parking principles and 'inputting a VRN' is an unexpected step when attending a GP Surgery. It wasn't your failure to see the keypad & use it, it was THEIR failure (the NHS Surgery and CEL jointly) to sufficiently draw the onerous obligation to the attention of patients, so that it would be a 'clear and understandable ingredient' of a parking regime serving an overriding 'legitimate interest'.

The fact it wasn't clear, means it only served CEL's interests.

Umkomaas

inputting a VRN' is an unexpected step when attending a GP Surgery. It wasn;t your failure to see the keypad & use it, it was THEIR failure (the NHS Surgery and CEL jointly) to sufficiently draw the onerous obligation to the attention of patients, so that it would be a 'clear and understandable ingredient' of a parking regime serving an overriding 'legitimate interest'.

No doubt this was additional to you having to key in your details to a doctors' surgery arrival screen on a quite separate and situated in another part of the surgery - date of birth, your name, name of doctor ..... 'Sorry, your appointment is running 35 minutes late'. More than enough stress with that for you to deal with.

FamousFred

Thank you both! I've included the NHS parking principles now, and additionally i have quoted the onerous obligation and overriding legitimate interest. i'm going to follow the steps, print, sign, scan, email, etc, and i'll let you know what happens. You have been so helpful. Fingers crossed this stumps them!!

FamousFred

**UPDATE**

My defence was acknowledged 29th October. CEL have not even responded and so the case has been stayed.

Speaking with CCBC they recommended writing to CEL to find out what their intentions are.

Is this a common occurence? CCBC said that CEL will need to pay to lift the stay and/or fined for not responding to the defence. I guess this is going nowhere, but i'd rather have it in writing that they are dropping the case. Any recommendations?

Thanks again for all the advice!.

nosferatu1001

Theyve lifted one stay
Personally I would not bother
It costs them £100, only for them to likely discontinue anyway. If they do turn up, ive yet to hear of them winning, so thats another few hundred down the drain for them.

FamousFred

All proof that it's definitely worth fighting these things. Thank You

henrik777

Be careful when speaking to court staff.

1. They're admin staff.

2. They're not allowed to give advice (but when they do it anyway there's no guarantee of accuracy)


The claimant is not obliged to respond to a defence. The next stage of the process should be allocation. It's not impossible that it's been stayed but if it's because of a non response to a defence the court has messed up.