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  • FIRST POST
    • ticketfoe123
    • By ticketfoe123 7th May 18, 12:52 AM
    • 7Posts
    • 1Thanks
    ticketfoe123
    CEL strikes again
    • #1
    • 7th May 18, 12:52 AM
    CEL strikes again 7th May 18 at 12:52 AM
    Hi everyone, I'm new to this thread and i need some help with critiquing my defence.
    I received a CEL county claim a few weeks ago and I've been reading a bunch of the threads on here to get to grips with everything.
    Some points about my case:
    - the driver at the time overstayed at a carpark by 30 minutes.
    - an NTK was received, that included photographic evidence of my car entering and leaving the carpark and a bunch of other letters too (which was ignorantly ignored)
    -letters were received from ZZPS and QDR solicitors ( ignored these too)
    -now they're claiming an extortionate amount of over 325

    After reading a few CEL threads, i can see the pattern of them not showing up, however my case seems to be a bit different to the rest in that:
    - There was a large sign upon entering a multiple dotted throughout (however the terms were soo small that i don't think any one would have been able to see them unless i was right in front of the sign.
    -A letter before court was sent

    Irrespective of all this, I still plan to fight this claim, and so I've acknowledged the claim online (MCOL) and I've compiled a defence which I've included below.

    Any help would be greatly appreciated!


    In the County Court Business Centre
    Between:
    Civil Enforcement Limited
    V
    xxxxxxxxxxx


    Claim Number: xxxxxxx


    I, xxxxxxxx, deny I am liable to the Claimant for the claim for each of the following reasons:!

    1. The Claim Form issued on **/**/2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by !!!8220;Civil Enforcement Limited!!!8221;. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direct 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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 !!!8216;Letter before County Court Claim!!!8217;, under the Practice Direction. The final letter I received said if CEL don!!!8217;t receive a response within 30 days they!!!8217;ll be issuing proceeding to the county court- so I assume this point is invalid?

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

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

    d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. 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.!

    e. The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the !!!8216;Letter before County Court Claim!!!8217; should have been produced, pursuant to paragraph 6 of the Practice Direction !!!8211; Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to !!!8220;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: (if point 2.a is invalid, then I assume I should remove the !!!8220;letter before county court claim!!!8221; part). I can recall from the original NTK, there were 2 photographs of my car, one leaving and one entering. So should I remove this point in its entirety?

    i) !!!8216;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.!!!8217;

    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.

    f. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    vii) If Interest charges are being claimed, the basis on which this is being claimed.
    (I read on one of the forums that this point [part f] should not be included. Is this applicable for all cases as im not sure if it was specifically or said case)

    g. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict !!!8216;keeper liability!!!8217; provisions. As I don!!!8217;t have the initial NTK (it was binned :/), I can!!!8217;t recall the date it was sent/received. I think I received it later than the allocated 14 days, however I don!!!8217;t have any proof of this, so should I remove this point from the defence? or would you guys recommend I leave it in?
    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 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 it is believed that neither the signs, nor any NTK mentioned a possible additional 253.95 for outstanding debt and damages.

    4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that 50 'legal representative!!!8217;s (or even admin) costs!!!8217; 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.**. 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 'contract', none of this applies in this material case.

    6. In the absence of any proof of adequate signage that 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 that 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.!I called a store on site and asked who the land belonged to enquire about a legitimate contract between CEL and the landowner. However, I had no luck. I know the company name of the car park and when I googled it, it said CEL operates under that name (e.g. star park, creative car park etc). so do you think this point is applicable to my case?
    c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    ii) It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended. the incident occurred during the day, so I assume I need to remove the part where it speaks about the sign not being lit.- would I remove the whole point?
    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 - 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 do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Again, not sure if I should include this point as the company whose names are on the signs at the car park are linked with CEL (i.e starpark, creative cark park... and the like)

    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. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 10 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

    11. 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

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

    11.2. 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.!

    12. 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.''!!

    12.1. 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.''

    12.2. 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).

    12.3. 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.

    12.4. 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.!

    12.5. 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.

    12.6. 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.

    12.7. 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 11 and 12 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 ** ****** 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.
    Signed
    Dated
    Last edited by ticketfoe123; 08-05-2018 at 3:31 PM.
Page 1
    • Coupon-mad
    • By Coupon-mad 7th May 18, 1:05 AM
    • 57,401 Posts
    • 71,014 Thanks
    Coupon-mad
    • #2
    • 7th May 18, 1:05 AM
    • #2
    • 7th May 18, 1:05 AM
    Remove point #2 completely. All of it, including a - g. IMHO, it is absolute waffle and the bit about sparse POC is already in 12.7(b).

    CEL never issue POFA compliant NTKs so the date/14 days and your worrying about not having the NTK is irrelevant. All CEL ones are not capable of keeper liability. So leave that in.

    Also leave in the point about no standing/no landowner authority, it's for them to prove.

    Remove the word 'unlit' but not the whole point about signs/no contract.

    Remove #8 and #9 because an overstay DOES resemble the Beavis case! #8 and #9 are superfluous.
    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.

    • ticketfoe123
    • By ticketfoe123 7th May 18, 6:04 AM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    • #3
    • 7th May 18, 6:04 AM
    • #3
    • 7th May 18, 6:04 AM
    Thanks coupon!

    This is the amended defence:
    Do you think theres anything i need to add, or is it alright to submit like this?

    In the County Court Business Centre
    Between:
    Civil Enforcement Limited
    V
    xxxxxxxxxxx


    Claim Number: xxxxxxx


    I, xxxxxxxx, deny I am liable to the Claimant for the claim for each of the following reasons:

    1. The Claim Form issued on **/**/2018 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by !!!8220;Civil Enforcement Limited!!!8221;. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited, as the Claimants Legal Representative. Practice Direct 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

    2. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict !!!8216;keeper liability!!!8217; provisions. 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 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 it is believed that neither the signs, nor any NTK mentioned a possible additional 253.95 for outstanding debt and damages.

    3. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that 50 'legal representative!!!8217;s (or even admin) costs!!!8217; 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.**. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.

    4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an 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 'contract', none of this applies in this material case.

    5. In the absence of any proof of adequate signage that 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 that 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 terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    iii) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    iv) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    d. BPA CoP breaches - this distinguishes this case from the Beavis case:!

    i) the signs were not compliant in terms of the font size, lighting or positioning.
    ii) the sum pursued exceeds 100.
    iii) there is / was no compliant landowner contract.

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

    7. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 10 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

    8. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. The Claimant's failures to comply include, but are not limited to:

    i) Lack of an initial privacy impact assessment, and

    ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

    iii) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and

    iv) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and

    v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held, and

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

    8.2. In a similar instance of DPA failure when using ANPR cameras without full DPA compliance - confirmed on this Claimant's Trade Body website in a 2013 article urging its members to comply - Hertfordshire Constabulary was issued with an enforcement notice. The force were ordered to stop processing people's information via ANPR until they could comply. The Information Commissioner ruled that the collection of the information was unlawful; breaching principle one of the DPA.!

    9. The Court's attention will be drawn to the case of!Andre Agassi v S Robinson!(HM Inspector of Taxes). Whilst not wholly aligned to the issues in this case, it is on all fours with the above point, because of the principle it extols that no one should profit from their unlawful conduct. Paragraph 20 of the Transcript of that case states: ''It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful''. Paragraph 28 continues - ''...cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.''!!

    9.1. Further, in!RTA (Business Consultants) Limited v Bracewell![2015] EWHC 630 (QB) (12 March 2015), at paragraph 34 the Judge discusses the relevance of the public law principle going back well over 200 years, that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that:!''The principle of public policy is this;!ex dolo malo non oritur actio.!No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If [...] the cause of action appears to arise!ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.''

    9.2. Even if there was a purported contract between the unidentified driver and the Claimant, it was illegal at its formation because it was incapable of being created without an illegal act (the failure to comply with points!#8 i - v!above, as part of the legal obligations that must be communicated up front and/or undertaken by a consumer-facing service provider, some of which were required even before commencing any use of ANPR at all).

    9.3. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.

    9.4. In this case it was not lawful for the Claimant to process any data using ANPR camera systems upon which it relied for the entire ticketing regime, due to its failure to meet its specific legal obligations as a data processor of ANPR information. The collection of the information was unlawful; breaching principle one of the DPA.!

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

    9.6. At paragraphs 65-74 of the Somerfield transcript, Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

    i) the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.!

    ii) the illegality is central to the contract and is not merely a minor aspect, thus it should not be held to be too remote so as to render the contract enforceable.

    iii) the nature of the illegality: in this case it was a breach of legal obligations regarding data, and not merely a civil tort as in!Somerfield.!The gravity of the illegality is therefore far greater.

    9.7. It should be noted that the issue of breach of the DPA also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015, which was enacted after the final hearing in!Beavis. This charge and use of ANPR by this claimant is both unfair and not transparent and can be fully distinguished from!Beavis, where none of the issues in the Defendant's points 8 and 9 above were argued.

    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 ** ****** 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.
    Signed
    Dated
    • The Deep
    • By The Deep 7th May 18, 10:23 AM
    • 9,203 Posts
    • 8,968 Thanks
    The Deep
    • #4
    • 7th May 18, 10:23 AM
    • #4
    • 7th May 18, 10:23 AM
    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.
    • ticketfoe123
    • By ticketfoe123 7th May 18, 4:13 PM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    • #5
    • 7th May 18, 4:13 PM
    • #5
    • 7th May 18, 4:13 PM
    Thank you @thedeep - will do
    • Coupon-mad
    • By Coupon-mad 8th May 18, 12:19 AM
    • 57,401 Posts
    • 71,014 Thanks
    Coupon-mad
    • #6
    • 8th May 18, 12:19 AM
    • #6
    • 8th May 18, 12:19 AM
    This is the amended defence:
    Do you think theres anything i need to add, or is it alright to submit like this?
    Looks fine, as long as the parking event date was '10 months ago' as per your #7.

    Submit a signed & dated scanned copy, attached to an email with the claim number and 'DEFENCE' in the subject line.

    It goes just to the CCBCAQ email address, not on MCOL now.

    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.

    • nosferatu1001
    • By nosferatu1001 8th May 18, 8:22 AM
    • 2,471 Posts
    • 3,010 Thanks
    nosferatu1001
    • #7
    • 8th May 18, 8:22 AM
    • #7
    • 8th May 18, 8:22 AM
    EDIT your first post! You give away the identity of the driver, when every single thread TELLS you not to do so.
    Do that now, today.
    • ticketfoe123
    • By ticketfoe123 8th May 18, 3:40 PM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    • #8
    • 8th May 18, 3:40 PM
    • #8
    • 8th May 18, 3:40 PM
    Thanks @nosferatu1001, Ive just done it
    • ticketfoe123
    • By ticketfoe123 8th May 18, 3:41 PM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    • #9
    • 8th May 18, 3:41 PM
    • #9
    • 8th May 18, 3:41 PM
    Thank you for your response @coupon-mad
    with regards to point 7, can i confirm that the length of time is from the time of the parking event to the date of submission of the defence. or is it from the date of the parking event to the date of the claim form being issued?
    • Coupon-mad
    • By Coupon-mad 8th May 18, 3:43 PM
    • 57,401 Posts
    • 71,014 Thanks
    Coupon-mad
    I'd say the former.
    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.

    • ticketfoe123
    • By ticketfoe123 8th May 18, 3:47 PM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    thanks again coupon!
    to avoid sending it to the wrong place, can i just confirm the email i need to send the defence to is ccbcaq@hmcts.gsi.gov.uk
    and i also need to send a copy via post to the business court?
    • Coupon-mad
    • By Coupon-mad 8th May 18, 3:49 PM
    • 57,401 Posts
    • 71,014 Thanks
    Coupon-mad
    ccbcaq@hmcts.gsi.gov.uk
    Yes, that's the right email.
    and i also need to send a copy via post to the business court?
    No. Email is enough and the CCBC will then update MCOL (not you).
    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.

    • ticketfoe123
    • By ticketfoe123 8th May 18, 4:45 PM
    • 7 Posts
    • 1 Thanks
    ticketfoe123
    Thanks again coupon!
    Ill send it off and keep the thread updated about the progress of the case
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