Civil Enforcement Ltd - KFC - County Court Claim AOS Confirmed

ryou4me

Hi All

Spent hours reading through newbies thread and as many links as i could as well as more recent posts so if i get anything wrong please don't bite, its a lot to take in, just some more advice would be great

Still got more reading to do while i draft up a defence against the claim - will post on here for comments hopefully by the coming weekend.

so...

• I am registered keeper of vehicle which was issued with a ticket from Civil Enforcement Ltd at a KFC car park via ANPR

• This car park only recently had the 90 minute time limit introduced and ANPR to monitor this it seems

• The Parking Charge notice received in the post states parking limit is 90 minutes during the period 10 am to 10pm and the time parked is recorded as 91 minutes outside of this window - is that simply because ANPR automatically shoots this off for any cars parked over 90 minutes any time of day or night even though parking at night is restricted?

I have been to the car park and taken pictures of the signage which is white writing on blue banner for the header and then small blue writing on white background for the "T&C's" as it were, definitely not very clear especially at night time -

whats a good way to post a picture link on here people?
[*] unfortunately this was not appealed at the initial stage to the PPC nor to POPLA

• failed to request a SAR at the time (now done)

• Claim Form received dated 18th July, AOS has been done on MCOL and i believe this would take my final deadline 33 days to Monday 19th August.

• Dont worry - I do not intend on leaving anything last minute and will be posting my defence on here within the next week for help and comments/suggestions before submiting nice and early

• I intend to as keeper of the vehicle, contest this parking charge (why else would i be here!)

Now most importantly, on the newbies thread post 1 where it mentions if i want to dig deeper, it states about Schedule 4 of POFA 2012
.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
(apologies, i am a new user, so can't post links, above is on Newbies but copied above without the www)
and keeper liability and points me to paragraph 9, point number 5 states:-

The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

Does that mean 14 days from the incident date they should have advised me as the keeper of the vehicle?

Now my PCN from the PPC is dated 26 days after the date they say the parking occurred (i.e. 26 days between incident date and PCN issue date)

The Newbies thread post 1 then states the following:-

If the NTK arrives late, this does not make the PCN 'void' but it means there is 'no keeper liability' possible.

If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) the a postal PCN must arrive by day 14 if there was no windscreen ticket.

Or, the NTK must arrive with you between day 29 and day 57 if there was a windscreen PCN.

Some firms (e.g. Civil Enforcement, Highview, Smart Parking and some small PPCs) don't even bother with POFA 2012 wording so the keeper is not liable if you point that out to POPLA.

As mentioned above, i failed to appeal at initial stage as keeper or to POPLA as keeper of the vehicle, so my question is can i still use the above - the fact it arrived 26 days later and not within 14 days? Am i even reading the POFA 2012 correctly?

the very first notice to me as the keeper mentions on the back:-

- "We have photographic evidence of this incident. it is the drivers responsibility to to pay the parking charge in respect of the period of parking and the parking charges have not been paid in full. The Creditors does not know both the name of the driver and the current address for service for the driver. We therefore invite you to pay or appeal the unpaid parking charge; or if you were not the driver of the vehicle, no notify us of the name of the driver and a current address for service for the driver and to pass the notice to the driver."

- Did not advise me that i will be liable as the keeper of the vehicle as per POFA Right to claim unpaid parking charges from keeper of vehicle paragraph 4(1) (2)

I'm basically a little baffled by the POFA 2012, if anyone is able to put it into layman terms for me, that would be a great help.

I then received:-
- 2 more letters from Civil Enforcement with threatening language (e.g. "Your ability to obtain credit in future could be affected", "If judgement is obtained the options available to them includes appoint court bailiffs, seize my vehicle / goods, apply for an attachment of earnings, 3rd party debt order" etc
- 2 more letters from ZZPS
- and a final one from Civil Enforcement (which i guess would be considered as the letter before claim)


Appreciate any and all responses and will work up my defence for the MCOL on word over the next few days

Thanks All

KeithP

Claim Form received dated 18th July, AOS has been done on MCOL and i believe this would take my final deadline 33 days to Monday 18th August.

As an aside: 18th August isn't a Monday.


With a Claim Issue Date of 18th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 20th August 2019 to file your Defence.

That's over four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

...will work up my defence for the MCOL on word over the next few days

If you decide to copy your Defence here for critique, you are best advised to copy it via notepad as copying directly from Word may risk the Word formatting characters confusing the forum software and you find your IP address banned.

Coupon-mad

The Parking Charge notice received in the post states parking limit is 90 minutes during the period 10 am to 10pm and the time parked is recorded as 91 minutes outside of this window - is that simply because ANPR automatically shoots this off for any cars parked over 90 minutes any time of day or night even though parking at night is restricted?

It means they have badly drafted the signs and the terms of parking licence do not apply at other times (a point for your defence).

Now my PCN from the PPC is dated 26 days after the date they say the parking occurred (i.e. 26 days between incident date and PCN issue date)

Good, as long as you are the registered keeper and this is not a lease/hire/company car then it was a non-POFA PCN and can't hold you liable as keeper!

Did not advise me that i will be liable as the keeper of the vehicle as per POFA Right to claim unpaid parking charges from keeper of vehicle paragraph 4(1) (2)

Recently, CEL have hidden POFA wording from para 9(2)f - the keeper being liable after 29 days warning - on the back, in the first long paragraph.

Before about a year ago, they didn't used to use POFA words at all.

But even if the wording is there, this arrived too late unless it's lease/hire.

ryou4me

wow - appreciate the swift responses KeithP and Coupon-mad

ok, will be taking above things into account when drafting my defence and will post on here in coming days

cheers

ryou4me

Hello All

Thank you to Keith and coupon mad and all the other numerous posts i have been trawling through and asking questions on.

First of all - spare me the why have i left it so late, i know i know - i've had more than 3 weeks but I've had some personal issues going on which meant i couldn't get to this sooner

I've drafted up a defence as below but the first thing i want to point out is - as registered keeper i was issued notice of PCN 26 days after the initial incident date - do i even need to put anything further on this?

In any case, here is my defence, which i intend to sign, scan and email across along with Beavis sign, POFA 2012, pictures and videos i rely on (where do i mention that on my defence/witness statement - what is the difference between these two?

Thank You for your time, it is appreciated


1. I am XX XX, the defendant in this matter.
2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.
3. For the avoidance of doubt on the relevant date I was the registered keeper of a XX XX, registered number XXXXXXX.
4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at XXX Car Park, XX on XX/XX/XXXX.

Rebuttal of Claim

5. I challenge this 'PCN' as keeper of the car. It is denied that:
a. A contract was formed
b. There was an agreement to a maximum free parking stay.
c. That there were Terms and Conditions prominently displayed around the site and that the area allegedly under the control of the Claimant was unequivocal.
d. That in addition to the maximum free parking stay there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
g. That I am liable for the purported debt.
6. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
7. The claimant is put to the strictest proof of their assertions.
My Defence

My defence will rely principally upon the following points:

8. The POPLA Annual Report 2015, on page 8 states that: -
“A notice to keeper issued on the basis of evidence obtained using automatic
number plate recognition (ANPR) should arrive on or before the fourteenth day
after the parking event.”
9. Protection of Freedoms Act 2012, Schedule 4, point 9 (5) states that: -
“The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.”
10. The POPLA Annual Report 2018, on page 4 clears up confusion about grace periods where it states: -
“The British Parking Association expects its parking operator to allow a minimum ten minute grace period at the end of an agreed period of parking. This is to allow for short delays in a motorist returning to their vehicle and leaving the car park.”
The ANPR footage shows the timestamp as 91 minutes – i.e. 1 minute over their allowed free parking limit of 90 minutes.
11. 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. They merely state that “Maximum Parking Terms Apply, See Car Park signs for terms & conditions”.
12. The sign within the car park which sets out the terms, which states in white font on a blue banner “Maximum Stay 90 minutes for KFC Customers only”. However, the remainder of the sign is in a much smaller font, which is hard to read, in blue on a white background further making it visibly difficult to see, especially at the time of the alleged offence.
13. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.
14. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The BPA Code of Practice says on this point:
B4.1 If vehicles are parked under a contract, you may take parking control and enforcement action only when the contract entitles you to. This includes issuing parking tickets. The contract terms must be included on a sign British Parking Association Code of Practice at each entry point to the site, and on other signs visible throughout the area concerned.
15. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
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.

16. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.
17. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.
18. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.

In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.

19. 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'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:
a. Lack of an initial privacy impact assessment, and
b. Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c. Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the 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 customers and taking into account the prevailing conditions at the site on any given day), and
d. Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e. Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and
20. This Claimant has therefore failed to meet its legal obligations under the DPA.
21. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.

22. 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.''

23. 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.''

24. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #18 a - e above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

25. 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.

26. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

27. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''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''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.
28. 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:
a. 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.
b. 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.
c. 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.
29. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points 16 and 17 above were argued.
30. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).
31. The Claimant is attempting to claim additional charges such as court fee of £25 and legal costs of £50. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
32. In view of all the foregoing the court is invited to strike the matter out of its own motion.
33. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


This statement is true to the best of my knowledge and belief.

Signed __________XX_XX_________
Dated 16-08-2019

KeithP

ryou4me wrote: »

In any case, here is my defence, which i intend to sign, scan and email across along with Beavis sign, POFA 2012, pictures and videos i rely on (where do i mention that on my defence/witness statement - what is the difference between these two?

Here is a post I wrote earlier this morning:

KeithP wrote: »

Nothing gets sent with your Defence. Nothing at all.

Post #2 of the NEWBIES thread explains that evidence comes later - at Witness Statement time.

To understand the difference between a Defence and a Witness Statement, I refer you once again to post #2 of the NEWBIES thread.

The_Deep

The Parking Charge notice received in the post states parking limit is 90 minutes during the period 10 am to 10pm and the time parked is recorded as 91 minutes outside of this window -

So 181 minutes in all, or 91 minutes after 10 pm?

https://en.wikipedia.org/wiki/Contra_proferentem

Nine times out of ten these tickets are scams so consider complaining 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.

ryou4me

91 minutes in total - so basically 1 minute over their 90.minutes free parking

ryou4me

KeithP wrote: »

Here is a post I wrote earlier this morning:


To understand the difference between a Defence and a Witness Statement, I refer you once again to post #2 of the NEWBIES thread.

Got it, thanks

will print, sign and scan and email the defence over

The_Deep

Let jme get this clear, the are going to go head to head with you in court over a one minute overstay. I wonder what view a judge will take of this, surely he/she will say it is de minimis.

https://en.wikipedia.org/wiki/De_minimis

Half_way

Have you engaged with the KFC franchise over this???