Parking Eye lose

taxiphil

kizkiz wrote: »

not sure about 36 though?
36 Domestic purposes.E+W+S+N.I.
Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.

I think CR was referring to Part 36 offers under the CPRs rather than s36 of the DPA.

CRblogger

kizkiz wrote: »

Interesting, so section ten is a request for the ppc to destroy all information they hold on you.
I guess they will refuse as they think they can keep it as you are "in a contract".

I've not seen anyone with the guts to argue that. It'd take a whole lot more cojones than I have, to ask a judge to accept that their dirty little "contracts" can usurp the jurisdiction of the Court and overturn the supremacy of Parliament.

They have a statutory obligation to answer within 21 days. Logically they have 3 choices:
(a) fold, which gets them off your back;
(b) tell you to sod off as you suggesty, which unless they provide a plausible statutory exemption (e.g. they're the police and you're asking them to remove your convictions) is sufficient for you to issue immediately if you want;
(c) say nothing, which means you should wait 21 days, then they're in breach anyway and you can issue if you want.

kizkiz wrote: »

not sure about 36 though?

Express the offer in the form of CPR Part 36. Not binding but persuasive.

HO87

@CRBlogger

A s.10 notice eh?

As one would have to specify the reasons, what is it, do you suggest, that the processing of data by a PPC that was likely to cause substantial harm or distress to the issuer (or indeed another)? I'm reasonably imaginative but I'm struggling to come up with anything.

CRblogger

HO87 wrote: »

@CRBlogger

A s.10 notice eh?

As one would have to specify the reasons, what is it, do you suggest, that the processing of data by a PPC that was likely to cause substantial harm or distress to the issuer (or indeed another)? I'm reasonably imaginative but I'm struggling to come up with anything.

Depends on the context of what they've said, and who has seen it or been affected by it. A simple example:
"8. The Menaces have caused me alternatively are likely to cause me distress, further may cause me to suffer damage by way of destruction of my ability to seek, and to retain, credit, further or alternatively may cause me to suffer additional distress by way of further demands with menaces."

Sirdan

CRblogger wrote: »

Depends on the context of what they've said, and who has seen it or been affected by it. A simple example:
"8. The Menaces have caused me alternatively are likely to cause me distress, further may cause me to suffer damage by way of destruction of my ability to seek, and to retain, credit, further or alternatively may cause me to suffer additional distress by way of further demands with menaces."

Hmm, I don't think (sadly) that a standard PPC letter chain actually contains menaces as such.
It merely says they MAY take action at the County Court ..that isn't menace that's an action which they are perfectly entitled to do.
The letters do not destroy the ability to seek and / or retain credit ..only an adverse CCJ can do that ..and then only if you choose not to pay in good time.
So it could be argued by not complying with the court's direction you have effectively destroyed your own credit rating !



Whether the distress caused by the letters is substantial is entirely subjective..so very hard to prove to a court.

I think a court may well find that a letter "threatening" to take an action which is entirely possible and lawful could hardly be held as causing substantial distress or damage.

HO87

I'm afraid that I agree with Sirdan. And we should not forget that the section requires substantial harm or substantial distress. I can see some distress or harm in the letterchain but ultimately the threats made are of legal process and the consequences that could flow from that. The fact that PPC's rarely follow through with such threats is, for this argument, irrelevant. They do not threaten to "send the boys round" or strip the recipient naked in public and shower them with rotten tomatoes.

Furthermore, continued processing of data by a PPC is not in and of itself going to cause any financial harm. This formed an integral part of the argument in favour of using s.10 notices against credit card companies if they failed to stump up original copies of CCA agreements as part of a s.7 SAR. It then being argued that by failing to comply fully with s.7 the ccc's were demonstrably acting ultra vires and that automatically amounted to substantial harm. To my knowledge the argument has never been tested - though I'd dearly love to hear to the contrary. Besides, I'd doubt if any ccc with half a grain of sense would appeal such a case preferring to avoid setting any precedent.

It is fully appreciated that overly repeated threats of legal action can amount to harassment and that might, in turn, amount to substantial harm/distress but inevitably such repeated threats originate not from PPC's themselves but DCA's and they are not the intended target. I can't for the moment see how somewhere between 4 and 7 letters spaced out over 10-20 weeks can amount to harassment and that certainly would not top the bar of a test based on the level of harassment suffered in Ferguson v BGT Ltd. No Ferguson level of incidents, no harrassment and certainly no substantial harassment.

robredz

!0 phone calls a day, and letters every day would constitute harassment but for a ppc or dca this would be ongoing cost at say a fiver a week, without accounting for staff time, it wouldn't be worth it to them, they would usually give up and move on

CRblogger

These are good points. Taking them in order:

HO87 wrote: »

we should not forget that the section requires substantial harm or substantial distress. I can see some distress or harm in the letterchain but ultimately the threats made are of legal process and the consequences that could flow from that. The fact that PPC's rarely follow through with such threats is, for this argument, irrelevant.

Indeed. However the way you get around the legal process issue (I was going to call it the commonsense way until I remembered a Court taking a whole day to arrive at it in an interim injunction hearing) is to limit processing to that objectively necessary to conduct the litigation in either direction. So: no more letters, let's see Particulars (I defer the substantiality/required point).

HO87 wrote: »

Furthermore, continued processing of data by a PPC is not in and of itself going to cause any financial harm. This formed an integral part of the argument in favour of using s.10 notices against credit card companies if they failed to stump up original copies of CCA agreements as part of a s.7 SAR. It then being argued that by failing to comply fully with s.7 the ccc's were demonstrably acting ultra vires and that automatically amounted to substantial harm.
To my knowledge the argument has never been tested - though I'd dearly love to hear to the contrary.

I haven't seen an ultra vires argument run.

Underlying what you say, and to me an equally interesting point here, is whether the wording of s.10 actually requires that the reasons be proved, rather than simply specified. I have no authority, but I haven't yet seen any defence actually willing to raise it seriously (I've seen s.10 run three times at hearing, twice on the multi-track). I did see it once raised in a skeleton that no evidence had been provided, but it wasn't pursued at hearing.

It's probably mixed up with the harassment issue. Alternatively, it may be that the litigation itself is sufficient to indicate distress. After all, the letters are almost self-evidently designed to induce distress in anyone but lawyers. Litigants are (usually) not lawyers, and I've seen a circuit judge stressing that status repeatedly before awarding interim injunctive relief following a single letter of demand after the initial incident (don't try this at home). Not authority, but interesting.

HO87 wrote: »

It is fully appreciated that overly repeated threats of legal action can amount to harassment and that might, in turn, amount to substantial harm/distress but inevitably such repeated threats originate not from PPC's themselves but DCA's and they are not the intended target. I can't for the moment see how somewhere between 4 and 7 letters spaced out over 10-20 weeks can amount to harassment and that certainly would not top the bar of a test based on the level of harassment suffered in Ferguson v BGT Ltd. No Ferguson level of incidents, no harrassment and certainly no substantial harassment.

A few sub-points here.

We seem somehow to have shifted to harassment. Ok, it's important to run this in parallel to s.10 (as I do), in combination they make it hard to defend, but we should not confuse heads. So I would query the relevance of substantiality.

I presume DCA means debt collectors? But in the context of relief, they surely don't matter? The only target you would ever want to care about is the puppeteer, the owner/leaseholder of the land. I am unaware of any authority excepting debt collectors from the law of agency. If that is right then the wording of the injunction will always sweep them all up anyway. Once you've bagged the organ-grinder, you've also bagged every last monkey for free.

On your 4-7 letters point, if you don't envisage denial of liability I would have to agree with you. Otherwise, after liability is denied, they are on notice and one further letter ought to be enough to engage harassment. The wording of s.1 seems plain enough. Again, less letters, more particulars, put up by issuing a claim or shut up.

I am unaware of any authority as to any "level" or threshold engagement test from Ferguson, or elsewhere other than s.7(2). This seems clear: alarm or distress is sufficient, and it seems to be a subjective test, judged objectively. This seems to be precisely what the circuit judge I mentioned picked up on when he repeatedly told Counsel, in effect, "yes of course I agree with you, of course you would think nothing of such letters of demand, and neither would I. You or I would respond by asking 'What is your case?' But you and I are lawyers - and the claimant is not". If that is right, then the threshold seems to be sincerity, and even an apprehension of breach is sufficient(s.3(1)).

In case you're inadvertently making a quantum point, then I agree these are not Ferguson cases. Unless you want serious damages as in Ferguson, then you would formally plead damages of £0.00.

HO87

Ah, all becomes clear.

My apologies but I think that I was suffering caffeine-starvation last night or just severe brain-fade. However, re-reading the thread this evening I now see your argument.

Rather than following the existing PCN strategy (ignoring all communication) you favour a far more aggressive approach of immediately responding to a PCN (whether issued by post or affixed to a vehicle) by means of a "put up or shut-up" letter (denying any liability and requesting immediate f+b) incorporating a s.10 notice.

My mistake was to attempt to see how this would play out as part of the current strategy when what you appear to be proposing is actually a new strategy, I think and viewed from that perspective I can see distinct advantages if I might suggest some reshaping.

A s.10 notice must specify the reasons for the cessation of data processing and as far as the substantial harm/distress aspect is concerned I remain of the view that harassment is the only avenue ever likely to provide sufficient grounds. In the case of PPC's their letter chains will form an essential part of an harassment case but I suggest that as predictable as they are, in terms of content and frequency (See MSE's collection of them), they lack something of an element of menace that might adequately tip the substantial balance.

There is, however, another actor on the PPC stage whose involvement adds a decided edge to matters (as you've already identified) - debt collection agencies. Their letters may be formulaic but some helpfully threaten the use of irrelevant regulations (CPR 31.16 for example clearly intended as a threat to those in receipt of PCN's) and the threat of substantial costs being incurred by applications for such things as Norwich Pharmacal Orders. Others emphasise that they are also bailiffs using such terms as "we always collect", and threaten unsolicited visits in clear breach of OFT guidelines. Grist to our mill, I'd suggest.

Now, as part of the revised strategy I agree the "put up or shut-up letter" should include a warning that any communication beyond a response to the request for f+b particulars/s.10 notice would be regarded as harassment. An extended caveat to include the PPC's agents would naturally capture the DCA's (by letter, repeated telephone calls and mobile texts) and add their actions to the harassment/substantial harm argument.

I see only one potential route by which a DCA might duck out and that would be if they could demonstrate that they had purchased/been legally assigned the debt by the PPC. Agency would seem to break at that point but I've yet to come across any suggestion that a DCA has substantiated a claimed assignment indeed when a few have been challenged on that very point they have disappeared leaving a large cloud of dust.

Were this strategy enacted, at some point one of the larger or more litigious (or, perhaps, foolish) PPC's would undoubtedly challenge the s.10 notice. Were a judge to be shown the typical letters from DCA's (or more particularly those of the relevant DCA - most PPC's work hand in hand with one or other of them) making spurious and groundless threats a substantial harm/distress argument will gain some legs. Not forgetting that s.10 only requires that the specific reasons need only be shown to be "justified to any extent" for a court to be satisfied that the data controller should comply.

A combined put up or shut-up letter incorporating the extended caveat and a s.10 notice would thus appear to present a PPC with a rather awkward fork.

Thoughts?

kizkiz

HO87 wrote: »

Thoughts?

I need to buy a wig and go to law school :rotfl:

On a serious note, crack on guys. Makes for some interesting reading