CE County Court Claim

nosferatu1001

Legal arguments do belong in the defence. The Skellie acts as a summary of the poor parts of their claim, the strong parts of your defence.

Networking

Some conflicts here with one of you saying that i should remove the legal arguments and other saying that they belong where they are.

Could you be specific in terms of what i should remove?
I feel confident up to point 11. Do you think anything from point 12 on wards is necessary?

bargepole

Networking wrote: »

Some conflicts here with one of you saying that i should remove the legal arguments and other saying that they belong where they are.

Could you be specific in terms of what i should remove?
I feel confident up to point 11. Do you think anything from point 12 on wards is necessary?

The legal arguments should be referred to in your Defence, but only in the briefest summary form, and certainly not by citing case law, and quoting passages from court judgments.

So for example, paras. 12, 13, and 14 can simply be summarised as follows:

"The Defendant asserts that the circumstances of the events leading to this matter are materially different from the Beavis case determined by the Supreme Court, and consequently the Claimant cannot rely upon that Judgment as creating a binding precedent".

Then go to town on that later on in the Skeleton, if so minded.

System

What are the particulars?

If you click on #2 in my sig, you will see the problem with not answering the particulars and filling the "defence" with legal nonsense which could be removed / introduced later when there is evidence to support the point.

Networking

Thanks for your reply.

I've decided to take out the Beavis references.

Question - Due to me not having the original PCN letter, does this hinder my ability to defend any paragraphs referencing the sparse details on the PCN such as the reference in para 3?

nosferatu1001

Well, by the time you need to supply evidence, you will have this from yoru SAR to the operator, which you submit now.

SO you assert the NtK failed to meet POFA and by thte time you get to WS stateg you will know for sure.

Networking

I've updated the Defence.

Another question - I vaguely remember paying for an hour, meaning i overstayed 24 minutes. Is it worth mentioning BPA CoP emphasising on the facts in Para 2?

Background

1. The Defendant was 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 xxxx car park on xx/xx/2017

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'. It does not take into account the amount of time taken to enter the car park, find a space in the car park, park in the space, purchase a ticket and put this on the windshield. All of which is extremely difficult in this particular car park due to the very busy, very cramped conditions.


Data Protection concerns

3. The Defendant had no idea about any ANPR surveillance and received no letters after the initial 'PCN' a vague document which gave no indication as to what the alleged breach actually was. 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 remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.

4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' from £3.50 to £100 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.

4.3. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

5. Unlike the free car park in Beavis, this Visitor Car Park is a site where the Claimant has machines to take payment of tariffs. Clearly there will be Civil Enforcement staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden '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. Due to the sparse details on the 'PCN' (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and arrived weeks later) and the equally lacking and embarrassing Particulars of Claim (POC) and the complete lack of any Letter before Claim, this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

6.1. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.

7. 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.

8. The Defendant has sent a subject access request (SAR) to the Claimant, for response during October 2018 and no later than the 15th of November 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.


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. The small sign at the car park entrance it does not state clearly that it is affiliated with Civil Enforcement Ltd, is obscured from view by a tree and placed at a busy street with many people crossing where the entrance to the car park is. All of these combine to make this initial sign easily missed.


10.2. The Civil Enforcement signs within the parking area are equally as hidden and therefore misleading.


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.


10.4. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. One black, unlit terminal 'box' is placed within the carpark, blocked from view during entry and easily blocked from view by other parked cars. The terminal PDT machine nearest to the entry is faced away from the roadside.

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 car park.


12. 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, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

13. 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.

13.1. 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 it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put 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.

14. 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.

14.1. 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 £100 can be claimed instead of £3.50 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.

15. 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

KeithP

I thought the 'Beavis sentence' supplied by Bargepole would be worth including.

Networking

KeithP wrote: »

I thought the 'Beavis sentence' supplied by Bargepole would be worth including.

Noted. I will add that in now.

System

I did purchase a ticket but it ran over by 24 minutes.

Remind me why Beavis was issued with a parking charge?