Received a Claim from the CNBC for a PCN I never received. Alleged offence was from May 2019!

Flameboy76

Hi - this forum is a great source of information and honestly I would be lost without everyone that contributes on here, so thought I would start my own thread of my experience (and also be able to ask questions).

I received a letter from DRP (Debt Recovery Plus Ltd) on behalf of Highview Parking LTD in August 2019 demanding payment of £149.99 for a PCN I had never received.  Looking up the location I could see it was for a retail park where we'd been shopping for a kitchen, furniture etc. so assumed it was a scam (free parking as far as I was aware) so I ignored it.

Second letter was 2 weeks later from the same company as a settlement offer of £134.99 to avoid court action.  I quick google at the time told me this was likely a scam, so I ignored it.

Third letter was now from DCBL (Direct Collection Bailiffs Ltd) in February 2021 - 18 months later! It's now £170.  The letter said they hadn't heard from me and had "utilised a tracing service which indicated this is your current address".  I have actually noted on the letter that I reviewed a forum and that in a case where no PCN has been received the letter can be ignored.  I'm not sure what post I read and whether this was good advice, but I followed it!

Fourth letter was a final reminder in March 2021.  I ignored.

Fifth letter was a notice of intended legal action in May 2021.  Still £170.  I ignored.

Sixth letter was a very similar intended legal action letter in October 2021.  Still £170.  I ignored.

Final letter from DCBL was 18 months later!  February 2023 with another notice of intended legal action.  Given the time between the first intention and this one was now just under 2 years, and still convinced it was a scam as no PCN ever received, everything I read said to ignore.

I now have received a Claim Form from the CNBC (Civil National Business Centre) and have spent a specifically calculated 21.5 hours (and counting) researching my options, legal rights, the process etc.  There is literally nothing official from our wonderful government to help people in this situation, which is a travesty.  Anyway, I have filed my 'Acknowledgement of Service' and now have a week or so remaining to get my defence entered.  I am using the excellent template provided by @Coupon-mad here: https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1 

I will update once I have finished the draft to get some advice if people are responding this time of year!

KeithP

Hello and welcome.

What is the Issue Date on your Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Flameboy76

Issue date was 29th November 
AOS filed on 3rd December (annoyingly I did not read the thread about not replying within 5 days)

KeithP

Flameboy76 said:

Issue date was 29th November 
AOS filed on 3rd December (annoyingly I did not read the thread about not replying within 5 days)

Look at your MCOL Claim History. Your Acknowledgment of Service wasn't received until the Monday.

With a Claim Issue Date of 29th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 2nd January 2024 to file your Defence.

That's a little over a week away. Plenty of time to produce a Defence but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Le_Kirk

What does it state on the POC on the claim form?  Are the particulars vague or detailed?  If vague you can use the defence by @hharry100 that includes the CEL v Chan case.

Flameboy76

Ok, I have finished the draft of my Defence.  Any comments, notes, corrections or improvements welcomed.

...

2. The facts known to the Defendant:

2.1 The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant never received a PCN or NTK and is therefore unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.  It is also admitted the alleged location is known to the defendant as a retail area they were visiting around that time to shop for Kitchens, Furniture, DIY and Carpets. 

2.2. The Defendant has never received a PCN or NTK, nor was there one on the windscreen of the car and therefore no knowledge of the alleged offence was known before the Defendant was contacted by DRP Ltd requesting payment for an unpaid parking charge.  The defendant reasonably assumed this was a mistake or scam given the date provided and the location stated was a location with free parking for patrons of the retail outlets.  Subsequently, the Defendant has had no opportunity to have the retailer nullify the offence nor follow any appeal process (if any existed).  In addition, the reason for issue was vague and does not state either the parking terms or what the breach was in relation to those terms.

2.2.1 As such, the defendant cannot confirm all mandatory information stipulated by Schedule 4 paragraphs 8 & 9 of the PoFA and that the condition set out in Paragraph 6 of Schedule 4 has been complied with.

 

 

2.3 The defendant has no clear knowledge of why the car was present at the alleged site given the alleged breach was in May 2019 and does not include a specific time of the alleged breach.  Determining the defandant’s movements on that day are not possible without this information. 

 

2.4. The defendant was visiting multiple locations on multiple days at that time having recently completed a house extension.  The defendant often entered and left multiple car parks in that retail area multiple times as decisions were being made, which is a complex and time-consuming process.

 

2.5. The Defendant cannot find any Google Maps Streetview of the alleged signage present at that time and has no recollection of any signage stating any terms and conditions or clearly stating any time limitations for patrons of the retail outlets.  The Defendant requests proof of the prominently displayed signage that is referred to in POC at the time of the alleged offence.

 

2.6. Under the UK GDPR, Article 22(1) the Defendant understands they have a right not to be subject to a decision based solely on automated processing.  The Defendant therefore requests the Claimant proves they comply fully to this article and/or similar articles of GDPR pertaining to automated processing of data in respect to this claim.

 

2.7. The defendant understands Automatic Number Plate Recognition cameras (ANPR) were in force which are known to be fallible.  The Defendant requests proof the cameras had been calibrated appropriately at the time of the alleged offence.  The Defendant also requests proof the car did not enter and leave then re-enter the car park during the time of the alleged offence as this was a common patten of the Defendant at that time and is a known fallibility as admitted to by the BPA on their website and by Andrew Pester, the CEO of the BPA on BBC Watchdog.  The report can be found in the thread (i've not been a member long enough to post links apparently!).

 

In Addition:

 

2.7.1 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'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

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 at all times/days across the site, 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 shoppers and taking into account the prevailing conditions at the site on any given day), and

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

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

2.7.2. This Claimant has therefore failed to meet its legal obligations under the DPA.

2.7.3. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body 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 unlawful; breaching principle one of the DPA.

2.7.4. 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.''

2.7.5. 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.''

2.7.6. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #16 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

2.7.7. 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.

2.7.8. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

2.7.9. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''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''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

2.7.10. 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.

2.7.11. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points above were argued.

 

3. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

Coupon-mad

You do need to answer the question above.

Flameboy76

Sorry, the thread seemed to be out of sync - here are the answers to the questions:

1. Yes, the MCOL AOS was received on the 4th December.  I intend to post my defence this week when it is a 'working day'
2. The claim form is attached for the details.  Unfortunately, it is quite detailed compared to others in the forum

Coupon-mad

You can deny their point 4 because Highview did not use POFA-worded NTKs in 2019.   They cannot hold a registered keeper liable.

That POC doesn't specify the breach so it isn't more detailed than others.

Flameboy76

Thanks @Coupon-mad - I will add that into the defence letter and get it sent off.  Is there anything else anyone thinks I need to add before I do that? 

Either way, I'll keep this thread updated with what happens.

Flameboy76

I have now added @hharry100 's defence for poor POC particulars.  It's looking a little messy.  I kept in point 3 (part of the template) to show you where the rest of the letter is boiler plate from the template provided.

...

DEFENCE

 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied; the claimant is pursuing both the driver and the keeper in the Particulars of Claim ('the POC').

Preliminary matter: The claim should be struck out

1.1. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

1.2. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

(If it doesn't render below, it is the same letter from Judge Murch used by hharry100)

2. The facts known to the Defendant:

2.1 The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant never received a PCN or NTK and is therefore unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.  It is also admitted the alleged location is known to the defendant as a retail area they were visiting around that time to shop for Kitchens, Furniture, DIY and Carpets. 

2.2. The Defendant has never received a PCN or NTK, nor was there one on the windscreen of the car and therefore no knowledge of the alleged offence was known before the Defendant was contacted by DRP Ltd requesting payment for an unpaid parking charge.  The defendant reasonably assumed this was a mistake or scam given the date provided and the location stated was a location with free parking for patrons of the retail outlets.  Subsequently, the Defendant has had no opportunity to have the retailer nullify the offence nor follow any appeal process (if any existed).  In addition, the reason for issue was vague and does not state either the parking terms or what the breach was in relation to those terms.

2.2.1 As such, the defendant cannot confirm all mandatory information stipulated by Schedule 4 paragraphs 8 & 9 of the PoFA and that the condition set out in Paragraph 6 of Schedule 4 has been complied with.

2.2.2 As to Point 4 in their POC, the Defendant fully denies their point on the understanding Highview parking did not use POFA-worded NTKs in 2019 and therefore cannot hold a registered keeper liable. 

2.3 The defendant has no clear knowledge of why the car was present at the alleged site given the alleged breach was in May 2019 and does not include a specific time of the alleged breach.  Determining the Defendant’s movements on that day are not possible without this information. 

2.4. The defendant was visiting multiple locations on multiple days at that time having recently completed a house extension.  The defendant often entered and left multiple car parks in that retail area multiple times as decisions were being made, which is a complex and time-consuming process.

2.5. The Defendant cannot find any Google Maps Streetview of the alleged signage present at that time and has no recollection of any signage stating any terms and conditions or clearly stating any time limitations for patrons of the retail outlets.  The Defendant requests proof of the prominently displayed signage that is referred to in POC at the time of the alleged offence.

2.6. Under the UK GDPR, Article 22(1) the Defendant understands they have a right not to be subject to a decision based solely on automated processing.  The Defendant therefore requests the Claimant proves they comply fully to this article and/or similar articles of GDPR pertaining to automated processing of data in respect to this claim (namely the use of ANPR).

2.7. The defendant understands Automatic Number Plate Recognition cameras (ANPR) were in force which are known to be fallible.  The Defendant requests proof the cameras had been calibrated appropriately at the time of the alleged offence.  The Defendant also requests proof the car did not enter and leave then re-enter the car park during the time of the alleged offence as this was a common patten of the Defendant at that time and is a known fallibility as admitted to by the BPA on their website and by Andrew Pester, the CEO of the BPA on BBC Watchdog.  The report can be found here: (Had to remove link to Youtube)

In Addition:

2.7.1 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'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

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 at all times/days across the site, 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 shoppers and taking into account the prevailing conditions at the site on any given day), and

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

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

2.7.2. This Claimant has therefore failed to meet its legal obligations under the DPA.

2.7.3. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body 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 unlawful; breaching principle one of the DPA.

2.7.4. 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.''

2.7.5. 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.''

2.7.6. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points #16 i - v above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

2.7.7. 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.

2.7.8. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.

2.7.9. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''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''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

2.7.10. 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.

2.7.11. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from Beavis, where none of the issues in the Defendant's points above were argued.

 

3. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.