Thanks again guys for the support , so i've put together my first draft and i know it may still have a lot of work needed but could i have a little guidance and feedback please so i know i'm on the right track.
I need to credit ticketfoe123 because i based it off that scenario which i found clicked with mine.
here we go..
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. CLAIM FORM SIGNED CEL (CLAIMANTS LEGAL REP)
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 £249.66 for outstanding debt and damages. SO CLAIM STATES DEBT /DAMAGES PLUS INTEREST 13.6PA
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. AFTER REVISITING SITE NOTICE THAT MORE SIGNS HAVE BEEN PUT UP BUT STILL VERY UNCLEAR. ONE MAJOR THING I NOTICED WAS A LARGER UNCLEAR SIGN THAT STANDS AT THE ENTRANCE WHICH WAS NOT THERE BEFORE BUT IT STANDS TO THE LEFT OF THE ENTRANCE BUT THIS CAR PARK IS ON A 1 WAY ROAD WERE ALL CARS MUST ENTER FROM THE RIGHT, SO AUTOMATICALLY ALL DRIVERS WOULD MISS THE SIGN ON ENTRANCE THEN ON EXIT YOU WOULD MISS IT AGAIN BECAUSE YOU CANNOT GO BACK DOWN THE ROAD.
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. ALLEDGED INCIDENT JULY 17
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
ANOTHER THING I JUST NOTICED WAS ON THE CLAIM FORM WITHIN THE PARTICULARS OF THE CLAIM THE NAME OF THE CARPARK STATED ISN'T THE SAME NAME OF THE CARPARK OF THE ALLEGED INCIDENT , IVE GOOGLED IT AND NOTHING COMES UP. COULD THIS BE A !!!! UP ?AND IF SO CAN THIS BE USED WITHIN MY DEFENCE?
Is there anything else i need to highlight within this defence guys
Last edited by blackjew; 14-05-2018 at 1:24 AM.
Reason: missed out somrthing
