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Civil Enforcement ANPR Defence
johnny7gun
Posts: 14 Forumite
Hi guys, so I've submitted the AOS and have written a defence. Would really appreciate it if someone could take a look for me?
Basic of my defence - there's 2 entrances to the parking site, it's controlled by ANPR and a PDT machine. Driver paid for 2 hours, left the site within the time, then regularly uses this site to bypass the main road. Requested a SAR and one thing they sent is a list of times with redacted VRN's, except mine which stats the 'arrival' and 'departure' times. The list does not show the vehicle leave the first time, or re enter. One of the ways in is 'no entry' on the way out, so assume it doesn't record an exit??
Either way, they are trying to charge me £180 (£195.48 inc interest) + £25 court fee + £50 legal rep costs. :mad:
POC reads: "Claim for moneys relating to a Parking Charge for parking in a private car park managed by the claimant in breach of Terms + Conditions (T+Cs). Drivers are allowed to parking in accordance with T+Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt and damages claimed the sum of £182... etc.
IN THE COUNTY COURT CLAIM No: #####
BETWEEN:
Civil Enforcement Ltd. (Claimant)
-and-
###### (Defendant)
DEFENCE
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at ### car park on ##/##/####.
1.2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £182 'Parking Charge Notice ('PCN')'.
2. The allegation appears to be based on images by their ANPR camera at the entrances and exits to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper not purchasing the appropriate parking time.
2.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £182 instead of the few pounds tariff, if it is their case that this sum went unpaid.
3. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.
3.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the site, who are being caught out regularly by this trap.
3.2. Silently collecting VRN data in order to inflate the 'parking charge' from £1-4 to £182 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
3.3. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.
4. Unlike the free car park in Beavis, this is a site where the Claimant has machines to take payment of tariffs, clearly there will be Civil Enforcement Ltd. staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly. The ANPR cameras represent disproportionate and excessive data processing and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
5. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was ‘in breach of terms + conditions’ indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
5.1. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
5.2. It is noted that the occupant of the car had paid for the time spent on site. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, however the Defendant is sure that the vehicle left the site after the time payed for, and returned later.
5.3. The site has 2 means of access, one from the sea front and one from the town centre. This site is regularly used to bypass the main road, and it is the Defendents understanding that the ANPR must not have recorded the first exit, and then the re-entry upon bypassing.
6. 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 against patrons of the site.
7. 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. The driver has not been identified, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £1-4 'parking charge' tariff, and as such, 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.
8. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £1 according to the current signage. Had the Defendant been clearly alerted to the sum on the day there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all.
8.1.. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A 'parking charge' of £1-4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
8.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4.
8.3. This regime is not commercially justified and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition.
9. #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
9.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
9.2. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
9.3. The 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 at most, and no more.
9.4. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
9.6. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £1-4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
10. 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 £50, which I submit have not actually been incurred by the Claimant.
10.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
11.1 It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £182 can be claimed instead of £4 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.
12. 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.
I believe the facts contained in this Defence are true.
Name
Signature
Date
Basic of my defence - there's 2 entrances to the parking site, it's controlled by ANPR and a PDT machine. Driver paid for 2 hours, left the site within the time, then regularly uses this site to bypass the main road. Requested a SAR and one thing they sent is a list of times with redacted VRN's, except mine which stats the 'arrival' and 'departure' times. The list does not show the vehicle leave the first time, or re enter. One of the ways in is 'no entry' on the way out, so assume it doesn't record an exit??
Either way, they are trying to charge me £180 (£195.48 inc interest) + £25 court fee + £50 legal rep costs. :mad:
POC reads: "Claim for moneys relating to a Parking Charge for parking in a private car park managed by the claimant in breach of Terms + Conditions (T+Cs). Drivers are allowed to parking in accordance with T+Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt and damages claimed the sum of £182... etc.
IN THE COUNTY COURT CLAIM No: #####
BETWEEN:
Civil Enforcement Ltd. (Claimant)
-and-
###### (Defendant)
DEFENCE
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at ### car park on ##/##/####.
1.2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £182 'Parking Charge Notice ('PCN')'.
2. The allegation appears to be based on images by their ANPR camera at the entrances and exits to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper not purchasing the appropriate parking time.
2.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £182 instead of the few pounds tariff, if it is their case that this sum went unpaid.
3. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.
3.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the site, who are being caught out regularly by this trap.
3.2. Silently collecting VRN data in order to inflate the 'parking charge' from £1-4 to £182 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
3.3. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.
4. Unlike the free car park in Beavis, this is a site where the Claimant has machines to take payment of tariffs, clearly there will be Civil Enforcement Ltd. staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly. The ANPR cameras represent disproportionate and excessive data processing and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
5. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was ‘in breach of terms + conditions’ indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
5.1. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
5.2. It is noted that the occupant of the car had paid for the time spent on site. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, however the Defendant is sure that the vehicle left the site after the time payed for, and returned later.
5.3. The site has 2 means of access, one from the sea front and one from the town centre. This site is regularly used to bypass the main road, and it is the Defendents understanding that the ANPR must not have recorded the first exit, and then the re-entry upon bypassing.
6. 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 against patrons of the site.
7. 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. The driver has not been identified, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £1-4 'parking charge' tariff, and as such, 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.
8. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £1 according to the current signage. Had the Defendant been clearly alerted to the sum on the day there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all.
8.1.. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A 'parking charge' of £1-4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
8.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4.
8.3. This regime is not commercially justified and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition.
9. #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
9.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
9.2. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
9.3. The 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 at most, and no more.
9.4. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
9.6. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £1-4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
10. 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 £50, which I submit have not actually been incurred by the Claimant.
10.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
11. The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
11.1 It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £182 can be claimed instead of £4 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous attempt at double recovery.
12. 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.
I believe the facts contained in this Defence are true.
Name
Signature
Date
_pale_ _pale_ _pale_ _pale_
0
Comments
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Have you seen this
https://forums.moneysavingexpert.com/discussion/5550336/double-dip-parking-list-of-cases
Nine times out of ten these tickets are scams so complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
johnny7gun, is the continuation of the saga described on your earlier thread?
Your last post on your earlier thread told us:johnny7gun wrote: »I will update this thread as and when/if I am at the defence stage and have prepared something.
Can you please post your above post as a reply on to that thread.
Having done that, please edit your post above, replacing the text with something like:Duplicate thread - please ignore0 -
KeithP I had a lot of misunderstanding at the time of writing that thread and it's best not to refer to it as the information I had written isn't correct. Since then i've gone through all my documents and checked through threads on here and understand how to use this forum a bit better.
I'm going to look through what The Deep has provided, that seems like some really great stuff. It's a shame I didn't spend the time looking into this before it was too late to apply to POPLA!
I will list the previous thread to ignore. Thanks_pale_ _pale_ _pale_ _pale_0 -
That's not a good idea.johnny7gun wrote: »I will list the previous thread to ignore. Thanks
You have now effectively 'orphaned' all subsequent posts on that thread - they have become meaningless.
That's ten posts from three different volunteers that offered their help - discarded.0 -
I have re-titled it then, and put the subject that the thread relates to so that it is not discarded._pale_ _pale_ _pale_ _pale_0
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I have updated the defence to include more about double dipping ANPR - how does this look?
IN THE COUNTY COURT CLAIM No: #####
BETWEEN:
Civil Enforcement Ltd. (Claimant)
-and-
###### (Defendant)
DEFENCE
The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at ### car park on ##/##/####.
Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £182 'Parking Charge Notice ('PCN')'.
The allegation appears to be based on images by their ANPR camera at the entrances and exits to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper parking over the purchased and appropriate parking time.
The site has 2 means of access, one from the sea front and one from the town centre. This site is regularly used to bypass the main road, and it is the Defendents understanding that the ANPR must not have recorded the first exit, and then the re-entry upon bypassing.
It is known that ANPR systems regularly fault and cannot be relied upon for proof of a breach of the T+C’s. ‘ClearView Communications’ report a ‘95%’ success rate if [a user] ‘Get this right’ - referring to “10 ANPR commandments to ensure that the accuracy and reliability of your system is maximised.” 95% would mean 1-in-20 results are wrong, or missed.
https://clearview-communications.com/wp-content/uploads/2017/10/The-10-Commandments-of-ANPR-1.pdf
This fault is known as ‘double-dipping’. This 'double dip' fault in ANPR evidence is a fact confirmed by the BPA in which they state that “As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24-hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.”
https://www.britishparking.co.uk/ANPR
Further evidence of the scale of the fault with ANPR evidence is covered in the BBC Watchdog programme which was screened on the 18/04/2018. The relevant clip can be viewed here: https://www.youtube.com/watch?v=WIaKMkO3YVM.
This problem has become so pandemic that MPs have agreed to enact a Bill to regulate these scammers. Here is a video taken at the House of Commons, discussing this issue:https://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41
A list of 90+ cases of ANPR ‘Double-Dipping’ can be found here for reference:
http://notomob.co.uk/discussions/index.php?topic=5768,0
The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £182 instead of the few pounds tariff, if it is their case that this sum went unpaid.
Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a remote car park where there would likely be no cars unconnected to patrons, no trespass nor 'unauthorised' parking events.
It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the site, who are being caught out regularly by this trap.
Silently collecting VRN data in order to inflate the 'parking charge' from £1-4 to £182 and write (weeks later) to registered keepers at their own homes - whether they were driving or not - is excessive, untimely and intrusive to registered keeper data subjects.
Unlike the free car park in Beavis, this is a site where the Claimant has machines to take payment of tariffs, clearly there will be Civil Enforcement Ltd. staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly. The ANPR cameras represent disproportionate and excessive data processing and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.
The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was ‘in breach of terms + conditions’ indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
It is noted that the occupant of the car had paid for the time spent on site. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, however the Defendant is sure that the vehicle left the site after the time payed for, and returned later as a ‘bypass’ route.
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 against patrons of the site.
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. The driver has not been identified, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent with a 'parking charge' that bears no resemblance to the £1-4 'parking charge' tariff, and as such, 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.
If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £1 according to the current signage. Had the Defendant been clearly alerted to the sum on the day there would be no unfair penalty, and the Visitor Centre (or landowner) would gain in income and avoid any parking issues at all.
Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A 'parking charge' of £1-4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.
Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4.
This regime is not commercially justified and is surely the epitome of unfairness and unconscionableness. Thus, it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition.
At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''
And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''
The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.
The 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 at most, and no more.
No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £1-4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.
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 £50, which I submit have not actually been incurred by the Claimant.
Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Civil Enforcement 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. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.
The Protection of Freedoms Act 2012 (the POFA) 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 (NTK) in this case £100. In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.
It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £182 can be claimed instead of £4 in this case, but either way, the additional sum of £50 on top, appears to be a disingenuous 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.
I believe the facts contained in this Defence are true.
Name
Signature
Date_pale_ _pale_ _pale_ _pale_0 -
A defence should not contain evidence and certainly not links to various internet sites. Evidence comes at the WS stage, and then it should be paper-based, not a trail of links.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
A defence should not contain evidence and certainly not links to various internet sites. Evidence comes at the WS stage, and then it should be paper-based, not a trail of links.
Umkomaas - ahh, okay. So remove
"It is known that ANPR systems..." through to "A list of 90+ cases of ANPR ‘Double-Dipping’ ..."
Other than that, what are your thoughts towards this as a defence?_pale_ _pale_ _pale_ _pale_0 -
Sorry, but I don't get involved in the critique of defences.Other than that, what are your thoughts towards this as a defence?
I'm afraid that with the amount of time I already spend on the forum, the only defence I'll be involved in will be my own, when Mrs U files for divorce if I get any further entangled here.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
That's fair enough! Thanks for your help._pale_ _pale_ _pale_ _pale_0
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