POPLA appeal won! Tower Hamlets, NSL

maxxpayne

No. I didn't even know that was a thing. They just highlited N3.

MarcoM wrote: »

hi you mention you won because of n3 above.
did popla discard your statement that the pcn was invalid as it
was addressed to keeper after 14 days?

MarcoM

maxxpayne wrote: »

No. I didn't even know that was a thing. They just highlited N3.

is there any chance you could post your appeal to popla please?
i could do with some of your template

KeithP

maxxpayne wrote: »

Hi,
The issue date is 7th October. This is the date written on the country court claim form. Does this have a bearing on my case?

With a Claim Issue Date of 7th October, you have until Monday 28th October to do the Acknowledgement of Service. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

maxxpayne

Hi,
Looks like the post context would be too long. Can you please PM me your email address and I can send it over.
Cheers.

MarcoM wrote: »

is there any chance you could post your appeal to popla please?
i could do with some of your template

maxxpayne

Many thanks for that.


I have fired the AoS. I have also sent a SAR email to UKPCM, following https://www.uk-carparkmanagement.co.uk/privacy/motorists


I just realised that I have a somewhat large challenge. I moved to London a while ago, but forgot to update my driver's license. The court has been set to Northampton where I originally resided! As the mother of a toddler old, I will find it hard to physically contest the case! Is there something I can do to change the court address to London?


Thanks again.

KeithP wrote: »

With a Claim Issue Date of 7th October, you have until Monday 28th October to do the Acknowledgement of Service. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

1. Print your Defence.
2. Sign it and date it.
3. Scan the signed document back in and save it as a pdf.
4. Send that pdf as an email attachment to [EMAIL="CCBCAQ@Justice.gov.uk"]CCBCAQ@Justice.gov.uk[/EMAIL]
5. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
8. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Egbert_Nobacon

You appear to have some confusion.

To meet POFA requirements under ANPR capture you must receive a NTK within 14 days.
So as the alleged transgression occurred on 9th October and the NTK being issued on 26th October they have failed to transfer liability to the keeper.

You have received court papers from the Northampton government office as most do. Your hearing venue will be allocated to your local county court at a later date.

Please update your DL - failure can attract a real fine.

Coupon-mad

I just realised that I have a somewhat large challenge. I moved to London a while ago, but forgot to update my driver's license. The court has been set to Northampton where I originally resided! As the mother of a toddler old, I will find it hard to physically contest the case! Is there something I can do to change the court address to London?

All MCOL claims start at Northampton - this is basic stuff seen in every single 'claim' thread, so it worries me that you've read none, no recent ones about defences, if you were unaware that this is normal and you get to choose your local court in due course.

Please come back here when you have read the NEWBIES thread post #2 including bargepole's linked thread about COURT PROCEDURES.

It saves us so much time and we want to help you with the specifics, not the basics. Threads that end up many pages long due to someone asking about everything that the NEWBIES thread already covers, can alienate the regulars purely due to exhaustion and lack of time/inclination to repeat stuff.

We really want to help but we want you to read what the NEWBIES thread tells you first, plus why not read a dozen recent threads about the same claimant by searching the forum for the PPC's name/acronym and reading the posts about defences?

You'll gain no end of confidence and knowledge.

Le_Kirk

Egbert_Nobacon wrote: »

Please update your DL - failure can attract a real fine.

Also it is important to update your V5C - logbook - as that is how the PPCs find you.

maxxpayne

[FONT=&quot]DEFENCE [/FONT][FONT=&quot][/FONT]

[FONT=&quot]__________________________________________________ _________________________[/FONT][FONT=&quot]


[/FONT][FONT=&quot]I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]I am the registered keeper of the vehicle in question. This vehicle is used by more than one individual. The claim relates to an alleged debt arising from my alleged breach of contract when parking at xxxxxx xxxxxx on the xxth, even though I was not driving that day

[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The facts of the matter are that, the driver did pay and display upon arrival on the day for the duration the driver intended to stay, for visiting a local restaurant for dinner. The driver was unfortunately delayed returning to the vehicle due to delays settling the bill at the restaurant as it was very busy and additionally due to bad weather and rain on that night. The driver left the car park upon arriving as soon as possible

[/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12. The Claimant have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording :- ’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’ The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’. The NTK sent to myself as Registered Keeper was issued on 26/11/2018, when the actual date of event is recorded as 10/11/2018, a difference of more than 14 days. Even if they had posted it on the same day that they describe as the ‘Date Issued’, it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b)

[/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]Furthermore, the Defendant never received the alleged notice to keeper anyway, but a subsequent letter dated 27th December from the Claimant, claiming to be a formal demand of payment and stating that a notice to keeper had been served! This means that the Claimant have failed to act in time for keeper liability to apply

[/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]The defendant submits that she was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented me from being able to get this charge cancelled by the landowners, a right that I believe existed as an exemption clause for car park customers written into the landowner contract but a material fact which is withheld from users of the car park. If I could have appealed or had been informed that the landowner could deal with such complaints and cancel charges, I would have done so

[/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]The Defendant disputes that the Claimant can charge a PCN of £100 on what was just a few pounds worth of parking in the first place. The damage from overstaying could never be this high

[/FONT]
[FONT=&quot]7. [/FONT][FONT=&quot]The Defendant also disputes that the Claimant has incurred £50 solicitor costs

[/FONT]
[FONT=&quot]8. [/FONT][FONT=&quot]The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt

[/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]Notwithstanding the Defendant's belief, the costs are in any case not recoverable

[/FONT]
[FONT=&quot]10. [/FONT][FONT=&quot]The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court

[/FONT]
[FONT=&quot]11. [/FONT][FONT=&quot]The allegation appears to be that the ‘vehicle was not authorised to use the car park’, photographed by their ANPR camera at the entrance and exit to the site. This did not prove actual parking of the vehicle and is merely an image of the vehicle in transit. The allegation of ‘No Authorisation’ is open to abuse by Claimants as it can be used in all cases regardless of the actual situation, this displays how the claimants claim is completely generic and not specific

[/FONT]
[FONT=&quot]12. [/FONT][FONT=&quot]In order to issue parking charges, 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. No evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of same, in the form of an unredacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner

[/FONT]
[FONT=&quot]13. [/FONT][FONT=&quot]The Claimant’s representatives, Gladstones Solicitors Limited, have artificially inflated the value of the Claim from £100 to a total of £245.53. The defendant submits that the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, Gladstones Solicitors Limited appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct

[/FONT]
[FONT=&quot]14. [/FONT][FONT=&quot]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'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. UK CAR PARK MANAGEMENT LTD. are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:[/FONT]
[FONT=&quot]a. [/FONT][FONT=&quot]Lack of an initial privacy impact assessment, and[/FONT]
[FONT=&quot]b. [/FONT][FONT=&quot]Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and[/FONT]
[FONT=&quot]c. [/FONT][FONT=&quot]Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the 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 shoppers and taking into account the prevailing conditions at the site on any given day), and[/FONT]
[FONT=&quot]d. [/FONT][FONT=&quot]Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and[/FONT]
[FONT=&quot]e. [/FONT][FONT=&quot]Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and This Claimant has therefore failed to meet its legal obligations under the DPA

[/FONT]
[FONT=&quot]15. [/FONT][FONT=&quot]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.''

[/FONT]
[FONT=&quot]16. [/FONT][FONT=&quot]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 claimant.''

[/FONT]
[FONT=&quot]17. [/FONT][FONT=&quot]Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #14 a - e above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all)

[/FONT]
[FONT=&quot]18. [/FONT][FONT=&quot]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.

[/FONT]
[FONT=&quot]19. [/FONT][FONT=&quot]In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the Data Protection Act

[/FONT]
[FONT=&quot]20. [/FONT][FONT=&quot]To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''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''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA/GDPR rules and as it was a IPC member with access to a wealth of DPA/GDPR compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations

[/FONT]
[FONT=&quot]21. [/FONT][FONT=&quot]It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 14 and 18 above were argued

[/FONT]
[FONT=&quot]22. [/FONT][FONT=&quot]In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act)

[/FONT]
[FONT=&quot]23. [/FONT][FONT=&quot]In view of all the foregoing the court is invited to strike the matter out of its own motion. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim

[/FONT]
[FONT=&quot]24. [/FONT][FONT=&quot]On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

[/FONT]
[FONT=&quot]25. [/FONT][FONT=&quot]On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out

[/FONT]
[FONT=&quot]26. [/FONT][FONT=&quot]I would like the Court to take note that the defendant was then aggressively harassed by letter after letter from debt collection agencies, despite not being liable for these made up costs

[/FONT]
[FONT=&quot]27. [/FONT][FONT=&quot]The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]I believe the facts stated in this Defence are true.[/FONT]

maxxpayne

Hi Everyone,


Thanks for bearing with me. I have attached my defense, last day of submission being tomorrow I think (the Country Court claim is dated 7th October).


This is a somewhat unique case as the driver did play for parking initially, but overstayed owning to returning to the car late due to circumstances described in the defense. I assume as the keeper I can highlight the driver's case? Or should I just ignore it? Also, the driver does not remember if he tried paying extra upon coming back to the vehicle, the driver may have but the machine refused to take coins at that time and the driver just gave up and left. It was late, dark and raining.



Also, I didn't find may defense using GDPR, but more the old DPA clauses. Are there any GDPR clauses I should highlight?


I still not have received documents from UKCPM for my SAR as of writing.


Thanks once again for all the help.

maxxpayne wrote: »

DEFENSE...