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Claim form defence Britannia
pedro72
Posts: 1 Newbie
We are at the County Court stage with BW Legal (Britannia Parking) for failing to Obtain a Valid 30 Minute Free Ticket for the Army & Navy Car Park in Chelmsford. I have lifted the defence from another thread relating to the same car park with more or less the same circumstances, although I have removed 1 section relating to the issue of the ticket, which wasn't applicable in our case. I have also added a couple of sections relating to the signage and ticket machines.
I would be grateful for anyone to cast their eye over it and provide feedback.
I have personally added sections 7 & 8.
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at a retail car park on 17/10/2017. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. The allegation appears to be that the ‘no valid payment was made’ based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of a contravention or failure to make payment. Further, this contravention cannot have occurred, given the facts and evidence.
3. The Defendant has already proved that she was parked for less than the 30 minutes in which the Chelmsford Army & Navy ANPR signage states there is no charge for parking, and it is the Claimant's own failure, caused by their deliberately obscure terms and confusing pay and display machinery that catches out far too many victims at this location, that has given rise to a 'PCN'.
4. The Defendant's vehicle has parked within a marked bay and according to the Claimant's own images, remained on site for a mere 18 minutes. This is less than the 30 minute period offered in large lettering on a sign, where other terms were in much smaller font size and were not visible.
5. Conclusive evidential photographs with timestamp
5.1 The car park in which the Defendant’s vehicle was parked states a period of 30 minutes in which no charge can be levied or required by the landowner or Claimant.
5.2 The Defendant’s vehicle, as evidenced by the Claimant’s own photographs, show the time of entry into the car park as 17/10/2017 at 11:31 and the time of exit as 17/10/2017 at 11:48
5.3 At no point was the Defendant’s vehicle in the car park during any chargeable period for which the Claimant can seek financial loss or compensation. There was no breach, and no contract at all.
6.1 ParkingEye Ltd v Beavis [2015] UKSC 67 ('Beavis') also related to a retail car park, but it is fully distinguished. In the instant case before the court, there was a 'concealed pitfall or trap' in the misleading signs which were emblazoned 'FIRST 30 MINUTES PARKING FREE'. The doctrine of contra proferentem must be applied in favour of the consumer, where terms are in any way ambiguous in their drafting or display.
6.2 There can be no 'commercial justification' nor legitimate interest in charging drivers who are patrons of the shops, for using the free parking time offered. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant who parked in good faith.
6.3 In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers).
7. The signage within the car park gives an ambiguous instruction. The signage states to “Enter Reg then press green button twice”. The machines within the car park have 2 green buttons, only one of the green buttons actually issues a ticket.
7.1. At no point, despite repeated requests, have any logs been provided from the ticket machines to show whether the vehicle registration was entered at all.
8. The signage displays that a £100 parking charge can be issued to all vehicles that fail to purchase a ticket. As the defendant's vehicle was only in the car park for the period of free parking, no ticket was needed to be purchased. Therefore there are no grounds in which to make a charge.
9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges inBeavis!held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
9.2 The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
i) Lack of an initial privacy impact assessment, and
ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a Pay and Display style system as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement, such as (very simply) not applying for DVLA data to issue any PCNs to keepers of cars seen on site for less than the 30 minutes advertised as free, and
iv) Failure to consider the number of complaints from the landowner and other businesses, which would have alerted this Claimant to the fact that their ‘Pay and Display / ANPR' and confusing signage was not being seen and/or understood by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Evans Cycles patrons, and
v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay & Display system and how the data captured on both would be used, and
vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
10. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.
11. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) 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 specifically illegal; breaching principle one of the DPA.
12. The excessive, inappropriate and unjustified use of ANPR alongside a hidden Pay & Display system is both unfair and lacking in transparency for an average consumer relying upon the large lettering offering free parking. As such, this claim must fail.
13. 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 in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this includes litigation against patrons who stay less than 30 minutes.
Unconscionable and unrecoverable inflation of the 'parking charge'
14. This claim inflates the total to an eye-watering £247.52, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
14.1. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
14.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste Britannia robo-claims at all. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
14.3. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Thanks in advance for your help.
I would be grateful for anyone to cast their eye over it and provide feedback.
I have personally added sections 7 & 8.
1. The Defendant is the registered keeper and driver of the vehicle in question. The Claim relates to an alleged debt arising from the driver's ‘failure to make a valid payment’, when parking at a retail car park on 17/10/2017. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge'.
2. The allegation appears to be that the ‘no valid payment was made’ based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of a contravention or failure to make payment. Further, this contravention cannot have occurred, given the facts and evidence.
3. The Defendant has already proved that she was parked for less than the 30 minutes in which the Chelmsford Army & Navy ANPR signage states there is no charge for parking, and it is the Claimant's own failure, caused by their deliberately obscure terms and confusing pay and display machinery that catches out far too many victims at this location, that has given rise to a 'PCN'.
4. The Defendant's vehicle has parked within a marked bay and according to the Claimant's own images, remained on site for a mere 18 minutes. This is less than the 30 minute period offered in large lettering on a sign, where other terms were in much smaller font size and were not visible.
5. Conclusive evidential photographs with timestamp
5.1 The car park in which the Defendant’s vehicle was parked states a period of 30 minutes in which no charge can be levied or required by the landowner or Claimant.
5.2 The Defendant’s vehicle, as evidenced by the Claimant’s own photographs, show the time of entry into the car park as 17/10/2017 at 11:31 and the time of exit as 17/10/2017 at 11:48
5.3 At no point was the Defendant’s vehicle in the car park during any chargeable period for which the Claimant can seek financial loss or compensation. There was no breach, and no contract at all.
6.1 ParkingEye Ltd v Beavis [2015] UKSC 67 ('Beavis') also related to a retail car park, but it is fully distinguished. In the instant case before the court, there was a 'concealed pitfall or trap' in the misleading signs which were emblazoned 'FIRST 30 MINUTES PARKING FREE'. The doctrine of contra proferentem must be applied in favour of the consumer, where terms are in any way ambiguous in their drafting or display.
6.2 There can be no 'commercial justification' nor legitimate interest in charging drivers who are patrons of the shops, for using the free parking time offered. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant who parked in good faith.
6.3 In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers).
7. The signage within the car park gives an ambiguous instruction. The signage states to “Enter Reg then press green button twice”. The machines within the car park have 2 green buttons, only one of the green buttons actually issues a ticket.
7.1. At no point, despite repeated requests, have any logs been provided from the ticket machines to show whether the vehicle registration was entered at all.
8. The signage displays that a £100 parking charge can be issued to all vehicles that fail to purchase a ticket. As the defendant's vehicle was only in the car park for the period of free parking, no ticket was needed to be purchased. Therefore there are no grounds in which to make a charge.
9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges inBeavis!held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.
9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
9.2 The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:
i) Lack of an initial privacy impact assessment, and
ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR, together with a Pay and Display style system as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement, such as (very simply) not applying for DVLA data to issue any PCNs to keepers of cars seen on site for less than the 30 minutes advertised as free, and
iv) Failure to consider the number of complaints from the landowner and other businesses, which would have alerted this Claimant to the fact that their ‘Pay and Display / ANPR' and confusing signage was not being seen and/or understood by all genuine patrons and was therefore a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against Evans Cycles patrons, and
v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and the Pay & Display system and how the data captured on both would be used, and
vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.
10. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the BPA Code of Practice.
11. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) 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 specifically illegal; breaching principle one of the DPA.
12. The excessive, inappropriate and unjustified use of ANPR alongside a hidden Pay & Display system is both unfair and lacking in transparency for an average consumer relying upon the large lettering offering free parking. As such, this claim must fail.
13. 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 in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this includes litigation against patrons who stay less than 30 minutes.
Unconscionable and unrecoverable inflation of the 'parking charge'
14. This claim inflates the total to an eye-watering £247.52, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition.
14.1. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.
14.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste Britannia robo-claims at all. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on preparing a claim in a legal capacity.
14.3. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Claimant knows this, as do their solicitors. The Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, arising from BW Legal clients artificially inflating their robo-claims, which are filed in tens of thousands, per year.
15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
Thanks in advance for your help.
0
Comments
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I've only skim read it so far but a few quick thoughts.
Point 10 appears to be a subset of point 9, not a stand alone point.
Have you read the Abuse of Process thread by beamerguy where judges have thrown out a few cases where fake add on amounts have been claimed?
Have you seen the contract yet between the scammers and the landholder? Apparently Britannia is split into two separate entities.
I think one is called something like Britannia Parking Group, whilst the other is slightly different. They are registered as two separate companies at Companies House, and I believe a case was thrown out because the claimant was different to the name on the contract.
Compare the name on the NTK against that on the claim form to see if they are the same.
What happened when you complained to the landowner?
Have you complained to your MP yet about this unregulated scam?
Otherwise it looks to me to be a well thought out defence.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
You have missed out a very important part, that is the ABUSE OF PROCESS by BWLegal
Read this
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal
PLEASE READ POST #14 ON THIS THREAD BY COUPON-MAD and add the text0 -
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 -
What is the Issue Date on your Claim Form?
Did it come from the County Court Business Centre in Northampton, or from somewhere else?0
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