BW Legal "Letter Of Claim" Received

GeoStar1

Yes that is correct and they have never replied or even acknowledged the request

Le_Kirk

GeoStar1 wrote: »

Yes that is correct and they have never replied or even acknowledged the request

I feel a complaint to ICO coming on!

GeoStar1

Any further thoughts on my draft defence please?

many thanks for any help received.

Le_Kirk

If your defence is based on one written by Coupon-mad (this one) then you couldn't have had better guidance. Check the two together and see if you have a) all the arguments that C-m used and b) all the points that counter what the POC (assuming you received one) alleged.

GeoStar1

Further to my defence statement above, I draw your attention to the POC stated on the claim form below. I think I have defended all these points but please let me know if not:

The Claimant's Claim is for the sum of £248.68 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on <date> in the private car park/land located at 66 Onslow Road Southampton SO14 0JN, in relation to a vechicle, <Make, Model, Registration>. The Defendant was allowed 28 days from the PCN Date to pay the PCN, but failed to do so.
Despite demand having been made, the Defendant has failed to settle their outstanding liability.
The Claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum (a daily rate of £0.04 from <date of PCN> to 19/03/2019 being an amount of £13.68.
The Claimant's claim includes £60.00 costs as set out in the Terms and Conditions.

GeoStar1

Further to the above, I am wondering if I can say in my defence that the PPC failed meet POFA section 4 to issue NTK within 14 days, in fact it arrived after 6 weeks. However I have previously stated in an appeal that I was the driver so I am thinking this no longer stands as a defence point - any thoughts please?

KeithP

If they already know that you were the driver then POFA, in it's entirety, is irrelevant.

GeoStar1

Please find below my updated defence which now includes paragraph 12 'No advertising consent for signage' (I know this is a minor point but I think it is worth including as there is email evidence (being provided to me by the landowner) that the Local Authority has threatened legal action against the landowner because the PPC setup signs without permission from the LA.

Para 10 is supported by email evidence/copy of contract (being provided by the landowner) from the landowner to the PPC that the contract is invalid as it was signed by someone that didn't have legal authority (a vigilante rogue ex member of the landowner's organisation which is a religious temple), the PPC was asked to stop enforcing parking which they agreed to and then left the site. So the PCN in this case relates to this invalid contract.

Please can I check - one assumes I provide this email evidence later in the process and not as an attachment to the defence statement?

Any thoughts on the defence or additions required are very gratefully received.

IN THE COUNTY COURT
CLAIM No: <>

BETWEEN:
Countrywide Parking Management Limited (Claimant)

-and-

<> (Defendant)



DEFENCE




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 the private car park/land located at <> on <>.

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 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 the car park/land.

4.1. It is one thing to install Pay and Display Ticket (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 to the car park, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the 'parking charge' to £100 and write (months 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 car park/land is a site where the Claimant has machines to take payment of tariffs. Clearly there will be Countrywide Parking Management Limited staff who could be 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 - 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 Claimant 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.

7. The Defendant has sent a subject access request (SAR) to the Claimant by email on 27th November 2018, for response during January 2019. A response has not yet been received but should it arrive it 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

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.

9. 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.

9.1. The 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.

9.2. Upon receiving this unexpected Claim, the Defendant has researched the site in order to submit a defence. There are no longer any signs or PDT machines at the car park/land.

No standing or authority to form contracts and/or litigate

10. 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 visitors. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
No 'legitimate interest' or commercial justification - Beavis is distinguished

11. 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. 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.

No advertising consent for signage

12. The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the car park/land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

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 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, Countrywide Parking Management 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. 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 Defendant invites the Court to dismiss the claim in its entirety, and to award the Defendant's witness costs of attendance at a hearing, if so advised.

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.

Coupon-mad

Para 10 is supported by email evidence/copy of contract (being provided by the landowner) from the landowner to the PPC that the contract is invalid as it was signed by someone that didn't have legal authority (a vigilante rogue ex member of the landowner's organisation which is a religious temple), the PPC was asked to stop enforcing parking which they agreed to and then left the site. So the PCN in this case relates to this invalid contract.

Please can I check - one assumes I provide this email evidence later in the process and not as an attachment to the defence statement?

Yes the evidence comes later. Please read: 'KNOW WHAT HAPPENS WHEN' in the NEWBIES thread 2nd post.

As you've said the above, why is your defence all about PDT machines?

GeoStar1

As you've said the above, why is your defence all about PDT machines?

Please can you explain in more detail what you mean? There were machines on site to pay for parking time which I missed. I probably need to re-phrase statements (para 5) in the past tense as the machines have since been removed with the PPC leaving - is this the issue you raise? Sorry I need some help if not.