CEL Defence

Guinness123

Hi Everyone, I've re-read the defence, could you let me know if this is good to go now, please? thanks in advance..

In the County Court
Claim Number: xxxxxxx


Between

CIVIL ENFORCEMENT LTD

v

XXXXXXXX


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 used a car park where parking restrictions apply.

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 This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving round for half an hour looking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], 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.

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. 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.

11.1. 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. 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).

13. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

14. 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. 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

It is getting better, but I would remove 7.1 through to 11, inclusive.

And here, below, remove the phrase about paying a parking tariff (you really need to go through your own defence and remove the things that make no sense for your facts in your case).

And you also give away below, who was driving, so you can't then say 'the driver has not been identified' unless you remove the bots that say it was the Defendant:

1. It will be common ground that this claim refers to a private parking charge notice' (PCN) relating to a day when the Defendant used a car park where parking restrictions apply.

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], 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.

Decide if you would rather defend this at the hearing as admitted driver, talking about the minor 11 minutes taken to find a space, then park for 40 minutes, then at the end to load the car & leave the space, and drive to the exit and queue to join the main road.

If you decide to make it a defence from the driver, then remove #4.

Or, have you never said in appeal which person parked the car (are you SURE?) and if not, then are you confident to defend this as 'registered keeper' which is recommended if you were not driving, of course!

[Deleted User]

In relation to the driver/POFA point do make sure you get your head round the difference - some advocates appear to think that it makes no difference.

If relying on POFA you need to be able to explain to the court how the statute operates to effectively fix a maximum fee.

Guinness123

Thanks both for your help. I have decided to go in admitting driver liability as i cannot be sure i didnt give this away in the initial appeal, and have not heard back from DPO at CEL regarding the SARs so i don't think i have a choice! My inital appeal said something along the lines of 'we moved the car as soon as we could from the space, or I moved the car' i cant be sure!

This is my final draft, ill be sending this over tonight:


In the County Court
Claim Number: xxxxxxx

Between

CIVIL ENFORCEMENT LTD

v

XXXX

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 parked in a restricted car 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.

1.2. It is admitted that the Defendant was the registered keeper and driver 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 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 easiest 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.

4. An alternative defence is the lack of parking terms on the signage. They did not specify any terms and conditions of the contract in place.

4.1. 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.''

5. 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.

6. 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.

7. 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.

8. 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

I said to remove 7.1 onwards, not number 7!

Guinness123

Coupon-mad wrote: »

I said to remove 7.1 onwards, not number 7!

Hopefully the rest of the defence is strong enough based on the grace period as I took all of 7 out, as you’ve spotted! I clearly missed the .1! Grrrrr

Unfortunately after spending many hours last night attempting to create a pdf file, from my scanner I could only save my scanned doc as JPEG. I am hoping that this will still be okay? My email body did not include any defence as per Keith’s advice, just ‘please find attached...’ has anyone sent jpeg previously and had a problem?

Coupon-mad

Should be OK. Why not phone the CCBC if it doesn't show on MCOL as 'defended'?

Guinness123

Coupon-mad wrote: »

Should be OK. Why not phone the CCBC if it doesn't show on MCOL as 'defended'?

I will do just that, thank you.