[delete]

clarkz

Thanks Coupon-mad, I appreciate the help!

I have certainly binned the template version after your suggestion. I'll work on a better version over the weekend.

I have already emailed over a SAR request, I've requested details of the VRN in that. However should I send a follow SAR email for that specific VRN data on the day and list of redatacted VRNs from the day?

Coupon-mad

Yes. Send the DPO an email clarifying what you need to see. Use my words.

clarkz

UPDATE:

Claim form received this morning.

AOS has just been completed. So that's sorted.

The SAR info came through the post last week and there was some interesting info in there. So the driver wrote down their postcode instead of the VRN, which is unfortunate but what you get when you expect people to write down their VRN on paper in a sign-in sheet. I guess this could be argued as human error?

The driver has a video within the establishment on the date and time in question which proves they entered the building and used the facilities.

Also the owner of the business sent an email to VCS to state the error and for it to be cancelled on the day of the ticket being issued because they knew the driver was incorrectly issued the ticket. VCS emailed back to them and said they can reduce the 'fine' to £20 for 2 weeks, we never heard anything about this from the business or VCS.

Writing up the defense will start first thing tomorrow

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton or from somewhere else?

clarkz

KeithP wrote: »

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton or from somewhere else?

The issue date is the 25th Feb. It came from the County Court Business Centre (NN1) yes.

KeithP

clarkz wrote: »

The issue date is the 25th Feb. It came from the County Court Business Centre (NN1) yes.

With a Claim Issue Date of 25th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st April 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should 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 "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put 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.

clarkz

I've put together this as a first draft, if someone who knows a lot more than me could have a look over it please and let me know of any changes


IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
Vehicle Control Services Ltd (Claimant)
-and-
xxxxxxxxxxxx (Defendant)

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle xxxxxxx when it was parked at xxxxxx in xxxxxx.

2.1. The PCN stated the contravention as 'Parked in restricted / prohibited area' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because the defendant visited the establishment (xxxxxxxxxxxx) and therefore had permission to park in the establishment’s car park as they entered the building as a paying patron and used the facilities.

2.2. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

3. It is denied that:
a. A contract was formed to pay anything as the VRN was believed to have been provided to the establishment;
b. There was any agreement to pay a penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
d. There was an agreement to pay additional and unspecified additional sums;
e. The claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.

Primary defence – defendant visited the establishment, so was able to use the car park legally as a paying patron.

4. The Defendant believed they had informed the establishment of their correct VRN so they were aware that the car was parked legally.

4.1. It does not state on any signage around the car park that a fine will occur if a VRN is not provided.

4.2. The service makes no provision to print a ticket to display, or a receipt so that a driver could check the details in a tangible format. The Defendant reasonably expected that the establishment perform their duties and ensure no customers receive a PCN.

4.3. It was only when a PCN arrived in the post, that the Defendant knew of what was incorrectly alleged to have parked in a ‘Prohibited / restricted area’

4.4. No prominent warning had been displayed within the car park.

4.4.1. Further, it is averred that a distance contractual payment where the wrong VRN data can be so easily assigned, unbeknown to the driver yet with the risk of a penalty becoming extremely high over even a short period of time in a typical two car household, offends against the requirements of the Data Protection Act 1998 (the DPA), which was the statute in place at the time of the parking event. Storage of a VRN as the 'default' data is untimely, excessive and disproportionate, and thus breaches the DPA's data protection principles.

4.4.2. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that the VRN was entered incorrectly by the driver of the vehicle, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.

4.4.3. The only method of recording VRNs on site is with a paper sign-in sheet where the driver records their details as they enter the establishment.

4.4.4. Given the fact that there is no ANPR on site, there is always the possibility of human error when inputting a VRN from the Defendant or the establishment. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, and associated consumer risk is eliminated.

4.5. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the establishment’s data processing being unreliable at the outset, and going unnoticed by a driver.

4.6. It is not reasonable in these circumstances for the driver to be forced after the event to assume the unknown burden or obligation of spotting any error by employees of the visited establishment.

4.7. Thus, the defendant did not know of any wrongdoing as the correct steps were taken to record the VRN with the establishment and were correct to park in the car park for the duration of the stay

5. The Defendant pointed out the error to the visited establishment; however the defendant was informed on numerous occasions to ignore any warning letters as they had no right to threaten their customers with fines.

5.1. It was later found out that the manager of the establishment informed VCS that the Defendant did indeed visit the establishment on the date in question as the incorrect VRN was noted and asked for the PNC to be cancelled.

5.2. Therefore the Claimant knew that they Defendant did in fact visit the establishment on the date and time in question.

5.3. The Defendant also has video evidence to prove that they visited the establishment on the day and time which further proves that they were able to park in the car park in question.

No agreement on the penalty and no contract formed by conduct

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own agent's data storage presumption and negligence. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

6.2.4. The misleading omissions/conduct of the trader and/or their agent caused the Defendant to be unaware of any wrongdoing as they took all the correct measures to ensure, what they believed to be the correct VRN was given to the establishment correctly. Since the Defendant followed all instructions, the Defendant cannot be liable for any inaccuracy after the fact.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

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.''

No legitimate interest or commercial justification

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a penalty, for not knowing of any inaccurate data presented to them on behalf of the Claimant.

8.1. The Defendant avers that this is a significant and all-too-common issue requiring investigation by the Information Commissioner's Office (ICO) and to this end, a formal complaint has now been lodged about the untimely, excessive and disproportionate storage of the Defendant's personal data (and VRNs are personal data, according to the ICO) which has resulted in such a significant imbalance in the Defendant's consumer rights.

9. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.
Name
Signature
Date

Coupon-mad

Remove these, which don't make sense where a postcode was entered instead:

4.4.1. Further, it is averred that a distance contractual payment where the wrong VRN data can be so easily assigned, unbeknown to the driver yet with the risk of a penalty becoming extremely high over even a short period of time in a typical two car household, offends against the requirements of the Data Protection Act 1998 (the DPA), which was the statute in place at the time of the parking event. Storage of a VRN as the 'default' data is untimely, excessive and disproportionate, and thus breaches the DPA's data protection principles.

4.4.2. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that the VRN was entered incorrectly by the driver of the vehicle, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.

And you didn't put this in the defence. I would:

the owner of the business sent an email to VCS to state the error and for it to be cancelled on the day of the ticket being issued because they knew the driver was incorrectly issued the ticket. VCS emailed back to them and said they can reduce the 'fine' to £20. The Defendant never heard anything about this from the business or VCS.

clarkz

Thanks Coupon, I've taken those bits out and added in the other that you mentioned.

clarkz wrote: »

I've put together this as a first draft, if someone who knows a lot more than me could have a look over it please and let me know of any changes


IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
Vehicle Control Services Ltd (Claimant)
-and-
xxxxxxxxxxxx (Defendant)

DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle xxxxxxx when it was parked at xxxxxx in xxxxxx.

2.1. The PCN stated the contravention as 'Parked in restricted / prohibited area' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because the defendant visited the establishment (xxxxxxxxxxxx) and therefore had permission to park in the establishment’s car park as they entered the building as a paying patron and used the facilities.

2.2. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

3. It is denied that:
a. A contract was formed to pay anything as the VRN was believed to have been provided to the establishment;
b. There was any agreement to pay a penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
d. There was an agreement to pay additional and unspecified additional sums;
e. The claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.

Primary defence – defendant visited the establishment, so was able to use the car park legally as a paying patron.

4. The Defendant believed they had informed the establishment of their correct VRN so they were aware that the car was parked legally.

4.1. It does not state on any signage around the car park that a fine will occur if a VRN is not provided.

4.2. The service makes no provision to print a ticket to display, or a receipt so that a driver could check the details in a tangible format. The Defendant reasonably expected that the establishment perform their duties and ensure no customers receive a PCN.

4.3. It was only when a PCN arrived in the post, that the Defendant knew of what was incorrectly alleged to have parked in a ‘Prohibited / restricted area’

4.4. No prominent warning had been displayed within the car park.

[STRIKE]4.4.1. Further, it is averred that a distance contractual payment where the wrong VRN data can be so easily assigned, unbeknown to the driver yet with the risk of a penalty becoming extremely high over even a short period of time in a typical two car household, offends against the requirements of the Data Protection Act 1998 (the DPA), which was the statute in place at the time of the parking event. Storage of a VRN as the 'default' data is untimely, excessive and disproportionate, and thus breaches the DPA's data protection principles.

4.4.2. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that the VRN was entered incorrectly by the driver of the vehicle, and for which the Claimant duly obtained the Defendant's personal data from the DVLA. [/STRIKE]

4.4.3. The only method of recording VRNs on site is with a paper sign-in sheet where the driver records their details as they enter the establishment.

4.4.4. Given the fact that there is no ANPR on site, there is always the possibility of human error when inputting a VRN from the Defendant or the establishment. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, and associated consumer risk is eliminated.

4.5. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the establishment’s data processing being unreliable at the outset, and going unnoticed by a driver.

4.6. It is not reasonable in these circumstances for the driver to be forced after the event to assume the unknown burden or obligation of spotting any error by employees of the visited establishment.

4.7. Thus, the defendant did not know of any wrongdoing as the correct steps were taken to record the VRN with the establishment and were correct to park in the car park for the duration of the stay

5. The Defendant pointed out the error to the visited establishment; however the defendant was informed on numerous occasions to ignore any warning letters as they had no right to threaten their customers with fines.

5.1. It was later found out that the manager of the establishment informed VCS that the Defendant did indeed visit the establishment on the date in question as the incorrect VRN was noted and asked for the PNC to be cancelled.

5.2. The owner of the establishment sent an email to VCS to state the error and for it to be cancelled on the day of the ticket being issued because they knew the driver was incorrectly issued the ticket. VCS emailed back to them and said they can reduce the fine to £20. The Defendant never heard anything about this from the establishment or VCS.

5.3. Therefore the Claimant knew that they Defendant did in fact visit the establishment on the date and time in question.

5.4. The Defendant also has video evidence to prove that they visited the establishment on the day and time which further proves that they were able to park in the car park in question.

No agreement on the penalty and no contract formed by conduct

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own agent's data storage presumption and negligence. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

6.2.4. The misleading omissions/conduct of the trader and/or their agent caused the Defendant to be unaware of any wrongdoing as they took all the correct measures to ensure, what they believed to be the correct VRN was given to the establishment correctly. Since the Defendant followed all instructions, the Defendant cannot be liable for any inaccuracy after the fact.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

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.''

No legitimate interest or commercial justification

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a penalty, for not knowing of any inaccurate data presented to them on behalf of the Claimant.

8.1. The Defendant avers that this is a significant and all-too-common issue requiring investigation by the Information Commissioner's Office (ICO) and to this end, a formal complaint has now been lodged about the untimely, excessive and disproportionate storage of the Defendant's personal data (and VRNs are personal data, according to the ICO) which has resulted in such a significant imbalance in the Defendant's consumer rights.

9. 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. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.
Name
Signature
Date

clarkz

Do we think that is ok to print, sign, scan and email in?

Does the defence need to be formatted in a specific way? i.e font style, font size, line spacing?

Thanks.