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  • FIRST POST
    • kayjones83
    • By kayjones83 16th May 17, 5:42 PM
    • 54Posts
    • 16Thanks
    kayjones83
    Fine from Civil Enforcment **HELP**
    • #1
    • 16th May 17, 5:42 PM
    Fine from Civil Enforcment **HELP** 16th May 17 at 5:42 PM
    Hi all,



    Is this a legit company?


    Address-Civil Enforcement Ltd Horton House Exchange flags. Liverpool L2 3PF.

    I received PCN letter on the 22nd March from stating that I failed to pay & display a parking ticket. I wrote an appeal letter along with proof of purchase of the parking ticket.
    I had not heard back from the till yesterday of which I received a final warning letter stating that I have to pay 100.
    I managed to get through to the company via phone and the lady stated that they had responded to my appeal via post stating the reason for the fine was because I did not put my registration details into the machine. Just to add, I did not receive that letter. How convenient!


    I clearly remember putting in my details , plus the machine would not have issued me a ticket if I hadn't of done so.


    I've been doing a lot of research on these dodgy companies and I noticed that forums have advised people not to respond. Should I have done?


    What should I do now? :S


    HELP!
    Last edited by kayjones83; 16-05-2017 at 5:47 PM.
Page 4
    • Coupon-mad
    • By Coupon-mad 20th Apr 18, 12:30 AM
    • 59,528 Posts
    • 72,705 Thanks
    Coupon-mad
    Be thankful it's only CEL, you have the one that doesn't go to a hearing, and if you search the forum for the words CEL crayon you will see how easy this is...
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • kayjones83
    • By kayjones83 9th May 18, 8:22 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Help with Claim Form
    Hi all,

    I have been doing quite a lot of reading up on this forum and I have found all the information helpful. However , I am not sure if I have a case.

    Court claim issue date: 17th April. I have completed MCOL & acknowledge service.

    Background:
    -I Received a PCN 12th March 2017 for not entering the correct vehicle registration number.
    The issue date was the 22nd March 2017 (Within 14 day period allowed by the Act in order to invoke keeper liability)

    I didn't realise this until I looked at my ticket a few months later after having responded with them....stupid I know.

    -Never received my POPLA Verification code until May after which had expired. Apparently they sent one in the post of which I did not receive.

    - I have since received letters from CEL, ZZPS (all ignored), QDR solicitors etc...

    I have read up on a lot of defence examples but I haven't found any similar to my case which would help my draft defence.

    Any help at all on how I should approach this would be much appreciated.
    • Redx
    • By Redx 9th May 18, 8:28 PM
    • 18,525 Posts
    • 23,446 Thanks
    Redx
    if you read that NEWBIES sticky thread again you will see that most defences are generic because they contain the same legal arguments, and there are ready made examples you can easily adapt linked in there

    also look at recent CEL court case threads for more inspiration

    its copy , paste into word, adapt , then post on here for critique

    nothing difficult about it , but until you have done this you wont get meaningful comments

    it will also help if you post a link to your previous thread on this , which ideally is where you should have posted about this

    you can pm soolin or crabman and ask them to merge the threads into one , for clarity and continuity
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • kayjones83
    • By kayjones83 9th May 18, 8:46 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    DRAFT DEFENCE.

    I have removed a few parts.

    Please let me know what you think.


    I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

    I deny I am liable for the entirety of the claim on the following grounds:

    1. The Claim Form issued on the 17 March 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. 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 Direction 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.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a. There was no compliant Letter before County Court Claim under the Practice Direction.

    b. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

    c. The Schedule of Information is sparse of detailed information.

    d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

    iv. support the efficient management of proceedings that cannot be avoided.
    e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted


    4. 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 representatives 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 333.81 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.

    5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay 85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage, none of this applies in this material case.

    6. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

    a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

    b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

    c. Inadequate signs incapable of binding the driver ; this distinguishes this case from the Beavis case:

    i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
    ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
    iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
    iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    d. BPA CoP breaches this distinguishes this case from the Beavis case:
    i. The signs were not compliant in terms of the font size, lighting or positioning
    ii. The sum pursued exceeds 100
    iii. There is/was no compliant landowner contract

    7. No standing this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. is this applicable to all CEL defences? just checking as it's a cut n'paste, if this is applicable to my situation?

    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

    11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 14 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 17 April 2018.

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.


    STATEMENT OF TRUTH

    I confirm that the contents of this Defence are true to the best of my knowledge and recollection.
    • KeithP
    • By KeithP 9th May 18, 8:47 PM
    • 8,083 Posts
    • 7,955 Thanks
    KeithP
    Did you do the Acknowledgement of Service before Sunday 6th May?

    If so, you have until 4pm on Monday 21st May 2018 to file your Defence.

    If not, your Defence is already overdue.
    .
    • kayjones83
    • By kayjones83 9th May 18, 8:57 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    I did the Acknowledgement of Service on the 23rd April.
    • kayjones83
    • By kayjones83 9th May 18, 8:59 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Hi Keith,

    I did the Acknowledgement of Service on the 23rd April. Is my above Defence fine to send?
    • KeithP
    • By KeithP 9th May 18, 9:01 PM
    • 8,083 Posts
    • 7,955 Thanks
    KeithP
    Sorry, won't comment on that until the threads are merged.
    Haven't got the time to go searching for background info.

    Is it now four threads we have on this saga?

    Re-read this post:
    forums.moneysavingexpert.com/showthread.php?p=72705453#post72705453
    Last edited by KeithP; 09-05-2018 at 9:10 PM.
    .
    • kayjones83
    • By kayjones83 9th May 18, 9:10 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    I think only two threads. Not entirely sure on how to merge them, but will find out how to do that now.
    • KeithP
    • By KeithP 9th May 18, 9:12 PM
    • 8,083 Posts
    • 7,955 Thanks
    KeithP
    Plus two from May/June last year.
    .
    • Redx
    • By Redx 9th May 18, 9:18 PM
    • 18,525 Posts
    • 23,446 Thanks
    Redx
    I think only two threads. Not entirely sure on how to merge them, but will find out how to do that now.
    Originally posted by kayjones83
    I already told you how to do that task earlier

    stick to one thread if you want the best help (4 threads is ridiculous)

    only open another thread for an entirely different case
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • kayjones83
    • By kayjones83 9th May 18, 9:19 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Apologies-You're right!
    I have just messaged Soolin to help with merging them. Thanks for your help in the meantime.
    • soolin
    • By soolin 9th May 18, 9:28 PM
    • 60,607 Posts
    • 43,230 Thanks
    soolin
    Hopefully I've gathered them all into one place now.
    I'm the Board Guide for the Ebay Board , Charities Board , Dosh & Disability , Up Your Income and the Local MoneySaving-England board which means I volunteer to help get your forum questions answered and keep the forum running smoothly. However, do remember, board guides don't read every post. If you spot an illegal or inappropriate post then please report it to forumteam@moneysavingexpert.com (it's not part of my role to deal with this). Any views are mine and not the official line of MoneySavingExpert.com
    New to Forum? Guide
    • kayjones83
    • By kayjones83 9th May 18, 9:32 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Thanks for your help Soolin-It is now all in one place.

    Hi All,

    Apologies for the back and forth. Hopefully this will make it easier to understand my case.

    Again , any help would be much appreciated.
    • Coupon-mad
    • By Coupon-mad 9th May 18, 10:12 PM
    • 59,528 Posts
    • 72,705 Thanks
    Coupon-mad
    is this applicable to all CEL defences? just checking as it's a cut n'paste, if this is applicable to my situation?
    Yes, #7 is applicable to ALL defences v a PPC, so make sure you remove this question (ABOVE) from the original!

    Remove all of these (BELOW); a CEL claim is likely to resemble the Beavis case, IMHO, and I doubt they did send a LBC then reverted back to debt letters (and if they did, so what really?):
    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    10. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid
    Why not add the ICO CoP breach defence points from other APR defences? Long points added at the end of threads you'll find if you search ICO Code defence Privacy as keywords and change the default search to: 'SHOW POSTS'.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • kayjones83
    • By kayjones83 10th May 18, 10:36 AM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Thanks Coupon-mad for taking the time out to read my defence.


    I've made a few changes and added the ICO CoP breach defence points.


    Draft Defence-




    I am xxx, the defendant in this matter and the registered keeper of vehicle xxx.

    I deny I am liable for the entirety of the
    claim on the following grounds:

    1. The
    ClaimForm issued on the 17 March 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. 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 Direction 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.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a. There was no compliant Letter before County Court
    Claim under the Practice Direction.

    b. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

    c. The Schedule of Information is sparse of detailed information.

    d. The
    ClaimForm Particulars were extremely sparse and divulged no cause of action nor sufficient detail. Furthermore, the ClaimForm Particulars did not contain any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to take stock, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

    iv. support the efficient management of proceedings that cannot be avoided.
    e. The Defence therefore asks the Court to strike out the
    claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted


    3. 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 representatives 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 333.81 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.

    4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay 85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of
    claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage, none of this applies in this material case.

    5. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

    a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

    b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

    c. Inadequate signs incapable of binding the driver ; this distinguishes this case from the Beavis case:

    i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
    ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
    iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
    iv. The signs are believed to have no mention of any debt collection additional charge, which cannot
    form part of any alleged contract.
    v. The signs are believed to have no mention of any debt collection additional charge, which cannot
    form part of any alleged contract.

    d. BPA CoP breaches this distinguishes this case from the Beavis case:
    i. The signs were not compliant in terms of the font size, lighting or positioning
    ii. The sum pursued exceeds 100
    iii. There is/was no compliant landowner contract

    6. No standing this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a
    claim in their name which should be in the name of the landowner.


    7. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 14 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the incorrectly filed
    ClaimForm issued on 17 April 2018.

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of
    claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    The vague Particulars of
    Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
    16. 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 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.

    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 points #8 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).

    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 theSomerfield 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.

    STATEMENT OF TRUTH

    I confirm that the contents of this Defence are true to the best of my knowledge and recollection.



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    • Loadsofchildren123
    • By Loadsofchildren123 10th May 18, 11:50 AM
    • 2,224 Posts
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    Loadsofchildren123
    But isn't your case that you did pay and did comply with the T&Cs? That's what I read from your early posts.


    You then have a choice. You can't say the signage was inadequate and you didn't see it, if you are saying you did see it and complied with it.


    Can you prove you paid (eg did you keep the ticket?....probably not)?


    Have you seen at any stage their photographs showing that you weren't displaying a ticket or that you did but it wasn't valid because it didn't have the correct reg on it?


    If not, write to them NOW asking for it. Say you are entitled to it and it should have been provided at the pre-action phase and its absence is hampering your ability to defend the claim.


    If they won't produce it (which they probably won't) and you need to get your defence in, you then have to decide whether to just rely on signage, or whether to admit you saw the signs but argue they wording on them was incapable of forming a contract but, in the alternative, if there was any contract created then you did comply with it by purchasing an displaying a valid ticket.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • kayjones83
    • By kayjones83 10th May 18, 2:00 PM
    • 54 Posts
    • 16 Thanks
    kayjones83
    Hi @Loadsofchildren123


    Thanks for your response. Yes you are right, my case is that I paid but didn't comply with the T&Cs?


    I still have the ticket. The only photograph they sent to me was of me driving in and out the car park.


    Sounds like I'm going to have to admit that I saw the signage and argue the wording on them was incapable of forming a contract.


    Does this mean my draft defence will not be valid?
    • Loadsofchildren123
    • By Loadsofchildren123 10th May 18, 3:57 PM
    • 2,224 Posts
    • 3,728 Thanks
    Loadsofchildren123
    but if you paid, then you complied with the t&cs didn't you?


    what are they saying you did wrong? does the ticket contain the correct reg (if you had to enter it), did it cover the whole time you were parked?
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • Quentin
    • By Quentin 10th May 18, 4:23 PM
    • 36,345 Posts
    • 20,594 Thanks
    Quentin
    According to the OP the reg number was not inputted, and not shown on the purchased ticket
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