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  • FIRST POST
    • Notepad2608
    • By Notepad2608 30th Jun 17, 2:33 PM
    • 17Posts
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    Notepad2608
    CLAIM NOW RECEIVED - PCN, Wrong RinGo Code!
    • #1
    • 30th Jun 17, 2:33 PM
    CLAIM NOW RECEIVED - PCN, Wrong RinGo Code! 30th Jun 17 at 2:33 PM
    Good afternoon all.

    I’ll start by saying the info here is great. I wish I had come here as soon as I received the PCN but alas, I have been a little naive.

    This is my situation.

    I parked my car in a camera controlled car park managed by Excel Parking. I called the automated RinGo phone line to pay for an hours parking using my credit card. I left 30 minutes later. I received a PCN through the post via my employer as I drive a company car. I have, naively, acknowledged that I was driving the vehicle.

    So here is what happen. When calling RinGo I entered the car park identification code as 2006 instead of 2008. 2006 is the code for the immediately adjacent car park also managed by Excel with the same fees to park.

    My point is that it is obvious to anyone that I have paid for my parking. The RinGo records show that I paid only a minute or two after the photo on the PCN shows me arriving in car park 2008.

    Yes, I have made an error and entered the wrong car park ID code but my car can’t be in two places at once. It is clear that I intended to pay for parking in car park 2008 (where Excel’s photographs prove my car is parked).

    I have appealed to Excel Parking and the IAS and both have dismissed the appeal.

    This just feels wrong. Can anyone advise on my next move? (7 days left to pay)

    Thanks.
    Last edited by Notepad2608; 07-04-2018 at 5:30 PM. Reason: Claim Now Recievec
Page 1
    • Quentin
    • By Quentin 30th Jun 17, 2:44 PM
    • 37,525 Posts
    • 21,736 Thanks
    Quentin
    • #2
    • 30th Jun 17, 2:44 PM
    • #2
    • 30th Jun 17, 2:44 PM
    See the newbies FAQ thread near the top of the forum

    You are now in the debt collectors stage

    Wait and see if they proceed to court action and come back then for advice on your defence

    They have 6 years to take legal action
    • Coupon-mad
    • By Coupon-mad 1st Jul 17, 11:23 PM
    • 62,736 Posts
    • 75,673 Thanks
    Coupon-mad
    • #3
    • 1st Jul 17, 11:23 PM
    • #3
    • 1st Jul 17, 11:23 PM
    Can anyone advise on my next move? (7 days left to pay).
    No, there is the rest of your life not to pay, stop reading their artificial deadlines and 'scary' letters. Of course you lost at the IAS, it's considered a kangaroo court - biased in favour of the parking firm scum - and none of us would have recommended you even touch it. If you'd come here earlier you'd be sitting tight and ignoring them right now.


    I received a PCN through the post via my employer as I drive a company car. I have, naively, acknowledged that I was driving the vehicle.
    Not a bad thing, as your employer is therefore out of the equation and this is yours to ignore, unless they try a small claim.

    Excel use BW Legal and the cases are defendable, we've never seen any poster lose a well-defended case when coached here, ever since these firms started jumping on the court bandwagon about a year ago.

    Read a number of threads about Excel/BW Legal court claims and how people won.

    And read the NEWBIES thread post #2, all about court defence stage. This is NOT something to pay. What you have described is a decent argument in court, that you made 'reasonable endeavours' to pay for the right car park and Excel know where your car was from their own evidence, so they KNOW you paid for parking.

    There will be other standard arguments which is why I suggest you now read other Excel/BW Legal court defence threads, whilst you are not stressing out about getting a court claim in the post.

    Forewarned is forearmed, come back when the claim arrives. No big deal, no risk as long as you don't ignore it.
    • Notepad2608
    • By Notepad2608 3rd Jul 17, 1:42 PM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    • #4
    • 3rd Jul 17, 1:42 PM
    • #4
    • 3rd Jul 17, 1:42 PM
    Thanks Coupon-Mad and Quentin.

    Waiting and researching was what I thought too. Wish I came here sooner, I've already recommended the forum to a colleague whose brother got a PCN last week.


    Reading the posts, I can’t quite believe how prolific these chancers are.

    Great advice, thanks again. I shall return if a claim is sent.
    • hoohoo
    • By hoohoo 3rd Jul 17, 2:07 PM
    • 1,679 Posts
    • 3,118 Thanks
    hoohoo
    • #5
    • 3rd Jul 17, 2:07 PM
    • #5
    • 3rd Jul 17, 2:07 PM
    This would be a distance contract since you entered into the contract by phone. Excel don't obey the distance contract rules, so come back for a defence if they do do court.

    See The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.
    Dedicated to driving up standards in parking
    • Notepad2608
    • By Notepad2608 9th Jul 17, 12:24 PM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    • #6
    • 9th Jul 17, 12:24 PM
    • #6
    • 9th Jul 17, 12:24 PM
    Thanks hoohoo i will doo.

    If they don't obey distance contract rules then hopefully they will cut their losses and not bother taking it further. We shall see.
    • KeithP
    • By KeithP 5th Apr 18, 6:34 PM
    • 9,894 Posts
    • 10,208 Thanks
    KeithP
    • #7
    • 5th Apr 18, 6:34 PM
    • #7
    • 5th Apr 18, 6:34 PM
    Good afternoon all.

    This relates to a post from 30th June 2017. PNC, Wrong RinGo Code.
    Originally posted by Notepad2608
    Can I suggest you post your above post onto your existing thread where all the background information is already?

    Please then return to this thread and edit your opening post to replace the text with something like:

    Duplicate thread. Please ignore.
    .
    • Umkomaas
    • By Umkomaas 5th Apr 18, 6:37 PM
    • 19,813 Posts
    • 31,287 Thanks
    Umkomaas
    • #8
    • 5th Apr 18, 6:37 PM
    • #8
    • 5th Apr 18, 6:37 PM
    The claimant is Vehicle Control Services Ltd (Excel Parking) and the particulars of the claim state.
    Which one is it? They are separate companies? Is one suing you, but relying on the other's signs/paperwork - we've seen it before?

    But if there is another thread covering the background to this, you need to get this merged with it. Please PM a board guide (bottom r/h side of the thread list page to link to them) to activate.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Notepad2608
    • By Notepad2608 5th Apr 18, 9:34 PM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    • #9
    • 5th Apr 18, 9:34 PM
    Board Guide contacted....
    • #9
    • 5th Apr 18, 9:34 PM
    Which one is it? They are separate companies? Is one suing you, but relying on the other's signs/paperwork - we've seen it before?

    But if there is another thread covering the background to this, you need to get this merged with it. Please PM a board guide (bottom r/h side of the thread list page to link to them) to activate.
    Originally posted by Umkomaas
    Thanks for the quick response.

    I have PM Crabman to ask for this and the original post to be linked.

    RE: VCS or Excel. I have checked and all correspondence has been from Vehicle Control Services. However, all signage in the car park shows Excel Paring Services as does my credit card statement.

    It is Vehicle Control Services who are bringing the claim.
    • Umkomaas
    • By Umkomaas 5th Apr 18, 9:38 PM
    • 19,813 Posts
    • 31,287 Thanks
    Umkomaas
    Thanks for the quick response.

    I have PM Crabman to ask for this and the original post to be linked.

    RE: VCS or Excel. I have checked and all correspondence has been from Vehicle Control Services. However, all signage in the car park shows Excel Paring Services as does my credit card statement.

    It is Vehicle Control Services who are bringing the claim.
    Originally posted by Notepad2608
    When you come to your defence, this will be a major issue in your favour.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Crabman
    • By Crabman 7th Apr 18, 12:52 PM
    • 9,708 Posts
    • 7,142 Thanks
    Crabman
    Threads have been merged.
    I'm a Board Guide on the Savings & Investments, ISAs & Tax-free Savings, Public Transport & Cycling, Motoring and Parking Fines, Tickets & Parking Boards. I volunteer to help get your forum questions answered and keep the forum running smoothly. Board Guides are not moderators & don't read every post. If you spot a contentious or illegal post then please report it to forumteam@moneysavingexpert.com (it's not part of my role to deal with this). Views are mine and not the official line of MoneySavingExpert.com

    • Notepad2608
    • By Notepad2608 7th Apr 18, 5:38 PM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    Good afternoon all.

    I am now at the point where court proceedings have begun. I have sent an acknowledgment of service and a defence now needs to be submitted by 16th April.

    The claimant is Vehicle Control Services Ltd and the particulars of the claim state.

    "The cause of action is a breach of contract for failing to adhere to the Terms and Conditions of entering private land."

    They go on to say that the T&Cs are displayed on car park signage.

    Defence:

    1) The defendant cannot be considered bound by any contract with VCS as this would be a distance contract and VCS have not complied with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Namely, VCS didn!!!8217;t supply or make available all of the applicable information listed in Schedule 2 of the above regulations.

    These regs are quite specific. VCS meet most of the requirements but fail to display an address on their signage. They only display company name, VAT# and registered company#. They do give a help line phone number though. Would this be considered as "making available"?


    2) Section 40 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 states that a consumers express consent is required, prior to entering into a contract, for any additional charges to be made by the trader. I would argue that simply including the statement below on the car park signage is in no way express permission from consumers. It is more akin to a pre-checked tick box, something the regulations forbid.

    "By parking on this private land you agree to pay a Parking Charge Notice (PCN) for any action breaching the terms and conditions."

    Am I scraping the barrel with this one?

    3) The Protection of Freedom of Information Act 2012 (Schedule 4) states that only the owner or occupier of the land or those authorised by the owner or occupier of the land can form a contract with the driver. At no point has it been made clear who is the owner/occupier of the land at Albert street car park or, if it is not the claimant, if VCS have the appropriate authority to form a contract with the defendant.

    4) Should the court find that a binding contract did exist between VCS and the defendant then it is denied that a breach of the signed T&Cs occurred for the following reasons:

    The claim is based on ANPR photographs of my arrival and departure on the car park and therefore the only 3 of the T&Cs or "Parking Charge Notices will be issued for the following" can possibly apply. These are.
    a) Not making payment within 10 minutes of arriving.
    b) Overstaying the expiry time.
    c) Not entering full and accurate registration number.



    a) The NTK issued by VCS shows the arrival and departure of the defendant's vehicle at Albert Street car park at 16:04 and 16:35 respectively on the 5th April 2017. This is by means of ANPR photographs. However, A payment of £1:40 (fee for 1 hours parking) was made via the RinGo pay by phone service at 16:09.

    The following evidence supports this:

    VCS's own RinGo records show a call made, payment taken and parking action started at 16:09.

    A screen shot from the defendant's mobile phone shows a call made to RinGo at 16:06.

    The defendant's credit card statement shows that Excel Parking Services charged £1:40 on the day in question. (Excel are the most prominent company on the signs, large logo etc. However both Excel and VCS are in the detail of the sign)

    b) On the 5th April 2017 £1:40 was the fee for 1 hours parking. The ANPR records show the vehical was parked for 31 minutes.

    c) The RinGo record mentioned above shows the registration entered accurately and in full.

    d) All other T&Cs are not applicable.

    I am choosing to ignore the fact that I entered the wrong code when using the pay by phone service as it seems an irrelevant point in the context of the T&Cs i.e. they do not specify that the driver has to provide their location.

    Statement of truth.

    Once again any advice you can offer would be most welcome. Thanks.
    • Coupon-mad
    • By Coupon-mad 8th Apr 18, 12:28 AM
    • 62,736 Posts
    • 75,673 Thanks
    Coupon-mad
    Just copying bargepole's reply from your other thread:

    That Defence is very poor IMHO.

    Paras. 1) and 2) about the CCR 2013 will go nowhere with most Judges. Get rid of them.

    Para. 4) is the key winning point, and should be the first para. that the Judge reads, without having to wade through a load of irrelevant waffle preceding it.

    You paid the correct fee for parking, and accidentally entered the wrong location code. You have the proof that you paid via RingGo, and if the requirement to enter the correct location code was not expressly stated on the sign, you did not breach any of their terms.

    At worst, it was an honest mistake, which should be treated as de minimis.
    Originally posted by bargepole
    I agree with bargepole, this needs to be said very clearly at the start of your defence:

    When calling RinGo the Defendant entered the car park identification code as 2006 instead of 2008. 2006 is the code for the immediately adjacent car park also managed by Excel with the same fees to park...
    Add the wording used by bargepole above in bold, and add the sort of defence wording you find when you search the forum for Jolley v Carmel (cite that case like other people have, as you'll see in your search results).

    I have just come up with a detailed defence point about ANPR and DPA non-compliance, see the points I wrote for this person, after these 2 links (which YOU need to read too):

    http://www.britishparking.co.uk/News/excessive-use-of-anpr-cameras-for-enforcement

    https://ico.org.uk/media/for-organisations/documents/1542/cctv-code-of-practice.pdf

    http://forums.moneysavingexpert.com/showthread.php?p=74129198#post74129198

    You would need to change some of it from BPA to IPC, of course, you can do that yourself.

    How come you have shown us a VCS defence, yet your OP said the PPC was Excel? This is VERY important if this was Albert Street, and this is why:

    http://parking-prankster.blogspot.co.uk/2017/01/vcs-discontinue-another-albert-street.html
    ''VCS did eventually get round to changing the signs. The Prankster is not sure of the exact date. However, all motorists taken to court by VCS for alleged contraventions at this car park should raise the point that the signage is not in the name of VCS, and so there can be no contract with them, and should also consider a counterclaim for data protection breaches''.
    The ANPR records show the vehical was parked for 31 minutes.
    Wrong, ANPR camera images do not even show a vehicle parked, of course, just ''on site'' in moving traffic at the entrance. And you need to check your defence for typos, like vehical (should be 'vehicle').

    Carry on at all times on this thread, now, no new threads even later on please!

    Show us your next draft, and tell us:

    - who the claim is from
    - who the first PCN was from?
    - whose name was on the signs at the time, do you know?

    • Notepad2608
    • By Notepad2608 9th Apr 18, 7:08 AM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    Thanks Coupon-mad, great work.

    Apologies, I wasn't as precise as I needed to be in my original post. VCS sent the first PCN and are the Claimant.

    Concerning the signs, I went back to Albert Street car park yesterday to have a good look at them and yes, they have been changed since Parking Pranksters (PP) blog. The new signs have been in place since at least September 2015.

    They are very similar to the one shown in PP's blog, there is still a large prominent Excel Parking logo in the top right corner for example. Unfortunately though, the text in the blue box now reads:

    "By parking on this private car park you are entering into a contract with Vehicle Control Services Ltd and agree to pay a Parking Charge Notice for any action breaching the terms and conditions. Any vehicle/driver remaining on this private land 10 minutes after entry is subject to and agrees in full to the Terms and Conditions."

    However, I did see the following statement on the car park entrance signs:

    "Excel Parking Services Ltd Manage and Control This Private Car Park"

    Could this be used to challenge VCS's right to form a contract or should I leave this particular defence point given the change in signage?

    Also, while I was there I begrudgingly paid for a small period of parking using the RinGo phone line but this time using the correct code for Albert Street. Excel Parking Services appeared on my online banking moments.

    2nd draft defence to follow tonight.

    Thanks.
    • Coupon-mad
    • By Coupon-mad 9th Apr 18, 6:55 PM
    • 62,736 Posts
    • 75,673 Thanks
    Coupon-mad
    However, I did see the following statement on the car park entrance signs:

    "Excel Parking Services Ltd Manage and Control This Private Car Park"
    Get photos now! You don't submit photos with a defence, but get them ready for WS stage, and refer to those signs in your defence by saying that ''the Defendant went to visit the site and...'' (do not say 'went back again'!)

    Could this be used to challenge VCS's right to form a contract or should I leave this particular defence point given the change in signage?
    Use it. The claim is VCs' to prove on the balance of probabilities, not yours to prove. Make it very difficult for them with what you say.

    Also, while I was there I begrudgingly paid for a small period of parking using the RinGo phone line but this time using the correct code for Albert Street. Excel Parking Services appeared on my online banking moments.
    Refer to that as well in your defence! Use it all, that is solid evidence that the current set up still mixes VCS (on some signs) with Excel (the creditor referred to by the RingGo system, and on the entrance sign). It is the burden of the claim to show that no ambiguity existed on the material date. I suspect it did, given the Prankster's report from pre-2015, and your update now.

    If they can't get it right now, I doubt it was ever clear.

    It is very useful to know that the banking record shows the creditor as Excel at this car park, thankyou!
    • IamEmanresu
    • By IamEmanresu 10th Apr 18, 5:33 AM
    • 3,664 Posts
    • 5,995 Thanks
    IamEmanresu
    Could this be used to challenge VCS's right to form a contract or should I leave this particular defence point given the change in signage?
    Why not invite them to go to court to prove it. Seems an odd and somewhat twisted version of a contract if the "small print" supersedes the larger print.

    There are also a number of other legal "tests" which would be very interesting to check - one which would IMHO involve porridge.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • Johnersh
    • By Johnersh 10th Apr 18, 6:09 AM
    • 1,183 Posts
    • 2,246 Thanks
    Johnersh
    You could try that to argue the contract was with Excel or, in the alternative, if the court finds that the contract was with VCS, that the instruction of one is ostensibly the same as the instruction of the other, because:

    1. Both names on the sign;
    2. Excel take the payment even if for the purposes of the claim, VCS bring the action;
    3. Both share a registered address;
    4. Both share directors; and
    5. Any reasonable consumer in the circumstances wouldn't know which company they were dealing with.

    This of course all comes back to: you paid; there is no loss.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Notepad2608
    • By Notepad2608 10th Apr 18, 11:50 PM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    Draft Defence 2
    It is very useful to know that the banking record shows the creditor as Excel at this car park, thankyou!
    Originally posted by Coupon-mad
    No problem. It’s nice to offer a little bit back.

    I’ve added your suggestions to my defence and I took lots and lots of photos.

    Apologies up front for spelling and grammar. English has never been my strong point but I have an expert on hand to proof read my final defence.

    Defence:

    1) It is denied that a breach of the signed T&Cs occurred for the following reasons:

    i) The defendant used the RinGo pay by phone service to pay for 1 hours parking at 16:09 on the 5th April 2017. During this call the defendant entered the car park identification code as 2886 instead of 2880. 2886 is the code for the immediately adjacent Fazeley Street car park, also managed by Excel Parking Services and with the same fees to park.

    2880/2886 and 2008/2006. Another example of lack of precision in my original post.

    The defendant has proof that the RinGo service was used to pay and as the requirement to enter the correct location code is not expressly stated on the signed T&Cs then the defendant is not in breach of said T&Cs.

    Furthermore, the defendant made “reasonable endeavours” to comply with the signed contractual terms and therefore, as was held in Jolley v Carmel Ltd [2000] 2 – EGLR – 154, should not be penalised for breaching them.

    At worst, this was an honest mistake, which should be treated as de minimis.

    ii) The ANPR records show the defendants vehicle arriving and leaving the car park at 16:04 and 16:35 respectively. A duration of 31 minutes.

    iii) VCS’s own RinGo records show the vehicle registration number entered accurately and in full.

    iv) All other T&Cs are not applicable

    2) VCS do not have the authority to enter into a contract with the defendant as they are neither the manager of Albert Street car park nor the creditor for payments made using the RinGo pay by phone service.

    The defendant has proof that the creditor for payments made via RinGo, when using the correct code for Albert Street car park (2880), is Excel Parking Services.

    On visiting the site the defendant also noted the car park entrance signs which clearly state:

    “Excel Parking Services Ltd Manage and Control This Private Car Park.”

    3) The Protection of Freedom of Information Act 2012 (Schedule 4) states that only the owner or occupier of the land or those authorised by the owner or occupier of the land can form a contract with the driver. At no point has it been made clear who is the owner/occupier of the land at Albert street car park or, if it is not the claimant, if VCS have the appropriate authority to form a contract with the defendant.

    4) 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 Independent Parking Committee 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

    Should I omit iv? There are signs that say that ANPR data will be used for the purposes of enforcing the T&Cs.

    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

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

    4.2) In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on the British Parking Association 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.

    5) 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.''

    5.1) 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.''

    5.2) Even if there was a purported contract between the defendant 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 #4 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).

    5.3) 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.

    5.4) 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.

    5.5) 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 British Parking Assosiation 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 IPC 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.

    5.6) 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.

    5.7) 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 16 and 17 above were argued.

    Do I need to reference Beavis in full here as I haven’t referenced the case earlier?

    Statement of truth.

    What do you think? And as ever, huge thanks.
    • Coupon-mad
    • By Coupon-mad 11th Apr 18, 12:03 AM
    • 62,736 Posts
    • 75,673 Thanks
    Coupon-mad
    Independent Parking Committee
    should be
    International Parking Community
    (they changed their name a year or more ago).

    3) The Protection of Freedom of Information Act 2012 (Schedule 4)
    Check again, the POFA is not called that!!


    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

    Should I omit iv? There are signs that say that ANPR data will be used for the purposes of enforcing the T&Cs.
    Yes, omit (iv) or change it to:

    (iv) Failure to protect the Defendant's data as required under the DVLA KADOE contract, which it is apparent has been unlawfully shared between two different companies, Excel Parking Services Ltd and Vehicle Control Services Ltd with no clear indication as to which of those separate legal entities might be the 'creditor' under the POFA 2012 and the data controller.

    ...and edit (iii) as shown because it isn't a retail car park joined to shops.


    Do I need to reference Beavis in full here as I haven!!!8217;t referenced the case earlier?
    Yes - the parties being shown in italics - and add a bit:
    This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, where none of the issues in the Defendant's points 4 and 5 16 and 17 above were argued, and the facts were completely different.

    Statement of truth.
    Make sure this is an actual statement of truth not just those 3 words!
    Last edited by Coupon-mad; 11-04-2018 at 12:09 AM.
    • Notepad2608
    • By Notepad2608 13th Apr 18, 12:27 AM
    • 17 Posts
    • 5 Thanks
    Notepad2608
    Many thanks Coupon-mad. I can't tell you how much more positive I feel about going to court after receiving your advice. And thank you to all others who have contributed as well. It is very much appreciated.

    I will submit the defence tomorrow and keep you posted on how things go.

    Just one more question. To what extent will I need to know about the cases I have referenced? For example, am I likely to have to debate the relevance of the cases to mine?

    Oh, one last thing. Obviously you all have far more experience of this than I do. So, in your experience, what do you think my chances of winning are?

    Thanks again.
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