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CEL help with court defence needed
Comments
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IamEmanresu wrote: »The issue is one of facts on the day and not templates - though there is an almost quasi-religious devotion to them by some posters.
A bit unfair, and not actually true - we've not pressed template defences since 2017 on here.
On pepipoo they still do, but not here.
I know you've been keeping tabs on the win rate, so, do you now agree that the reported wins from people who follow our advice (not ignored papers or wrote their own defence, or forgot the WS) is at or around 99% since last year?
I know you and bargepole find it hard to believe, but it really is 99% reported wins from all fully-coached posters.
Of course a few never come back at early stages, but almost no-one doesn't report a hearing outcome at all, of all those who got that far, fully assisted with their WS and evidence and where the hearing was imminent. Almost all come back & report.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi
Could you take a look at this amended version. Thanks in advance.-
IN THE COUNTY COURTClaim No.: [INSERT]
Between
Civil Enforcement Ltd(Claimant)- And -(Defendant)
-
IN THE COUNTY COURTClaim No.: [INSERT]BetweenCivil Enforcement Ltd(Claimant)- And -
(Defendant)
____________________________________________________________________________________________________DEFENCE
I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:
Background
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Cirencester Hospital car park on 11/01/18.
1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.
2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing the appropriate parking time'.
Data Protection concerns
3. The Defendant was an occupant of the car, however, the Defendant had no idea about any ANPR surveillance. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.
3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.
4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a hospital car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events, and where vulnerable and anxious people are parking.
4.1. It is not ethical to install a hidden ANPR camera data stream, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Hospital, who are being caught out regularly by this trap.
4.2. Silently collecting VRN data in order to collect £100 and write (weeks later) to registered keepers at their own homes - is excessive, untimely and intrusive to registered keeper data subjects.
5. Clearly there CEL staff regularly onsite, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that signage is not a hidden and a 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
Premature claim - no Letter before Claim, and sparse Particulars
6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Denial of contract and denial of any breach, or liability
9. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
10. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
10.1. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing.
10.2. The Pa signs within the parking area are equally as hidden and therefore misleading. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the Hospital or the Ward.
10.3. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.
No standing or authority to form contracts and/or litigate
11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the Visitor Centre.
No 'legitimate interest' or commercial justification - Beavis is distinguished
12. 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. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late, and as such, 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.
12.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:
Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.
Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''
Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
Unconscionable, punitive 'parking charge' - again, Beavis is distinguished
13. This Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. Failure to register on an IPad unexpectedly becomes an extortionate bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
13.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a small amount and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.
13.3. This regime in a car park is believed to have changed 2016 is not commercially justified, is damaging the reputation of the Hospital, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. 13.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
13.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
13.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
14. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid'..
14.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any bill to suddenly become £254.69.
14.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where there was no sum, only a need for insertion of care registration details and the Claimant is trying to claim damages of £254.00, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
15. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.
16. 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 have not actually been incurred by the Claimant.
16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, CEL Ltd 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
17. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
17.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £204.69 can be claimed instead of entering car egistration details in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.
18. On the date in question (11th January 2018) the driver of the vehicle had been requested by the staff to visit the hospital to give a medical opinion on the treatment of an inpatient. Normally an average of 1 hour would be allotted for such visits and the duration of the stay in the Car Park was 54 minutes. Nursing time within this role is a very sparse commodity and, as is usual for a Macmillan Nurse, this was one of many patient visits to differing addresses for the Defendant that day.
19. The NHS Patient, Visitor and Staff Parking Principals October 2015 state that staff should be able to park as "conveniently and as economically as possible" and also state Trusts should consider "pay on Exit or similar schemes". The NHS Parking Principals also state that details of charges should be well publicized including at car park entrances and this was not the case on 11th January 2018.
20.. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.
I believe the facts contained in this Defence are true.
Name
Signature
Date
0 -
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Are you defending as RK or driver. In 2. you state there is no evidence of the RK not buying a ticket. Shouldn't that be driver? I see you've covered that in 3. by being an occupant of the car. Maybe 2. should be reworded to avoid doubt, maybe "there is no evidence that parking time was NOT paid for" or similar.0
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Remove your full name from that version on this forum!
10.2 says 'the Pa signs'
...and this makes no sense as you should not call the Claimant CEL (means nothing, a forum acronym we know them by!) AND because they never have people on site:5. Clearly there CEL staff regularly onsite, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that signage is not a hidden and a 'pitfall or trap'.
So change that point to start:5. This regime conceals from visitors, staff and patients, a hidden 'pitfall or trap' because the keypad is simply not displayed prominently at all inside the building. The ANPR cameras represent disproportionate...
Again here you are copying facts that are ONLY about ParkingEye, not relevant, as CEL do not have salaried in-house solicitors:16.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, CEL Ltd 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
AND we know CEL add far more made up costs than £50!
So object to the ACTUAL sum claimed and call it an 'abuse of process'.
You can do an Advanced search of the forum for defence abuse of process (those keywords, and SHOW RESULTS AS POSTS) to find other CEL ones that deal properly with the costs CEL try to randomly add!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
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Hi could you check this final drat for me please so that I can sent off today. Many thanks
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IN THE COUNTY COURTClaim No.: [INSERT]BetweenCivil Enforcement Ltd(Claimant)- And -(Defendant)
-
IN THE COUNTY COURTClaim No.: [INSERT]BetweenCivil Enforcement Ltd(Claimant)- And -(Defendant)
____________________________________________________________________________________________________DEFENCE
I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:
Background
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Cirencester Hospital car park on 11/01/18.
1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.
2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence of that parking time was NOT paid for'.
Data Protection concerns
3. The Defendant was an occupant of the car, however, the Defendant had no idea about any ANPR surveillance. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.
3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the few pounds tariff, if it is their case that this sum went unpaid.
4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a hospital car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events, and where vulnerable and anxious people are parking.
4.1. It is not ethical to install a hidden ANPR camera data stream, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Hospital, who are being caught out regularly by this trap.
4.2. Silently collecting VRN data in order to collect £100 and write (weeks later) to registered keepers at their own homes - is excessive, untimely and intrusive to registered keeper data subjects.
5. 5. This regime conceals from visitors, staff and patients, a hidden 'pitfall or trap' because the keypad is simply not displayed prominently at all inside the building. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
Premature claim - no Letter before Claim, and sparse Particulars
6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Denial of contract and denial of any breach, or liability
8. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
8.1. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
8.2. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing.
8.3.. The signs within the parking area are hidden and therefore misleading. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the Hospital or the Ward.
8.4. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.
No standing or authority to form contracts and/or litigate
9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the Visitor Centre.
No 'legitimate interest' or commercial justification - Beavis is distinguished
10. 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. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late, and as such, 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.
10.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:
Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.
Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''
Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
Unconscionable, punitive 'parking charge' - again, Beavis is distinguished
11. This Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. Failure to register on an IPad unexpectedly becomes an extortionate bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
11.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a small amount and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.
11.3. This regime in a car park is believed to have changed 2016 is not commercially justified, is damaging the reputation of the Hospital, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. 13.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
11.3.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
11.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
12. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid'..
12.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any bill to suddenly become £254.69.
12.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where there was no sum, only a need for insertion of care registration details and the Claimant is trying to claim damages of £254.00, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
13. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.
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 have not actually been incurred by the Claimant.
14.1. [FONT="&]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.[/FONT]
15 The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
15.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £204.69 can be claimed instead of entering car egistration details in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.
16. On the date in question (11th January 2018) the driver of the vehicle had been requested by the staff to visit the hospital to give a medical opinion on the treatment of an inpatient. Normally an average of 1 hour would be allotted for such visits and the duration of the stay in the Car Park was 54 minutes. Nursing time within this role is a very sparse commodity and, as is usual for a Macmillan Nurse, this was one of many patient visits to differing addresses for the Defendant that day.
17. The NHS Patient, Visitor and Staff Parking Principals October 2015 state that staff should be able to park as "conveniently and as economically as possible" and also state Trusts should consider "pay on Exit or similar schemes". The NHS Parking Principals also state that details of charges should be well publicized including at car park entrances and this was not the case on 11th January 2018.
18.. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.
I believe the facts contained in this Defence are true.
Name
Signature
Date
0 -
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You have repetition here:
You have a speech mark at the end of #2 that makes it obvious you copied it., and why is #2 still talking about parking not being ''paid for'' when that's not the allegation?
You still have stuff saying:instead of the few pounds tariff, if it is their case that this sum went unpaid.
...and 8.4 makes no sense, needs to avoid the talk about paying money...
You need to check every word and change it to suit; this is not a 'tariff unpaid' contravention.
Principles...NHS Patient, Visitor and Staff Parking PrincipalsPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi
I would appreciate a look over what I hope is my final version. Many thanks in advance.IN THE COUNTY COURTClaim No: [INSERT]
Between
Civil Enforcement Ltd(Claimant)- And -(Defendant)
IN THE COUNTY COURTClaim No.: [INSERT]BetweenCivil Enforcement Ltd(Claimant)- And -
(Defendant)
__________________________________________________DEFENCE
__________________________________________________
I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:
Background
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Cirencester Hospital car park on 11/01/18 in the course of work, having been asked to assess a patient on the Ward as a MacMillan Nurse.
1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.
2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence that parking was not registered.
2.1 The hospital website states that payment is free if the driver enters their details on an IPad in reception. This was not visible and no obvious signs were seen.
Data Protection concerns
3. The Defendant was an occupant of the car, however, the Defendant had no idea about any ANPR surveillance. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.
4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a hospital car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events, and where vulnerable and anxious people are parking.
4.1. It is not ethical to install a hidden ANPR camera data stream, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Hospital, who are being caught out regularly by this trap.
4.2. Silently collecting VRN data in order to collect £100 and write (weeks later) to registered keepers at their own homes - is excessive, untimely and intrusive to registered keeper data subjects.
5. This regime conceals from visitors, staff and patients, a hidden 'pitfall or trap' because the keypad to register the vehicle is simply not displayed prominently at all inside the building. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
Premature claim - Sparse Particulars
6. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Denial of contract and denial of any breach, or liability
8. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
8.1. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
8.2. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing.
8.3. The signs within the parking area are hidden and therefore misleading. Furthermore there are no clear signs that were 'bound to be seen' between where the Defendant believes the car was parked and the entrance to the Hospital or the Ward.
8.4. The PCN and POC could mean that the Claimant is suggesting the car overstayed a time limit, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.
No standing or authority to form contracts and/or litigate
9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the Hospital.
No 'legitimate interest' or commercial justification - Beavis is distinguished
10. 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. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late, and as such, 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.
10.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:
Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.
Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''
Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
Unconscionable, punitive 'parking charge' - again, Beavis is distinguished
11. This Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. Failure to register on an IPad unexpectedly becomes an extortionate bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
11.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a small amount and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.
11.3. This regime in the car park is believed to have changed 2016 is not commercially justified, is damaging the reputation of the Hospital, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. 13.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
11.3.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
11.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
12. Even if the court is minded to accept that the terms were clear and prominent, the necessity to enter registration details was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid'.
12.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any bill to suddenly become £254.69.
12.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where there was no sum, only a need for insertion of care registration details and the Claimant is trying to claim a total of £254.69, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
13. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.
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 have not actually been incurred by the Claimant.
14.1. 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 abuseofprocess.
15 The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
15.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £204.69 can be claimed instead of entering car registration details in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.
16. On the date in question (11th January 2018) the driver of the vehicle had been requested by the staff to visit the hospital to give a medical opinion on the treatment of an inpatient. Normally an average of 1 hour would be allotted for such visits and the duration of the stay in the Car Park was 54 minutes. Nursing time within this role is a very sparse commodity and, as is usual for a Macmillan Nurse, this was one of many patient visits to differing addresses for the Defendant that day.
17. The NHS Patient, Visitor and Staff Parking Principles October 2015 state that staff should be able to park as "conveniently and as economically as possible" and also state Trusts should consider "pay on Exit or similar schemes". The NHS Parking Principles also state that details of charges should be well publicized including at car park entrances and this was not the case on 11th January 2018.
18. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.
I believe the facts contained in this Defence are true.
Name
Signature
Date
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Remove the repetition in the title, doubled up:IN THE COUNTY COURT
Claim No: [INSERT]
Between
Civil Enforcement Ltd
(Claimant)
- And -
(Defendant)
IN THE COUNTY COURT
Claim No.: [INSERT]
Between
Civil Enforcement Ltd
(Claimant)
- And -
(Defendant)
I would improve this bit:2. The allegation appears to be 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, entering and leaving the car park in question and is not evidence that parking was not authorised. [STRIKE]registered.[/STRIKE]
2.1 The Defendant has since discovered that the hospital website states that payment is free if the driver enters their details on an IPad in reception. This was not visible and no obvious signs were seen at all on the day that would bind a driver to such an unexpected term, either inside or outside.
2.2. The Defendant understood (correctly) that parking is offered free for visiting Macmillan Nurses, and the burden lay with this Claimant to communicate any relevant obligation or relevant contract, as well as adequate notice of the iPad/keypad, and adequate notice of the penalty parking charge. The Claimant failed, and Lord Denning's Red Hand rule applies.
I would move #16 and #17 up, make them 2.3. and 2.4. after the bit above, part of the background:16. On the date in question (11th January 2018) the driver of the vehicle had been requested by the staff to visit the hospital to give a medical opinion on the treatment of an inpatient. Normally an average of 1 hour would be allotted for such visits and the duration of the stay in the Car Park was 54 minutes. Nursing time within this role is a very sparse commodity and, as is usual for a Macmillan Nurse, this was one of many patient visits to differing addresses for the Defendant that day.
17. The NHS Patient, Visitor and Staff Parking Principles October 2015 state that staff should be able to park as "conveniently and as economically as possible" and also state Trusts should consider "pay on Exit or similar schemes". The NHS Parking Principles also state that details of charges should be well publicized including at car park entrances and this was not the case on 11th January 2018. Further, this Government Policy also contains the following statement, which was clearly breached by this Claimant in this case, as they only make money from penalties since it is averred that any patient/visitor tariffs paid, go to the NHS Trust:
Contracted-out car parking
''NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.
NHS organisations should act against rogue contractors in line with the relevant codes of practice where applicable.
Contracts should not be let on any basis that incentivises additional charges, e.g. ‘income from parking charge notices only’.''PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Many thanks - can you tell us what happens next and how long it will tak?0
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The court process right through from LBCCA to hearing is covered in the Newbies FAQ thread (#2)0
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