County Court Papers / Smart Parking

Beechy74

Cheers, ive sent another email with that in. Although i doubt they'll be sending any record from October 2018 by their last reply mentioning ''timescale'' but i will be asking for it.

Thanks again.

Coupon-mad

They have a duty under the GDPR (May 2018!) to keep records of ALL personal data or they will be in breach of the Data Protection Act 2018. It would be illegal for them to have destroyed even handwritten notes or books with VRNs on, as a VRN has been confirmed already by the Information Commissioner, as 'personal data'.

There MUST be a record of all the exempt VRNs that day.

So, let's see what she says when you hit the manageress with that next!

nosferatu1001

VRM C-M! Not VRN

Actually it is illegal fo rthem to *keep* such data, once they have no reason to process it further. For example, we destory records showing VRMs (CCTV) after a much shorter period than you are suggesting, and its all completely legal. In fact, if we broke our own retention policy - and the hotel is reqiured to have one, same as we are! - THAT would be illegal, as de facto we have processed data without any cause to do so.

Beechy74

Good afternoon,

We've received a reply from the SAR which i'll look at properly later on. Also, ive followed up the xxxxx again, as they dont sem to be in a rush with any reply.

Dear Mr & Mrs,



I would be more then happy to supply all the personal data that we currently retain in relation to yourself. Please be advised however, that any personal data relates directly to a VRN or PCN number. I would need you supply me with your VRN or PCN, in order to search the system for the information you are after.



If you supply me your PCN reference number or VRN, alongside proof of ownership, I will be more then willing to action your request.



Please do not hesitate to contact me for any further enquiries or information that you may require.

Fruitcake

An SAR should always be accompanied by proof of ID, ideally a copy of the V5C. Including the PCN number and/or VRM will help for them to search their data, but many find it impossible to search without that information. Either that or they are just being awkward.
They are certainly wrong when they say, "any personal data relates directly to a VRN or PCN number." You are the data subject so personal data, which includes a VRM, relates directly to you.

Redacted utility bills are also acceptable but never send any photo ID.

Beechy74

Little update. No further replies from the Hotel. E-mailed them twice since original reply but still got the original reply, albeit not what i asked them.

Beechy74

I'm starting to piece together a defence that needs to be submitted by February 10th @ 4pm. Meanwhile, theres still no response to the SAR or from the Hotel apart from the reply they originally sent. Two more emails have been sent to them but nothing back. I assume this doesnt matter yet, as it will be used as evidence in court rather than posted in the DEFENCE. The advice was not to go into the Hotel but if they dont respond, should the defendant still not go?

While waiting for various replies from the Hotel and the SAR, the defendant was going to write to the PM but as the defendant lives in a seperate part of the country, should it be the PM where the alleged contravention happened, or the defendants own MP?

Lastly, the defendant is getting a letter from the managersss of the care home from where the staff worked, these were the staff who the defendant took to the Hotel for the company meeting. Any advice on what the manageress could write?

Thankyou for your time

Redx

your own LOCAL MP is your first point of contact , then you can ask them to copy in any others, but as the constituent of your local MP, start there


when you say PM, I assume you meant MP , not Boris

Coupon-mad

Lastly, the defendant is getting a letter from the manageress of the care home from where the staff worked, these were the staff who the defendant took to the Hotel for the company meeting. Any advice on what the manageress could write?

She confirms the date, time, and venue that the staff were transported to and the VRM of the taxi they travelled in (tell her it) and why they were there for that period of time and why the taxi driver would have had reason to wait.

Beechy74

Ive drawn up a very rough Defence. If anyone cares to mull over it, id really appreciate it. Ive already cut some out as it was miles to long for the forum. Thankyou

In the County Court

Claim Number:

Between

xxxx (Claimant)

And

xxxx (Defendant)

DEFENCE

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper and Driver of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons ;-

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, which is a Private Hire vehicle, registration XXXX, of which the Defendant is the registered keeper and driver, was parked on the material date in a parking space within the Hotel grounds, waiting for the passengers who were on a company meeting. The Defendant is a Private Hire driver  and was working. The Defendant followed the instruction and handed in his registration number to reception, which enables him to wait for as long as required, free of charge, as per Hotel terms and conditions. The Hotel take responsibility of imputting the registration number into the system, NOT the driver.

3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4. 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.

5. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £85 + other add-ons, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

6. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

7. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.

8. The Particulars of Claim are incompetent in disclosing no cause of action.

9. The Claimant has not complied with the Practice Direction - Pre-Action Conduct and Protocols.

10. I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by the Claimant’s own legal team who clearly must be aware of the correct procedure before issuing proceedings.

11. The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

12. 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.

13. The Defendant has the reasonable belief that the Claimant has not incurred an additional £xxxx 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.

14. 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.

{a}. 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.''

{b}. 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.''

{c}. 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...''

{d}. 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

Statement of Truth:

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

Name

Signature

Date