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VCS Court Case - Defence to file
CharlieBananahead
Posts: 10 Forumite
Good Evening All
The lovely people over at VCS have finally started court proceedings over a charge notice dating back to March 2016!
I've filled in the DQ and have just got my defence left to file.
Brief outline is that vehicle registered to me was shown by their CCTV to be stationary in a claimed No Stopping zone at Humberside Airport. Alleged contravention timescale was 43 seconds maximum.
I wasn't the driver as the vehicle belonged to my company at the time (now dissolved), which hired out licensed Hackney Carriages on short term hire to driver's whose vehicles were off road or who were between vehicles. I ignored all the usual BS letters from them to start with and sold off all of my vehicles later in 2016.
Contact stopped from them until December 2017, when I received a letter of claim, by which time I'd disposed of all the hire agreements and paperwork for that business.
I requested information from them under Pre-action protocols for debt claims. They responded with 5 CCTV images and answered none of the other 13 or so questions. None of the images show the driver. I requested the information again by email on a further two occasions and had no response other than the usual "we have put your case on hold while we investigate" letters, the last of which I received in early Feb 2018.
Heard nothing more until December 2019 when I received Court papers.
I foolishly wrote an angry defence with little substance, filled in the DQ that came through, then received communication from the court advising that I needed to file a proper defence or basically VCS would have judgement in their favour. This has to be done by 11th Feb.
I've now created a defence, based on what I've read on here and tried to match it to my individual situation.
Please could any experienced members give opinions to assist if this looks right, not done anything like this before!
Defence
The Defendant was the registered keeper of the vehicle xxxxxxx on the date of the alleged contravention.
1.1 The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.
1.2 The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.
1.3 The Defendant has requested on three separate occasions from the Claimant further information relating to the alleged contravention, in order to understand his position and make a decision about how to proceed. The requirements of the Practice Direction – pre-action conduct for debt claims 5.2 directs that If the debtor requests a document or information, the creditor must –
(a) provide the document or information; or
(b) explain why the document or information is unavailable,
within 30 days of receipt of the request.
Transcripts of these requests, including the responses are attached.
The Defendant contends that the Claimant has failed to comply and requests a stay of proceedings or sanctions to be applied, as per Paragraph 15 b & c of Practice Direction, pre action conduct and protocols.
Registered Keeper liability
2. The Claimant is pursuing the Registered Keeper on the assumption that the Registered Keeper is the Driver. The Defendant has never held insurance for the above vehicle as it is a Hackney Carriage, requiring specific insurance and the driver to hold a Hackney Carriage licence with North East Lincolnshire Council. The vehicle in question was available for short term relief hire to registered Hackney Carriage drivers and was under the ownership of xxxxxxx Ltd on the date of alleged contravention. As this company is no longer trading, records of whch driver had which vehicle and on which date have been disposed of, so the Defendants only means of determining the driver would be through a clear image provided by the Claimant.
Protection of Freedoms Act 2012
3. The Charge Notice to Keeper, appears to have been issued in accordance with Schedule 4 of Protection of Freedoms Act 2012.
3.1 The Defendant contends that the Protection of Freedoms Act 2012 is not applicable in that the location of the alleged ‘contravention’ is not relevant land within the meaning provided by paragraph 3 of schedule 4 of the Protection of Freedoms Act 2012. The site of Humberside Airport is subject to statutory control by virtue of Humberside International Airport Byelaws 1999.
3.2 It is further contended that the act of stopping a vehicle does not amount to parking.
No agreement/breach of terms and no contract
4. The Defendant denies entering into any contract with the Claimant.
4.1 The Defendant does not see how as Registered Keeper, they can be expected to have formed a contract with the Claimant.
4.2 The Defendant believes that there was no 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:
4.3 At the time of the alleged stopping of the vehicle which the Claimant now refers to as a “contravention” within the particulars of claim. The Defendant cannot see how stopping a vehicle for a matter of seconds can constitute parking of the vehicle, particularly as it is alleged the vehicle was stopped in area which is not a car park.
4.4 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 has been given no opportunity to read any terms.
4.5 The Claimant argues that the initial signage at the entrance to the site is the size of a standard door and legible. However, the Defendant would argue
a) The text is not legible by anybody passing the sign at legal speed limits or in poor conditions such as bad lighting or at night
b) the signage is placed alongside 3 other signs causing significant cluttering of varying information in one place
c) the no stopping sign is placed directly above double yellow lines causing further confusion
d) the cluster of signage of which the Claimants sign forms part at the entrance to the site is placed just 2 meters away from the entrance of a roundabout
e) on approach to the roundabout there are no less than 14 signs in various positions on display from the vantage point of approach by road
f) It cannot be expected of or physically possible for any motorist approaching the site to read all of this information whilst moving at speed and simultaneously negotiating and approaching a roundabout where they are expected to give way to any approaching traffic
g) all other prohibitive signage at the site does not face any vehicle as they negotiate or travel the site
ParkingEye Ltd v Beavis [2015] UKSC 67
5. This predatory 'parking 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 is noted from Humberside Airports website that there is an important notice where it is stated “Important Information, CAR PARKING. Please do not stop or park on any of the airports roads which are marked with yellow lines or within the bus stop area. You may be liable for a fine”
5.2. 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.
5.3 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 (Humberside 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 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) this charge which is somehow saved from the penalty rule
the Claimant is also put to strict proof that:
(e) 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.
7.1. The road comes off a roundabout and is not clearly marked as 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.
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 - 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.
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.
iv) Failure to prominently inform users 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.
8.4 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
9. 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.
9.1. 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.''
9.2. 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.''
9.3. 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, was illegal at its formation because it was incapable of being created without an illegal act.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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).
9.9. 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.
9.10. 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.
9.11. 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.
Added costs have not been incurred - attempt at double recovery
10. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported costs which the Defendant submits have never actually been incurred.
10.1. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent 'charge'. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.
10.2. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.
10.3. 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 believe the facts contained in this Defence Statement are true.
*Signed*
*Date*
The lovely people over at VCS have finally started court proceedings over a charge notice dating back to March 2016!
I've filled in the DQ and have just got my defence left to file.
Brief outline is that vehicle registered to me was shown by their CCTV to be stationary in a claimed No Stopping zone at Humberside Airport. Alleged contravention timescale was 43 seconds maximum.
I wasn't the driver as the vehicle belonged to my company at the time (now dissolved), which hired out licensed Hackney Carriages on short term hire to driver's whose vehicles were off road or who were between vehicles. I ignored all the usual BS letters from them to start with and sold off all of my vehicles later in 2016.
Contact stopped from them until December 2017, when I received a letter of claim, by which time I'd disposed of all the hire agreements and paperwork for that business.
I requested information from them under Pre-action protocols for debt claims. They responded with 5 CCTV images and answered none of the other 13 or so questions. None of the images show the driver. I requested the information again by email on a further two occasions and had no response other than the usual "we have put your case on hold while we investigate" letters, the last of which I received in early Feb 2018.
Heard nothing more until December 2019 when I received Court papers.
I foolishly wrote an angry defence with little substance, filled in the DQ that came through, then received communication from the court advising that I needed to file a proper defence or basically VCS would have judgement in their favour. This has to be done by 11th Feb.
I've now created a defence, based on what I've read on here and tried to match it to my individual situation.
Please could any experienced members give opinions to assist if this looks right, not done anything like this before!
Defence
The Defendant was the registered keeper of the vehicle xxxxxxx on the date of the alleged contravention.
1.1 The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.
1.2 The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.
1.3 The Defendant has requested on three separate occasions from the Claimant further information relating to the alleged contravention, in order to understand his position and make a decision about how to proceed. The requirements of the Practice Direction – pre-action conduct for debt claims 5.2 directs that If the debtor requests a document or information, the creditor must –
(a) provide the document or information; or
(b) explain why the document or information is unavailable,
within 30 days of receipt of the request.
Transcripts of these requests, including the responses are attached.
The Defendant contends that the Claimant has failed to comply and requests a stay of proceedings or sanctions to be applied, as per Paragraph 15 b & c of Practice Direction, pre action conduct and protocols.
Registered Keeper liability
2. The Claimant is pursuing the Registered Keeper on the assumption that the Registered Keeper is the Driver. The Defendant has never held insurance for the above vehicle as it is a Hackney Carriage, requiring specific insurance and the driver to hold a Hackney Carriage licence with North East Lincolnshire Council. The vehicle in question was available for short term relief hire to registered Hackney Carriage drivers and was under the ownership of xxxxxxx Ltd on the date of alleged contravention. As this company is no longer trading, records of whch driver had which vehicle and on which date have been disposed of, so the Defendants only means of determining the driver would be through a clear image provided by the Claimant.
Protection of Freedoms Act 2012
3. The Charge Notice to Keeper, appears to have been issued in accordance with Schedule 4 of Protection of Freedoms Act 2012.
3.1 The Defendant contends that the Protection of Freedoms Act 2012 is not applicable in that the location of the alleged ‘contravention’ is not relevant land within the meaning provided by paragraph 3 of schedule 4 of the Protection of Freedoms Act 2012. The site of Humberside Airport is subject to statutory control by virtue of Humberside International Airport Byelaws 1999.
3.2 It is further contended that the act of stopping a vehicle does not amount to parking.
No agreement/breach of terms and no contract
4. The Defendant denies entering into any contract with the Claimant.
4.1 The Defendant does not see how as Registered Keeper, they can be expected to have formed a contract with the Claimant.
4.2 The Defendant believes that there was no 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:
4.3 At the time of the alleged stopping of the vehicle which the Claimant now refers to as a “contravention” within the particulars of claim. The Defendant cannot see how stopping a vehicle for a matter of seconds can constitute parking of the vehicle, particularly as it is alleged the vehicle was stopped in area which is not a car park.
4.4 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 has been given no opportunity to read any terms.
4.5 The Claimant argues that the initial signage at the entrance to the site is the size of a standard door and legible. However, the Defendant would argue
a) The text is not legible by anybody passing the sign at legal speed limits or in poor conditions such as bad lighting or at night
b) the signage is placed alongside 3 other signs causing significant cluttering of varying information in one place
c) the no stopping sign is placed directly above double yellow lines causing further confusion
d) the cluster of signage of which the Claimants sign forms part at the entrance to the site is placed just 2 meters away from the entrance of a roundabout
e) on approach to the roundabout there are no less than 14 signs in various positions on display from the vantage point of approach by road
f) It cannot be expected of or physically possible for any motorist approaching the site to read all of this information whilst moving at speed and simultaneously negotiating and approaching a roundabout where they are expected to give way to any approaching traffic
g) all other prohibitive signage at the site does not face any vehicle as they negotiate or travel the site
ParkingEye Ltd v Beavis [2015] UKSC 67
5. This predatory 'parking 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 is noted from Humberside Airports website that there is an important notice where it is stated “Important Information, CAR PARKING. Please do not stop or park on any of the airports roads which are marked with yellow lines or within the bus stop area. You may be liable for a fine”
5.2. 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.
5.3 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 (Humberside 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 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) this charge which is somehow saved from the penalty rule
the Claimant is also put to strict proof that:
(e) 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.
7.1. The road comes off a roundabout and is not clearly marked as 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.
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 - 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.
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.
iv) Failure to prominently inform users 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.
8.4 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
9. 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.
9.1. 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.''
9.2. 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.''
9.3. 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, was illegal at its formation because it was incapable of being created without an illegal act.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.
9.8. 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).
9.9. 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.
9.10. 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.
9.11. 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.
Added costs have not been incurred - attempt at double recovery
10. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported costs which the Defendant submits have never actually been incurred.
10.1. The added costs are in fact artificially invented figures, which represent a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the 'charge' was scrutinised by the Supreme Court and held to mainly represent a significant sum in profit; being a pre-set, deliberately high deterrent 'charge'. This was already significantly over and above the very minimal costs of operating an automated ticketing regime and no damages/loss/debt collection costs could have been claimed on top, because none existed.
10.2. Similarly, in Somerfield a £75 parking charge for a valuable retail parking space was not a penalty, but a sum mentioned in the harassing letters of double that amount, almost certainly would be.
10.3. 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 believe the facts contained in this Defence Statement are true.
*Signed*
*Date*
0
Comments
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Do you mean a WITNESS Statement - you have already filed a DEFENCE.
If so can you post the Defence you filed0 -
No Grandad, the OP has said:
Looks like the OP has been given a second chance to file a Defence.I foolishly wrote an angry defence with little substance, filled in the DQ that came through, then received communication from the court advising that I needed to file a proper defence or basically VCS would have judgement in their favour. This has to be done by 11th Feb.
Most unusual.0 -
Thanks, Just trying to find the letter that came back from the court, must have left it at work as that's where I drew this up today. Will check first thing and post back0
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Thanks Keith P, that was how I understood it when I read it0
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Does this look like a sound defence to you Keith P? As there's so much detail I'm unsure of what the strongest points are for me to fight this case on so any direction would be greatly appreciated0
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Defence1. The Defendant was the registered keeper of the vehicle xxxxxxx on the date of the alleged contravention, but was not the driver and cannot be held liable under any rule of law, due to the location and due to the non-compliant Notice to Keeper ('NTK') issued by this Claimant.Protection of Freedoms Act 2012
3. The NTK [STRIKE]Charge Notice to Keeper, appears to have been issued [/STRIKE] states that it is purported to have been issued in accordance with Schedule 4 of Protection of Freedoms Act 2012 ('the POFA'). However, it has not been worded to comply with paragraph 9(2)f of the POFA and even if the court is minded to belief is may be substantially compliant, the 'keeper liability' rights as set out in the POFA do not, in fact, apply to this location.
3.1 The Defendant contends that the POFA [STRIKE]Protection of Freedoms Act 2012[/STRIKE] is not applicable [STRIKE]in that the location of the alleged ‘contravention’[/STRIKE] because Airport land is not 'relevant land' within the meaning provided by paragraph 3 of schedule 4 of the POFA, and this is further confirmed by the Department for Transport's Official Guidance regarding 'Section 56' (as it was in 2012) of that Act. [STRIKE]Protection of Freedoms Act 2012[/STRIKE]. The site of Humberside Airport is subject to statutory control by virtue of Humberside International Airport Byelaws 1999.
3.2 It is further contended that the act of stopping a vehicle does not amount to parking, and that the Byelaws positively set out exemptions for brief stops and this predatory operation pays no regard to the byelaws at all. It is likely that this Claimant may try to rely upon two 'trophy case' wins, namely VCS v Crutchley and/or VCS v Ward, neither of which were at an Airport location. Both involve flawed reasoning and the Courts were wrongly steered by this Claimant's representative; there are worrying errors in law within those cases, such as an irrelevant reliance upon the completely different Supreme Court case. These are certainly not the persuasive decisions that this Claimant may suggest.
I would remove all this:9.1. 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.''
9.2. 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.''
9.3. 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, was illegal at its formation because it was incapable of being created without an illegal act.
9.4. 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.
9.5. 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.
9.6. 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.
9.7. 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.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Much appreciated Coupon-mad, I'll amend and submit0
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The Claimant is pursuing the Registered Keeper on the assumption that the Registered Keeper is the Driver.
If you were not the driver then surely a simple statement to that effect will scupper them. Why all the War and Peace follow on? Have they referenced Eliot v Loake?You never know how far you can go until you go too far.0 -
They haven't referenced anything yet, the particulars of claim are as follows:
"The claim is for a breach of contract for breaching the terms and conditions set on private land. The defendant's vehicle xxxxxxx was identified in the Humberside international airport on the xxxxxxx in breach of the advertised terms and conditions; namely stopped on a roadway where stopping is prohibited. At all material times the defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer, hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the defendant has failed to settle the outstanding liability. The claimant seeks the recovery of the parking charge notice, contractual costs and interest"
I read through the thread on here that Babyshark won last year against VCS and was a bit worried by the 54 page witness statement VCS put forward so wondered if it was best to try and cover all bases from the off0 -
Just one small grammatical.However, it has not been worded to comply with paragraph 9(2)f of the POFA and even if the court is minded to [strike]belief is[/strike] believe it may be substantially compliant, the 'keeper liability' rights as set out in the POFA do not, in fact, apply to this location.0
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