PePiPoo Helping the motorist get justice Support health workers

Welcome Guest ( Log In | Register )

AoS Submitted - Defence to follow
greenbluegreen
post Thu, 19 Apr 2018 - 21:40
Post #1


New Member


Group: Members
Posts: 9
Joined: 19 Apr 2018
Member No.: 97,594



Hi Guys,

I am hoping for your guidance on this one. It is a frightening experience for me, but I am keen to take it to the end.

I've submitted AoS, now to the difficult part.
Particulars of claim is :

Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of terms + conditions of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site.

Time in :16:25 Time Out: 16:50

I am xxxx the Defendant in this matter and the registered keeper of vehicle xxxx. I deny that I am liable for the entirety of the claim made against me by Civil Enforcement Limited for each of the following reasons:

1. The Claim Form issued on the DD/MM/YYYY by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by Civil Enforcement Ltd (Claimant's Legal Representative).
2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
a) There was no compliant Letter before Court Claim, under the Practice Direction.
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 Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no clear 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. The Claim form Particulars did not contain any evidence of contravention or photographs or the Claimant's standing to bring this action.
d) The Defendant therefore asks the court to strike out the claim as having no reasonable prospect of
success as currently drafted.
e) 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.
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 me liable under the strict Keeper liability provisions.
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's (or even admin) costs were incurred. In any event the Claimant is not using solicitors.
5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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. 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) 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 contract formed to pay any clearly stated sum.
Non-existent ANPR data use signage breaching the ICO rules and the BPA Code of Practice. b) BPA CoP breaches this distinguishes this case from the Beavis case) The signs were not compliant in terms of positioning) The sum pursued exceeds £100.
7. It is believed the Claimant does 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 own name. Any action should be in the name of the landowner or occupier.
8. The Claimant suggests that Beavis sets a precedent. This is only true if the facts of the case are similar. In this case, none of the exceptions to disengage the penalty apply.
9. 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.
10. 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.
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 DD/MM/YYY.
(b) Ignored 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. A Defendant is entitled to know the case they have to meet. The court is invited to strike-out the claim of its own volition under its Case Management powers (CPR 3.4) as having no merit and no reasonable prospects of success.
13. 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
12.1. This Claimant has therefore failed to meet its legal obligations under the DPA.
12.2. 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.
13. 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.''
13.1. 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.''
13.2. 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).
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. 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 7 and 8 above were argued.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed:
Name:
Date:

Let me know what you think and what should e corrected/removed that will be more relevant to my case.


p.s : this is originally posted by me in MSE forums, however I think its really important to get as much opinions as possible

Many thanks for your guidance on this one.

This post has been edited by greenbluegreen: Thu, 19 Apr 2018 - 23:15
Go to the top of the page
 
+Quote Post
 
Start new topic
Replies (1 - 10)
Advertisement
post Thu, 19 Apr 2018 - 21:40
Post #


Advertise here!









Go to the top of the page
 
Quote Post
Redivi
post Thu, 19 Apr 2018 - 22:50
Post #2


Member


Group: Members
Posts: 4,126
Joined: 31 Jan 2018
Member No.: 96,238



Can you confirm 2© is correct and you haven't just used a template ?

I've seen a number of CEL claim forms this week and none has mentioned a promise to send further particulars of claim
Go to the top of the page
 
+Quote Post
greenbluegreen
post Thu, 19 Apr 2018 - 23:01
Post #3


New Member


Group: Members
Posts: 9
Joined: 19 Apr 2018
Member No.: 97,594



QUOTE (Redivi @ Thu, 19 Apr 2018 - 23:50) *
Can you confirm 2© is correct and you haven't just used a template ?

I've seen a number of CEL claim forms this week and none has mentioned a promise to send further particulars of claim


You are totally right, yes - I have used a template which I've tried to edit/remove paragraphs to suit my case. Unfortunately this one I've missed, I will do another careful read/edit.

You will have to excuse my ignorance. I am not having a clue how to defend myself, especially when English is not my first language. Kinda regretted that I haven't paid when I had a chance to on a lower amount. Not sure if I can fight back on this one.

However, there is no turn back, so hopefully this will be a happy end. Really appreciate your help on this one!

Go to the top of the page
 
+Quote Post
kommando
post Fri, 20 Apr 2018 - 06:20
Post #4


Member


Group: Members
Posts: 4,167
Joined: 6 Oct 2012
Member No.: 57,558



Get the defence right and CEL will discontinue at a late stage, no hearing involved.
Go to the top of the page
 
+Quote Post
The Rookie
post Fri, 20 Apr 2018 - 06:27
Post #5


Member


Group: Members
Posts: 56,198
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



Far too big for a defence, you only need here to state your defence points not to elaborate on them and justify them.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
Go to the top of the page
 
+Quote Post
nosferatu1001
post Fri, 20 Apr 2018 - 08:26
Post #6


Member


Group: Members
Posts: 28,687
Joined: 27 Nov 2007
Member No.: 15,642



If youve fiound CEL defences, you found an older one.

Get a more recent one and edit to suit. CEL do NOT go to hearsin when defences are put in and you follow the processes correctly.

Take heart - if you read around this forum you WILL see CEL discotninue all the time.
Go to the top of the page
 
+Quote Post
Redivi
post Fri, 20 Apr 2018 - 08:48
Post #7


Member


Group: Members
Posts: 4,126
Joined: 31 Jan 2018
Member No.: 96,238



Yes

Don't look at any defences earlier than mid 2017

Even these may not address a feature of current CEL claims

They're not properly signed with just the company printed name and "Claimant's Legal Representative" in brackets
This isn't a valid Statement of Truth and the claim should be struck out

It also means that CEL hasn't employed a legal representative and the £50 for Legal representative's cost is fake

Go to the top of the page
 
+Quote Post
greenbluegreen
post Tue, 24 Apr 2018 - 17:53
Post #8


New Member


Group: Members
Posts: 9
Joined: 19 Apr 2018
Member No.: 97,594



Hey guys,

I will list the actual claim against and then put a re-write of my defence in a new reply, here we go:

Particulars of Claim :

Claim for monies relating to a Parking Charge
for parking in a private car park managed
by the Claimant in breach of the terms +
conditions (T+Cs). Drivers are allowed to
park in accordance with T+Cs of use. ANPR
cameras and/or manual patrols are user to
monitor vehicles entering + exiting the site.
Debt + damages claimed the sum of 236.00
Violation date xx\xx\xxxx
Time in : 16:25 Time out : 16:50
PCN ref : XXXXXXXXXXXXX
Car registration n : XXXXXXX Car Park: (let me know if its safe to reveal)

Total due - 236.00
The Claimant claims the sum of 249.81 for
monies relating to a parking charge per above
including 13.81 interest pursuant to
S.69 of the County Courts Act 1984
Rate 8.00% pa from dates above to- xx/xx/xx
Same rate to Judgment or (sooner) payment
Daily rate to Judgement - 0.05
Total debt and interest due - 249.81

Do you think that the above can be challenged for not valid/incorrect and put in my defence?

Regards,
Green

This post has been edited by greenbluegreen: Tue, 24 Apr 2018 - 17:55
Go to the top of the page
 
+Quote Post
greenbluegreen
post Tue, 24 Apr 2018 - 18:37
Post #9


New Member


Group: Members
Posts: 9
Joined: 19 Apr 2018
Member No.: 97,594



I am ___, the defendant in this matter and registered keeper of vehicle ___.

1. The Defendant admits to being the registered keeper of the vehicle on the material date but there is no evidence of who was driving. The defendant denies liability for the entirety of the claim for each of the following reasons:

2. The Claim Form issued on the ____ 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 (Claimant’s Legal Representative)”.

3. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

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. The Claim form Particulars did not contain any evidence of contravention or photographs.

e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

4. 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 ‘keeper liability’ provisions.

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 as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, mentioned a possible £249.81 for outstanding debt and interest.

5. 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’s costs' were incurred. The Defendant denies the Claimant is entitled to any interest whatsoever.

6. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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. None of this applies in this material case.

7. CEL is not contracted to the landowner nor does it have the legal capacity to issue claims.

8. 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 the Defendant 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) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage 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.
(iv) 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.
(v) 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.

9. 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.

10. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.!

11. 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.

12. 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.

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 16th March 2018.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

The above is a "mix and match" from recent Defences from forum members dealing with CEL.

I think this is the closest that I could find relevant to my case (no permit). Please let me know if its too long or/and inaccurate.

Many thanks for your support, I am lost without your help.

Regards,
Green

This post has been edited by greenbluegreen: Tue, 24 Apr 2018 - 18:38
Go to the top of the page
 
+Quote Post
mip19lot
post Sun, 10 Jun 2018 - 14:43
Post #10


Member


Group: Members
Posts: 49
Joined: 14 Mar 2011
From: Portchester
Member No.: 45,094



Hi Green,

What was the outcome of your case? It appears to have ended abruptly.


This post has been edited by mip19lot: Sun, 10 Jun 2018 - 14:43
Go to the top of the page
 
+Quote Post
Redivi
post Sun, 10 Jun 2018 - 17:42
Post #11


Member


Group: Members
Posts: 4,126
Joined: 31 Jan 2018
Member No.: 96,238



According to his profile, the OP was last on the Forum a couple of hours after posting his intended defence

He should by now have received and returned the Directions Questionnaire
Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Friday, 29th March 2024 - 05:39
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.
IPS Driver Error

IPS Driver Error

There appears to be an error with the database.
You can try to refresh the page by clicking here