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  • FIRST POST
    • Dartforddad
    • By Dartforddad 7th Oct 18, 7:46 PM
    • 23Posts
    • 8Thanks
    Dartforddad
    County Court Claim from CEL
    • #1
    • 7th Oct 18, 7:46 PM
    County Court Claim from CEL 7th Oct 18 at 7:46 PM
    Hi

    I have read the newbie section but I didn't see anything that correctly relates to the situation I have.

    I'm feeling really bad as the CC form has scared the person who received it and they are quite a nervous person. We had originally appealed to CEL and to POPLA and both were rejected. After the initial flurry of correspondence we actually never heard anything for over a year so had assumed it had gone away.

    We have now received a Claim Form from the County Court Business Centre in Northampton. It actually looked fake at first as the images were very blurred and it was only signed as Civil Enforcement Limited, but it does have the correct forms and is on moneyclaim.gov.uk

    In the original POPLA response from CEL, I was actually surprised how detailed it was with photographs of the signage, APNR camera shots, copies of the ticket machine log, etc

    The details are:
    The Driver parked in Debenhams car park in Guildford on the 20th November 2016.
      1. They arrived at 10:12;
      2. and bought a 1-hour parking ticket at 10:23;
      3. that ticket expired at 11:23;
      4. at 11:46, they bought another hour’s parking;
      5. and left at 12:54
    Now their notice states that all parking has to be paid prior (so they say you cannot top up). I do wonder what happens if you drive out and back in as there are no notices of no return. The exact wording they use is:

    "If you (a) do not pay within 10 minutes of arrival; or (b) overstay the purchased parking time; or (c) do not enter your full, exact registration number when making your payment, you agree to pay the standard fee of £100 per day to Civil Enforcement Ltd"

    The original ticket was £100 reduced to £60 if paid early.

    The wording on the Claim Form is:

    Particular of Claim

    Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claiments in breachof the terms + conditions (T+Cs). Drivers are allowed to park in accordance with the T+Cs of use. ANPR camera and/or manual patrols are usedto monitor vehicles entering + exiting the site. Debt + damages claim the sum of 236.00
    Violation date : 20/11/2016
    Time in : 10:12
    Time Out : 12:54
    Then the PCN Reference
    The Registration no
    Car Park :-Debenhams Guilford

    Total due - 236.00
    (ref: their website address or Tel. 01158225020)
    The Claimant claims the sum of 271.02 for the monies relating to the parking charge per above including 30.02 interest pursuant to s.69 of the County Court Act 1984
    Rate 8% pa from dates above to 28/09/18
    Same rate to Judgement or (sooner) payment Daily rate to judgement - 0.05

    Total Debt and interest due - 271.02

    Court fee : £25
    Legal representative costs : £50


    So a total of £346.02

    Now they actually issued the notice after 14 days (which is in the guidelines as I understand) so the original appeal was that it was outside of the guidelines plus there was no photographs, just a demand to pay. I felt I let my daughter down here as they have used her appeal in the POPLA statement. Maybe I should of put without prejudice on the letter.


    Now there was a period where we heard nothing and then another company called ZZPS wrote twice with more charges added threatening to pass this this to QDR Solicitors.

    Its all been lots of bullying letters and threats but I feel I have let the person down.

    I'm really not sure what to do next as they work as a school teacher and would not like or enjoy a day in court (or getting the time off) and all the way through they keep quoting ParkinyEye V Beavis
    Last edited by Dartforddad; 07-10-2018 at 8:50 PM. Reason: recommended
Page 1
    • KeithP
    • By KeithP 7th Oct 18, 8:41 PM
    • 11,323 Posts
    • 11,861 Thanks
    KeithP
    • #2
    • 7th Oct 18, 8:41 PM
    • #2
    • 7th Oct 18, 8:41 PM
    What is the Date of Issue on the Claim Form?

    You would be wise to edit your post to avoid giving out the identity of the driver.

    For example, perhaps the paragraph starting "The details are:..." would be better something like:
    The details are:

    The driver parked in Debenhams car park in Guildford on the 20th November 2016.
    1. The driver arrived at 10:12;
    2. and bought a 1-hour parking ticket at 10:23;
    3. that ticket expired at 11:23;
    4. at 11:46, the driver bought another hour’s parking;
    5. and left at 12:54
    Please review and adjust the rest of your post similarly.
    .
    • Dartforddad
    • By Dartforddad 7th Oct 18, 8:54 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    • #3
    • 7th Oct 18, 8:54 PM
    • #3
    • 7th Oct 18, 8:54 PM
    Done


    I made a error right at the start of this on the original appeal in the wording and thats been used against us (I'm no legal expert just want to see things done fairly)


    The date is 1st of October (was received on Friday the 5th October)


    I have logged an acknowledgment and said we are disputing.
    • KeithP
    • By KeithP 7th Oct 18, 9:04 PM
    • 11,323 Posts
    • 11,861 Thanks
    KeithP
    • #4
    • 7th Oct 18, 9:04 PM
    • #4
    • 7th Oct 18, 9:04 PM
    With a Claim Issue Date of 1st October, and having done the AoS in a timely manner, you have until until 4pm on Monday 5th November 2018 to file your Defence.

    Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


    When you are happy with the content, your Defence should be filed via email as described here:

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for your Directions Questionnaire and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
    .
    • Dartforddad
    • By Dartforddad 7th Oct 18, 9:51 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    • #5
    • 7th Oct 18, 9:51 PM
    • #5
    • 7th Oct 18, 9:51 PM
    Thanks so far


    The mistake I made at the beginning before I found this site was as the original PCN was issued after the 14 day period I used this as a defence but worded it to say


    My vehicle was parked at Debenhams for the times stated in the penalty charge however I
    provided a ticket which was clearly displayed in my car for the full amount payable for the time at
    which I was parked.


    and had a name at the bottom of the letter


    They highlighted both of these in their POPLA response as a reason that Protection of Freedoms Act 2012 did not apply.


    I'm all very new to this so would there be a standard response to use ?
    • Coupon-mad
    • By Coupon-mad 7th Oct 18, 10:08 PM
    • 64,896 Posts
    • 77,471 Thanks
    Coupon-mad
    • #6
    • 7th Oct 18, 10:08 PM
    • #6
    • 7th Oct 18, 10:08 PM
    the time at which I was parked.
    Blew it!

    They are right to have pointed that mistake out at POPLA - the driver mucked it up & chucked the entire point in the bin. You can't respond to that. The POFA is not relevant to you now, you lost that whole defence point.

    Never mind. You will not being paying £350, and will likely pay nothing at all.

    I'm really not sure what to do next as they work as a school teacher and would not like or enjoy a day in court (or getting the time off) and all the way through they keep quoting ParkinyEye V Beavis
    There will probably be no hearing, as CEL are generally still discontinuing before the hearing, in cases where they are trying to scam £350-odd from a £100 'PCN'!

    The Defendant defends the same as any other person with a CEL claim except they cannot use the POFA and must admit they were the driver.

    Same as any similar thread, search* Civil Enforcement defence driver true and I reckon you will find a post with a defence to copy (no looking at ones older than the post 6 months, too old).




    *advanced search, change to SHOW RESULTS AS POSTS & put the bold words in
    Last edited by Coupon-mad; 07-10-2018 at 10:11 PM.
    • Dartforddad
    • By Dartforddad 9th Oct 18, 5:30 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    • #7
    • 9th Oct 18, 5:30 PM
    • #7
    • 9th Oct 18, 5:30 PM
    OK, i'm working through the various posts.They do seem to vary but I understand particulars do vary.


    As I have to work in Guildford on business I actually visited the site after the POPLA response and took some pictures of the signage. Is it worth sharing this for comment. There is as very interesting note I found on the entrance to Debenhams which is actually the most likely place to see anything as its the only entrance and exit to the car park (unless you walk up the vehicle slope, which is not a good idea)


    On the POPLA response it also said the option of ringing the helpline was not taken, but what use is that in an underground carpark, even if you managed to read the sign.


    Also, a Letter before Court Action with their statement was sent back in December 2017. Nothing happened for a few months and then the ZZPS letters arrived followed by QDR Solicitors. Is that normal and fair. It just seems to be more of the bullying and scaremongering approach. I say this with my tongue in cheek, are that actually following correct procedure.
    There was a LBCA sent again in September 2018.
    • Ezisola
    • By Ezisola 11th Oct 18, 2:05 PM
    • 55 Posts
    • 25 Thanks
    Ezisola
    • #8
    • 11th Oct 18, 2:05 PM
    • #8
    • 11th Oct 18, 2:05 PM
    But now what shall I do!?
    Originally posted by ChatwithJacqs

    Read the NEWBIES sticky and then create your own thread
    • KeithP
    • By KeithP 11th Oct 18, 2:08 PM
    • 11,323 Posts
    • 11,861 Thanks
    KeithP
    • #9
    • 11th Oct 18, 2:08 PM
    • #9
    • 11th Oct 18, 2:08 PM
    But now what shall I do!?
    Originally posted by ChatwithJacqs
    The best thing to do is read the NEWBIES FAQ sticky thread to better understand the game you are now caught up in.

    Then if you still have further questions please start a new thread.

    Trying to progrees two different issues with two different people in one thread can only lead to confusion.

    Can I please also ask that you delete your post from this thread for that same reason?

    Thanks.
    .
    • ChatwithJacqs
    • By ChatwithJacqs 11th Oct 18, 2:35 PM
    • 58 Posts
    • 6 Thanks
    ChatwithJacqs
    The best thing to do is read the NEWBIES FAQ sticky thread to better understand the game you are now caught up in.

    Then if you still have further questions please start a new thread.

    Trying to progrees two different issues with two different people in one thread can only lead to confusion.

    Can I please also ask that you delete your post from this thread for that same reason?

    Thanks.
    Originally posted by KeithP
    How do I start a thread pls?
    I’m sure there is a button saying new thread but I can’t
    see it.
    Sorry!
    Jacqs
    :rolleyes:
    • nosferatu1001
    • By nosferatu1001 11th Oct 18, 2:40 PM
    • 4,158 Posts
    • 5,007 Thanks
    nosferatu1001
    Its on the main page
    Dont use a phone to navigate. Desktop browser needed.
    • KeithP
    • By KeithP 11th Oct 18, 3:08 PM
    • 11,323 Posts
    • 11,861 Thanks
    KeithP
    How do I start a thread pls?
    I’m sure there is a button saying new thread but I can’t
    see it.
    Sorry!
    Originally posted by ChatwithJacqs
    You have started twenty-three threads in your MSE lifetime.

    Think back and ask yourself - "how on earth did I manage that?".
    .
    • Dartforddad
    • By Dartforddad 11th Oct 18, 10:18 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    My first attempt
    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    Civil Enforcement Limited (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


    2. 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 “Civil Enforcement Limited”. 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)

    3. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.


    4. In the Claimants POPLA response (section 28), it is mentioned that the Defendant never used their helpline (which they state is at the bottom of their signage). It is questionable that a call could be made in an underground carpark but more importantly, if this is a ‘HELPLINE’ should not the signage say this. It only appears at the end of their address and does not indicate it could be a helpline.

    5. The Claimant in their POPLA response (their section 23) acknowledges that parking for Debenhams was purchased. The Claimant than says in BOLD, that full duration of parking is required. This is not actually stated on their signage. Further parking time was purchased but this has always been disregarded.

    6. In the Claimants response to POPLA they cited a signage plan and lighting plan. This has never been provided.

    7. We have photographic evidence that the signage has been replaced or updated since the alleged offence which clearly brings into question is legality at the date of the incident.


    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 was 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 the points 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.


    10. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, beyond the agreement to pay the tariff and identify the car registration number, which the defendant carried out.

    11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The largest part of the signage says £1 per hour. The rest of the signage is very small.

    12. The terms on the Claimant's signage were also displayed in a font which was too small to be read from a passing vehicle, and were in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The entrance to the Car Park is from a busy road with an incline with no possibility to stop safely.

    13. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    14. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £221.02, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    15. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.


    16. The Claimant sent an original Letter Before Action on the 9th November 2017. They then passed this to ZZPS almost 6 months later and then to QDR Solicitors which has clearly unrealistically inflated the Claim.

    17. 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” (or even admin) costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The Claimant has not explained how the claim has increased from the original parking notice to £271.02. 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.

    18. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.

    19. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

    20. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

    21. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
    • Dartforddad
    • By Dartforddad 13th Oct 18, 2:39 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    So any comments suggestions so far ?



    This has all come at a bad time as we have holiday booked leaving next week so in reality the deadline time we have to file a defence is quite tight taking this into account and I would like to get this stage done before we go away.


    I have photographs taken of some of the signage shortly after the event plus some recent photo's taken last week. Happy to share if this helps. (also anyone else going through a similar exercise at this car park)


    Can I also ask again about them sending a Letter Before Action in November 2017 (unsigned). Then doing nothing, having further letters, implied costs from other parties much later, and in August this year a completely different style letter, not titled Letter Before Action with just another copy of the Beavis judgement.
    • KeithP
    • By KeithP 13th Oct 18, 3:06 PM
    • 11,323 Posts
    • 11,861 Thanks
    KeithP
    Para 14. Why are you mentioning PoFA?

    I thought it was accepted that the Defendant is the driver?

    If so, then the first sentence of para14 is not relevant.

    Keep the second sentence though.
    .
    • Dartforddad
    • By Dartforddad 13th Oct 18, 4:29 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    Version 2- taking on comments so far
    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    Civil Enforcement Limited (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


    2. 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 “Civil Enforcement Limited”. 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)

    3. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.


    4. In the Claimants POPLA response (section 28), it is mentioned that the Defendant never used their helpline (which they state is at the bottom of their signage). It is questionable that a call could be made in an underground carpark but more importantly, if this is a ‘HELPLINE’ should not the signage say this. It only appears at the end of their address and does not indicate it could be a helpline.

    5. The Claimant in their POPLA response (their section 23) acknowledges that parking for Debenhams was purchased. The Claimant than says in BOLD, that full duration of parking is required. This is not actually stated on their signage. Further parking time was purchased but this has always been disregarded.

    6. In the Claimants response to POPLA they cited a signage plan and lighting plan. This has never been provided.

    7. We have photographic evidence that the signage has been replaced or updated since the alleged offence which clearly brings into question is legality at the date of the incident.


    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 was 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 the points 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.


    10. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct, beyond the agreement to pay the tariff and identify the car registration number, which the defendant carried out.

    11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The largest part of the signage says £1 per hour. The rest of the signage is very small.

    12. The terms on the Claimant's signage were also displayed in a font which was too small to be read from a passing vehicle, and were in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The entrance to the Car Park is from a busy road with an incline with no possibility to stop safely.

    13. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

    14. The claim includes an additional £221.02, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

    15. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.


    16. The Claimant sent an original Letter Before Action on the 9th November 2017. They then passed this to ZZPS almost 6 months later and then to QDR Solicitors which has clearly unrealistically inflated the Claim.

    17. 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” (or even admin) costs were incurred. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The Claimant has not explained how the claim has increased from the original parking notice to £271.02. 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.

    18. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.

    19. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

    20. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee

    21. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

    I believe the facts contained in this Defence are true.

    Name
    Signature
    Date
    • Dartforddad
    • By Dartforddad 13th Oct 18, 6:54 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    I thought I would post links to the signage taken back in January 2017


    SPACE ADDED AT FRONT AFTER HTTPS: to allow post



    One of the signs


    https: //ibb.co/kZOBeU


    The only pay machine


    https: //ibb.co/ftLDtp
    https: //ibb.co/hO2hm9


    The sign near the entrance, no chance of reading this as you turn from a main road direct into a slope


    https: //ibb.co/cHnhm9


    Saw this later stuck on the wall just as you walk into the store


    https: //ibb.co/coEjzU


    Further signs near the entrance but tucked around the corner slightly, on the exist slip so you are not going to read these

    https: //ibb.co/cPiNm9
    • IamEmanresu
    • By IamEmanresu 14th Oct 18, 7:06 AM
    • 3,784 Posts
    • 6,229 Thanks
    IamEmanresu
    Edited to remove incorrect information.

    There is a chance when the see the WS they will drop the case. Put in a costs schedule with your WS so you can have a chance of getting costs if they mess up.
    Last edited by IamEmanresu; 14-10-2018 at 7:21 AM.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to RTFM - the Civil Procedure Rules
    2. Failing to Acknowledge or Defend- See #1
    3. Failing to RTFCL - the Court letters
    4. Template defences that say nothing - See #1
    5. Forgetting about the Witness Statement - See #3
    • Le_Kirk
    • By Le_Kirk 14th Oct 18, 7:34 AM
    • 3,406 Posts
    • 2,367 Thanks
    Le_Kirk
    Your links made live: -
    https://ibb.co/kZOBeU
    https://ibb.co/ftLDtp
    https://ibb.co/hO2hm9
    https://ibb.co/cHnhm9
    https://ibb.co/coEjzU
    https://ibb.co/cPiNm9
    • Dartforddad
    • By Dartforddad 14th Oct 18, 12:28 PM
    • 23 Posts
    • 8 Thanks
    Dartforddad
    So with regards to their APNR and DPA conformity some of the signs now have an extra sticker. May have been driven also by GDPR but again worth posting up as not everyone will want to return back to a site


    (Space included)



    https: //ibb.co/bFmc4U


    Also, can I check on point 9.2. As we are not relying on PoFA is this OK, I assumed it was relating to the example.
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