County Court Claim from CEL

[FONT=&quot]IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Limited (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.[/FONT]

[FONT=&quot]2.[/FONT][FONT=&quot] The Claim Form issued on **/**/2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direct 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. CLAIM FORM SIGNED CEL (CLAIMANTS LEGAL REP)[/FONT][FONT=&quot]

3. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. [/FONT]

[FONT=&quot]4. In the Claimants POPLA response (section 28), it is mentioned that the Defendant never used their helpline (which they state is at the bottom of their signage). It is questionable that a call could be made in an underground carpark but more importantly, if this is a ‘HELPLINE’ should not the signage say this. It only appears at the end of their address and does not indicate it could be a helpline.[/FONT]

[FONT=&quot]5. The Claimant in their POPLA response (their section 23) acknowledges that parking for Debenhams was purchased. The Claimant than says in BOLD, that full duration of parking is required. This is not actually stated on their signage. Further parking time was purchased but this has always been disregarded.[/FONT]

[FONT=&quot]6. In the Claimants response to POPLA they cited a signage plan and lighting plan. This has never been provided.[/FONT]

[FONT=&quot]7. We have photographic evidence that the signage has been replaced or updated since the alleged offence which clearly brings into question is legality at the date of the incident. [/FONT]


[FONT=&quot]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'. 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

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

8.2. 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 was 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.

9. 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.''

9.1. 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.''

9.2. 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 the points 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).

9.3. 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.

9.4. 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.

9.5. 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.

9.6. 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.

9.7. 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 8 and 9 above were argued.[/FONT]
[FONT=&quot]
10. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, beyond the agreement to pay the tariff and identify the car registration number, which the defendant carried out.

11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The largest part of the signage says £1 per hour. The rest of the signage is very small.

12. The terms on the Claimant's signage were also displayed in a font which was too small to be read from a passing vehicle, and were in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The entrance to the Car Park is from a busy road with an incline with no possibility to stop safely.

13. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

14. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £221.02, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

15. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.[/FONT]

[FONT=&quot]16. The Claimant sent an original Letter Before Action on the 9th November 2017. They then passed this to ZZPS almost 6 months later and then to QDR Solicitors which has clearly unrealistically inflated the Claim.[/FONT]

[FONT=&quot]17. [/FONT][FONT=&quot]The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative” (or even admin) costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The Claimant has not explained how the claim has increased from the original parking notice to £271.02. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.[/FONT][FONT=&quot]

18. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

19. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

20. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

21. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date [/FONT]

I thought I would post links to the signage taken back in January 2017


SPACE ADDED AT FRONT AFTER HTTPS: to allow post



One of the signs


https: //ibb.co/kZOBeU


The only pay machine


https: //ibb.co/ftLDtp
https: //ibb.co/hO2hm9


The sign near the entrance, no chance of reading this as you turn from a main road direct into a slope


https: //ibb.co/cHnhm9


Saw this later stuck on the wall just as you walk into the store


https: //ibb.co/coEjzU


Further signs near the entrance but tucked around the corner slightly, on the exist slip so you are not going to read these

https: //ibb.co/cPiNm9

Anyone like to respond on my question on point 9.2 (sorry to ask such helpful people)


Also, looking at what I have found the Letter Before Court Action they sent (2nd one, as the one from last year wasn't even signed !) it doesn't seem to meet the requirements. Should it not clearly state at the top of the letter something like 'Letter Before Action'


A copy (with a space in the URL) is linked below


https: //ibb.co/fUvVRL


I know this is one of many points to raise but I haven't referenced this in the defence so far.