CEL Defence

Coupon-mad

And what do they say about this thread?

Guinness123

My first draft for my defence - any feedback would be great. Thank you

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement 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. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date.
3. The Claim Form issued on the 14 Jan 2019 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by the 'Claimant's Legal Representative’.

4. The Particulars of Claim does not state who the Defendant for this charge is, instead relying solely on the registered keeper and generalising the Particulars of Claim stating ‘Drivers are allowed to park in accordance with T+C’s of use’. The defendant holds no keeper liability as no Notice to Driver was ever issued and then passed to the Keeper, and no Notice to Keeper was received via post subsequent to the event.
5. The Defendant believes that the parking terms of the car park in question is not clear. The Defendant entered the car park via a non-restricted much larger car park. The Defendant believed that the car park was simply an overflow from the first car park so thus restrictions did not apply as with the main car park.
6. Upon receiving this unexpected Claim, the Defendant has returned to the car park. There is one main sign upon entering the car park in question, which is not in eye shot of the driver. It is not clear that the two car parks are not one of the same.
7. The defendant asserts that no reasonable person, of any means, would agree to pay a charge of £100 as a consequence for over staying the permitted period of free parking by 11 minutes.
8. The Particulars of the Claim states that the claim is for ‘monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms and conditions’, however, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. No terms and conditions have been provided to the Defendant.

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. Additionally, the lay out of the car park and position of signage is incapable of legally binding the defendant into any contract.
10. 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.

11. The Defendant avers that the factually-different Beavis decision confirms the assertion that the disputed charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

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.''

12. 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.

13. The Protection of Freedoms Act 2012, 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, in this case £100. This claim includes further ‘third-party’ charges which appears to be an attempt at double recovery.
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

Much as I hate cleaning up stuff that this company...

https://uk.trustpilot.com/review/privateparkingappeals.co.uk

...that you paid money to (:eek:), should have done, here are my comments:

Re this bit:

The Defendant entered the car park via a non-restricted much larger car park. The Defendant believed that the car park was simply an overflow from the first car park so thus restrictions did not apply as with the main car park.
6. Upon receiving this unexpected Claim, the Defendant has returned to the car park.

Why are you admitting to being the driver?

In a CEL defence, we wouldn't advise it unless you already blabbed about that?

You should be citing the POFA non compliance and that a keeper can't be held liable.

If the alleged overstay is an unproven 11 minutes, why is that not the focus of the defence - insufficient grace period and unsynchronised ANPR entry/exit cameras conspiring to paint a picture of an 'overstay' that did not occur, as the car was not parked in a bay for anything like ten minutes over, let alone 11 minutes over paid for (or free?) time.

Same as any other grace period defence surely? Search the forum.

Guinness123

Coupon-mad wrote: »

Much as I hate cleaning up stuff that this company...

https://uk.trustpilot.com/review/privateparkingappeals.co.uk

...that you paid money to (:eek:), should have done, here are my comments:

Re this bit:
Why are you admitting to being the driver?

In a CEL defence, we wouldn't advise it unless you already blabbed about that?

You should be citing the POFA non compliance and that a keeper can't be held liable.

If the alleged overstay is an unproven 11 minutes, why is that not the focus of the defence - insufficient grace period and unsynchronised ANPR entry/exit cameras conspiring to paint a picture of an 'overstay' that did not occur, as the car was not parked in a bay for anything like ten minutes over, let alone 11 minutes over paid for (or free?) time.

Same as any other grace period defence surely? Search the forum.

Thanks so much for your help. I would just much prefer to do this for myself with this support forum and not rely on PPA when getting an email response is such a strain they are just not reliable! So thank you again for your help, it is much appreciated

nosferatu1001

Thats not what was asked
Why are you declaring who the driver is? Was the drivers identity blabbed?

Guinness123

nosferatu1001 wrote: »

Thats not what was asked
Why are you declaring who the driver is? Was the drivers identity blabbed?

I didn't use this forum before appealing initally and I don't remember the EXACT wording I used in my inital appeal to CEL. In this instance, could I seek a copy of this appeal from CEL, or do I change my defence and hope that it wasn't revealed? Thank you for your help

Coupon-mad

In this instance, could I seek a copy of this appeal from CEL, or do I change my defence and hope that it wasn't revealed?

Do both.

A SAR by email to CEL's DPO (see NEWBIES thread) and a defence that (for now) hedges your bets and talks about putting the Claimant to strict proof of POFA compliance, otherwise there can be no keeper liability.

Guinness123

Coupon-mad wrote: »

Do both.

A SAR by email to CEL's DPO (see NEWBIES thread) and a defence that (for now) hedges your bets and talks about putting the Claimant to strict proof of POFA compliance, otherwise there can be no keeper liability.

Thank you, I have sent my SAR just now and almost finished my next draft defence in relation to the grace period.

Guinness123

Evening,

I have re-written my defence and would welcome your feedback, thank you in advance:

In the County Court

Claim Number: xxxxxxx

Between

CIVIL ENFORCEMENT LTD

v

XXXXXXX

DEFENCE

1. It will be common ground that this claim refers to a private parking charge notice' (PCN) relating to a day when the Defendant paid and displayed and was authorised to park.

1.1. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms is denied, and it is further denied that there was any agreement to pay the Claimant any £100 'parking charge' or any sum at all in addition to the parking tariff.

1.2. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.

2. A mandatory grace period is required by the British Parking Association (BPA) Code of Practice, which states a "sufficient amount of time to park and read any signs" must be provided.

2.1. The Defendant avers there was no mention of the terms commencing during a 'grace period' (either before or after the free time). Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site, and effectively ignore these terms and leave early.
3. The Defendant parked as soon as was reasonably possible given the circumstances on arrival. The car park was busy, almost full, and this is not the most easy of car parks to manoeuvre through. A few minutes were taken carefully driving around looking for a space, queuing to wait, then parking, getting out a baby, a pushchair, locking the car, walking over to the signs to understand the terms, then upon returning to the car, taking down the pushchair, putting the child back into their car seat, before getting back into the car and preparing to drive away.

3.1. This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving round for half an hour looking for a parking space was not parking, and until a driver had actually parked and read the signs, there was no parking contract possible relating to any obligation on a driver whilst driving round.

3.2. If the Claimant argues that a driver should be held to a completely different and unexpected start time (on arrival past hidden ANPR cameras) then the terms should clearly state that 'total stay' was being calculated, and the machine should have synchronised with the data stream fed from the initial ANPR image.

3.3. In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

4. The Claimant has failed to comply with the strict requirements of The Protection of Freedoms Act 2012, schedule 4 (PoFA 2012):
4.1. The driver of the vehicle has not been identified. In order for the Claimant to transfer liability from the driver to a keeper, they must do so within the strict requirements of the PoFA 2012. This was too confirmed by Mr Greenslade, POPLA Lead Adjudicator on page 8 of the 2015 POPLA Report: “If PoFA 2012 Schedule 4 is not complied with then the keeper liability does not generally pass”.

5. The parking terms on signage was vague and did not specify terms and conditions.

5.1. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

6. 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. 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 and completely different facts in a free car park.

7. Further, in order to issue 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. This Claimant has taken no steps to provide evidence that such authority existed, and that they were entitled to pursue drivers for a penalty for the time spent driving round before parking.

7.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of entering a car park not taking into account this defence then penalising the person for an extra £100 if they rightly concluded from the information available, that they were indeed allowed the 40 minutes free parking that they were entitled to.


Alternative defence - Data Protection Act breach (two conflicting data streams)
8. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of 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.

8.1. 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.

8.2. 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 Surveillance Camera 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 regularly evaluate whether it was necessary and proportionate to continue using ANPR, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement, or penalising only non-payers, or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system.

9. This Claimant has therefore failed to meet its legal obligations and has breached the BPA Code of Practice.


Unlawful conduct/data use and breach of the Consumer Rights Act 2015
10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on the BPA website, in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice by the ICO. The force were ordered to stop processing people's information via ANPR until they could comply. The ICO ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

11. 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.''

11.1. 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 plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, the part relying upon ANPR data streams was illegal at its formation because it was incapable of being created without an illegal act.

12.1. 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.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers, whereby they had committed the tort of deceit. : ''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''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being an IPC member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid just this sort of data abuse.

12.2.2. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

(iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

14. 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 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

15. 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. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an ANPR system, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield 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.

16. 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.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date

Coupon-mad

That's an old & rambling version. The Andre Agassi and all the paras near the bottom about various cases need deleting.

And this makes no sense as it contradicts itself:

1. It will be common ground that this claim refers to a private parking charge notice' (PCN) relating to a day when the Defendant paid and displayed and was authorised to park.

2.1. The Defendant avers there was no mention of the terms commencing during a 'grace period' (either before or after the free time).

The car park was either Pay & Display or free, not both!