MCOL phase! Please help!

Wirelessoption wrote: »

It was my understanding that even if you pay the money you owe in full within a month there would still be some sort of mark on your credit file.

No, the mark would be wiped if you lost, then paid in time. Nothing would remain.

MCOL and the Government gateway generally, is truly awful!

Glad you are now focussed on a decent defence - copy one from someone else (only a recent 2018 one) and adapt it and show us your draft.

1. It is admitted that the Defendant was the driver on the material date.

2. The Defendant denies entering into any contract with the Claimant. In the alternative, if any such contract was entered into it is denied that the driver breached its terms.

2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all.


No agreement/breach of terms and no contract (alternatively, frustration of contract)

3. The Defendant's clear personal recollection of that night confirms that there was no 'parking event', and neither was there any 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:

3.1. the Defendant was driving into Robin Hood Airport Doncaster, when suddenly and alarmingly, the car (BMW 3 series) experienced power loss and and the driver had no choice but to pull over immediately, for safety and to avoid blocking an airport approach road. The Defendant steered the vehicle out of the middle of the road and it came to a stop, temporarily, for reasons outside of the Defendant's control.

3.2. this happened during night hours and there was no possibility of the Defendant seeing any signage terms in the dark whatsoever. Nor could the Defendant be expected to leave the car to read and agree any terms, because the Defendant was not in a position to seek out such terms and had no intention of stopping. The Defendant moved the car as soon as it was possible to do so.

3.3. whilst the Defendant was trying to start the car, the driver of the mobile CCTV van used by this Claimant made no attempt to offer help or enquire as to the difficulty, but instead, trained the CCTV camera on the car to take misleading photographs in those few minutes, unbeknown to the Defendant.

3.4. 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 was given no opportunity to read any terms under the specific emergency breakdown circumstances.

3.5. Even if the Defendant had been given the opportunity to read and accept terms, the unlit signs at this location are hidden by other, far larger and more prominent 'welcome' and directional signs/flags/banners just off a busy roundabout.

3.6. Even if the signage did offer a licence to park at a price (rather than simply saying 'No Stopping' which would be forbidding wording which cannot also be painted as offering any contractual licence), it is averred that the signs at this location are obscured by large banner 'flags' and the font size is too small and the words too many to be safely read while driving from a roundabout in traffic in the dark. It is an ironic fact that the only way any alleged 'no stopping' signs could be read, would be to stop.

3.7. Even if the Claimant shows the court that the terms on any signs were legible at night, any contract was frustrated. This is a fact that the claimant would have known about, had their watching CCTV van driver mitigated any loss and approached the broken down car to offer assistance, rather than lurking in the shadows and taking photographs with the intent of penalising a stricken and distressed driver who was clearly trying to re-start the car.

3.8. The car was recalled later for an issue with that model for the 'positive battery cable becoming damaged and impairing the power supply of the vehicle' according to BMW. The Defendant traded the problem car in, rather than submit it for the recall, but can adduce evidence from BMW regarding this known fault/recall.

3.9. The Defendant would expect the Claimant's own CCTV van operator to attend the hearing in person and provide a witness statement to explain why instant penalties continue to be issued regardless of the van operator seeing for themselves any mitigating circumstances, and to explain whether that is due to VCS blanket policy to 'fine at all costs' or whether a personal decision was made to ignore the plight of the Defendant and take pecuniary advantage.


CPR breach - old address used and no Particulars of Claim

4. The Defendant received no parking charge notice (PCN), either on the day nor in the post and had no idea about any alleged contravention, penalty or 'parking charge', however it might have been described.

4.1. If a 'PCN' was posted - and the Claimant is put to strict proof of posting - it went to an old address and having received no appeal or communication, no attempt was made by this Claimant to trace the Defendant's current address.

4.2. The Defendant has no idea what terms appear to have been breached, and has received no information despite requesting 'further and better particulars' upon receiving a Letter before Claim out of the blue (sent to the old address but fortunately this letter was passed to the Defendant).

4.3. The Defendant specifically emailed to provide the Claimant with the current postal address, in March, but received no reply to the request for 'further and better particulars' and the Defendant's new address notification was clearly ignored because the Claim form was still served to the old address.

4.4. The Claim also failed to provide the reason for the claim, or any detail of the terms breached and failed to disclose any cause of action that could give rise to any claim in law. The Particulars of Claim are sparse and so devoid of detail that the Defendant has had to cover any number of possible defence issues at this point, for fear of typical parking operator 'ambush' with photos and information about the contract finally being divulged at or just before the hearing.

4.5. The Defendant therefore requests the court to strike out the claim using their court management powers, or in the alternative, to order further and better particulars of claim, and leave for the Defendant to amend their defence accordingly.


ParkingEye Ltd v Beavis[2015] UKSC 67 is distinguished

5. This predatory '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 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.

5.2. 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 (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 (as suspected) 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) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being out of the driver's control,

the Claimant is also put to strict proof that:

(g) 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. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

7.1. The road comes off a roundabout and is not clearly demarcated as private land, nor is it 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.


Alternative defence - 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 or using the roads as a drop-off point, for example - 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 that the driver was merely asking for directions or was clearly taken ill, or was trying to re-start a broken down vehicle as in this case), and

iv) Failure to prominently inform a driver 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, despite sending a letter requesting detailed particulars in March.

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 and the ICO Codes of Practice.


Illegal conduct and 'unfairness' breach of the Consumer Rights Act 2015

10. 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.

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 that relies upon excessive data streaming of CCTV images for automatic instant penalties, regardless of circumstances (the CCTV van operator would have been close enough to have seen and heard the obviously broken own car that the Defendant was frantically trying to re-start), 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: ''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 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.

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 - 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.

13. 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).

13.1. 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.

13.2. 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.

13.3. 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

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 costs which the Defendant submits have never actually been incurred.

15. 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.

15.1. 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.

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 the facts contained in this Defence Statement are true.



*Signed*

*Date*

At least save yourself a few pennies.
Send the court copy of your DQ by email to the same address you sent your Defence.

It's useful anyway to have a VCS Airport 'no stopping' defence around, to be used/adapted again.

Do not reply if a poster with less than 1000 posts sends you a private message. People lurk and pop up and post on this forum with a dark agenda. Beware of 'unknown' new posters.