Court Letter Robinhood airport bus stop PCN help!

sm1tt

To be honest its been that long ago since the proposed infringment that i cannot truly remember who it was driving or which bus/stop stand it may be!


I wasw initially confused by the wording of 'indentified IN the robinhood airport' as opposed to 'the approach roads' surely the approach road is not in the airport?? Nor is the bust stop/stand part of the approach road?? Points i may decide to add to the defence.


I will be heading that way again in the near future so intend on getting photo evidence (perhaps without stopping to do so) as well as a video at night to show how impossible it is to read the signs whilst moving at that time of the day!


MY biggest annoyance is the fact that the ONLY correspondence received was the court letter!

Redx

Check your V5C was correctly registered with the correct name and address at the time of the incident

The SAR will flush out the previous letters including the address they were sent t, which tends to be an old address due to the to not updating the DVLA details that were accessed by VCS

sm1tt

The vehicle would have had a change of address registered to it on the month of the ticket so that will most likely be why no correspondence was received!



Again with the process being over 3 years all this information is a distant memory as is the option to be able to get a witness statement from the then occupants of the old address to say they sent all mail received back to the sender! (im hoping they did but no good to me hope!! haha)


Regardless of this the SAR has been requested though i wont get it before i have to submit my defence which is a pain!

sm1tt

[FONT=&quot]Good afternoon once again and thank you in advance for your help![/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I have now completed my first draft copy of defence and was hopeful some of you clever folk could take a look and help me pick it apart ready for amending![/FONT]
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[FONT=&quot]I will add below but the main points for consideration are:-[/FONT]
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[FONT=&quot]1 -[/FONT][FONT=&quot] [/FONT][FONT=&quot]Myself and my partner cannot for the life of me remember who was driving (just hope VCS dont either)[/FONT]
[FONT=&quot]3.1[/FONT][FONT=&quot][/FONT]
[FONT=&quot]3.2[/FONT][FONT=&quot][/FONT]
[FONT=&quot]3.3[/FONT][FONT=&quot][/FONT]
[FONT=&quot]4.2[/FONT][FONT=&quot][/FONT]
[FONT=&quot]4.3[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]

[FONT=&quot]Defence [/FONT][FONT=&quot][/FONT]

[FONT=&quot]
1. It is unknown whether the Defendant was the driver on the material date.

2. The Defendant denies entering into any contract with the Claimant. In the alternative, if any such contract was entered into it is denied that the driver breached its terms.

2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.


No agreement/breach of terms and no contract (alternatively, frustration of contract)

3. The Defendant's recollection of that night confirms that there was no 'parking event', and neither was there any agreed parking contract. If the Court is minded to consider that there was, then any contract was frustrated and outside of the control of the Defendant, because:


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[FONT=&quot]3.1.[/FONT][FONT=&quot] [/FONT][FONT=&quot]the event happing such a long time ago and the lack of any form of proof or evidence provided by the Claimant prior to the forming of this defence or the lack of receipt of any PCN or evidence to prove that there was indeed any infringement other than hearsay that at such times it is impossible to accept or deny the claimants truth.

3.2. it is known only that the Defendant attended the airport during the early hours of the day during the winter months to take a flight and as such would have been unable to clearly read the unlit signs that are supposed to be located around the airport.

3.3. it must be considered by the court that the event happening over 3 and a half years ago it is of difficulty for the Defendant to recollect the exact particulars behind the reason of stopping and as such show understanding that without prior evidence before defence the Defendant is at a disadvantage to the Claimant.

3.4. As such, the elements of a contract were absent. No consideration flowed between the parties; there was no acceptance of any terms by performance or express or implied agreement and the Defendant was given no opportunity to read any terms under the specific circumstances.

3.5. Even if the Defendant had been given the opportunity to read and accept terms, the unlit signs at this location are hidden by other, far larger and more prominent 'welcome' and directional signs/flags/banners just off a busy roundabout.



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[FONT=&quot]3.6. Even if the signage did offer a licence to park at a price (rather than simply saying 'No Stopping' which would be forbidding wording which cannot also be painted as offering any contractual licence), it is averred that the signs at this location are obscured by large banner 'flags' and the font size is too small and the words too many to be safely read while driving from a roundabout in traffic in the dark. It is an ironic fact that the only way any alleged 'no stopping' signs could be read, would be to stop.

3.7. Even if the Claimant shows the court that the terms on any signs were legible at in the early hours during the winter months, any contract was frustrated. This is a fact that the claimant would have known about, had their watching CCTV van driver mitigated any loss and approached to offer assistance, rather than lurking in the shadows and taking photographs with the intent of penalising.

3.8. ___________?

3.9. The Defendant would expect the Claimant's own CCTV van operator to attend the hearing in person and provide a witness statement to explain why instant penalties continue to be issued regardless of the van operator seeing for themselves any mitigating circumstances, and to explain whether that is due to VCS blanket policy to 'fine at all costs' or whether a personal decision was made to ignore the possible plight of the Defendant and take pecuniary advantage.


CPR breach – No Contact has been established at any time from the Claimant prior.

4. The Defendant received no parking charge notice (PCN), either on the day nor in the post and had no idea about any alleged contravention, penalty or 'parking charge', however it might have been described.

4.1. If a 'PCN' was posted - and the Claimant is put to strict proof of posting - having received no appeal or communication, no attempt was made by the Claimant to trace the Defendant's current address.

4.2. The Defendant has no idea what terms appear to have been breached, and has received no information, or evidence to prove as such other than a Letter of Claim.

4.3. It is considered that if any contract had been breached the Defendant had no opportunity to accept or deny its truth due to no contact being received.

4.4. The Claim also failed to provide the reason for the claim, or any detail of the terms breached and failed to disclose any cause of action that could give rise to any claim in law. The Particulars of Claim are sparse and so devoid of detail that the Defendant has had to cover any number of possible defence issues at this point, for fear of typical parking operator 'ambush' with photos and information about the contract finally being divulged at or just before the hearing.

4.5. The Defendant therefore requests the court to strike out the claim using their court management powers, or in the alternative, to order further and better particulars of claim, and leave for the Defendant to amend their defence accordingly.



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[FONT=&quot]ParkingEye Ltd v Beavis[/FONT][FONT=&quot][2015] UKSC 67 is distinguished[/FONT][FONT=&quot]

5. This predatory 'charge' is a penalty and an unfair consumer term, given the circumstances and facts of this case. ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is the leading authority and the Supreme Court judgment makes it clear that charges cannot exist merely to penalise a driver.

5.1. It was stated that the penalty rule was 'engaged' in all private parking ticket cases and that what would be required in every case, would be to consider all of the facts to decide whether a specific charge is unconscionable, excessive or unjustified.

5.2. The Beavis case was said at the Court of Appeal stage to be 'completely different' and the Supreme Court agreed, uniquely disengaging the penalty rule after considering the rare facts at that retail park, the parking licence terms offered and the clarity and prominence of simply worded, large font and plentiful signs. In Beavis, there was a meeting of minds; a licence to park was offered and accepted by Mr Beavis by performance (the act of parking in a well-signed location where the retail parking spaces had value) and this saved the £85 charge in that unique case alone, from being struck out as an unenforceable penalty.


Trespass is a matter for a landowner only - the Claimant has no locus

6. Due to the lack of Particulars of Claim, it is difficult for the Defendant to understand the cause of action, given that the Claimant does not own the land in question.

6.1. If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.

6.2. In the Beavis case it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye could not have recovered monies for unauthorised parking/trespass. It was only because they were able to offer something of value (a parking space) and that the charge was part of that contractual licence, that ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.

6.3. If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if (as suspected) the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.

6.4. It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name.

6.5. The Claimant is put to strict proof of their locus and cause and right of action in their own name, and to disclose the unredacted contract with the Airport, before any hearing.


Airport approach roads are subject to road traffic enactments (public highway)

7. Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Defendant was afforded the opportunity to accept contractual terms and that
(d) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being out of the driver's control,

the Claimant is also put to strict proof that:

(g) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

7.1. The road comes off a roundabout and is not clearly demarcated as private land, nor is it a private car park and thus, any parking/traffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

7.2. The claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.


Alternative defence - excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

8. This Claimant uses CCTV camera systems (365 days a year, 24 hours a day, seven days a week) and processes personal data excessively and disproportionately, and thus fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code').

8.1. The ICO Code applies to all CCTV 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 International Parking Community ('IPC') trade body 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 to harvest VRN data, including the addresses of registers keepers.

8.2. Whilst CCTV has its uses to keep Airport approach roads clear - to stop drivers from choosing to park and leaving their vehicles or using the roads as a drop-off point, for example - this must be with reasonable and proportionate application, with sufficient checks and balances being an ICO Code requirement when operating such a data-intrusive regime.



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[FONT=&quot]8.3. 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 is necessary and proportionate use CCTV to issue penalties in all cases, applying no human intervention or common sense approach (e.g. having no checks and balances to exclude from the 'immediate penalty' approach, cases where the van driver/CCTV operator would have seen and heard that the driver was merely asking for directions or was clearly taken ill, or was trying to re-start a broken down vehicle as in this case), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the 'commercial intent' and purpose of the hidden van CCTV system and how the data captured would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access. 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 and indeed the Defendant has been furnished with no images, information about the terms or the alleged breach, or any data at all, despite sending a letter requesting detailed particulars in March.

9. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the IPC and the ICO Codes of Practice.


Illegal conduct and 'unfairness' breach of the Consumer Rights Act 2015

10. In a similar instance of excessive and inappropriate use of ANPR surveillance cameras 24/7 (confirmed on the rival Trade Body (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 surveillance cameras until they could comply. The ICO ruled that the collection of the information by constant streaming of data from cameras was excessive and illegal; breaching principle 1 of the DPA.

11. The Court's attention will be drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''



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[FONT=&quot]11.1. Further, in RTA (Business Consultants) Limited v Bracewell [2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: ''The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

12. Even if there was a purported contract between the Claimant and the Defendant, the part that relies upon excessive data streaming of CCTV images for automatic instant penalties, regardless of circumstances (the CCTV van operator would have been close enough to have seen and heard the obviously broken own car that the Defendant was frantically trying to re-start), was illegal at its formation because it was incapable of being created without an illegal act.

12.1. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

12.2. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338. Whilst the facts of that case differ, due to the arguments between the two commercial parties, the Judge's comments at paragraph 29 of the Transcript of Somerfield are of importance, where he discussed ParkingEye's misleading letters to consumers: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. Laws LJ, in Somerfield, concluded that ParkingEye did not set out to deceive consumers before they signed the contract with Somerfield, so the contract was upheld in that case.

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA by setting out to issue instant predatory penalties, regardless of circumstances. Being an IPC member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & legal advice for members, it cannot justify nor plead ignorance to excuse their conduct in failing to meet their legal obligations both before enforcement and by way of regular evaluations to avoid 'excessive' and 'unjustified' use of CCTV leading to just this sort of unfair charge.

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


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[FONT=&quot](i) the commission of an illegal wrong - excessive CCTV operation and data processing contrary to the ICO Code - being present at the time of the alleged contract, means that the Claimant will not be able to enforce that alleged contract.

(ii) the illegality around the excessive and unjustified constant use of CCTV to issue penalties regardless of mitigating facts, is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

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

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by CCTV, 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).

13.1. In any case involving a consumer contract, Courts must evaluate and apply a test of fairness, whether the Defendant raises the issue or not, and transparency of terms must also be considered carefully in every case.

13.2. It is averred that this Claimant at this location, fails on both counts and therefore the charge is unjustified and just the sort of 'unconscionable' parking charge that the Supreme Court had in mind when retaining the 'penalty rule' for use in cases such as this, where the facts are less complex than in Beavis.

13.3. Further, the IPC Code of Practice specifically prohibits 'predatory tactics', therefore this Claimant is operating in breach of the effectively 'regulatory framework' of their trade body code that the Supreme Court in Beavis found was a pre-requisite of a transparent and lawful operation.

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sm1tt

P.S - ive also addded this to the end ..


[FONT=&quot]Costs on the claim - disproportionate and disingenuous[/FONT][FONT=&quot][/FONT]
[FONT=&quot]
14. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

15. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Having never received any Debt collector letters it is not placed on the Defendant for recovery of the costs.

16. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

17. It is trite law that non-existent and untrue 'legal costs' are also unrecoverable. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

18. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

19. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

20. Many informed Court Court Judges have disallowed all added parking firm 'costs' in County courts, such as these cases, struck out in recent months without a hearing, due solely to the pretence of adding 'damages' blatantly made up out of thin air.

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) where the abuse is inherent in the business model.



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[FONT=&quot]21. The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases stated:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

22. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

23. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

24. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.[/FONT]

sm1tt

also just a quick question regarding MCOL and in general.



As im acting on behalf of my GF do i still need to set everything up for her until we get to court where she can request i represent??

KeithP

Everything, absolutely everything, must be done in the name of the Defendant.

At the hearing the Defendant can enlist your help as a Lay Representative.

sm1tt

Yeah thoughts so just wanted to make sure thanks!!!

sm1tt

Any takers on helping me clean this up a bit??


Add something relevant remove something irrelevant!!


Any help as always would be grateful.

sm1tt

Hello again!!


Just a FINAL request for advice on my now complete defence (added below)
It has today come to my attention that the signage does NOT show bus stop / stand in its terms and conditions NOR does it show red markings to dictate a RED ZONE nor do any signs state RED ROUTE as part of the terms and conditions advertised!!! infor on this would be MASSIVELY appreciated.


Kind regards