Defence for court action

with points I recommend usingShow us your next draft. I showed you a link to a different one, and bargepole advised you to focus more on what your actual defence is.

I would suggest the following version, which is longer but more applicable to the issue at hand, as long as you wish to admit to driving?

Do you, have you already? If not, you have to edit #2 (for example of you are just the keeper and passenger and/or want to rely on the POFA).









1. It will be common ground that this claim refers to a private parking charge notice' (PCN) relating to a day when the Defendant paid and displayed and was authorised to park.

1.1. The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms is denied, and it is further denied that there was any agreement to pay the Claimant any £100 'parking charge' or any sum at all in addition to the parking tariff.

1.2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.

2.1. Payment for parking was made via payment machine and a ticket was issued and displayed in car windscreen.

2.2. The ticket covered the parking time of xx:xx mentioned in the correspondence from the Claimant and the Defendant took notice of the offered expiry time on the Pay & Display Ticket ('PDT') receipt, and left promptly.

2.3. Despite the PDT stating an agreed parking licence time which the Defendant relied upon, the Defendant now notices that the PCN that later arrived by post unexpectedly referred to the whole duration 'on site' (from arrival in moving traffic until the point of exiting) of xxx minutes.

2.4. No reference was made to the disputed time interval in any correspondence and the Defendant has had to guess why a PCN was issued. In the Defendant's appeal last year, the PDT was attached as proof of valid payment and the agreed time (effectively the licence) to park and the Defendant had no idea the Claimant was working to a hidden, undisclosed and unsynchronised timeline.

2.5. The Claimant has deliberately obfuscated the incident time in the correspondence.

3. The Defendant did pay and display as soon as was reasonably possible given the circumstances on arrival. The car park was busy, almost full, and this is not the most easy of car parks to manoeuvre through. A few minutes were taken carefully driving around looking for a space, queuing to wait, then parking, locking the car, walking over to the signs and machine and finding the change to obtain a PDT in good faith, which then printed out an agreed 'expiry time' that the Defendant understood was the authorised time to return to the vehicle and leave.

3.1. This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving round for half an hour looking for a parking space was not parking, and until a driver had actually parked and read the signs, there was no parking contract possible relating to any obligation on a driver whilst driving round, to purchase a PDT.

3.2. If the Claimant argues that a driver should be held to a completely different and unexpected start time (on arrival past hidden ANPR cameras) then the PDT machine terms should clearly state that 'total stay' was being calculated, and the machine should have produced a PDT with the adjusted expiry, calculated by synchronising with the data stream fed from the initial ANPR image.

3.4. In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

3.5. Thornton v Shoe Lane Parking [1971] 2 WLR 585 (Court of Appeal) holds good as the relevant case law, to confirm that the time of a parking licence in a car park begins when the driver pays the money and relies upon terms printed on the PDT. Further unexpected terms cannot be imposed.

4. A mandatory grace period is required by the International Parking Community (IPC) Code of Practice, which states a "sufficient amount of time to park and read any signs" must be provided.

5. The sign next to the PDT machine states the conditions for which a PCN will be issued, albeit the event was in the evening when the signage was in shadow and not clearly lit.

5.1. The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after paid-for time), nor that the time on the PDT cannot be relied upon. Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site, and effectively ignore the PDT expiry and leave early.

5.2. The Claimant is put to strict proof that the above situation was explained in clear, lit terms, and must provide evidence to overcome an inherent difficulty the Claimant will have, in convincing the Court that the two data streams/timelines (and their choice to prefer to use the undisclosed timeline, the one that creates an onerous burden upon paying drivers) pass the mandatory tests of fairness and transparency, imposed by the Consumer Rights Act 2015.

5.3. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to 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.''

5.4. The Defendant agreed to pay a tariff, and did so, and received in exchange, a PDT confirming the terms. Thus the Claimant's claim must fail.

6. 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 and completely different facts in a free car park.

7. Further, 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. This Claimant has taken no steps to provide evidence that such authority existed, and that they were entitled to pursue paying drivers for a penalty for the time spent driving round before parking.

7.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue to obtain a ticket entitling them to (say) an hour on a golf course or tennis court - then penalising the person for an extra £100 if they rightly concluded from the information available, that they were indeed allowed the hour they paid for.


Alternative defence - Data Protection Act breach (two conflicting data streams)
8. This Claimant uses ANPR camera systems to process data but fails to comply with the Office of 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 IPC 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 IPC 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 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 was necessary and proportionate to continue using ANPR, together with a PDT machine as a secondary data processing system at this site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement, or penalising only non-payers, or manning the car park with a warden in order to consider the needs of genuine patrons at busy times in queues), and

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

v) 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 IPC 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 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 ANPR until they could comply. The ICO ruled that the collection of the information was specifically illegal; breaching principle one of the DPA.

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, the part relying upon two data streams and using the undisclosed time that adversely affects the driver, was illegal at its formation because it was incapable of being created without an illegal act.

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 an IPC 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 they are using Gladstones 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).

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 'Damages and indemnity costs if applicable' which the Defendant submits have not actually been incurred by the Claimant.

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 confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date

Undisputed3001 wrote: »

...can I email the defence or do I have to log it online via moneyclaim?

Do not file it via MCOL - post #2 of the NEWBIES FAQ thread explains why.

You email the Defence.

It's been written many times on here, but here it is again...

Once you are satisfied with the content -
1) print your Defence
2) sign it
3) scan the signed document back in and save it as a pdf.
4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk

You will have a lot more than just a copy of the PDT as evidence with your later Witness Statement. The defence above refers to various case transcripts that you will at least need to Google, read, understand & print out the relevant sections from, plus the ICO Code of Practice re Surveillance Cameras, plus the IPC CoP section on grace periods and signs being lit at night...

But you don't need the Beavis case, nor statutory law like the CRA. A Judge must have access to primary law and will certainly know about PE v Beavis (Supreme Court).

And also you should (once the defence is in) go and get pictures of the signs by the machine and the screen by the coin slot, taken in evening/dark light, to show that NOTHING told a paying driver that the expiry time on the PDT wasn't actually true at all, and that you would have to guess your 'arrival time' and leave early to avid a penalty.

Ridiculous charge, this one! Absolute extortion some of these fake PCNs.