VCS Claim form. CCBC.

Mrowka

Hi Coupon-mad.

I have googled it and I have found pdf from 2005 but it is not full document. http:
//www. legislation. gov.uk/uksi/2005/354/pdfs/uksi_20050354_en. pdf
I do not mind paying for it, but I am struggling to find where to buy it.

Also I have found this, but this is for parking or housing planes http: //dsa. aero/assets/uploads /files/DSA-Conditions-of-Use-2014-15-1st-Edition-2. pdf

Another I have found is a statement from DSA TERMS AND CONDITIONS OF USE: ON-AIRPORT CAR PARKS & PREBOOKED RESERVATIONS:
5.4 Please be aware that the approach roads to Doncaster Sheffield Airport are not owned by the Airport. A strict no-stopping, dropping-off, picking-up or parking policy is in force on the approach roads and enforcement action may take place for those that fail to adhere to the policy. There are numerous signs located along the approach roads to remind Airport users of these restrictions. You are strongly advised to only use the approved and sign-posted Airport Car Parks for such purposes.

Next link I have found on prankster website, but when you click on it states page does not exist:
http /parking-prankster. blogspot .com /2014/01/prankster-operator-guide-to-winning-at. html
Even more surprisingly, the operator, VCS stated there are no byelaws. This is a blatant lie, as the byelaws are freely available here on the airport web site.
The bye-laws make it quite clear that parking controls apply to all private roads on the airport.
5. PROHIBITED ACTS ON PARTS OF THE AIRPORT TO WHICH THE ROAD
TRAFFIC ENACTMENTS DO NOT APPLY
The following acts are prohibited on any part of the Airport to which the Road
Traffic Enactments do not apply:
5(3) Obstruction
except in an emergency, leave or park a Vehicle or cause it to wait for a period in
excess of the permitted time in an area where the period of waiting is restricted by
Notice.
5(11) Failure to comply with a direction
when the driver of a Vehicle without reasonable excuse fail to comply with any
direction for the regulation of traffic given by a Constable, Airport Official or
Notice.
5(12) Parking of Vehicles
without reasonable excuse park a Vehicle elsewhere than in a place provided for
that purpose.

Airports Act 1986 - not sure whether it is current:
http:// www . legislation. gov. uk /ukpga/1986/31/ contents

My another concern is whether 2005 issue byelaws are current, as vcs was claiming they were not in this post:

https:// forums. moneysavingexpert.com / showthread.php?t=5967438&page=3#topofpage #44.

11. The Claimant notes from the Defendant's witness statement that the Defendant refers to the byelaws of Doncaster Sheffield Airport published in 2005. However, the Site in question is called Robin Hood Airport. As such, the Defendant is put to strict proof that the byelaws apply to the Site on which the Claimant is contracted to provide a parking control service.

In this tread you were quoting byelaws so I was thinking maybe you have a copy somewhere or maybe someone else know where to find them.

The above thread is a good example, but a lot of defence points have been dismissed by judge.
Very similar case to mine, hence while I am writing defence I wanted to compile folder with evidence for WS.

Sorry for spaces in provided links, but for some reason today changing/deleting one letter only was not enough to paste link.

Coupon-mad

Airports must make their byelaws available. The 1986 Airports Act states that byelaws should be available for inspection and copies to be provided on request, subject to payment of any reasonable fee.

This link also confirms that copies are available on request:

http://www.robinhoodairport.com/uploads/documents/DSA_Car_Park_Terms_and_Conditions.pdf

But send a pm to regular poster bergkamp. Maybe he has kept a copy. He provided a link to the byelaws in 2017 but the link is no longer working:

https://forums.moneysavingexpert.com/discussion/5728818/pcn-from-doncaster-airport

Mrowka

I have sent pm message to bergkamp, Thanks.

Mrowka

I have sent SAR to DVLA, to exactly find out what was the reason behind vcs request of RK details. Surely they have stated parking contravention - which is a lie, because vehicle cannot park in no stopping zone as there is no offer to park.
Is this something I could use in defence?

bergkamp

Dropbox Link to Doncaster Airport Byelaws hopefully;

https://www.dropbox.com/s/pgwz74x7mgjws7n/doncasterairportbyelaws1.pdf?dl=0

https://www.dropbox.com/s/1rtky0eu3rhli2m/doncasterairportbyelaws2.pdf?dl=0

Mrowka

Thanks bergkamp.

Coupon-mad

Mrowka wrote: »

I have sent SAR to DVLA, to exactly find out what was the reason behind vcs request of RK details. Surely they have stated parking contravention - which is a lie, because vehicle cannot park in no stopping zone as there is no offer to park.
Is this something I could use in defence?

Nope. Stopping is something that can lead to a parking charge.

Mrowka

Hi,

I have read similar cases to mine and prepared my Defence.
Keep in mind that I copied it from similar cases but changed a few bits.
Remember that mine needs to be polished at a later stage as English is my second language.

IN THE COUNTY COURT

Claim Number:********

BETWEEN:
Vehicle Control Services Ltd
Claimant

vs

********* ******
Defendant


Defence

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was using Robin Hood Airport access roads on the material date.

3. The driver of the vehicle supplies the following statement:
“On the date of alleged contravention, driver drove three and half hours to Doncaster Sheffield Airport. When the driver was about to turn off roundabout to barriers allowing access to airport car park, the car suddenly displayed on the dashboard fault in the cooling system. Driver quickly turned on hazard lights, pulled over to the next roundabout exit road which was blocked further down by gate, to not cause blockage on the main road and switched off the engine. Car owner’s manual stipulates number of steps required to be carried out by driver and first of them is to stop the car.
The indicator of the coolant level is located behind driver’s door. Once coolant level was checked and correct, driver started checking what else needs to be done before safely starting engine again. While he was doing so, he became aware of the vehicle some distance in front (now known to have been a Mobile Enforcement Camera vehicle). Driver was surprised they had not pulled alongside him to ascertain the reason for stopping. Had they done so, they would have realized driver was in some distress, and may have benefited from their assistance“.

4. The Particulars of Claim state that the Defendant XXXXX; was the registered keeper and/or the driver of the vehicle XXXXX;. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

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

5. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. Further and in the alternative, 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. The following two types of signs are in use; (I) Entrance sign - on which name of a Private Parking Company “Vehicle Control Services LTD” is used, (ii) Repeater signs - on which the PPC name is not repeated. Only entrance sign could allegedly create a legally binding contract, if it was located in the place which would comply with the Department of Transport calculations for cut-off distance, reading time and font size, yet the Claimant avers that the Defendant is in breach of the advertised terms and conditions; namely stopping in a zone where stopping is prohibited on a private land - this is not the case.

7. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. There has been no "grace period" applied to allow the Defendant to read the Claimant's signage. For these reasons, the case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, should not have a bearing in this instance. This is because with respect to VCS v Ward, HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represented an offer of a contractual licence, which was accepted when the user drove onto the private land. In this instance, the text is too small to alert the user to the fact that they are entering private land, and is therefore, not capable of creating a legally binding contract.

8. It is an ironic fact that the Claimant’s entrance signs provide helpline phone number, which cannot be used by drivers without breaking alleged contractual agreement with the Claimant or the law (using mobile phone while driving). Furthermore the terms on the Claimant's signage do not provide enough information to what is expected from the driver in emergency situation i.e. mechanically propelled vehicle malfunction. The signs are misleading and missing information, therefore is not capable of creating a legally binding contract. Even if the Claimant shows the court that the terms on any signs were legible, any contract was frustrated. This is a fact that the claimant would have known about, had their watching CCTV camera operator driver mitigated any loss, rather than taking photographs with the intent of penalizing a stricken and distressed driver who was clearly trying to safely start the car.

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.

10. 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.

11. 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.

12. 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.

13. 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.

14. Based on the “PCM vs Bull” case, where defendants were issued parking tickets for parking on private roads with signage stating “no parking at any time”, the claimant has no standing to litigate this matter. District Judge Glen in his final statement mentioned that “the notice was prohibitive, and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.

15. 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.

16. Doncaster-Sheffield airport byelaws should be applicable and considered: VCS operates under Doncaster-Sheffield airport byelaws. The unexpected cooling system fault that afternoon fits the criteria specified in DSA byelaws.
Below are the relevant byelaws:
5. PROHIBITED ACTS ON PARTS OF THE AIRPORT TO WHICH THE ROAD
TRAFFIC ENACTMENTS DO NOT APPLY
The following acts are prohibited on any part of the Airport to which the Road
Traffic Enactments do not apply:

“5 (3) Obstruction:
except in an emergency, leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by Notice”

“5 (11) Failure to comply with a direction when the driver of a Vehicle without reasonable excuse fail to comply with any direction for the regulation of traffic given by a Constable, Airport Official or Notice.
and

“5(12) Parking of Vehicles
without reasonable excuse! Park a Vehicle elsewhere than in a place provided for that purpose.

17. This Claimant may try to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, at appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015) that an emergency - such as car displaying fault on dashboard - is a 'reasonable excuse' clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all. This Claimant has misapplied the byelaws rules and twisted them for their own profit.

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

18. 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.

18.1. 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.

18.2. 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)

19. 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').!

19.1. 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.

19.2. 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.!

19.3. 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 CCTV operator would have seen and that driver was trying to safely 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 CCTV system and how the data captured would be used.

20. 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.!

Sections removed as per post #21

24. 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).

24.1. 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.

24.2. 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.

24.3. 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.

Mrowka

And second part: Abuse of Process:

The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

25. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

26. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

26.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
27. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

27.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

27.2. In the Beavis case it was said at 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.''

27.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

27.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
28. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
29. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

29.1. In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

29.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

29.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

29.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 the Beavis case. 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...''

29.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

29.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

29.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

29.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

29.4. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

29.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

30. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

30.1. The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

31. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

32. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

33. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.
Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature


Date

Coupon-mad

You found a very good example but it's too long, so remove this waffly section:

Illegal conduct and 'unfairness' breach of the Consumer Rights Act 2015
21. 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.

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.''

22.1. 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.''

23. 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.

23.1. 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.

23.2. 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.

23.2.1. 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.

23.2.2. 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:

(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.

There's a typo in the spelling of 'proprietary' that you copied from another case.

Also in #17 it wrongly says 'such as choking'. But you weren't choking!

Very nice example though, VCS need all this flung at them. You cannot tell that English is not your first language you know; IMHO this is great research.