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  • FIRST POST
    • Stefanoka23
    • By Stefanoka23 28th Mar 18, 12:09 PM
    • 6Posts
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    Stefanoka23
    Civil Enforcement have issued a Claim Form! HELP!
    • #1
    • 28th Mar 18, 12:09 PM
    Civil Enforcement have issued a Claim Form! HELP! 28th Mar 18 at 12:09 PM
    Hi guys,
    I'm new to this forum, so please be gentle. Also excuse me if this matter has been touched on already but I really need advice on what to do with these cowboys.

    Most recent letter the party received amidst 5 other threatening letters from Civil Enforcement, is a Claim Form from the County Court asking either to settle the final amount of a few hundred pounds - pay part of the fee they think they're liable for - or make a counter claim against them.

    They're not willing to give up at this stage just because they are being threatened with a court stamp. They have read and heard that CEL are liable to accept the initial cost that the driver should and would have paid if the circumstances had allowed them. The circumstances at this car park are: 2.5 hours parking free, after that, 4 for 24 hours. With the parking eye sensors, the time in was clocked at 08.32 and clocked out at 21.21. Is it possible for the driver to offer them the initial amount that the parking WOULD have cost them, instead of this lovely number they plucked out of the sky of a few hundred quid?! The driver has heard they do not turn up to court most times and if they do go with the counter claim/defence instead of an offered 4 it takes them 28 days to reply and it would cost them to do so and so may pull out?

    Basically - ADVICE PLEASE! The driver has a few days left to get back to the court, and they can't ignore this. But they're really wanting to show these guys down.
    FYI - Civil Enforcement have been useless, never replying to voicemails, impossible to get hold of, in fact the driver's never spoken to anyone!

    Thanks for reading and I look forward to hearing what you have to offer
    Last edited by Stefanoka23; 03-04-2018 at 12:48 PM. Reason: to change details
Page 1
    • Loadsofchildren123
    • By Loadsofchildren123 28th Mar 18, 12:15 PM
    • 1,995 Posts
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    Loadsofchildren123
    • #2
    • 28th Mar 18, 12:15 PM
    • #2
    • 28th Mar 18, 12:15 PM
    Firstly, read this and be glad you got Civil Enforcement Ltd (CEL)


    http://forums.moneysavingexpert.com/showpost.php?p=74075959&postcount=18
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 28th Mar 18, 12:22 PM
    • 1,995 Posts
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    Loadsofchildren123
    • #3
    • 28th Mar 18, 12:22 PM
    • #3
    • 28th Mar 18, 12:22 PM
    Hi guys,
    I'm new to this forum, so please be gentle. Also excuse me if this matter has been touched on already but I really need advice on what to do with these cowboys. First thing to do is click on and read the Newbies thread. If you can't work out how to do this, go back to the page that has all the threads posted in this forum, it's in the first ones listed.

    Most recent letter I've received amidst 5 other threatening letters from Civil Enforcement, is a Claim Form from the County Court asking either to settle the final amount of 236.00 - pay part of the fee I think I'm liable for - or make a counter claim against them.

    I'm not willing to give up at this stage just because they threaten me with a court stamp. I have read and heard that they are liable to accept the initial cost that I should and would have paid if the circumstances had allowed me. Not true I'm afraid. The claim is for a breach of contract (the contract being we offer you parking on the terms displayed on our signage (which include that you have to pay a large sum of money for failing to comply), you accept it by the act of parking). They say you've breached the terms and are therefore now liable for the extortionate sum displayed on the signage (usually 100) and then they add on all sorts of admin charges. The circumstances at this car park are: 2.5 hours parking free, after that, 4 for 24 hours. With the parking eye sensors, driver's time in was clocked at 09.32 and clocked out at 22.10. So therefore the driver feels they can meet them by offering the 4 instead of this lovely number they plucked out of the sky of 236!They won't accept it, I wouldn't bother I have heard they do not turn up to court most times see my previous post - they only do this if you defend properly and if I do go with the counter claim instead of the offered 4 it takes them 28 days to reply and it would cost them to do so and so may pull out? what counterclaim do you think you have?

    Basically - ADVICE PLEASE! I have a few days left to get back to the court, and I can't ignore this. But I'm really wanting to show these guys down. read newbies walk through of court proceedings, it tells you what to do and when
    FYI - the driver as actually parking to catch a train to purchase a new van, and it all would have have taken less than the 2.5 hours. However the van decided to break down and the driver could not get back to the car until this point. they won't care about this, it's not a valid defence Civil Enforcement have been useless, never replying to my voicemails, impossible to get hold of, in fact I've never spoken to anyone!

    Thanks for reading and I look forward to hearing what you have to offer
    Originally posted by Stefanoka23
    Have you identified the driver?


    If not, did CEL serve the NtK in time? The NtK and the time limits are all explained in the newbies thread and in countless other threads. There are different time limits depending on whether there was a windscreen ticket or not.


    If the NtK was out of time then you can argue the NtK was not validly served and so you cannot be liable as keeper of the car. And neither can you be liable as driver because they can't prove you were driving.


    Please edit your first post to remove ALL reference to who was driving.


    There may also be issues with the signage (it may not have offered a contract). If you're talking about a railway car park it may be that byelaws apply which makes these proceedings invalid.


    You may have various defences.


    You need to do this properly to see off CEL. But first you have to get through the defence and the witness statement stage, so be prepared because this will go on for months.
    Last edited by Loadsofchildren123; 28-03-2018 at 3:26 PM.
    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.
    • The Deep
    • By The Deep 28th Mar 18, 12:26 PM
    • 9,064 Posts
    • 8,761 Thanks
    The Deep
    • #4
    • 28th Mar 18, 12:26 PM
    • #4
    • 28th Mar 18, 12:26 PM
    As you say, the 236 has been plucked out of the ether. Even if they did pay all the court fees, which they have not, and won in court, they would be unlikely to be awarded more than 200. You are also right in saying that they frequently do not turn up for the hearing.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • Stefanoka23
    • By Stefanoka23 28th Mar 18, 1:23 PM
    • 6 Posts
    • 4 Thanks
    Stefanoka23
    • #5
    • 28th Mar 18, 1:23 PM
    • #5
    • 28th Mar 18, 1:23 PM
    Thanks guys.
    I Never explained I was the driver. Just sent me letters to say I owe them money, and not explaining that they have heard from me (the letter sent was not recorded unfortunately). Never ring back after leaving voicemails. I have edited the post, however it doesn't change the original post which you have quoted.

    Also it looks like I am lucky I have CEL, you are right.

    What I need to know is how to produce a strong enough, well written claim to show them I'm in business. I will try to search through the forum for templates already used, unless anyone knows where they are already and can navigate me to them? Also out of the the 3 options available to me, should i just go for the Defence and counterclaim? First time I've ever done this ....
    Last edited by Stefanoka23; 28-03-2018 at 1:25 PM.
    • The Deep
    • By The Deep 28th Mar 18, 1:30 PM
    • 9,064 Posts
    • 8,761 Thanks
    The Deep
    • #6
    • 28th Mar 18, 1:30 PM
    • #6
    • 28th Mar 18, 1:30 PM
    What would you counterclaim for? You did underpay/overstay. They appear not to have misused you data.
    You never know how far you can go until you go too far.
    • Stefanoka23
    • By Stefanoka23 28th Mar 18, 1:36 PM
    • 6 Posts
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    Stefanoka23
    • #7
    • 28th Mar 18, 1:36 PM
    • #7
    • 28th Mar 18, 1:36 PM
    My vehicle broke down, I couldn't get back to my car in time of the allowed 2.5 hours parking. Thats what happened. They ignored all my aims of contact and kept sending me letters. So what, I owe them 325.17 now? I am willing to pay the amount of stay that I was there of which I have heard they are liable to accept, but as others have said, they won't buy any of these. The signs do say if you breach the contract then you're liable to 100 plus fee's. True. So what am I to do, hands up and pay them and just move on?
    • Umkomaas
    • By Umkomaas 28th Mar 18, 1:48 PM
    • 17,322 Posts
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    Umkomaas
    • #8
    • 28th Mar 18, 1:48 PM
    • #8
    • 28th Mar 18, 1:48 PM
    So what am I to do, hands up and pay them and just move on?
    Nope, you defend the claim (the NEWBIES FAQ sticky, post #2 shows you how to do this) and play the game up to the wire (checking each stage with this forum if you wish) and see CEL back down and discontinue.

    Forget 'counterclaim' (it's distracting you) - you seem to have no basis to issue one. Being incandescent about the behaviour of the PPC, hoping for a chance to unload a rant to the Judge, won't cut the mustard in terms of a counterclaim.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • nosferatu1001
    • By nosferatu1001 28th Mar 18, 2:43 PM
    • 2,281 Posts
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    nosferatu1001
    • #9
    • 28th Mar 18, 2:43 PM
    • #9
    • 28th Mar 18, 2:43 PM
    Frustration of Contract is the magic phrase
    No monies from a breached contract can be due if the contract was breached due to frustration. None.
    • Loadsofchildren123
    • By Loadsofchildren123 28th Mar 18, 3:26 PM
    • 1,995 Posts
    • 3,327 Thanks
    Loadsofchildren123
    Thanks guys.
    I Never explained I was the driver. Just sent me letters to say I owe them money, and not explaining that they have heard from me (the letter sent was not recorded unfortunately). Never ring back after leaving voicemails. I have edited the post, however it doesn't change the original post which you have quoted.

    Also it looks like I am lucky I have CEL, you are right.

    What I need to know is how to produce a strong enough, well written claim to show them I'm in business. I will try to search through the forum for templates already used, unless anyone knows where they are already and can navigate me to them? Also out of the the 3 options available to me, should i just go for the Defence and counterclaim? First time I've ever done this ....
    Originally posted by Stefanoka23
    I've amended my reply to remove driver references
    You need to do the same. Just refer to the driver in the third person.
    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.
    • Loadsofchildren123
    • By Loadsofchildren123 28th Mar 18, 3:33 PM
    • 1,995 Posts
    • 3,327 Thanks
    Loadsofchildren123
    I wonder if force majeure is a runner here (same sort of point raised by nosferatu)


    https://en.wikipedia.org/wiki/Force_majeure


    In which case forget concealing the driver's id and produce evidence of the one-way ticket, the purchase of the van and its breakdown. Offer (without prejudice) the 4 as a goodwill gesture with, say, 10 on top for admin fees. Say you've tried again and again to discuss this with them (and say the dates you wrote and called and left voicemails) but nobody ever contacts you back.


    They'll say no. Just defend, defend, defend and CEL will back out at the last minute.


    Making an offer is optional. Many posters will tell you not to do it but I think with a force majeure issue it seems fair to offer to pay for the parking period even if it was beyond the driver's control.
    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.
    • Coupon-mad
    • By Coupon-mad 29th Mar 18, 12:47 AM
    • 56,275 Posts
    • 69,906 Thanks
    Coupon-mad
    My vehicle broke down, I couldn't get back to my car in time of the allowed 2.5 hours parking. Thats what happened. They ignored all my aims of contact and kept sending me letters. So what, I owe them 325.17 now?

    So what am I to do, hands up and pay them and just move on?
    Originally posted by Stefanoka23
    No-one said that, and we've shown you that CEL always discontinue when they see one of our usual CEL defences, before any hearing. No risk, no CCJ, no costs, nothing. Scam over before the Summer!

    What's not to like, or unclear, about the guidance from this forum that gets this quashed? Simply copy another recent CEL one, there's on linked in the NEWBIES thread, can't get much easier, it also shows newbies in pictures how to do the simple first step of the AOS.

    Easy as anything.
    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.

    • Stefanoka23
    • By Stefanoka23 29th Mar 18, 11:03 PM
    • 6 Posts
    • 4 Thanks
    Stefanoka23
    Thanks for the replies guys. I will look at the newbies thread and go forward with my defence and will keep you updated. Just need to decide which defence is my best case - but I'll see the options on the thread mentioned. Thank you.
    • Stefanoka23
    • By Stefanoka23 16th Apr 18, 11:02 PM
    • 6 Posts
    • 4 Thanks
    Stefanoka23
    Hi guys,

    I've done some research and brought this together, with a hefty bit of cut and paste, I presume this is ok? I have until Wednesday to submit my defence, being 33 days from the issue date of my claim form. The parking in question uses ANPR so found the post on ANPR's quite suited. I never received a NTK, just a letter before action, with the Beavis case attached, never received anything before 14 days from the 'crime'. Please inform me of anything! Thanks x

    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 16 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 !!!8220;Civil Enforcement Limited!!!8221; as the Claimant!!!8217;s 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 !!!8220;Letter before County Court Claim!!!8221; under the Practice Direction.

    b. This is a speculative serial litigant, issuing a large number !!!8220;draft particulars!!!8221;. 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. The Defendant has no idea what the claim is about, why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the !!!8220;Letter before County Court Claim!!!8221; 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 !!!8221;take stock!!!8221; 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 failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (!!!8220;POFA 2012!!!8221. Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict !!!8220;keeper liability!!!8221; provisions:

    The Claimant did not comply with POFA 2012 and give the registered keeper opportunity, at any point, to identify the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. No ticket was left on the windscreen and no notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice entitled !!!8220;Parking Charge Notice!!!8221; which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges.

    Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert, stated that !!!8220;However keeper information is obtained, there is no reasonable presumption in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.!!!8221; Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and !!!8216;relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible 250.17 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.

    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 !!!8220;legal representatives!!!8221; 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 250.17. 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 un-denied 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 !!!8220;contract!!!8221;, 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 !!!8220;compensation!!!8221; 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.

    d. BPA CoP breaches !!!8211; 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 that should be in the name of the landowner.

    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 15 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.

    12 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

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

    13.2. 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.

    14. 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.''

    14.1. 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.''

    14.2. 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#16 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).

    14.3. 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.

    14.4. 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.

    14.5. 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, inSomerfield, 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.

    14.6. 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.

    14.7. 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.


    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 16 March 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.
    • Coupon-mad
    • By Coupon-mad 16th Apr 18, 11:11 PM
    • 56,275 Posts
    • 69,906 Thanks
    Coupon-mad
    Go for it! Looks good, and in the end you will win v CEL, unlikely to have any court hearing.

    I know it makes defences long but I reckon the ICO 'DPA breaches re ANPR' points are so topical right now they are worth including in defences where ANPR was used.

    So, now make sure it has the usual headings for the Court to see who is who and what the claim number is, and head it DEFENCE.

    Then print it, sign & date it, scan it back in and attach that signed PDF to an email you send to the CCBCAQ email (Google it), with the word DEFENCE & the Claim Number, in the subject line.

    Then be ready to ignore CEL's usual letter offering to 'settle' (see other CEL claim threads) but be ready for the next stages, DQ stage is explained in the NEWBIES thread by bargepole in a link.
    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.

    • Stefanoka23
    • By Stefanoka23 16th Apr 18, 11:16 PM
    • 6 Posts
    • 4 Thanks
    Stefanoka23
    Great stuff, thanks so much, I'll get on and do that now, weight off my shoulders. This has given me fire in my belly!
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