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  • FIRST POST
    • driver1992
    • By driver1992 10th Oct 17, 12:04 AM
    • 6Posts
    • 1Thanks
    driver1992
    Me Vs WYPE (Gladstones) - Court in 3 weeks - CC DPA Breach
    • #1
    • 10th Oct 17, 12:04 AM
    Me Vs WYPE (Gladstones) - Court in 3 weeks - CC DPA Breach 10th Oct 17 at 12:04 AM
    Hi all, member over on Pepipoo from some time now, however due my first appearance in court in 3 weeks time. Just finalising my Witness Statement and Evidence. Case will hopefully be a slam dunk as should the CC.

    Situation summary - Issued a PCN on a public road adjacent to a car park on which the claimant operates. Tthe claimant has no authority to issue tickets there. Usual claim form via gladstones and they have pursued the case despite me pointing out it was public land.
    Will be defending all the usual points but will be CC for Breach of the DPA.
    Will also make a point of the fact Gladstones haven't followed CPR by filing defence to counter claim after well over 14 days, attempting to file a second defence etc ( I tried to get both thrown out but got a reply saying only one defence has been filed and nil else re my other points)

    If any suggestions / critique re my witness statement could be made it would be very helpful! It is my first time doing this, no legal experience whatsoever, so would appreciate as much help as i can get!



    1. I make this Witness Statement in support of my defence in this claim and in support of my counter claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

    2. On the xxxxx, the vehicle of registration xxxxx for which I am the registered keeper was parked on Back Carlisle Terrace, off Carlisle Terrace BD8 8AT. The location of the parking location is shown in Exhibits 1 and 2, as marked by the black cross / arrow. This is a pubic highway as confirmed by the Highways Department at Bradford City Council as shown in Exhibits 3 and 4. There are no private parking restrictions, signage or road markings on this adopted highway, nor are there any restrictions applied by the local authority as shown in Exhibit 5. A parking charge notice was applied to the vehicle by the claimant for an alleged breach of parking contract despite the claimant having no authority to issue a PCN on a highway owned and adopted by the local authority. Even if the claimant was an agent of the local council, of which they are not, the proper method of the council pursuing the driver / keeper would be under the Traffic Management Act 2004 by issuing a Penalty Charge pursued under that act.

    3. Enforcement Authorities are aware that they are prohibited from enforcing Council-owned sites as if they were private land, as warned in writing by Robert Goodwill MP in 2014 (Exhibit 6). Indeed, Wycombe District Council were banned by the DVLA for attempting to do so and subsequently, in 2017, Wycombe Council withdrew their Judicial Review. So, as this Claimant will be aware, this has now concluded and the DCLG/DVLA ruling stands as the official position, that Enforcement Authority-owned land where any vehicles have access, cannot be operated 'as if it were private land':

    4. The Claimant in this original claim is a private parking company who are required to adhere to the British Parking Association's Code of Practice (Exhibit 7 which shows an excerpt from the most up to date BPA CoP October 2015), which holds all members out for the purposes of the Data Protection Act 1998, as a 'data controller' as regards the rules on Data Processing: ''You are required to be registered with the Information Commissioner as a data controller.''

    5.This status as a data controller is reiterated by the DVLA in the KADOE contract (an excerpt of which is seen in Exhibit 8) under which an Approved Operator parking firm (the party known to the DVLA as 'the Customer') obtain data, which states: ''The Customer, separately from the DVLA, shall be the Data Controller of each item of Data received from the DVLA from the point of receipt of that Data by the Customer or its Link Provider and shall be responsible for complying with the principles of the DPA in relation to its further Processing of that Data.''

    6. The Defendant in this original claim, being the registered keeper of the car in question, is the 'data subject' in this matter. The registration number of the vehicle, together with the Defendant's name and address details, all constitute personal data. this has been confirmed by the Information Commissioner in paragraph 6 of this specific report about private parking operators (Exhibit 9)

    7. Schedule 2 of the Data Protection Act 1998 (Exhibit 10) indicates that Data may only be lawfully processed if one of the conditions set out in the Schedule applies to that processing. None apply.

    8. The Claimant has unlawfully captured and stored the VRN and an image of the vehicle (both confirmed by the ICO, as 'personal data' relating to a keeper), following which they obtained the Defendant's name and address from the DVLA. The purpose of such data being supplied to a parking firm is only applicable on private land. Due to the status of this location, the Claimant's misappropriation, obtaining and processing of personal data about the Defendant was unlawful and/or in contravention of any or indeed all of the Data Protection Principles. Certainly, it is averred that the Claimant was in breach of the Second Data Principle, pursuant to Schedule 1 of the DPA (Exhibit 11), which states: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”

    9. It is averred that the Claimant had no grounds to pursue me due to the status of the location. The Claimant had no 'reasonable cause' (a DVLA pre-requisite) to obtain, nor to process, the Defendant's personal data for any reason, not even to enquire who was driving, since there was no lawful excuse to issue a notice purporting to be a private 'Parking Charge Notice' at this specific 'non-private land' location. There was no reasonable cause to photograph the vehicle, nor to collect the VRN, nor to store that data and those images, nor to process that data in any way.

    10. By reason of the obtaining and/or storing and processing the data, the Claimant acted in breach of its statutory duty under Section 4(4) of the DPA (Exhibit 12), in that it processed the personal data unfairly and/or unlawfully in contravention of the Defendant's rights under the First Data Protection Principle.

    11. The Claimant is a member of the Trade Body known as the British Parking Association. In accordance with the Code of Practice as laid down by the BPA (Exhibit 13) (such rules being held by the Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67 as 'effectively regulatory') a parking operator ''shall comply'' with the statutory provisions of the DPA 1998. In this case, the Claimant has failed to comply with that statute, and is therefore operating in breach of the BPA Code of Practice.

    12. It therefore follows that the claimant has accessed the DVLA database to identify myself as the registered keeper without reasonable cause, and have been using and processing my information unlawfully, in contravention of the Data Protection Act, BPA Code of Practice and also the KADOE contract, to pursue a vexatious and fanciful claim and to thereafter bombard me with demands for money, constituting a course of harassment which has caused continuous and escalating distress, worry and anxiety.

    13.In consequence of the processing the Claimant has suffered damage and distress. Pursuant to s13 of the DPA (Exhibit 14), “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.

    14. The counter claim relies on two binding authorities in support of the Claim, which are Vidal-Hall v Google Inc [2015] EWCA 311 (Exhibit 15), and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333 (Exhibit 16). In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, and that it was not necessary to quantify a direct pecuniary loss. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.

    15. Both of the above cases arose as a result of material breaches of the DPA by the respective defendants, and can be considered to provide binding precedents this case. The counter claim is for £500, at the lower end of the scale and not a sum that appears excessive, given the circumstances of harassment and DPA breach by a Claimant pursuing a wholly vexatious claim and unreasonable three-figure sum.

    16. I also rely on two more similar rulings
    i) A District Judge at Liverpool County Court on 7 December 2016, in case no. C9DP2D6C, VCS v Mr. M (Exhibit 17). Deputy District Judge Bretlin accepted the argument about the DPA breach by a Parking Company. A claim of £250 was awarded.
    ii) Also, more recently in Claim No D6GM2199 in May 2017 at the County Court at Bury Court: Civil Enforcement Ltd v Mr B, where District Judge Osborne accepted the argument about the DPA breach by a Parking Company who could not hold a registered keeper liable, yet still pursued that party. He accepted the tort of damages as averred in the counter-claim. Additional exemplary costs of £405 (as requested) were also granted. This is understood to have arisen due to the claim being found to be false and/or vexatious, or where a party is found to be guilty of misrepresentation or suppression of facts.

    17. The land adjacent to Back Carlisle Terrace and Carlisle Terrace, BD8 8AT is a car park. It is this land claimant apparently operates. The vehicle was NOT parked there when the PCN was issued. The Claimant is not the landowner. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name and pursue this PCN even if the vehicle had been parked there. If this is not produced then this PCN cannot be pursued.



    18. Even if the vehicle was parked on private, where parking terms are not seen / known then no contract can be formed. The BPA Code of Practice states ‘Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format’ (Exhibit 18). As shown in Exhibit 19 there is no entrance signage or markings indicating this is private land and nor any mention of contractual parking terms on entry. I rely upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 (Exhibit 19), a case won by the consumer on Appeal, where the Judges also found that clear entrance signs are expected.


    19. ParkingEye Ltd v Beavis [2015] UKSC 67 (a summary of which is shown in Exhibit 20) only assists the Claimant if the facts of the case are the same, or broadly the same. The facts of the case are easily distinguishable from Beavis. In the Beavis case there were multiple, clear and prominent signs. The sign erected by the claimant fails the test of 'large lettering' and prominence, as established in Beavis. There is only one sign on the premises on which the claimant operates belonging to the claimant. As (Exhibit 21) shows it is attached to a far back wall of the adjacent supermarket above a number of commercial bins which are overfull with rubbish, cardboard boxes and wooden pallets. In addition to this, it is surrounded by numerous brightly coloured and larger signs, including various from other companies detailing "warning" attached to the wall where the claimants sign is erected. The sign in question does not draw attention and is not remotely easy to see. The writing on the sign belonging to the claimant detailing the parking and contract details is written in a small font which cannot be read unless standing immediately in front of the sign. From where the vehicle was parked, even if the claimant had authority to issue a PCN at that location, it is impossible to read the sign, made even more difficult by the surrounding background and distracting signs, the obscuring bins and rubbish along with vehicles including cars and vans parked in the spaces directly in front of the sign.

    20. The signage at the location is in breach of the BPA CoP. It states that ‘You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle ….. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand’ (Exhibit 18). The sign placed by the claimant fails to meet these requirements therefore the claimant is in breach of the BPA CoP.

    21. Absent any contractual offer capable of being accepted, the only possible Cause of Action would be a tort of trespass to land. However, such an action is not brought by the claimant, and could only be brought by the landowner, or a party with a proprietary or beneficial interest in the land, which this Claimant does not possess.

    .22. The Section 4 of the Protection of Freedoms Act (Exhibit 22) does not allow the claimant to recover a sum greater than the parking charge on the day before a notice to keeper was issued. Additional charges cannot be recovered. I have reasonable belief that additional costs have not been incurred and put to strict proof that these have actually been incurred. Even if they have been incurred, the claimant has described them as 'indemnity costs' and 'damages'. The prior cannot be recovered in a smalls claim court and the latter I put to the claimant to prove these losses have occurred any the associated charges are reasonable and proportionate. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

    23. The claim form stated that the claimant was claiming £150 in parking charges / damages and indemnity costs if applicable alongside interest from myself , the registered keeper (as they had not established the driver of the vehicle). This brought great distress to both myself and my family initially receiving a claim form from court for such a large sum, especially for such a unawful and vexatious claim. It was even more distressing learning that legal costs cannot be claimed back on the small claims track and that we would have to pay out of our own pocket for extensive legal advice, which I cannot afford, or spend countless hours researching the relevant law and writing defences at the expense of my own free time and family time which is precious and to which no amount of money can compensate. The threat of such time and financial burden was very stressful for both me and my family.

    24. On the 15th of June 2017, the defence to the claim and the counter claim was filed, which was served to the claimants solicitors at the same time as the court. In this I made apparent that the claimant had failed on multiple points to meet the BPA Code of Practice, was in breach of the KADOE Contract, and in breach of the DPA and that the basis of the counter claim was breach of the DPA and unlawful continued perusal which made me feel harassed and was having and escalating negative impact on me and my family. The Claimant has knowingly aggravated the breaches by continuing to process the ticket and my information, despite the evidence I offered. It should never have been submitted to the small claims track. They could have withdrawn this case from the court list but they have knowingly continued to misuse my information causing continued distress and worry despite being fully informed and aware of their unlawful actions.

    25. The pursual of this only brought further distress to myself and my family realising that this would be proceeding in front of a judge in a court room, a place where the defendant has no experience whatsoever, and for someone with no previous involvement with the law and a completely clean financial history, this proved to be very worrying that I would have to go through this regardless of the fact it was made apparent to the claimant that this claim was completely unfounded and unlawful and they had no basis for pursuing the driver or the registered keeper for any charge whatsoever.

    26. On the 19th of July 2017 the defendant received an email from the claimants solicitors with the defence to counter claim which they confirmed had been filed at court (Exhibit 23 and 24). On the 16th of August 2017 the defendant received a second email from the claimant’s solicitors with a second defence to counter claim (Exhibit 25 and 26), including many points not mentioned in the original defence to counter claim, which they informed me this had been filed at court. The defendant would not be allowed to file a second defence in court so this caused a great deal of distress to the defendant due to the facts that the claimant and their solicitors, who are experienced in these matters, would attempt to abuse the process.

    27. Practice Directions 15.3.2A Rule 15.8(a), 20.3.3 and 20.4.3 state that a time limit applies in which a defence to counter claim must be served, and an AOS period does not apply to this process. A time limit of 14 days is the deadline to serve defence to counterclaim. The claimant did not submit a defence to counter claim in this time limit.

    28. As a litigant in person, the defendant and his family have spent countless hours researching the court process, consumer and contract law alongside other aspects of this case. The defendants son who is an emergency department doctor has assisted the defendant throughout the process, and no value can be put on the wasted free time and family time over the past 6 months spent on defending this unlawful and fanciful attempt to take monies from the defendant, and then continued pursual despite being in full awareness of the unlawfulness of their actions which constitutes as harassment.

    29. The case has been defended properly with the CPR rules being followed correctly and deadlines being met. The same cannot be said about the claimant.

    30. As a result of the issuing of a private 'Parking Charge' by the Claimant, the Defendant, a Litigant in Person with no previous civil litigation experience, has suffered the quantifiable cost of postage, printing, and those travel and other costs for attending a hearing, plus the loss of his own time and that of his son, a Hospital Doctor, something which is not adequately covered by the limited costs awarded in the small claims court hearing. In addition, there are non-pecuniary losses, not least being severely worried by the unwarranted demands, which to any untrained eye: impersonated authority, were written to cause alarm and to force payment from consumers, and which unreasonably escalated the sum and misled the Defendant about how a CCJ can be obtained. This series of threatening letters and the court claim have caused untold worry and distress to the Defendant and have caused a loss of family time and peace of mind that will never be reclaimed.

    31. The following are requested to be awarded for the misuse of the defendants personal data, continued perusal of this unlawful and vexatious claim and the distress and loss the defendant has suffered as a result of this.

    (i) Damages in the sum of £500 for breach of statutory duty pursuant to Section 13(1) of the Data Protection Act 1998 and/or misuse of private information.
    (ii) An order pursuant to Section 14(4) of the Data Protection Act 1998 for the blocking and/or erasure and/or destruction of the data held by the Claimant, whether stored as digital data or otherwise and any photographs or other relevant material.
Page 1
    • Umkomaas
    • By Umkomaas 10th Oct 17, 6:53 AM
    • 14,980 Posts
    • 23,531 Thanks
    Umkomaas
    • #2
    • 10th Oct 17, 6:53 AM
    • #2
    • 10th Oct 17, 6:53 AM
    If this was definitely a public highway then why the need for paras 17 to 22, which suggests to me there may be some doubt as to where the car was actually parked (possibly on the highway, possibly on private land?).

    I’m no expert on court-related stuff; you may have had more experienced input on PePiPoo as to the reason to add those paras?
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Johnersh
    • By Johnersh 10th Oct 17, 9:03 AM
    • 520 Posts
    • 934 Thanks
    Johnersh
    • #3
    • 10th Oct 17, 9:03 AM
    • #3
    • 10th Oct 17, 9:03 AM
    That witness statement is unwieldy with so many exhibits as to be a PITA - 18? Seriously? Indeed the statement contains very little factual comment, just argument. That in turn will make your skelly will otiose or repetitive.

    If you intend lodging a fully paginated bundle I see no reason to append any case law or legislation to your witness statement. Statements = what you said, what you did, possibly appending copies of letters/plans (fruits of your research) if you wish to comment on it, confirming that it is council land.

    The DPA point is simple. Keep it that way. The PPC have one job - to enforce parking on the relevant land. It follows that they must know the perimeter of that land (or were wholly reckless as to the same) and therefore had no basis to ticket or process your data.

    An exposition of the data protection act isn't needed. Your address is plainly personal information.
    • Johnersh
    • By Johnersh 10th Oct 17, 9:04 AM
    • 520 Posts
    • 934 Thanks
    Johnersh
    • #4
    • 10th Oct 17, 9:04 AM
    • #4
    • 10th Oct 17, 9:04 AM
    Sorry, that appears to be a bit "robust" as responses go, but best to make fewer good points than drown a time pressed DJ...
    • The Deep
    • By The Deep 10th Oct 17, 9:18 AM
    • 7,181 Posts
    • 6,229 Thanks
    The Deep
    • #5
    • 10th Oct 17, 9:18 AM
    • #5
    • 10th Oct 17, 9:18 AM
    Personally, I think that you are over egging the pudding. It is far too long imo and repetitive, Also, you are milking the distress angle. Can you supply evidence of this, visits to the doictor, prescriptions for happy pills, etc? Frankly, you do appear to be a shrinking violet, or in any way vulnerable. And I am sure that you would not come across as such in court.

    If, as you say, it is a public highway. and they tried to extort monies from you for parking there, then you have a slam dunk winner. It may also be a criminal offence, have you contacted Trading Standards?

    If you win that, then the DPA claim must surely also succeed.
    Last edited by The Deep; 10-10-2017 at 9:24 AM.
    You never know how far you can go until you go too far.
    • driver1992
    • By driver1992 10th Oct 17, 2:25 PM
    • 6 Posts
    • 1 Thanks
    driver1992
    • #6
    • 10th Oct 17, 2:25 PM
    • #6
    • 10th Oct 17, 2:25 PM
    Thanks for the feedback guys, much appreciated!
    I've ammended it and cut a fair bit out, minimising (trying to) arguments and keeping it factual. I will be submitting a bundle inc. also the relevant case law and contracts etc.

    I've included a cut down version below, would you suggest cutting anything else out?

    1. I make this Witness Statement in support of my defence in this claim and in support of my counter claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

    2. On the xxxxx, the vehicle of registration xxxxx for which I am the registered keeper was parked on Back Carlisle Terrace, off Carlisle Terrace BD8 8AT. The location of the parking location is shown in Exhibits 1 and 2, as marked by the black cross / arrow. The driver at the time knew the road was a public highway and not private land, hence why he parked there.



    3. There are no private parking restrictions, signage or road markings on this road, nor are there any restrictions applied by the local authority as shown in Exhibit 5.

    4. A parking charge notice was applied to the vehicle by the claimant for an alleged breach of private parking contract at that location.

    5. This is a pubic highway as confirmed by the Highways Department at Bradford City Council whom I contacted after the claim form was received, and received written confirmation of on the 11th of September 2017. This is also is publically available information on the Bradford City Council Website. These are shown in Exhibits 3 and 4.

    6. Adjacent to Carlilse Terrace and Back Carlisle Terrace, separate to the location for where the vehicle was parked, there is a car park. As shown in Exhibit 19 there is no entrance signage or markings indicating this is private land and nor any mention of contractual parking terms on entry. I rely upon the BPA CoP and also the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 (Exhibit 19), a case won by the consumer on Appeal, where the Judges also found that clear entrance signs are expected.

    7. There is only one sign on the premises on which the claimant operates belonging to the claimant. As (Exhibit 21) shows it is attached to a far back wall of the adjacent supermarket above a number of commercial bins which are overfull with rubbish, cardboard boxes and wooden pallets. In addition to this, it is surrounded by numerous brightly coloured and larger signs, including various from other companies detailing "warning" attached to the wall where the claimants sign is erected. The sign in question does not draw attention and is not remotely easy to see as can be seen in the images provided. The writing on the sign belonging to the claimant detailing the parking and contract details is written in a small font which cannot be read unless standing immediately in front of the sign. From where the vehicle was parked, even if the claimant had authority to issue a PCN at that location, it is impossible to read the sign, made even more difficult by the surrounding background and distracting signs, the obscuring bins and rubbish along with vehicles including cars and vans parked in the spaces directly in front of the sign.

    21. The driver did not see any entrance signs on the adjacent land where the claimant operates, nor any signs within the car park itself belonging to the claimant.

    23. The claim form stated that the claimant was claiming £150 in parking charges / damages and indemnity costs if applicable alongside interest from myself , the registered keeper (as they had not established the driver of the vehicle). This brought great distress to both myself and my family initially receiving a claim form from court for such a large sum, especially for such a unawful and vexatious claim. It was even more distressing learning that legal costs cannot be claimed back on the small claims track and that we would have to pay out of our own pocket for extensive legal advice, which I cannot afford, or spend countless hours researching the relevant law and writing defences at the expense of my own free time and family time which is precious and to which no amount of money can compensate. The threat of such time and financial burden was very stressful for both me and my family.

    24. On the 15th of June 2017, the defence to the claim and the counter claim was filed, which was served to the claimants solicitors at the same time as the court. In this I made apparent that the claimant had failed on multiple points to meet the BPA Code of Practice, was in breach of the KADOE Contract, and in breach of the DPA and that the basis of the counter claim was breach of the DPA and unlawful continued perusal which made me feel harassed and was having and escalating negative impact on me and my family. The Claimant knowingly aggravated the breaches by continuing to process the ticket and my information, despite the evidence I offered. It should never have been submitted to the small claims track. They could have withdrawn this case from the court list.
    .

    26. On the 19th of July 2017 the defendant received an email from the claimants solicitors with the defence to counter claim which they confirmed had been filed at court (Exhibit 23 and 24). On the 16th of August 2017 the defendant received a second email from the claimant’s solicitors with a second defence to counter claim (Exhibit 25 and 26), including many points not mentioned in the original defence to counter claim, which they informed me this had been filed at court. The defendant is expected to meet court deadlines for submissions and would not be allowed to file a second defence in court. The claimant and their solicitors not only file the defence to counterclaim considerably late, but also later attempted to file a second defence addressing points not initially addressed. This attempted abuse of process only caused further anxiety.

    28. As a litigant in person, the defendant and his family have spent countless hours researching the court process, consumer and contract law alongside other aspects of this case. The defendants son who is an emergency department doctor has assisted the defendant throughout the process, and no value can be put on the wasted free time and family time over the past 6 months spent on defending this unlawful and fanciful attempt to take monies from the defendant, and then continued pursual despite being in full awareness of the unlawfulness of their actions which constitutes as harassment.

    30. As a result of the issuing of a private 'Parking Charge' by the Claimant, the Defendant, a Litigant in Person with no previous civil litigation experience, has suffered the quantifiable cost of postage, printing, and those travel and other costs for attending a hearing, plus the loss of his own time and that of his son, a Hospital Doctor, something which is not adequately covered by the limited costs awarded in the small claims court hearing. In addition, there are non-pecuniary losses, not least being severely worried by the unwarranted demands, which to any untrained eye: impersonated authority, were written to cause alarm and to force payment from consumers, and which unreasonably escalated the sum and misled the Defendant about how a CCJ can be obtained. This series of threatening letters and the court claim have caused untold worry and distress to the Defendant and have caused a loss of family time and peace of mind that will never be reclaimed.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Oct 17, 3:26 PM
    • 1,262 Posts
    • 2,154 Thanks
    Loadsofchildren123
    • #7
    • 10th Oct 17, 3:26 PM
    • #7
    • 10th Oct 17, 3:26 PM
    1. I make this Witness Statement in support of my defence in this claim and in support of my counter claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

    2. I am the registered keeper of vehicle registration number xxxxx. On the xxxxx, the vehicle of registration xxxxx for which I am the registered keeper was parked on Back Carlisle Terrace, off Carlisle Terrace BD8 8AT. The precise location of the parking location is shown in Exhibits 1 and 2, as marked by the black cross / arrow. [The driver at the time knew the road was a public highway and not private land, hence why he parked there.I wouldn't bother saying this. Knowledge is irrelevant, it's either public land or not]



    3. There were are no private parking restrictions, signage or road markings on this road, nor are there any restrictions applied by the local authority , at the relevant time, as shown in Exhibit 5.

    4. A parking charge notice was applied to the vehicle by the claimant for an alleged breach of private parking contract at that location, which is now the subject of these proceedings.

    5. The location where the vehicle was parked is a pubic highway as confirmed by the Highways Department at Bradford City Council. whom I contacted after the claim form was received, and received written confirmation of on the 11th of September 2017. This which is also is publically available information on the Bradford City Council Website. These are shown in Exhibits 3 and 4.

    6. Adjacent to Carlilse [correct spelling] Terrace and Back Carlisle Terrace, separate to the location for where the vehicle was parked, there is a car park operated by the Claimant. This is not where the vehicle was parked on the relevant date, and so any terms and conditions of any contract offered by the Claimant to drivers parking there did not apply to the driver of my vehicle. As shown in Exhibit 19 there is no entrance signage or markings indicating this is private land and nor any mention of contractual parking terms on entry. I rely upon the BPA CoP and also the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000 (Exhibit 19), a case won by the consumer on Appeal, where the Judges also found that clear entrance signs are expected.

    7. There is only one sign on the premises on which the claimant operates belonging to the claimant. As (Exhibit 21) shows it is attached to a far back wall of the adjacent supermarket above a number of commercial bins which are overfull with rubbish, cardboard boxes and wooden pallets. In addition to this, it is surrounded by numerous brightly coloured and larger signs, including various from other companies detailing "warning" attached to the wall where the claimants sign is erected. The sign in question does not draw attention and is not remotely easy to see as can be seen in the images provided. The writing on the sign belonging to the claimant detailing the parking and contract details is written in a small font which cannot be read unless standing immediately in front of the sign. From where the vehicle was parked, even if the claimant had authority to issue a PCN at that location, it is impossible to read the sign, made even more difficult by the surrounding background and distracting signs, the obscuring bins and rubbish along with vehicles including cars and vans parked in the spaces directly in front of the sign. why are you arguing this when you say you weren't parked there? Is it because you are worried the judge may say you were? In which case you must make it clear - "In the alternative, if it is decided that the vehicle was not parked on a public highway, but in the carpark......" - and include the arguments I deleted from para 6 as well

    21. The driver did not see any entrance signs on the adjacent land where the claimant operates, nor any signs within the car park itself belonging to the claimant. again irrelevant unless you are arguing this in the alternative

    23. The claim form stated that the claimant wais claiming £150 in parking charges / damages and indemnity costs if applicable alongside interest from myself , the registered keeper (as they had not established the driver of the vehicle). They have written to me on multiple occasions, both themselves and via debt collectors, seeking ever-increasing sums of money without justification or explanation, and threatening me with judgment which they assert would have a serious effect on my credit rating This brought great distress to both myself and my family initially receiving a claim form from court for such a large sum, especially for such a unawful and vexatious claim. It was even more distressing learning that legal costs cannot be claimed back on the small claims track and that we would have to pay out of our own pocket for extensive legal advice, which I cannot afford, or spend countless hours researching the relevant law and writing defences at the expense of my own free time and family time which is precious and to which no amount of money can compensate. The threat of such time and financial burden was very stressful for both me and my family. [the distress you should focus on is more that caused by the use of your data - ie the letters - rather than the trouble in dealing with the claim - you need to flesh t his out. Eg my wife was in tears, or I suffer from nerves and had to go to the doctor etc. You have to show ACTUAL distress and anxiety]

    24. I filed and served my defence and counterclaim on On the 15th of June 2017, the defence to the claim and the counter claim was filed, which was served to the claimants solicitors at the same time as the court. In this I made apparent that the claimant had failed on multiple points to meet the BPA Code of Practice, was in breach of the KADOE Contract, and in breach of the DPA and that the basis of the counter claim was breach of the DPA and unlawful continued perusal which made me feel harassed and was having and escalating negative impact on me and my family. In spite of being on notice of its breach of my rights under the Data Protection Act, the Claimant knowingly aggravated the breaches by continuing to process the ticket and my information, despite the evidence I offered. It should never have been submitted to the small claims track. They could have withdrawn this case from the court list. this is a bit confusing: did you put them on notice that you were parked on public land BEFORE they issued? in which case you should draw attention to the letter and exhibit it and say that they've been on notice since then, rather than the date of the counterclaim
    .

    26. On 19 July 2017 the defendant received an email from the claimants solicitors with the Claimant served its defence to counter claim which they confirmed had been filed at court (Exhibit 23 and 24) no need to exhibit a pleading. On 16 August 2017 the defendant received a second email from the claimant’s solicitors with Claimant purported to serve a second defence to counter claim (Exhibit 25 and 26 - no need to exhibit pleadings), which included a number of additional defences not included many points not mentioned in the original defence served on 19 July 2017 to counter claim, which they informed me this had been filed at court. The Claimant has not sought or been granted leave to file an Amended Defence and I object strongly to it attempting to do so in breach of the court rules. In addition, the Claimant filed its first Defence out of time and did not seek, nor was it given, leave to do so. The Defendant is expected to meet court deadlines for submissions and would not be allowed to file a second defence in court. The claimant and their solicitors not only file the defence to counterclaim considerably late, but also later attempted to file a second defence addressing points not initially addressed. This attempted abuse of process only caused further anxiety.

    28. As a litigant in person, the defendant and his family have spent countless hours researching the court process, consumer and contract law alongside other aspects of this case. The defendants son who is an emergency department doctor has assisted the defendant throughout the process, and no value can be put on the wasted free time and family time over the past 6 months spent on defending this unlawful and fanciful attempt to take monies from the defendant, and then continued pursual despite being in full awareness of the unlawfulness of their actions which constitutes as harassment.

    30. As a result of the issuing of a private 'Parking Charge' by the Claimant, the Defendant, a Litigant in Person with no previous civil litigation experience, has suffered the quantifiable cost of postage, printing, and those travel and other costs for attending a hearing, plus the loss of his own time and that of his son, a Hospital Doctor, something which is not adequately covered by the limited costs awarded in the small claims court hearing. In addition, there are non-pecuniary losses, not least being severely worried by the unwarranted demands, which to any untrained eye: impersonated authority, were written to cause alarm and to force payment from consumers, and which unreasonably escalated the sum and misled the Defendant about how a CCJ can be obtained. This series of threatening letters and the court claim have caused untold worry and distress to the Defendant and have caused a loss of family time and peace of mind that will never be reclaimed. Look at this para again: the damages given for breach of the DPA are for distress caused by the mishandling/wrongful obtaining of your data, not the work and trouble you've been put to - these are costs arguments
    Originally posted by driver1992

    Some suggestions for you.
    • driver1992
    • By driver1992 10th Oct 17, 6:15 PM
    • 6 Posts
    • 1 Thanks
    driver1992
    • #8
    • 10th Oct 17, 6:15 PM
    • #8
    • 10th Oct 17, 6:15 PM
    Thank you for that, I've heavily amended it as you suggested!

    To answer your questions, yes I want to cover all bases in case it is decided it was private land which really shouldn't happen.

    Also may aswell ask now, when it comes to submisson of the witness statement, evidence (images and contracts eg KADOE / BPA CoP etc), I need 3 copies?
    One for myself and my indexed bundle, one for the claimants solicitors and one for the court. Do they need to be set out in a ring binder as a proper bundle for the court and claimant or just for myself?
    • Johnersh
    • By Johnersh 10th Oct 17, 6:23 PM
    • 520 Posts
    • 934 Thanks
    Johnersh
    • #9
    • 10th Oct 17, 6:23 PM
    • #9
    • 10th Oct 17, 6:23 PM
    Triplicate. Lodge at Court and serve the Claimant.

    Prepare them in tabbed, paginated files - all pages sequentially numbered. If you do not, it will be much harder to refer to the papers or, worse, documents will go astray.

    Ideally you run your original papers through a copier with a sorting and pagination function turned on to produce 3 beautiful paginated sets of papers. Otherwise, *golden rule* make damn sure you do the pagination on your master bundle before you do the photocopying (not doing so is a mistake you only make once)...
    • driver1992
    • By driver1992 10th Oct 17, 6:30 PM
    • 6 Posts
    • 1 Thanks
    driver1992
    Nearly everything is currently on my laptop so I will be printing 3 copies out shortly and I will just number them by hand.

    The sections I have planned for the bundle are

    Index

    Section 1

    Original Claim Form with Particulars of Claim
    Defence and Counter Claim
    Claimants Defence to Counter Claim
    Witness Statement (mine)
    Copies of the two emails in which Gladstones served me defence to CC 1 and then attempted to serve a second defence

    Section 2

    Exhibits to the WS inc images

    Section 3

    Excerpts of BPA CoP
    Excerpts of KADOE Contract
    Excerpts from the ICO re DPA
    Other excerpts of relevant case law

    Should I just prepare the the bundle and just file and serve the whole lot in one go?
    Last edited by driver1992; 10-10-2017 at 6:39 PM.
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 9:39 AM
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    • 2,154 Thanks
    Loadsofchildren123
    lol @ Jonersh - just take your time paginating the three sets driver1992 - it's easy for two pages to stick together and then you get to the end and realise your numbering is out (Jonersh and I have been there a few times I suspect).


    Your WS needs to be in the first person. Pleadings (eg your Defence) are always in the 3rd person, referring to you as "the Defendant". WSs are in the first person - I, me, my etc. This will also make it a bit shorter.


    Is there a reason why you are distinguishing between yourself and driver? Is there a POFA argument? I think in para 1 you should specifically say you are not the driver if you weren't. and if you were driving and there is no POFA argument about the NtK being invalid then I'd just say you were.


    If you weren't driving, I think you should say you know who was, it was a family member, and you need to explain how you know about the signage and where the car was parked - so say that the driver has told you and shown you, and you went and visited the area to see for yourself the layout, and the car park signage. Eg para 21 you are saying things that only the driver can know, so you need to say the driver has told you (or you were the driver). Where you are stating facts not within your knowledge you need to say how you know them.


    When you get to the arguments about the car park itself, start this section with:
    "In the alternative, if it is decided that the car was parked in the car park, my defence is that the signage there was inadequate to have formed a contract between the Claimant and the driver of the vehicle. In support of this....." and then make those arguments. Without making it clear this is an alternative position, it's a bit unclear and muddled.


    On the DPA point, the distress has to be caused by the breach. The breach is the obtaining and use of your data - so you are talking about the distress caused by receiving the multiple correspondence, written in threatening and inaccurate terms, including inaccurate threats that if you lose the case it will affect your credit rating (only an unpaid CCJ does this). This is not the same as the hassle/distress factor of having to deal with the proceedings. You need to prove actual distress so the more colour you give this part the better. Have a look on parking prankster's blog to see if you can find any court reports which are on point.
    • Loadsofchildren123
    • By Loadsofchildren123 11th Oct 17, 9:44 AM
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    Loadsofchildren123
    Your questions about the bundle.
    This bundle is just supposed to be your evidence - so your WS, its exhibits and any other documents you want to rely on (eg the CoP, KADOE contract etc).


    So the first items on your list you don't need to put in. It should be WS, WS exhibit, other documents, correspondence.


    The bundle you have mentioned above is more like a bundle that would be used at the hearing itself. A composite bundle like that will be useful when you come to do your Skeleton (if you do one). But it's the C's obligation to prepare a final hearing composite bundle (if there is a direction in the allocation directions order that they have to - in mine there was but in most others this is absent).


    In claxtome's case (see his thread) there is no order that C produces a bundle for the final hearing. So for ease of reference in preparing his Skeleton and taking the judge through his case he's decided to make one himself. But it's premature for you to do it now.


    I think you should paginate in the middle of the bottom of each page - if you later decide to produce a bundle for the hearing you will be able to paginate that on the bottom right corner, distinguishing between the original numbering and the new numbering.
    • driver1992
    • By driver1992 12th Oct 17, 2:25 PM
    • 6 Posts
    • 1 Thanks
    driver1992
    Really appreciate the advice guys!

    I've amended the WS to 1st Person. The driver hasn't been identified but ive acknowledged discussing with the driver. If things go south then for any reason then the POFA doesnt allow a charge greater than the day before the NTK to be recovered?

    How about this for the breach argument?

    . The claimant and their solicitors have written to me on multiple occasions, after getting our personal information from the DVLA, seeking ever-increasing sums of money without justification or explanation, and threatening me with passing our information and details onto further debt recovery companies, taking me to court, and misleading me about how a judgement may be obtained against me, which would have a serious effect on my spotless credit history and rating. My wife has been in tears on multiple occasions with each further letter, harassing us for money, with the pressure of escalating charges and threats of further charges if we don’t pay them immediately, that they have no right to collect from us. She would be terrified opening each letter that would arrive that she did not recognise, even more so after the threats of debt recovery companies were made. My son who is 12 who is an intelligent boy and understands very well for his age about court and debt collection, has been distressed each time a further letter would arrive, and after seeing myself so panicked and my wife crying, would be worried himself as to what is going on and what will happen to his father. I have found myself unable to concentrate at work, and being unable to focus on the family due to constant anxiety and panic about the threats of escalating charges in each letter, which has led to me taking time off work, and as a self-employed individual this has in turn had a negative impact on the home finances. The distress was only added to by the fact that I would have no choice but to go through the court process to defend a claim which should not have been issued in the first instance, if the claimant had acted lawfully and knew the boundaries of the land they operate and exercised due diligence before demanding money from innocent members of the public. Learning that legal costs cannot be claimed back on the small claims track and that we would have to pay out of our own pocket for extensive legal advice, which I cannot afford, or spend countless hours researching the relevant law and writing defences at the expense of my own work time, free time and family time which is precious and to which no amount of money can compensate, only added additional amounts of pressure, stress, anxiety and worry to me, someone who has no legal experience whatsoever. However, despite this, as someone who earns an honest living by working hard, I refused to give into this harassment and bullying as it was something which they knowingly had no right to pursue from the offset and they had no right to any of my money.
    • The Deep
    • By The Deep 12th Oct 17, 7:43 PM
    • 7,181 Posts
    • 6,229 Thanks
    The Deep
    Hang on, this is absurd. if they invoiced you for parking on a public highway they were in the wrong and will surely lose. Why such an emotional reaction? How on earth would you be able to cope with something really serious? I would delete the whole lot and just let justice take its course.

    Even if the worst happened and you lost, you would only be out of pocket by a few pounds more than the cost of a family day out at Alton Towers.
    .
    Last edited by The Deep; 12-10-2017 at 7:53 PM.
    You never know how far you can go until you go too far.
    • Umkomaas
    • By Umkomaas 12th Oct 17, 8:51 PM
    • 14,980 Posts
    • 23,531 Thanks
    Umkomaas
    I agree with TD. Forget all the emotion, sorry, but no one involved will be remotely interested. Scrap all of it and learn from the NEWBIES FAQ sticky, post #2, what a real WS should look like.

    When you do finally draft a rational WS, don’t put it up here as a complete wall of text, as above (try hitting the ‘Return’ key on your keypad to create readable paragraphs), and even more importantly, don’t give that to a judge to have to plough through.
    Last edited by Umkomaas; 12-10-2017 at 8:54 PM.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Oct 17, 12:10 PM
    • 1,262 Posts
    • 2,154 Thanks
    Loadsofchildren123
    Yes, but in DPA claims you have to show distress. OP I think it's a bit long and overegged - but you are along the right lines IF you want DPA damages. Most of all it has to be true.
    The point is that you have to show that the consent debt collector letters in threatening tones, with ever-increasing amounts claimed and false assertions about CCJs etc, caused you distress.
    • driver1992
    • By driver1992 13th Oct 17, 1:10 PM
    • 6 Posts
    • 1 Thanks
    driver1992
    It may have been over egged but it's done and sent now. Just received the claimants witness statement courtesy of Gladstones, very well written ... but they kindly also provided a nice google maps picture with an outline Of the land they manage and pictures of the vehicle clearly parked outside this on the public road at the time of alleged offence. 3 images of the vehicle actually so it's inarguable that it was parked Elsewhere
    • The Deep
    • By The Deep 13th Oct 17, 1:35 PM
    • 7,181 Posts
    • 6,229 Thanks
    The Deep
    But you knew that surely, so why did you get so stressed?
    You never know how far you can go until you go too far.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Oct 17, 2:08 PM
    • 1,262 Posts
    • 2,154 Thanks
    Loadsofchildren123
    He's getting stressed because:
    1. his details have been obtained
    2. he's being told he is liable for a parking "offence" which never took place
    3. he's being chased repeatedly by debt collectors in threatening and alarming terms, for increasing amounts
    4. he's being told that he will lose, that he will be liable for a not insignificant amount of money, and it is being wrongly implied to him that this will affect his credit rating


    At the core of a DPA claim is proving stress/distress - otherwise there is no damage and no claim to damages (other than nominal).


    We are encouraging DPA claims - I don't get why we are discouraging this OP.


    driver, glad to see their own evidence stuffs them. Write to them to point this out:
    1. an open letter simply pointing out that their own evidence dooms them to failure and asking them to withdraw their claim and make an offer to you in damages in respect of your counterclaim. Say that if they do not withdraw their claim you will seek costs pursuant to CPR 27.14(2)(g) for unreasonable conduct as the claim is entirely without merit.
    2. if you want, a without prejudice letter making a specific proposal that they discontinue and you will too (drop hands) or that you will discontinue for a set sum of money (and say what that is). Or you could just wait for the response to 1 (which will never come until perhaps a day or two before the hearing).
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