PE Court Defence but Manager responded

KeithP

And the word Break should be in that 5.1 para. Perhaps instead of Service.

sodthebullies

Updated version @Le_Kirk and @KeithP
Is this good to go now? 
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Background - the Defendant was an authorised patron of Welcome Break

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at xxxxx car park on XX/XX/XX. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

2. The allegation appears to be that the vehicle overstayed the free parking period based on images by ANPR cameras at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of whether the vehicle was parked the whole time. The Welcome Break service area includes many other amenities such as a petrol station and side roads and as the ANPR cameras are not positioned exclusively on the car parking spaces, the time calculated by the Claimant for the parking charge would include time driving around the car park and using other services and is therefore unfair to include in the minimum time that is legally required to be offered free, under the MSA rules from the Department for Transport

3. The Defendant has already proved that he was a patron of the Welcome Break, and it is the Claimant's own failure, caused by their deliberately obscure terms that has given rise to a 'PCN' that was not properly issued from the outset.

Unclear terms - no agreement to pay a penalty

4. According to the sparse, unlit signs in this car park, to avoid a Parking Charge, users of the service station must purchase a ticket within the WH Smith store if staying more than two hours. The text that includes the T&C (alleged contract) on these signs is smaller than recommended by the DVLA for road signs and so are impossible to see whilst driving past. 

The Defendant was safely pulling over at the service station to avoid an argument while driving and followed recommnendations from signange on motorway saying ‘Tiredness Kills’  ‘Take a Break’.

4.1. At the time of parking on XX/XX/XX, the Defendant safely pulled over, made a purchase with a record on bank statement which shows payment, waited for things to cool down before driving away safely. 

4.3. It is contended that the signage failed to alert visitors that a charge is payable after two hours or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' Whilst the signage on this car park is in the red, on the route the Defendant took from the car parking space to the entrance, there is no visible signage. Whilst there are other signage around the car park, these are usually badly lit, covered by trees or facing directions that means no patron would look at them.

Consumer Protection from Unfair Trading Regulations - breach

5. Upon receiving the claim, the Defendant contacted Welcome Break and over email correspondence, a team member at Welcome Break suggested they have now asked Claimant to cancel the PCN. 

5.1. The Defendant was told by Welcome Break Duty manager to ignore any further letters from Claimant. 

5.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to registered keeper recipients, that the onsite businesses could very easily cancel a charge, apparently with one email. By withholding the Welcome Break route of cancellation/complaint from a consumer are 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

5.3. The only route offered was an 'appeal' to ParkingEye themselves, but the Defendant knew he had done nothing wrong as a matter of principle, and honestly believed from research that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.4. This fact was later confirmed in the second reading of the Private Parking Code of Practice Bill on 2nd February 2018, where more than one MP named and shamed ParkingEye and the unanimously damning Hansard quotes include: ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; ''wilfully misleading; signage is a deliberate act to deceive or mislead''; ''confusing signs are often deliberate, to trap innocent drivers''; ''unreasonable; operating in a disgusting way''; ''appeals service is no guarantee of a fair hearing''; ''outrageous scam''; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

No locus standi

6. In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. ParkingEye has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.

No 'legitimate interest' or commercial justification - Beavis is distinguished

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When ParkingEye, all too often at this location, unfairly ticket a patron of the Welcome Break, any commercial justification in the form of support by Welcome Break for such unfair ticketing is absent.

7.1. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

Data Protection Act and BPA Code of Practice breach

8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.

8.2. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine patrons), and

iv) Failure to consider the number of complaints from the Welcome Break and other businesses, which would have alerted this Claimant to the fact that their signage was not being seen by all genuine patrons and was, therefore, a wholly inappropriate method of data capture, which was unreliable at best and negligent (or even deliberately misleading) at worst, being the main cause of unfair parking charges against patrons.

v) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data captured on both would be used, and

vi) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the DPA. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant.

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

Unlawful conduct/data use and breach of the Consumer Rights Act 2015

10. In a similar instance of DPA failure by excessive and inappropriate use of ANPR cameras - confirmed on this Claimant's Trade Body (BPA) website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

sodthebullies

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

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

12. Even if there was a purported contract between the Claimant and the Defendant, it was illegal at its formation because it was incapable of being created without an illegal act (due to non-compliance with the ICO requirements at the outset, before enforcement started using ANPR systems at this site).

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

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

12.2.1. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA. Being a BPA member with access to a wealth of ICO and DVLA-led data compliance information, relevant articles, compliance events and specific parking & DPA related legal advice for members, and given that this Claimant has its own in-house Legal Team and solicitors, 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 just this sort of data abuse.

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

(i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

(ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

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

13. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by ANPR, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

13.1. The excessive, inappropriate and unjustified use of ANPR alongside a hidden iPad system by this claimant is both unfair and lacking in transparency for an average consumer and as such, this claim must fail.

Unconscionable and unrecoverable inflation of the 'parking charge'

14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents 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 sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. 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 that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Name - 

Signature - 

Date - 

KeithP

You seem to have used the words driver and Defendant interchangeably.

Suggest that when you are talking about driving, you refer to the driver and perhaps the first sentence of para 1 could be:
1. The Defendant is the registered keeper of the vehicle in question and was the driver at the time.

sodthebullies

KeithP said:

You seem to have used the words driver and Defendant interchangeably.

Suggest that when you are talking about driving, you refer to the driver and perhaps the first sentence of para 1 could be:
1. The Defendant is the registered keeper of the vehicle in question and was the driver at the time.

But in this case the driver and the registered keeper are different. If I am fighting the case, does that make me the defendant or the registered keeper is the defendant and I will be the driver? 
I'm slightly confused myself. 

Dad is the resitered keeper, Son the driver, Son also fighting on behalf of Dad, does that make the son the Defendant? 

1505grandad

Is there a para 4.2?

sodthebullies

1505grandad said:

Is there a para 4.2?

My bad, updated. 

KeithP

sodthebullies said:

KeithP said:

You seem to have used the words driver and Defendant interchangeably.

Suggest that when you are talking about driving, you refer to the driver and perhaps the first sentence of para 1 could be:
1. The Defendant is the registered keeper of the vehicle in question and was the driver at the time.

But in this case the driver and the registered keeper are different. If I am fighting the case, does that make me the defendant or the registered keeper is the defendant and I will be the driver? 
I'm slightly confused myself. 

Dad is the resitered keeper, Son the driver, Son also fighting on behalf of Dad, does that make the son the Defendant? 

Who is the named Defendant on the County Court Claim Form? The driver or the keeper? That's the important bit.

If the named Defendant was not the driver at the time, then there are changes needed throughout that Defence.

Le_Kirk

The defendant is the person named on the claim form, normally but not always, the registered keeper.  It is OK to help write the defence on behalf of Dad but it has to come from him, be signed by him and he has to appear (albeit it might be a telephone/video hearing) in court, although you can be a lay rep.

sodthebullies

KeithP said:

sodthebullies said:

KeithP said:

You seem to have used the words driver and Defendant interchangeably.

Suggest that when you are talking about driving, you refer to the driver and perhaps the first sentence of para 1 could be:
1. The Defendant is the registered keeper of the vehicle in question and was the driver at the time.

But in this case the driver and the registered keeper are different. If I am fighting the case, does that make me the defendant or the registered keeper is the defendant and I will be the driver? 
I'm slightly confused myself. 

Dad is the resitered keeper, Son the driver, Son also fighting on behalf of Dad, does that make the son the Defendant? 

Who is the named Defendant of the County Court Claim Form? That's the important bit.

If the named Defendant was not the driver at the time, there there changes needed throughout that Defence.

Dad is the named Defendant on the County Court Claim Form. Should I got into the document and change all instances to clarify the Driver? Make it obvious that the Defendant wasn't involved?