PCN appeal refused

Seetek

Here is my draft of a SAR (Note they still can't confirm the exact location of the contravention but have provided 11 postcodes and addresses to select from covering about 1 square mile and about 30 landowners!)

Dear Data Protection Officer,

Subject access request
(Data Protection Act 2018 / General Data Protection Regulations (GDPR))

I am - ****************************************
Vehicle Registration Number – **********
NTK Reference - …………….

1. Following the receipt of a Letter of Claim from bwlegal Solicitors, I hereby request the following data about me that I am entitled to under data protection law and information relating to PCN: xxxxxx, including, but not limited to;

1. ALL photographs taken pertaining to this Parking Charge Notice including of relevant signage;
2. All correspondence (including letters and emails) relating to the above Parking Charge Notice;
3. All correspondence (including letters and emails) relating to me;
4. all letters/emails sent and received, including any appeal correspondence earlier;
5. all data held, all evidence you will rely on;
6. a full copy of the PCN and NTK, and;
7. a list of all PCNs you consider are outstanding against this VRN. As you should be aware any claim must be for all PCNs in one claim, not several separate claims.

2. In addition to the above information, I additionally request that you also provide me with the following information to gain further understanding about the claim:
1. Who contravened your rules?
2. Are you pursuing me as the registered keeper or the driver of the above vehicle?
3. What type of car park is it?
4. How the extra monies you state are payable are made up.
5. Are you relying on, and have followed, the provisions of Schedule 4 of POFA 2012?
6. Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature; state what contravention gives a cause of action and what is the date of the agreement? Please provide the names of the parties to it and provide me with a copy of the contract. Or is the claim for trespass? If so, provide details;
7. Where it is claimed the vehicle was parked, for how long?
8. A copy of the contract between the claimant and the landowner under which they assert authority to bring the claim (as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”).
9. A plan showing where all relevant signs were displayed.
10. Details of all of the signs displayed (size of sign, size of font, height at which displayed).


3. I must emphasise that I am unable to proceed until I receive the information requested above. Not only will this information help comply with the pre-action protocols it will also help achieve the overriding objective. Failure to assist in this will require me to bring this to the attention of the court.

4. I do not believe that you may require any more data from me to confirm my identity, therefore, please respond as soon as possible as I am attempting to meet your agents’ imposed deadlines. I remind you that data protection law requires you to provide this data within one calendar month however, I would appreciate an earlier response.

5. Furthermore, I consider that this claim could very easily be stayed to allow enough time for a consumer to consider the documents to be provided in a SAR. That view is also supported by the ‘Pre-action protocol for Debt claims' which positively requires all parties to communicate and exhaust all avenues for exchange of information, narrowing the issues in dispute, and avoiding the court process if possible which is meant to be a last resort, not a means to apply unnecessary pressure upon a defendant.

6. If you do not normally deal with these requests, please pass this letter to the relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or, it can be contacted on 0303 123 1113.

I look forward to hearing from you within 30 days.

Yours faithfully

And here is my response to the Solicitor's letter of claim. I am slightly unsure if I have overdone this and am grateful for advice (all taken from previous posts).

SUBJECT ACCESS REQUEST AND OBJECTION TO PROCESSING

I provide notice of a SAR regarding the above reference. A similar request has been sent to the Claimant.

I am in receipt of your Letter Before Claim dated 18 February 2019. However, I need to inform you that your letter contains insufficient detail of the claim and, again, fails to provide the photographic or other evidence which I requested as long ago as 21 August 2018. It does not even say what the cause of action is. Nor does it contain any mention of what evidence your client intends to rely on, or enclose copies of such evidence.

As proceedings have not been issued, if your client intends to pursue the matter further they are on notice that since 01 October 2017 a protocol is applicable. Your letter lacks specific detail and therefore this letter should be treated as a formal request for all of the documents and information that the protocol now requires your client to provide. Further, I trust that no proceedings will be issued without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court when costs come to be considered.

This action on the part of your client is a clear breach of its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, with which as solicitors you must surely be familiar (and I expect that your client must be very familiar).

As you (and your client) must know, the Practice Direction binds all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction. Your client cannot simply refuse to provide the relevant information.

I require your client to comply with its obligations by sending me the following information/documents:

1. Who contravened their rules?
2. An explanation of the cause of action;
3. Is the amount claimed by Parking & Property Management Ltd for a genuine pre-estimate of loss for a breach of contract or a contractual sum?
4. Are you/they pursuing me as the registered keeper or the driver of the vehicle?
5. What type of car park is it?
6. A copy of the Penalty Charge Notice;
7. A plan of the relevant location indicating where the vehicle in question was parked. Once again, we further request that you provide an exact location of the alleged contravention. We note that you now suggest it can relate to one of eleven actual locations. You must know that this does not satisfy the service of notices under the Protection of Freedoms Act 2012. (PoFA) Without this information we find it impossible to be sufficiently defend this matter and suggest that this will be cause for concern of the court;
8. If the terms of the contract are claimed to have has been conveyed by the use of signage on site, please provide copies of the signs on which you rely and confirm these are the signs which were in situ on the date of the event at each of the locations listed in the Notice to Keeper;
9. In providing information on signage, please inform me if there were signs at the entrance to each of the locations listed on the date in question? Did these, and all other signs, meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee’s Schedule 1 (Please indicate), and can you produce documentation/photographs verifying this;
10. Details of the signs displayed (size of sign, size of font, height at which displayed);
11. A plan showing clear and exact details of the locations of each such sign covering each of the suggested locations in which you suggest a contravention occurred;
12. Where it is claimed the vehicle was parked and for how long?
13. How the extra monies you state are payable are made up?
14. Are you relying on, and have followed, the provisions of Schedule 4 of POFA 2012?
15. Is the claim for a contractual breach? If so, provide a copy of that contract bearing my signature; state what contravention gives a cause of action and what is the date of the agreement? Please provide the names of the parties to it and provide me with a copy of the contract. Or is the claim for trespass? If so, provide details;
16. A copy of the contract
17. Once again, we request that you supply a copy of any contract, or chain of contracts, with the landowner under which they assert authority to bring the claim (as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”), authorising the Claimant to issue parking charges on the relevant land, once that land has been determined. Such a contract must also state that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges. The claimant is also put to strict proof of full compliance with the BPA Code of Practice;
18. A copy of any alleged contract with the driver.

I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16. I will draw to the court the fact that I have expressly requested this information since as early as 21 August 2018 yet your client has not provided it.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

In accordance with paragraph 5 of the Pre-action Protocol, until your client has complied with my request for further information I would therefore suggest that any action your client is considering be deferred. Upon receipt of the requested information, I anticipate that a full response will be provided within 30 days (I refer you to paragraph 4.2 of the Protocol).
If, however, your client pursues its claim without supplying the further information as requested above, I reserve the right to draw this letter to the attention of the court and seek an adverse cost order due to non-compliance with the Protocol as well as any other order the court deems appropriate.

Furthermore, we expect that you should be aware that PoFA restricts your fees to the sum on the PCN only and to suggest that you will be entitled to additional costs as listed is disingenuous. Nevertheless, the court will decide what can be claimed – by both parties.

I further request that if you deny my requests for information, that your claim complies with the following;

CPR 16 –
- Contents of the claim form 16.2 (1) The claim form must – (a) contain a concise statement of the nature of the claim;
- Contents of the particulars of claim 16.4 (1) Particulars of claim must include – (a) a concise statement of the facts on which the claimant relies;

Practice direction 16 - Other matters to be included in particulars of claim;
• Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

CPR 22
• Documents to be verified by a statement of truth 22.1 (1) The following documents must be verified by a statement of truth – (a) a statement of case;

Practice direction 22 - Who may sign the statement of truth
• 3.1 In a statement of case, a response or an application notice, the statement of truth must be signed by the legal representative of the party or litigation friend.
• 3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.
• 3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
• 3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

Practice direction 7E – Signature
• 10 Any provision of the CPR which requires a document to be signed by any person is satisfied by that person entering their name on an online form.

Finally, we refer you to the Administration of Justice Act 1970. Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract;
• Harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;
• Falsely represents an amount in relation to the money claimed.

We will ask the court to confirm whether this Act applies.

Yours faithfully,

I did send a letter of appeal but they denied it as being out of time and provided a lot of drivel about not needing to provide info I am now requesting under the SAR.

Thanks

Coupon-mad

In the SAR, point #2 onwards need removing as they are nothing to do with your data.

You could add those points instead, to your letter to BW Legal, to bamboozle them with lots of pre-action questions.

Seetek

Thanks, will do and send tomorrow. Then work on my defence. I am right in thinking that they must inform me of any court action and when that comes it will be at my local County Court?

KeithP

Yes, you will hear about any court action. Most likely a Claim Form from the County Court Business Centre in Northampton.

A little further on in the process, after having filed a Defence, the case will transferred to your local County Court.

Redx

any court action will generally come from the CCBC in Northampton (an office like the DVLA) , but it can come from Salford instead (unlikely)

YOU will be naming your own local civil court at the DQ stage, after the defence has been filed, the NEWBIES thread explains this in post #2

Seetek

Thanks again. Do I return the reply form that they sent me? Is this AoS? I have read that some do not but others say Acknowledge Service of the Claim by ticking the box that says you will defend in full. Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop. The form I have has 4 sections with boxes A-I. I can only think I would tick box D (I dispute the debt) and then Box I (I need more documents). This box allows me to request more information.

Can you tell me how to add images to this thread so I can show the form. Thanks

Redx

if you have an LoC , then post #2 of the NEWBIES thread tells you about it, and NO , do not fill in their financial forms


no it is NOT the AOS, because you have received an LoC from B W LEGAL ? , I believe, not an MCOL from the CCBC in Northampton, the AOS is in response to a court claim, which you have not got , yet


post #9 above said LoC, not MCOL (so not an N1 form , yet)

Seetek

I found this picture on line and it is the same as my page 3. You can see box I details.

Thanks Red X

KeithP

Yes, page 12 of The Pre-Action Protocol for Debt Claims shows the same form - the right way up too.

There is no need to use their forms.

They have only sent the form to you because the Protocol says they must.

Coupon-mad

We never tell people to use those misleading forms that assume every debt is valid.