Court proceedings for auto repair visit

foofcat

Thank you Keith, that really helps

Here's a draft that I started before I saw your post (and subsequently edited a bit) .My main things are I don't want it to stop me from later (1) reporting them to the IPC and DVLA people and (2) claiming for a KADOE violation at some point down the road. Not sure if that's counterintuitive / unrealistic so I'm open to comments on this.

[EDIT: Deleting the text as a precaution. I want it to be without prejudice]


Also, I just had a nasty thought... was I supposed to send them a copy of my defence statement? I only sent it to the court (

KeithP

But you haven't included anything from that sample I pointed you towards.

That's fine but you have made no offer. You have set no time limit.

foofcat

Ah I thought the last line was from that thread? I copied and pasted that bit about reporting them to IPC.

I'll have a think about the offer / time limit and read through the thread again. What I took from that thread was that it's best to be succinct and punchy but also in the other thread's case there was an offer to not pursue the matter in future - which I'm not sure I want to commit to.

Thanks KeithP

Umkomaas

PoFA 2012 itself stipulates that land subject to byelaws is not relevant land and therefore your client was in breach of data protection laws and KADOE protocols by requesting my details in the first instance.

Notwithstanding they have no contract with NR, in the context of ‘not relevant land’, PoFA doesn’t preclude them accessing the registered keeper’s details to enable them to seek the driver’s name and address for service. What PoFA does preclude is them pursuing the keeper if the driver details are not produced to them. Also, in this specific context, I don’t think there would be a strong DPA breach case.

However, a more powerful DPA breach argument would definitely be in relation to them not having a legitimate contract with the landowner to operate, which means they had no ‘reasonable cause’ to access your details from the DVLA.

Also, I just had a nasty thought... was I supposed to send them a copy of my defence statement? I only sent it to the court

I think that’s the case, but check it out with bargepole’s advisory post in the NEWBIES FAQ sticky, post #2.

KeithP

Do you know what a 'drop hands offer' is?

Google 'drop hands offer'.

foofcat

Regarding whether I should have sent Gladstones my defence statement, I can see no mention of it here or here (both from Post #2 of the Newbies sticky), so I think I'm fine on that front. Especially because I don't think the Claim form itself mentioned sending anything to the claimant at that stage.

I did google 'drop hands offer' but think I misunderstood the initial search to mean an offer to drop the whole matter and each absorb our own costs to date. Looking again, it seems like it's also is an offer to not pursue each other any further...

Notwithstanding they have no contract with NR, in the context of ‘not relevant land’, PoFA doesn’t preclude them accessing the registered keeper’s details to enable them to seek the driver’s name and address for service. What PoFA does preclude is them pursuing the keeper if the driver details are not produced to them. Also, in this specific context, I don’t think there would be a strong DPA breach case.

So (bear with me while I wrap my head around this) does that mean that if they are allowed to get RK details for a parking event that happened on land that's not relevant (as defined in PoFA), as long as they have a contract with the landowner? (Which in this case they don't, not directly anyway)

However, a more powerful DPA breach argument would definitely be in relation to them not having a legitimate contract with the landowner to operate, which means they had no ‘reasonable cause’ to access your details from the DVLA

Interesting. I think I've been focusing too much on the Byelaw side of things, and not enough on the contract side of things. I'm really glad I included both of them in my defence statement!

Umkomaas

So (bear with me while I wrap my head around this) does that mean that if they are allowed to get RK details for a parking event that happened on land that's not relevant (as defined in PoFA), as long as they have a contract with the landowner? (Which in this case they don't, not directly anyway)

What I’m saying is this:
1. If they have no contract with the landowner they have no reasonable cause to seek keeper details from the DVLA. It doesn’t stop them in many cases, and the DVLA do precious little by way of checks. The whole keeper details request process is done electronically, automated and in humongous numbers - millions of electronic computer to computer exchanges of data every year, with very little human intervention. You have to challenge the fact that they should not have accessed your details and the DVLA should not have released them - it has nothing to do with PoFA in this particular regard.

2. On an entirely separate point, on ‘not relevant land’, and particularly where bylaws apply (typically railway stations/land, docks, harbours, airports), even though the PPC can legitimately seeker keeper details (in an attempt to gain information from the keeper as to who the driver was) they cannot pursue the keeper in the absence of them not knowing who the driver was - PoFA expressly forbids this. In this regard it has nothing to do with the contract per se, although you can construct a circular argument of ‘no contract, no keeper details request, therefore can’t pursue either the driver or the keeper, with or without PoFA’.

Hope that helps?

foofcat

Ohhh a lightbulb just went off. That does help, so much! Also fascinating re: the DVLA... I think I was naive to think they were going to be impartial.

So basically:
(1) they shouldn't have accessed my details as RK because they don't have a contract with the landowner and that's nothing to do with PoFA and

(2) even without aspect, PoFA says to the PPC "yes you can get the keeper's details, and ask them who was driving, but you can't pursue the keeper in court in the absence of a known driver, because it's not on relevant land"

(Of course funny enough, I did actually tell their debt collectors who was driving i.e. the name of the garage, months before they started proceedings...)

Also I think the argument you've suggested of "no contract, no keeper details, therefore you shouldn't have pursued me under PoFA" should form the basis of whatever I do next.

Still can't make up my mind on how to approach the drop hands letter (but I'm in the early stages of a cold and not thinking so clearly at the moment - in case you're wondering why you're having to explain things to me like you would a toddler - apologies!)

foofcat

Regarding whether I should have sent Gladstones my defence statement, I can see no mention of it here or here (both from Post #2 of the Newbies sticky), so I think I'm fine on that front. Especially because I don't think the Claim form itself mentioned sending anything to the claimant at that stage.

Okay...big mistake on my part. Umkomaas has kindly reminded me about CPRs. 15.6 says a copy of the defence must be served on every other party. Because I submitted my defence by email rather than MCOL, it didn't occur to me to cc Gladstones, and the defence statement was due on the 16th September.

Any advice on how I can resolve this? One thought is I could email my defence statement and DQ to Gladstones just saying with regards to Claim XXX please find attached a copy of the defence statement and directions questionnaire." I'm tempted to say sorry, for the delay I didn't know I was supposed to send the defence statement to you. but might be better to leave that out?

And then send a separate email with a genuine drop hands offer. That means I think that I wouldn't be able to pursue them in court for a KADOE breach, but honestly I'm so fed up of all this now that I don't care. Early in the thread that KeithP linked to someone mentioned asking to settle by them paying the defendant £250 but now I don't even feel confident enough to try that.

I don't know if my late serving of the defence means that my arguments are likely to be weaker now in the court's eyes. Not even sure how to serve the defence statement now...

Umkomaas

Also fascinating re: the DVLA... I think I was naive to think they were going to be impartial.

How impartial would you expect any business to be when their customers provide them with over £15,000,000 (yep, fifteen million pounds) a year. Every request for data has to be accompanied by a £2.50 payment. PPCs issue over 16,000 tickets every day, so just do the math!

On the ‘court’ stuff you’ll really need BP, CM, LOC or Johnersh to give you the definitive statement.