Civil Enforcement - County Claim

Umkomaas

NeilCr wrote: »

That crossed my mind too!. Although, in my experience, it's quite unusual for gyms to own their car parks.

I don't doubt that for one moment. But it's a possibility that the gym has contracted the PPC and the 'sold' line is to divert people from complaining to them.

Kazaa

Ok guys, please see my draft defence below, i have tailored it to my own self, please let me know if any tweaks are necessary, im planning to submit this tommorow, thanks guys :-

DEFENCE

1. I am the Defendant, xxxxxxx, DOB xxxxx, and reside at xxxx xxx and it is admitted that I was the driver of the vehicle on the day of this event.

2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

Preliminary matters:

3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon a 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way. I have asked questions in the form of a Part 18 request but have not received any response.

5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.

In further support of there being a want of cause of action:

6. The PCN was issued in a private Gym car park where the defendant had parked as he is a member of the gym and is authorized to do so. The registration plate was entered into the keypad system which can only be accessed by gym members only as it is beyond the entrance after passing the barriers via fingerprint ID.

7. The facts are the claimant has no basis to fine the defendant as the defendant is a member of the gym and is authorised to park at his gym. The defendant has tried to explain this to the claimant on numerous occasions however they were not interested and did not even ask for proof. Eventually after several letters demanding for payment, the defendant provided them with evidence of gym membership, hoping this would stop the claimant sending demanding letters. This was ignored and further letters sent, the defendant find this behaviour very unreasonable by the claimant.
8. However, it is denied that the vehicle was - by any reasonable interpretation - unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and pursue payment by means of litigation.
10. 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.

10.1. 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.

10.2. 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 regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a terminal as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine patrons), and

iv) Failure to consider the number of complaints from Absalute Gym and its customers, which would have alerted this Claimant to the fact that their 'terminal system' and woeful sign was not being seen by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Absaulte Gym patrons, and

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the terminal system and how the data captured on both would be used, and

vi) 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.

11. 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 (CoP) in terms of data protection and in terms of prominently lit signage for car parks operating in the hours of darkness. In Beavis, compliance with the CoP was held to be a necessity for ParkingEye, and it was said that the CoP was a regulatory framework and a pre-requisite for allowing any parking firm to obtain DVLA data.

12. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.

13. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

14. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
In summary this case differs to 'the Beavis case' as:
i) The Private Parking Charge has not followed an "effectively binding" code of practice.
ii) The Claimant has no commercial justification
iii) The Claimant did not follow the IPC or BPA Code of Practice
iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

16. 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.

17. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Le_Kirk

All defences are written in the Third Person, i.e. The Defendant. In the main you've done this but have slipped occasionally into using "I."

Kazaa

Ahh well spotted Le_Kirk, i shall update this now. Anything else you suggest or is good to go?

I am looking to submit it today.

Le_Kirk

In your point 7, you write of a "fine" which, of course it is not, merely a speculative invoice, otherwise it seems to cover all the usual points.

You might want to look at the NEWBIE thread post #2 and some of the concise defences written by Bargepole and others, keep your defence points and technical arguments in and any narrative (i.e. what happened on the day) for your witness statement. Obviously you keep in any legal/technical points as you would not be able to modify your defence later. If you run out of time, once you have modified the First person to Third Person, send as is.

Kazaa

ok guys defence has been submitted! Will keep you updated

Kazaa

Hello Guys,

So i have received a DQ from the court, can i simply fill this online and send it to the email address which i sent my defence to? Or do i need to post a copy to Civil Enforcement as well? Please let me know.

Thanks

Le_Kirk

Kazaa wrote: »

I have received a DQ from the court, can i simply fill this online and send it to the email address which i sent my defence to? Or do i need to post a copy to Civil Enforcement as well? Please let me know.

Thanks

Please re-read post # 11 where KeithP explained the process. Instructions of where to send it should be on the DQ.

Kazaa

Hello Lee,

Unfortunately it does not say how to send it, simply states one to the court other to the company. My question is can i email it?

nosferatu1001

EMail scan to court
IF you have permission from the C to serve via email, then do so. If not, post it.