County Court Claim - CEL

drew1234

Thanks for all your replies so far. I have done the AoS and have drafted the following defence.


Please let me know what you all think. Thanks again!


I am the defendant in this matter and the registered keeper of ______. I currently reside at ______________________________________________________.


Background - the Defendant was an authorised patron of __________________________ on ________________________.


I deny I am liable for the entirety of the claim for each and every one of the following reasons:


1. The Claim relates to an alleged debt and damages arising from the driver's alleged breach of terms and conditions, when parking at __________________ car park on _____________. 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 the Claimant’s 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 patron of ___________________.


3. The Defendant can prove that he was a patron of _________________, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out many victims at this location, that has given rise to 'PCN’s' that are not properly issued from the outset.


Unclear terms - no agreement to pay a penalty for failure to use an iPad


4. At the time of parking on ____________, the Defendant was a patron of ________________ and the Defendant has (awaiting copy of prescription and record of phone call with doctor on said date) from the doctor’s surgery which shows they were using the car park in question for a legitimate reason.


4.1. It is contended that the Claimant failed to alert patients to an onerous change and unexpected obligation to use an iPad in __________________ 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. The Defendant has since been told, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then ____________________ had the authority to cancel the charge, but that it may now be 'too late'.


5.1. Guidance from the NHS on NHS patient, visitor and staff car parking principles, which were updated in October 2015 says “NHS organisations are responsible for the actions of private contractors who run car parks on their behalf” and that “Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’”. It also states that “‘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)”.


5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that ____________________ could very easily cancel a charge, apparently with one email. By withholding the route of cancellation/complaint from a patient, Civil Enforcement Limited are 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.


5.3. The only 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.


5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed a car park management company and the unanimously damning 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 Limited 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.


6.1. Subsequently there is no evidence that CEL are acting in accordance with the Landowners instructions.


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 Limited, all too often at this location, unfairly ticket a patron of __________________, any commercial justification in the form of support by __________________ 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 and clear notices.


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 an iPad 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 number of complaints to __________________, which would have alerted this Claimant to the fact that their 'iPad system' and woeful sign 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 ­­­­­­­­­­­­­­­________________ patrons, and


v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the iPad 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 an iPad 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 Limited have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it 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/signature


Date

Coupon-mad

Haven't had a close look yet but this ending is wrong, this bit is only applicable to ParkingEye and we know the total amount is £341.93 in your case (so an attempt at daylight robbery, triple recovery if the PCN was £100):

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 Limited have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it 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.

Here's one where I have just written an ending for a CEL rip off claim:

https://forums.moneysavingexpert.com/discussion/comment/74884739#Comment_74884739

Different facts but you can use any of it that makes sense for your case, of course.

drew1234

Thank you Coupon-mad, I will have a read of that and amend my defence accordingly.

drew1234

Thank you for all the input so far. I have updated my defence and would like feedback on it. Anymore advice would be greatly appreciated.




I am the defendant in this matter and the registered keeper of ______. I currently reside at ______________________________________________________.


Background - the Defendant was an authorised patron of __________________________ on ________________________.


I deny I am liable for the entirety of the claim for each and every one of the following reasons:


1. The Claim relates to an alleged debt and damages arising from the driver's alleged breach of terms and conditions, when parking at __________________ car park on _____________. 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 the Claimant’s 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 patron of ___________________.


3. The Defendant can prove that he was a patron of _________________, and it is the Claimant's own failure, caused by their deliberately obscure terms and iPad that catches out many victims at this location, that has given rise to 'PCN’s' that are not properly issued from the outset.


Unclear terms - no agreement to pay a penalty for failure to use an iPad


4. At the time of parking on ____________, the Defendant was a patron of ________________ and the Defendant has (awaiting copy of prescription and record of phone call with doctor on said date) from the doctor’s surgery which shows they were using the car park in question for a legitimate reason.


4.1. It is contended that the Claimant failed to alert patients to an onerous change and unexpected obligation to use an iPad in __________________ 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. The Defendant has since been made aware, that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then ____________________ had the authority to cancel the charge, but that it may now be 'too late'.


5.1. Guidance from the NHS on NHS patient, visitor and staff car parking principles, which were updated in October 2015 says “NHS organisations are responsible for the actions of private contractors who run car parks on their behalf” and that “Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’”. It also states that “‘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)”.


5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that ____________________ could very easily cancel a charge. By withholding the route of cancellation/complaint from a patient, Civil Enforcement Limited are 'misleading omissions' of material facts. These breaches of the Consumer Protection from Unfair Trading Regulations 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.


5.3. The only route offered was an 'appeal' to Civil Enforcement Limited and 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 their favour.


5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed a car park management company and the unanimously damning 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 Limited 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.


6.1. Subsequently there is no evidence that CEL are acting in accordance with the Landowners instructions.


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 Limited, all too often at this location, unfairly ticket a patron of __________________, any commercial justification in the form of support by __________________ 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 and clear notices.


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 an iPad 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 number of complaints to __________________, which would have alerted this Claimant to the fact that their 'iPad system' and woeful sign 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 ­­­­­­­­­­­­­­­________________ patrons, and


v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the iPad 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 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 an iPad 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. 11. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.


14.1. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.


14.2. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.


14.3. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.


14.4. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their own Witness Statement against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.


15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.





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


Name/signature


Date

Coupon-mad

I currently reside at __________________________________________________ ____.

Just remove that (not needed), and although the defence is long, I'd now sign, date and submit it as it is all relevant and you've covered the bases you need to.

drew1234

Good evening, on the 15th October my defence was served to the claimant.
Seeing that 28 days have passed, can I assume that the case has been stayed?
Also, I have not received a questionnaire to complete. I have literally not heard anything!

KeithP

See if you can get any clue to the state of the Claim by checking on MCOL.

If that doesn't help, give the CCBC a call and ask them.

drew1234

Thanks for the reply, I have checked the MCOL website and it hasn’t been updated since my claim was received. I’ll call CCBC tomorrow. Thanks again.

drew1234

I have spoken to the County Court Business Centre today and they have confirmed that the case has been “stayed” as the claimant failed to reply to my defence within the stated time.

This is good news, I hope as they would need to apply to a get this back to court and have to explain to a judge why they did not reply within the given timeframe?

Coupon-mad

That's good and can be considered a win (another on bites the dust!) expect that they could apply to reinstate the claim then by proving they did respond, or by paying (£100 odd?) to lift the stay.

ALL GOOD! A spanner in the works and not what they wanted!