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  • FIRST POST
    • bargepole
    • By bargepole 25th May 17, 2:05 PM
    • 2,135Posts
    • 6,186Thanks
    bargepole
    CEL Whacked for 900 in DPA Breach Counterclaim
    • #1
    • 25th May 17, 2:05 PM
    CEL Whacked for 900 in DPA Breach Counterclaim 25th May 17 at 2:05 PM
    D6GM2199 CEL v Mr B, Bury County Court, before DJ Osborne

    CEL had issued a Claim for a single ticket, inflated to over 300 thanks to creative assistance from ZZPS and Wright Hassall.

    The Defendant had filed a defence, with assistance from Barry Beavis, and had also filed a counterclaim for 500 for distress caused by CEL's breach of the DPA. Mr Beavis also left home at the crack of dawn today, to assist as a Lay Rep.

    In Barry's own words:

    A discontinuance was served and filed by CEL on 5th May. Which took care of their claim. But Mr B's counterclaim was still live

    Bury Court will close on 9th June. All criminal cases have already been moved and there was only one court open with one judge who had three cases listed for today.

    CEL didn't show up,

    We went in and I got a sense that things weren't going to go well when we were greeted with a very gruff "Well?" From DJ Osborne I explained we were attending court as the counterclaim submitted was still active, even though the claimant company had discontinued their claim and even though they had failed to show up.

    DJ Osborne subjected me to ten minutes of hell. He wanted to know why I hadn't filed a witness statement detailing the distress caused. We were claiming 500 for distress so where were the details?

    He wanted to know why we'd failed to comply with the courts Directions requesting all paperwork and witness statements to be submitted no later than 14 days before the hearing. DJ Osborne felt had we submitted the paperwork correctly then CEL may have acted differently today. It was quite uncomfortable

    I tried to explain the distress caused by the barrage of threatening letters. The phone calls. The solicitors letters. "Well then you should have put it in a statement and sent it to the court shouldn't you". "Well sir, Mr B is here now and he can be a witness now".

    I thought he was going to explode! "That's not the point!! You've failed to follow directions of the court......"

    I tried again, pointing to the Particulars of Claim and the letters from Wright Hassall and CCJ's they said Mr B will get. He told me to stop giving evidence.

    Oh well - he said - as we have two hours allocated, take the stand please Mr B

    Fifteen minutes of questioning in which the DJ lead Mr B to telling him about the distress suffered (acting quite differently and giving plenty of opportunity to Mr B to tell him how his missus kept crying with worry).

    He then said yes well it seems 500 is not unreasonable.

    He accepted the argument.
    He accepted the tort of damages
    He agreed 500 not unreasonable
    He said he was disappointed in the claimant bringing an unfounded case, and in WH a respectable law firm.

    Costs of 405 as asked added for unreasonable behaviour, all to be paid in 14 days

    DPA breach is a real thing, people

    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 29. Lost 9.
Page 4
    • hoohoo
    • By hoohoo 30th May 17, 10:49 PM
    • 1,675 Posts
    • 3,108 Thanks
    hoohoo
    This is all very interesting.

    What happens in the case where the data is not provided by the DVLA?

    Eg
    1) The keeper is not the driver, so they dob in the driver.
    2) The driver replies to a windscreen ticket, giving their own details
    3) The driver data is supplied by a hire car firm

    In none of these cases is the DVLA involved

    Is the PPC data processor in these instances, or now data controller? And if they are now data controller, why are they not data controller if the path of data is from the DVLA?

    For scenario 2, what if the driver tries to limit the use they are giving their data to the PPC. Eg

    "My personal data is provided only for the purposes on making an appeal and allowing you to cancel the charge. It may not be used in any other way. For the avoidance of doubt, this includes pursuing a parking charge."

    Does the PPC have to respect this, or can they ignore it?
    Last edited by hoohoo; 31-05-2017 at 5:47 AM.
    Dedicated to driving up standards in parking
    • Coupon-mad
    • By Coupon-mad 30th May 17, 11:13 PM
    • 51,504 Posts
    • 65,106 Thanks
    Coupon-mad
    Is the PPC data processor in these instances, or now data controller? And if they are now data controller, why are they not data controller if the path of data is from the DVLA?
    FWIW, I think there is enough evidence to argue persuasively in a DPA claim that the PPC is always a data controller; their own ATA holds them out in that capacity and the case law (reminded by Lynnzer on pepipoo and I think dug up by Chitlord?) says they are, because they are never 'acting as agent' on behalf of the DVLA.

    All very interesting, makes me glad I am not a lawyer because I can offer a lay opinion then walk away from it. Law is interesting and so is this discussion but I'd hate to be so pedantic for a living...it's bad enough being pedantic about details at work, and on here for fun!



    Did the Duff case shed light on the role of a PPC as a data controller? Anyone know?
    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.

    • Ruurb
    • By Ruurb 30th May 17, 11:18 PM
    • 39 Posts
    • 62 Thanks
    Ruurb
    Well, it's taken me a bit of digging and searching but for my part about whether the PPC is a data controller can be found by reading the following two links (in addition to the case mentioned previous)

    http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp169_en.pdf

    Taken from the Working Party Opinion 2010
    The most important element is the prescription that the processor act “…on behalf of the controller…”. Acting on behalf means serving someone else's interest and recalls the legal concept of “delegation”. In the case of data protection law, a processor is called to implement the instructions given by the controller at least with regard to the purpose of the processing and the essential elements of the means. In this perspective, the lawfulness of the processor's data processing activity is determined by the mandate given by the controller. A processor that goes beyond its mandate and acquires a relevant role in determining the purposes or the essential means of processing is a (joint) controller rather than a processor.

    https://ico.org.uk/media/for-organisations/documents/1546/data-controllers-and-data-processors-dp-guidance.pdf

    Taken from the ICO Guidance in 2014 (and presumably on the back of the WP Opinion above):
    If a data processor breaks the agreement with its data controller, for example by using the data for its own Data controllers and data processors unauthorised purposes, then it will also take on its own data controller responsibilities. This includes the duty under the first data protection principle to process, including to obtain, personal data fairly and lawfully. Where a data processor takes the personal data the controller has entrusted it with but breaks the terms of its contract by using the data for its own purposes, it is likely to be in breach of the first principle and the ICO could take enforcement action against it.
    Last edited by Ruurb; 30-05-2017 at 11:28 PM.
    • Coupon-mad
    • By Coupon-mad 30th May 17, 11:23 PM
    • 51,504 Posts
    • 65,106 Thanks
    Coupon-mad
    That's really useful, new for us and suggests even more that the PPCs are data controllers.

    Thankyou Ruurb!
    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.

    • Ruurb
    • By Ruurb 30th May 17, 11:29 PM
    • 39 Posts
    • 62 Thanks
    Ruurb
    So I stand corrected, and even I learnt something new!

    Assuming now, the PPC is the processor until it acts outside of its authorised purpose under the KADOE contract and at which point, it then becomes a controller according to the above.

    All very interesting, makes me glad I am not a lawyer because I can offer a lay opinion then walk away from it. Law is interesting and so is this discussion but I'd hate to be so pedantic for a living
    That's the best part
    • Coupon-mad
    • By Coupon-mad 30th May 17, 11:32 PM
    • 51,504 Posts
    • 65,106 Thanks
    Coupon-mad
    I can imagine! In another life I might have done...
    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.

    • Timothea
    • By Timothea 30th May 17, 11:46 PM
    • 147 Posts
    • 282 Thanks
    Timothea
    That's really useful, new for us and suggests even more that the PPCs are data controllers.
    Originally posted by Coupon-mad
    There is no doubt that PPCs are almost always data controllers. However, I think the more interesting question is whether DVLA also has data controller responsibilities for the data it provides to PPCs. The Working Party Opinion 2010 seems to suggest it does when it talks about joint controllers.
    • Ruurb
    • By Ruurb 31st May 17, 12:03 AM
    • 39 Posts
    • 62 Thanks
    Ruurb
    You may have to read the whole document but as far as I understand it, a joint controller is where both controllers make joint decisions about the purpose and manner of the data being used, though I can see what you mean.

    Ordinarily, data controllers would not be jointly liable for each others actions unless they fall within the definition of 'joint' controller - I think the ICO makes reference to join controller so perhaps that could provide some clarity. Normally I've seen a data sharing agreement would set out and specify that both parties are data controllers and are both determining the purpose and manner of the data and that they are therefore 'joint' controllers.

    As for any DVLA liability, I don't think they could be exposed due to the PPC's unauthorised use. However, perhaps an argument (if not already explored) of negligence on part of the DVLA e.g. failing to institute or maintain any adequate systems/procedures/measures to ensure that the PPC obtaining and using the personal data does in fact have a right to pursue the registered keeper, which could be strengthened if there is evidence the DVLA has received complaints about PPC's from registered keepers about the use of their data. That sort of argument though is a moot point and might not stick or be worth pursuing
    • hoohoo
    • By hoohoo 31st May 17, 6:03 AM
    • 1,675 Posts
    • 3,108 Thanks
    hoohoo
    I would like to add once more scenario in the mix. What happens when the PPC sells the debt on to (eg) MIL Collections.

    Is MIL the controller?

    The PPC is expressly forbidden from doing this in the KADOE contract, so who has committed breaches here? The PPC? DVLA? MIL? All 3?
    Dedicated to driving up standards in parking
    • beamerguy
    • By beamerguy 31st May 17, 7:38 AM
    • 6,340 Posts
    • 8,147 Thanks
    beamerguy
    For those cases which could involve a data breach, I see no reason
    why a well worded paragraph added to the first appeal to the PPC, giving notice of intentions to claim under the DPA
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • pappa golf
    • By pappa golf 31st May 17, 7:54 AM
    • 7,644 Posts
    • 7,893 Thanks
    pappa golf
    I would like to add once more scenario in the mix. What happens when the PPC sells the debt on to (eg) MIL Collections.

    Is MIL the controller?

    The PPC is expressly forbidden from doing this in the KADOE contract, so who has committed breaches here? The PPC? DVLA? MIL? All 3?
    Originally posted by hoohoo
    the KODOE contract does not over ride UK law , it works along side it , if MIL are exempt by virtue of not using KODOE , they are still liable under UK law for breach of data protection

    this also applies to any parking Co , that flood tears to the DVLA and promise to be good in the future
    • safarmuk
    • By safarmuk 31st May 17, 10:38 AM
    • 613 Posts
    • 1,122 Thanks
    safarmuk
    because they are never 'acting as agent' on behalf of the DVLA.
    I think this is the key point ... in my first example Service Provider B was working as an agent for Client A.

    In the case of the PPC they are not working as an agent or a service provider for the DVLA, they acquire the information for the purposes set out in their KADOE contract and therefore then become both the Data Controller and Data Processor

    I agree with a previous post on this thread, the DVLA will have checked this and will have covered themselves for sure.
    • Elysander
    • By Elysander 2nd Jun 17, 7:18 PM
    • 83 Posts
    • 192 Thanks
    Elysander
    http://www.dailymail.co.uk/news/article-4566268/Driver-hounded-year-parking-ticket-wins-1-000.html
    • beamerguy
    • By beamerguy 2nd Jun 17, 9:27 PM
    • 6,340 Posts
    • 8,147 Thanks
    beamerguy
    Thanks good read and we know which member that is.

    I wish the Mail would get their act together and stop using the word
    FINE .....

    Shame that MSE was not mentioned.

    CEL is one of the rubbish scammers

    Wright Hassall brought this unfounded case and the judge was
    clear on what he thought about WH

    Until Marcus Jones MP, DCLG gets his fingers out to stop
    this mega scam we will still get these problems

    The mail does a good job in getting the message out but they
    are not doing enough to make the public aware of this huge scam
    which is allowed and approved by the government
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • IamEmanresu
    • By IamEmanresu 3rd Jun 17, 5:49 AM
    • 1,689 Posts
    • 3,087 Thanks
    IamEmanresu
    Until Marcus Jones MP, DCLG gets his fingers out to stop
    this mega scam we will still get these problems
    Marcus Jones is no longer at the DCLG. No one is.

    You'll just have to wait until after June 8th to see who gets the job and whether the PPC industry is part of their manifesto.

    Not long now.
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
    • TriumphRules
    • By TriumphRules 12th Jun 17, 5:44 PM
    • 1 Posts
    • 0 Thanks
    TriumphRules
    "As for any DVLA liability, I don't think they could be exposed due to the PPC's unauthorised use. However, perhaps an argument (if not already explored) of negligence on part of the DVLA e.g. failing to institute or maintain any adequate systems/procedures/measures to ensure that the PPC obtaining and using the personal data does in fact have a right to pursue the registered keeper, which could be strengthened if there is evidence the DVLA has received complaints about PPC's from registered keepers about the use of their data. That sort of argument though is a moot point and might not stick or be worth pursuing"

    And the fact that the KADOE contract requires the PPCs to keep the Registered Keepers data for a period of up to 2 years for their auditing reasons also surely goes beyond what is reasonable.
    • IamEmanresu
    • By IamEmanresu 12th Jun 17, 6:49 PM
    • 1,689 Posts
    • 3,087 Thanks
    IamEmanresu
    And the fact that the KADOE contract requires the PPCs to keep the Registered Keepers data for a period of up to 2 years for their auditing reasons also surely goes beyond what is reasonable.
    No. Keeping - for the purpose of traceability is to be encouraged. By traceability I mean where the information came from, how it was processed and who got it e.g debt collector.

    Otherwise it would be a case of mass producing letters and spraying them out to all and sundry.

    Oh. Hang on.
    Life's for living, get on with it rather than worrying about these. If they hassle, counter claim.

    Send them that costs schedule though, 24 hours before the hearing, and file it with the court. Take with you evidence that you have sent the costs schedule to them and when.
    LoC
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