Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • ticketfight
    • By ticketfight 28th Mar 18, 7:08 PM
    • 6Posts
    • 2Thanks
    ticketfight
    Help urgent ref court letter (bw legal)
    • #1
    • 28th Mar 18, 7:08 PM
    Help urgent ref court letter (bw legal) 28th Mar 18 at 7:08 PM
    The registered keeper of a vehicle has received claim form from the court. We have done AOS as post was bad and 14 days is up now before able to post here.
    Vehicle was in a free parking area (alleged overstay) the driver of the vehicle was unaware there was a time limit and spent the entire time on said shopping site, including restaurant to eat dinner with 2 under 10s.
    I am lost as to how to help them further with defence and i have read newbies thread over and over but unsure how to proceed now. Can someone help us we now only have 13 days to pen a defence.
    Kind regards helpful friend.
Page 1
    • KeithP
    • By KeithP 28th Mar 18, 7:45 PM
    • 10,628 Posts
    • 11,017 Thanks
    KeithP
    • #2
    • 28th Mar 18, 7:45 PM
    • #2
    • 28th Mar 18, 7:45 PM
    What is the date of issue on the Claim Form?

    Who is the parking company?

    Post #2 of the NEWBIES FAQ sticky thread is the best place to start with compiling a Defence.
    There are several Defence examples linked from that post.
    Read them all and pick a suitable looking one and adjust it to your specifics.
    .
    • The Deep
    • By The Deep 28th Mar 18, 7:54 PM
    • 10,556 Posts
    • 10,396 Thanks
    The Deep
    • #3
    • 28th Mar 18, 7:54 PM
    • #3
    • 28th Mar 18, 7:54 PM
    Ask the shopping centre to cancel it as you were using the facilities.

    If the give trouble write bad stuff on Facebook/TrioAdvisor.


    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.
    • ticketfight
    • By ticketfight 28th Mar 18, 8:20 PM
    • 6 Posts
    • 2 Thanks
    ticketfight
    • #4
    • 28th Mar 18, 8:20 PM
    • #4
    • 28th Mar 18, 8:20 PM
    What is the date of issue on the Claim Form?

    Who is the parking company?

    Post #2 of the NEWBIES FAQ sticky thread is the best place to start with compiling a Defence.
    There are several Defence examples linked from that post.
    Read them all and pick a suitable looking one and adjust it to your specifics.
    Originally posted by KeithP
    The parking company is Total Parking Solutions, Date of issue is the 7 of march.. so AOS has been done im acting on behalf of a family member so there was a delay in me getting all details.
    I have scanned post 2 newbies over and over but nothing there seems to relate to this instance. as this was a free parking situation.
    Kind regards
    • ticketfight
    • By ticketfight 28th Mar 18, 8:21 PM
    • 6 Posts
    • 2 Thanks
    ticketfight
    • #5
    • 28th Mar 18, 8:21 PM
    • #5
    • 28th Mar 18, 8:21 PM
    Ask the shopping centre to cancel it as you were using the facilities.

    If the give trouble write bad stuff on Facebook/TrioAdvisor.
    Originally posted by The Deep
    I think it is past this stage.. we have court papers.. i am acting on behalf of a family member so there has been a delay in action.. i have watched that video and hoping they are strictly regulated properly going forward.
    kind regards
    • KeithP
    • By KeithP 28th Mar 18, 9:00 PM
    • 10,628 Posts
    • 11,017 Thanks
    KeithP
    • #6
    • 28th Mar 18, 9:00 PM
    • #6
    • 28th Mar 18, 9:00 PM
    The parking company is Total Parking Solutions, Date of issue is the 7 of march.. so AOS has been done im acting on behalf of a family member so there was a delay in me getting all details.
    I have scanned post 2 newbies over and over but nothing there seems to relate to this instance. as this was a free parking situation.
    Kind regards
    Originally posted by ticketfight
    Hopefully the AoS was done before 26 March?
    If not, you have already missed your Defence filing date.

    If the AoS was done in time then you have until 9 April to file your Defence.

    I would be surprised if any Defences linked from the NEWBIES mentions 'free parking'. That is a detail for the witness Statement.

    You are looking for a defence that puts forward the legal arguments of your case. E.g. the signs were clearly inadequate if the driver remained unaware of any time limit.

    A 'scan' of the NEWBIES thread simply isn't good enough.
    You need to read all the example defences linked from there.
    .
    • Ralph-y
    • By Ralph-y 28th Mar 18, 9:14 PM
    • 2,862 Posts
    • 3,591 Thanks
    Ralph-y
    • #7
    • 28th Mar 18, 9:14 PM
    • #7
    • 28th Mar 18, 9:14 PM
    "I think it is past this stage.. we have court papers.. i am acting on behalf of a family member so there has been a delay in action.. i have watched that video and hoping they are strictly regulated properly going forward."

    wrong


    still complain as hard as you can ........

    Ralph
    • Coupon-mad
    • By Coupon-mad 28th Mar 18, 11:18 PM
    • 63,872 Posts
    • 76,517 Thanks
    Coupon-mad
    • #8
    • 28th Mar 18, 11:18 PM
    • #8
    • 28th Mar 18, 11:18 PM
    I have scanned post 2 newbies over and over but nothing there seems to relate to this instance. as this was a free parking situation.
    And yet this is presumably a claim about an ANPR car park, like all the other TPS ones.

    What about all the defence examples including all the robo-claim solicitor ones, and all the ANPR free car park ones you can find by searching the forum? We see these every day of the week here an so can you, plenty to copy from. Some are linked in the NEWBIES thread, but that's the tip of the iceberg, loads of similar defences here for the finding.

    Show us your draft once you have searched for and read threads found from keywords like:

    robo-claim defence retail park

    TPS defence

    BW Legal defence

    ANPR defence free


    The only thing that surprises me, is you say it's BW Legal? TPS usually use Gladstones. Are you sure?
    Last edited by Coupon-mad; 28-03-2018 at 11:21 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ticketfight
    • By ticketfight 7th Apr 18, 3:06 PM
    • 6 Posts
    • 2 Thanks
    ticketfight
    • #9
    • 7th Apr 18, 3:06 PM
    • #9
    • 7th Apr 18, 3:06 PM
    Right what about this guys any help and advice is gratefully received.
    Kind regards, ticketfight

    Defence Statement

    Introduction

    1. I am xx xx, the defendant in this matter. My address for service is xx xx xx , xxx, xxx, xxxx xxx

    2. This is my statement of truth and my defence.

    3. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

    4. For the avoidance of doubt on the relevant date I was the registered keeper of a xxx xxx, registered number xxxx.

    5. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at xxx Retail Park, xcxx, xxxxxx on xx/xx/xxxx.


    Purported Basis of Claim

    6. Further based upon the scant and deficient details contained in the Particulars of Claim and
    correspondence, it appears to be the claimant's case that:
    a. There was a contract formed by the defendant and the claimant on xx/xx/xxxx.
    b. There was an agreement to maximum free parking stay.
    c. That there were Terms and Conditions prominently displayed around the site including the
    boundaries of the parking space to be controlled.
    d. That in addition to the maximum free parking there was an agreement to pay additional but unspecified additional sums.
    e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    g. Further that the defendant has not paid the alleged debt.

    Rebuttal of Claim

    7. It is denied that:
    a. A contract was formed
    b. There was an agreement to a fixed time of free parking.
    c. That there were Terms and Conditions prominently displayed around the site and that the area allegedly under the control of the Claimant was unequivocal.
    d. That in addition to the free parking there was an agreement to pay additional and unspecified additional sums.
    e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    g. That I am liable for the purported debt.
    8. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.
    9. The claimant is put to the strictest proof of their assertions.

    My Defence

    My defence will rely principally upon the following points:

    10. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.

    11. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The BPA Code of Practice says on this point:
    B4.1 If vehicles are parked under a contract, you may take parking control and enforcement action only when the contract entitles you to. This includes issuing parking tickets. The contract terms must be included on a sign British Parking Association Code of Practice at each entry point to the site, and on other signs visible throughout the area concerned.

    12. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
    Para 205: !!!8220;The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.!!!8221;


    13. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
    18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

    14. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.

    15. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
    7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
    In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.
    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
    7.3 The written authorisation must also set out:
    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
    d) who has the responsibility for putting up and maintaining signs.
    e) the definition of the services provided by each party to the agreement.

    16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.

    17. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

    18. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of
    Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

    19. The Claimant is attempting to claim additional charges such as legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    20. In view of all the foregoing the court is invited to strike the matter out of its own motion.

    21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.



    This statement is true to the best of my knowledge and belief.



    Signed _____________xxx_________


    Dated 07-04-2018
    Last edited by ticketfight; 07-04-2018 at 3:48 PM. Reason: error in detail1
    • Coupon-mad
    • By Coupon-mad 7th Apr 18, 10:02 PM
    • 63,872 Posts
    • 76,517 Thanks
    Coupon-mad
    Defence Statement

    Introduction

    1. I am xx xx, the defendant in this matter. My address for service is xx xx xx , xxx, xxx, xxxx xxx

    2. This is my statement of truth and my defence.
    See above things to remove, not needed.

    And remove this unnecessary repeating of the Claimant's claim:
    Purported Basis of Claim

    6. Further based upon the scant and deficient details contained in the Particulars of Claim and
    correspondence, it appears to be the claimant's case that:
    a. There was a contract formed by the defendant and the claimant on xx/xx/xxxx.
    b. There was an agreement to maximum free parking stay.
    c. That there were Terms and Conditions prominently displayed around the site including the
    boundaries of the parking space to be controlled.
    d. That in addition to the maximum free parking there was an agreement to pay additional but unspecified additional sums.
    e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    g. Further that the defendant has not paid the alleged debt.
    and remove this, adds nothing to a defence:
    16. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.

    17. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.


    Now, inspired by reading this:

    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

    ...I am going to suggest a couple of new, detailed defence points for ANPR camera PCNs, let's make these points 16 & 17, to replace yours (as long as your PCN was a postal one by ANPR camera!):
    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

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

    16.2. 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.

    17. 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.''

    17.1. 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.''

    17.2. 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).

    17.3. 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.

    17.4. 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.

    17.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

    17.6. 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.

    17.7. 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.
    Last edited by Coupon-mad; 07-04-2018 at 11:09 PM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • ticketfight
    • By ticketfight 8th Apr 18, 12:12 AM
    • 6 Posts
    • 2 Thanks
    ticketfight
    Thanks coupon mad .. made suggested edits and added a bit more section 18/19

    What do we think now?

    Defence


    1. I am XX XX, the defendant in this matter.

    2. As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

    3. For the avoidance of doubt on the relevant date I was the registered keeper of a XX XX, registered number XXXXXXX.

    4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at XXX Retail Park, XX on XX/XX/XXXX.



    Rebuttal of Claim


    5. It is denied that:
    a. A contract was formed
    b. There was an agreement to a maximum free parking stay.
    c. That there were Terms and Conditions prominently displayed around the site and that the area allegedly under the control of the Claimant was unequivocal.
    d. That in addition to the maximum free parking stay there was an agreement to pay additional and unspecified additional sums.
    e. The claimant company fully complied with their obligations within the terms of Schedule 4 of the Protection of Freedoms Act 2012.
    f. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
    g. That I am liable for the purported debt.

    6. It is further denied that I owe any debt to the claimant or that any debt is in fact owed or that any debt exists or could ever exist or has ever existed. That in any event the claimant has failed to comply with the requirements of the Civil Procedure Rules and that their claim is both unfounded and vexatious.

    7. The claimant is put to the strictest proof of their assertions.


    My Defence

    My defence will rely principally upon the following points:

    8. That the signs erected on site are incapable of forming the basis of a contract and indeed make it clear that that is not the case. Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed.

    9. That the area the Claimant says was within their control wasn't clear as the boundaries were unclear and open to misinterpretation. The BPA Code of Practice says on this point:
    B4.1 If vehicles are parked under a contract, you may take parking control and enforcement action only when the contract entitles you to. This includes issuing parking tickets. The contract terms must be included on a sign British Parking Association Code of Practice at each entry point to the site, and on other signs visible throughout the area concerned.

    10. Should the claimant rely on the case of ParkingEye v Beavis, I wish to point out that there is a test of good faith.
    Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    11. Underlining that is Section 18.3 of the BPA Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
    18.3 You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

    12. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contact and which met the specifications above.

    13. Section 7 of the British Parking Association Code of Practice outlines to operators some of the common law principles of operating on someone else's land as a licensee. One such item is written authority - a written contract - to be there. It defines the elements of this written authority as follows:
    7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for.
    In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary.

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

    7.3 The written authorisation must also set out:
    a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
    b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
    c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
    d) who has the responsibility for putting up and maintaining signs.
    e) the definition of the services provided by each party to the agreement.


    14. 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:
    a) Lack of an initial privacy impact assessment, and
    b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
    c) 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
    d) 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
    e) 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

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

    15.2. 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.

    16. 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.''

    17.1. 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.''

    17.2. 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).

    17.3. 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.

    17.4. 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.

    17.5. To add weight, the Defendant also cites from ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, which concerns an alleged illegal contract involving a similar BPA member parking firm. Whilst the facts of that case are not relevant, the Judge's comments at paragraph 29 of the Transcript of the Somerfield case are of importance: ''At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently''. As has already been stated, in this case the problem arose at (and before) the formation of the alleged contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, it is asserted that the Claimant did deliberately or negligently break the DPA and as it was a BPA member with access to a wealth of DPA compliance information, articles and legal advice, and being a signatory to the KADOE contract with the DVLA, the Claimant cannot be excused from, nor justify, their conduct in failing to meet their legal obligations.

    17.6. 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:
    (a) 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.
    (b) 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.
    (c) 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.

    17.7. 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.

    18. In the alternative, the attention of the court is drawn to para. 4(5) Schedule 4 Protection of
    Freedoms Act 2012 which sets out that the maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

    19. The Claimant is attempting to claim additional charges such as solicitors and legal costs of £104.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.

    20. In view of all the foregoing the court is invited to strike the matter out of its own motion.

    21. The claimant is put to strict proof of the assertions they have made or may make in their fuller claim.


    This statement is true to the best of my knowledge and belief.

    Signed __________XX_XX_________
    Dated 07-04-2018
    • ticketfight
    • By ticketfight 8th Apr 18, 9:19 PM
    • 6 Posts
    • 2 Thanks
    ticketfight
    If this is ok I will send it in needs to go by tomorrow.
    • Super_S
    • By Super_S 8th May 18, 12:08 PM
    • 3 Posts
    • 0 Thanks
    Super_S
    Outcome
    hi how did you get on with your appeal. I basically received a letter in the post with 4 images one of which you can see me standing out the car as I have a 2 door so I had to let someone in when I picked them up. this was at Birmingham airport. you can only see the back of me though. could I use your appeal template ?
    • KeithP
    • By KeithP 8th May 18, 1:32 PM
    • 10,628 Posts
    • 11,017 Thanks
    KeithP
    hi how did you get on with your appeal. I basically received a letter in the post with 4 images one of which you can see me standing out the car as I have a 2 door so I had to let someone in when I picked them up. this was at Birmingham airport. you can only see the back of me though. could I use your appeal template ?
    Originally posted by Super_S
    Super_S, are you at the court stage too?

    You mention 'appeal', but Ticketfight has written a court Defence - two entirely different things.

    If you have not yet appealed, then you are best advised to read post #1 of the NEWBIES FAQ sticky thread where you will find an already written appeal.

    If you have further questions then please start a new thread as trying to progress two different issues for two different people can only lead to confusion.

    Please, no response on this thread - start a new thread if you need to.
    .
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

138Posts Today

1,587Users online

Martin's Twitter
  • Watching Theresa May... seriously would anyone in their right mind truly want her job right now!

  • RT @thecheekypostie: @MartinSLewis Thanks to this, I have just skim read it. To those in Scotland - on page 548, Dounreay is mentioned by n?

  • Today's twitter poll: The 585 page draft agreement of the withdrawal of the UK from the EU has been published. A? https://t.co/8YLkPyzqYM

  • Follow Martin