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Britannia Parking - BW Legal - County Court Claim
Mappy3333
Posts: 24 Forumite
So summary of the situation, my partner parked on Poole Quay during the summer. She paid the appropriate fee, but either due to an error with ticket machine or an error on my partner's part an incorrect VRN was entered and we subsequently received a PCN from Britannia Parking. We have gone through appeal and then POPLA appeal and have now been issued a County Claim form from Northampton. This was served on 9th January 2019. We have completed the AOS and we have now begun drafting our defence. I would be very grateful if the experts on this forum can review the current draft and suggest any amendments. I am not an expert in these things and have cobbled together a defence based upon similar arguments within this forum. Please find below:
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at Poole - Quayside ANPR Car Park on 24th June 2018. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. The allegation appears to be that the ‘no valid payment was made’ 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 and is no evidence of a contravention or failure to make payment. Further, this contravention cannot have occurred, given the facts and evidence.
3. The Defendant has already proved that she had bought and paid for a ticket, which covered the period for which she was parked. A ticket was purchased for £2.00 (£0.50 over the actual amount required due to not having the correct change) at 14:13 which covered a parking period up to 15:13. The Claimant’s own ANPR technology recognises that the Defendant exited the car park at 15:03. The Claimant alleges that a ‘valid’ ticket was not purchased as the vehicle registration number on the ticket purchased did not match the vehicle that was parked. The defendant contests that as the vehicle registration number on the purchased ticket was ‘M’ only the invalid registration can only have come from a error by the parking machine. ‘M’ is not a valid registration for any vehicle therefore why would a parking machine allow for that to be an accepted entry.
4. 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' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
4.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
4.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
i) Lack of an initial privacy impact assessment, and
ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
iii) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay & Display system and how the data captured on both would be used, and
iv) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
5. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.
6. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.
7. The ‘ParkingEye v Beavis’ case exposes this charge as unconscionable, with no overriding ‘legitimate interest. To save it from offending against the penalty rule.
7.1 The Supreme Court made it perfectly clear that the judgement was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN as is the case in this instance.) were said at Court of Appeal stage to be likely to fall foul of Lord Dunedin’s four tests for an unenforceable penalty.
7.2 The Defendant contests that the Claimant has suffered no loss to the owner and no abuse of a parking space, nor any overstay as a ticket had been purchased by the defendant for the required period and demonstrated to the Claimant.
7.3 While the courts might hold that a large charge might be appropriate in the case of a ‘free stay’ car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error (by user/machine) which was explained and accompanied in good faith at appeal stage, by proof of pay & display.
8. The particulars of the claim, state the legal basis is brought against the Defendant for ‘breach of terms of parking’. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
8.1 The breach referred to by the Claimant relies upon their own data being incorrect from the outset as the ANPR data of the VRN’s and Ticket Machine Log data captured are not validated with each other automatically or manually concludes that either the system or business model or both are unfit for purpose. The DPA states that personal data is ‘inaccurate’ if it is incorrect or misleading as to any matter of fact.
Breach of the BPA Code of Practice Principles
9. Under section 21 of the CoP, BPA members are only allowed to use ANPR if they:
Use it to enforce parking in a reasonable, consistent and transparent manner.
Have clear signs which tell drivers that the operator is using the technology and what the data captured by ANPR cameras will be used for.
Manual quality checks of the ANPR images to reduce errors and make sure that it is appropriate to take action.
9.1 The Defendant contests that the fact is that a ticket was purchased and demonstrated early on that the Defendant had paid in good faith and that either an error had occurred by the Ticket Machine or the Defendant on VRN entry. The Claimant, a BPA Operator, is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. The Defendant requests that the Claimant demonstrates that these checks were made in this instances.
Unconscionable and unrecoverable inflation of the 'parking charge'
10. This claim inflates the total to an eye-watering £238.80, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
10.1. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
10.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste Britannia robo-claims at all. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
10.3. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
10.4. 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 £110, which I submit have not actually been incurred by the Claimant.
10.5. Whilst £110 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Britannia Parking 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 Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.
11.1. Similarly, in Somerfield (above) a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.
12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
13. Examples of previous case Parking Eye v Heggie
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amoiunt charged by ParkingEye was not a genuine pre-estimate of loss.
Report
In this case Mt Heggie entered the wrong registration number for his vehicle. Parking Eye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.
Parking Eye argued that their charge of £100 was a genuine pre-estimate of loss becasue of the whole running costs of the car park needed to be considered.
Judge Obhi ruled that there was actually zero loss incurred.
Judge Obhi dismissed the claim.
Although Parking Eye claim this was all the defendants fault for not contacting them, it is worth noting that it is their own systems which cause the problem. Systems from other organisations do not allow entry of VRN’s where a vehicle with the registration is not present.
It is also true that Parking Eye will have had an entry on their system that charges were paid for a vehicle which was not present, and so could reasonably be said to be aware that the problem was likely to have been caused by an incorrect registration.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at Poole - Quayside ANPR Car Park on 24th June 2018. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. The allegation appears to be that the ‘no valid payment was made’ 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 and is no evidence of a contravention or failure to make payment. Further, this contravention cannot have occurred, given the facts and evidence.
3. The Defendant has already proved that she had bought and paid for a ticket, which covered the period for which she was parked. A ticket was purchased for £2.00 (£0.50 over the actual amount required due to not having the correct change) at 14:13 which covered a parking period up to 15:13. The Claimant’s own ANPR technology recognises that the Defendant exited the car park at 15:03. The Claimant alleges that a ‘valid’ ticket was not purchased as the vehicle registration number on the ticket purchased did not match the vehicle that was parked. The defendant contests that as the vehicle registration number on the purchased ticket was ‘M’ only the invalid registration can only have come from a error by the parking machine. ‘M’ is not a valid registration for any vehicle therefore why would a parking machine allow for that to be an accepted entry.
4. 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' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
4.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
4.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
i) Lack of an initial privacy impact assessment, and
ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
iii) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay & Display system and how the data captured on both would be used, and
iv) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
5. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.
6. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.
7. The ‘ParkingEye v Beavis’ case exposes this charge as unconscionable, with no overriding ‘legitimate interest. To save it from offending against the penalty rule.
7.1 The Supreme Court made it perfectly clear that the judgement was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN as is the case in this instance.) were said at Court of Appeal stage to be likely to fall foul of Lord Dunedin’s four tests for an unenforceable penalty.
7.2 The Defendant contests that the Claimant has suffered no loss to the owner and no abuse of a parking space, nor any overstay as a ticket had been purchased by the defendant for the required period and demonstrated to the Claimant.
7.3 While the courts might hold that a large charge might be appropriate in the case of a ‘free stay’ car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept £100 penalty is a conscionable amount to be charged for the simple problem of a VRN error (by user/machine) which was explained and accompanied in good faith at appeal stage, by proof of pay & display.
8. The particulars of the claim, state the legal basis is brought against the Defendant for ‘breach of terms of parking’. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
8.1 The breach referred to by the Claimant relies upon their own data being incorrect from the outset as the ANPR data of the VRN’s and Ticket Machine Log data captured are not validated with each other automatically or manually concludes that either the system or business model or both are unfit for purpose. The DPA states that personal data is ‘inaccurate’ if it is incorrect or misleading as to any matter of fact.
Breach of the BPA Code of Practice Principles
9. Under section 21 of the CoP, BPA members are only allowed to use ANPR if they:
Use it to enforce parking in a reasonable, consistent and transparent manner.
Have clear signs which tell drivers that the operator is using the technology and what the data captured by ANPR cameras will be used for.
Manual quality checks of the ANPR images to reduce errors and make sure that it is appropriate to take action.
9.1 The Defendant contests that the fact is that a ticket was purchased and demonstrated early on that the Defendant had paid in good faith and that either an error had occurred by the Ticket Machine or the Defendant on VRN entry. The Claimant, a BPA Operator, is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. The Defendant requests that the Claimant demonstrates that these checks were made in this instances.
Unconscionable and unrecoverable inflation of the 'parking charge'
10. This claim inflates the total to an eye-watering £238.80, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
10.1. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
10.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste Britannia robo-claims at all. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
10.3. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
10.4. 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 £110, which I submit have not actually been incurred by the Claimant.
10.5. Whilst £110 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Britannia Parking 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 Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.
11.1. Similarly, in Somerfield (above) a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.
12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
13. Examples of previous case Parking Eye v Heggie
3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). Deputy District Judge Obhi ruled that the amoiunt charged by ParkingEye was not a genuine pre-estimate of loss.
Report
In this case Mt Heggie entered the wrong registration number for his vehicle. Parking Eye were able to trace this and confirm that he had paid. However, because they had started court proceedings they refused to drop the claim.
Parking Eye argued that their charge of £100 was a genuine pre-estimate of loss becasue of the whole running costs of the car park needed to be considered.
Judge Obhi ruled that there was actually zero loss incurred.
Judge Obhi dismissed the claim.
Although Parking Eye claim this was all the defendants fault for not contacting them, it is worth noting that it is their own systems which cause the problem. Systems from other organisations do not allow entry of VRN’s where a vehicle with the registration is not present.
It is also true that Parking Eye will have had an entry on their system that charges were paid for a vehicle which was not present, and so could reasonably be said to be aware that the problem was likely to have been caused by an incorrect registration.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
0
Comments
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An incorrect VRN is regarded by many judges as a trifle, a waste of court time, and the law does not concern itself with trifles.
https://en.wikipedia.org/wiki/De_minimis
The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.
Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct
The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.
Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..
All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.You never know how far you can go until you go too far.0 -
That is a good defence.
It must be highlighted to the judge that the fee was paid and what actually happened to that fee, did Britannia simple pocket it ???
A question for the judge to ask them
Again to be highlighted is the double recovery from BWLegal.
Your job is to make the judge fully aware that will place doubts in his/her mind
As a side point just for this forum, it seems that Britannia has a high rate of pay machines that could be faulty around the country and we wonder what is going on ????0 -
I would remove:
8
10.5
11.1
13 (Heggie talks about GPEOL which was kicked out in 2015 by the Supreme Court).
And
and remove this because Britannia do have a privacy notice on their website which is referred to in their PCNs:iv) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.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 -
Thanks for the responses so far, much appreciated and I will make the suggested amendments.
With regards to the issue date on the claim form it is 09 Jan 2019.
Thanks0 -
Then the date of service is 14th January 2019.With regards to the issue date on the claim form it is 09 Jan 2019.
Did you do you the Acknowledgement of Service before Monday 28th January?
I'll assume - yes.
With a Claim Issue Date of 9th January, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th February 2019 to file your Defence.
That's just a week away. Plenty of time, 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
-
Why have you abandoned your earlier thread and started a new one?
Ignoring questions asked on your old thread?
Please ask a Board Guide to merge your threads.
I now see you did the AoS before 23rd January.0 -
Apologies I started a new thread for the next stage in the process. I will ask the Board Guide to merge0
-
Dear members
First of all, I would like to tell you that this is my first post and English is not my first language so please be gentle. I have come to this forum when trying to find help with my BW Legal- Brittania Parking case. I have read many posts regarding the topic and I have read the Newbies thread but I am very confused about the action I should take at my stage.
After I was finned for not requesting a free parking stay on my visit to a local pub I was so furious as it was never my intention to break the rules... I shared my situaion on a Facebook group and people asked if it was a penalty notice or a parking notice. I told them it was a parking noticd and then I was wrongly advise to ignore all the letters from Britannia and to never be in touch with anyone. I am now facing a Court Claim and though I can see from moneysavingexpert that most calims are unsuccessful I don't know how to defend the case. I would really appreciate your help!
I am at the point where I have to aknowledge the service of the claim and extend the time to submit a defence to 28 days. Here is where I got lost...0 -
OK, so read some other Britannia defence threads from MAY, not from February!
Lots for you to read and copy.
Then start your OWN NEW THREAD to show us your draft defence.
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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