PCN, driver not registered keeper DCBL

Nosy

Dcblegal called again today bur said we are busy, and ill try call you back later.

Just looked at the court order and it states the claimant needs to have paid a trial fee by yesterday 4pm or submit application for support with fees. I doubt they would have submitted an application for fee support but who knows.

The courts contact center can't really confirm anything when i call. They keep saying you have to wait, bit annoying really. 

Le_Kirk

Nosy said:

Dcblegal called again today bur said we are busy, and ill try call you back later.
Just looked at the court order and it states the claimant needs to have paid a trial fee by yesterday 4pm or submit application for support with fees. I doubt they would have submitted an application for fee support but who knows.
The courts contact center centre can't really confirm anything when i call. They keep saying you have to wait, bit annoying really. 

It is more than a bit annoying in my opinion!  There seems to be more leeway given to claimants than defendants.  There is a thread on here today where the defendant has lost because he "failed to send his telephone number to the court" even though he did and BANG judgment for claimant!

Eminowa

that's good news to you @Nosy. however you need to claim that £500 from them for them stubborn. they think you were a push over. if we all continue to defence our parking tickets. these PPC would twice 200 times, before putting in a claim.

Nosy

Spoke to the court contact center again. They confirmed today they received two calls from the claimant solicitors checking to see if the court had received documents from the claimant. The contact centre doesn't know what the documents are because they have a backlog of uploading documents but did say they accept cheques and it could be a payment i need to call on Tuesday to find out

Nosy

Spoke to contact centre today and they confirmed they received a payment from the claimant. 

I also made a complaint because the contact centre confirmed the n225 form went to the judge on 3rd june, 3 months after it was sent! . And that the claimant haven't followed directions. Looks like the hearing will go ahead so i need to send in the witness statement by 8th

Coupon-mad

Right, you have your work cut out because you need to go back and read all the case law referred to in your defence and counterclaim and expand on that in your WS.  If you are seeking a remedy for distress due to harassment of the wrong person, and due to data misuse contrary to the DPA 2018, you need to list ALL the demand letters and how they made you feel, and lay it on thick about the distress caused!

You can't let the effort you made slip now by not addressing and evidencing everything that your defence and counterclaim relied on. 

That WS is far too short, surely you are relying on cases like Simon Clay v CEL and Vidal Hall v Google and other cases?  You can't now fall at the final hurdle by not submitting those cases your defence and counterclaim said you would rely on.

Strictly speaking, the case law and excerpts from statute law should be listed separately on a bullet point skeleton argument, appending those cases.  Keeping it separate from the witness statement which is your account of the anxiety and distress caused as well as in support of your defence against liability for the PCN.

Coupon-mad

Here is a list of cases someone else sent in support of their counterclaim that I saw, that was based on similar arguments to yours:

ParkingEye v Somerfield, High Court stage: HHJ Hegarty at paras 419 - 428 about the fact parking firms can't add admin costs:
https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

SCS Law on what it means to 'begin proceedings' (transfer liability):

http://portfolio.cpl.co.uk/Parking-News/395/26/  

Protection from Harassment Act excerpt about what constitutes harassment

CPR 16.5 showing that allegations not denied are deemed admitted

BPA CoP 

PE v Beavis paras 108 and 111

Ferguson v British Gas

Vento v Metropolitan Police para 65 (and the 'Vento bands')

Roberts v Bank of Scotland para 59-64

CPUTR Part 2 Prohibitions para 3

CPUTR Part 2 Prohibitions para 5 - Misleading Actions

CPUTR para 27A

CPUTR para 27B

CPUTR para 27J

DPA Principles

GDPR Article 5

GDPR Article 6

Vidal-Hall v Google para 105

Clay v Civil Enforcement (see below link):

https://www.dropbox.com/s/3wzxq4pk7omj22y/Simon Clay v Civil Enforcement Ltd and Fusion Lifestyle_Approved Judgment.pdf?dl=0

Coupon-mad

Here is a rough example of a WS someone used who counterclaimed from a PPC, but it will need a lot of editing such as the parts I've put in bold, for starters, that might not be true of your case.

Warning, this one is primarily about harassment and has little or nothing about the DPA 2018 breach (or the Vidal Hall v Google case) or the CPUTRs breach that Is suspect was in your counterclaim IIRC.  So you will need to add something reminding the Judge about those heads of loss (distress) as well. 

Go back and review your defence and counterclaim and suss out the laws and case law you now need to expand upon.



IN THE COUNTY COURT AT (TOWN)

CLAIM No: xxxxxxxxxx

BETWEEN 

xxxxxx xxxxxxxx xxxxxxxxx (Claimant)
 and
xxxxxx xxxxxx (Defendant)
 __________
WITNESS STATEMENT OF THE DEFENDANT AND PART 20 CLAIMANT
 __________

1. I, (your name), of (your address) am the Defendant and Counterclaimant in this matter will say as follows.

2. The facts and matters referred to in my witness statement are within my own knowledge, except where I have stated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of the information , resources , and belief to be correct.


3 - 9  your WS points about the defence (NOT the counterclaim) - e.g. the fact you were not driving, and how you first found out about the parking charge (have fewer paragraphs if you can cover this part concisely).


THE CHRONOLOGY OF EVENTS (PRE-ACTION)

10.  Subsequent to the alleged event , I received a Notice to Keeper from the Claimant which arrived in the post with a demand for £100, payment to be made within 28 days. Their Notice to Keeper [PCN] is attached marked as “Exhibit x page x”.

11.  I wrote an appeal stating that (give information about any appeal made).  The appeal is attached on “Exhibit x, page x”   The Claimant failed to respond to my appeal at all.

12.  They continued with numerous demands, seeking ever changing and inflated payments and further enlisted other private 'debt recovery' agencies with the increasing demands and similar threats.  

13.  Exhibited to this witness statement is the attached letter-chain (exhibit x) which includes:

a) All correspondences received and made to (parking firm) Limited 
b) All correspondences and photographic images supplied by Debt Recovery Plus (or other debt recovery firms that bothered you over the years)
c) All correspondences received and made to BW Legal or Direct Collections Bailiffs Limited, or whoever bothered you over the years.


14.  Some xx months had now passed after previously dealing with DRP - a letter from the Claimant’s Solicitors named BW Legal wrote a letter to me dated xx/xx/xx. . It was a “FINAL NOTICE” with a last warning that if a payment of £160 is not forthcoming - a County court action may be issued against me (Exhibit x, page x) The threat of a CCJ not only affected my frail mental and physical health but it could ruin my credit worthiness and employability. I was so distressed by these letters and was brought to a state of distress and anxiety, I was so shocked and angry to have to be put to defend against this false claim .

15.  I wrote a letter to BW Legal (or whoever) on xx/xx/xx via email stating the facts that I appealed to the Claimant at the time receiving their notice to keeper (Exhibit x page x).

16.  A letter from Direct Collections Bailiffs Limited (DCBL) dated xx/xx/xx (Exhibit x, page xx) arrived out of the blue despite going against what BW Legal had said - that all collections activity was put on hold until they received a response back from the Claimant. This letter was a “NOTICE OF DEBT RECOVERY” with a demand for an overdue amount of £100 due to the Claimant in relation to an unpaid debt. A further £50 plus vat - £160 in total is now owed“ .

17.  Demands after demands and threatening letter after threatening letter were sent . Despite communications submitted in writing, the demands still continued . 


THE EFFECT OF THE DEMANDS ON MYSELF AND MY FAMILY:

18.  Nothing I ever did would stop it. The threats were threefold in nature: those to start legal proceedings against me could cause considerable anxiety, distress and harm having bailiffs turn up at my door to remove goods and having a CCJ being recorded at the credit reference agencies for 6 years.

19.  My employability was under threat , not only a CCJ would harm my employment prospects should I lose my current job-.  What matters most to me is the threat of my credit rating being destroyed causing significant problems applying for loans and mortgages.  I wrote letter after letter, made phone calls and repeatedly asserted that I was not the driver - and I named who was and properly provided their address for service - but to no avail.   The majority of my letters received no response at all - especially not from the Claimant . I had received assurances that the matter would be dealt with. But then the demands and threats continued . I wasted so many hours of my life on this , more importantly, I was brought to a state of considerable anxiety and distress on multiple occasions, not knowing whether that I would end up with a County Court judgment and a bailiff would come at any time to remove all my goods, whether I missed a court claim form such that legal proceedings might have already been brought upon me or it had already been reported to a credit rating agency.

20.  A further letter dated xx/xx/xx headed as “ LEGAL RECOVERY ACTION” the content of this letter stated that I had failed to pay DBCL or make contact to discuss the repayment of this debt, and they have recommended to their client to start legal action against me. (The letters received from DCBL are attached (Exhibit x, page xx).

21. Due to my anxiety triggered by DCBL’s contact, I did not contact them to discuss it with them again.  At the same time my thoughts were “what’s the point?”  On previous occasions it was never dealt with. I couldn’t bring myself to go through this process again.   The letter contained such menacing wording “Can’t Pay? We’ll Take It Away!”(Exhibit x, page xx) These notorious enforcement agents are seen on TV and my impression is that they just go out of their way possible with a sole aim to recover the monies for their client.  I didn't realise until now that I am being pursued to court, that in fact these earlier letters were never from the DCBL 'bailiff arm' seen on TV because the wording was misleading and designed to intimidate me.  I honestly believed they were going to come knocking on my door and clamping my car.

22.  At this point I was so angry and distressed that the fact I was put to defend against this bogus demand yet again! It was a never ending nightmare.  I couldn't see this will ever be resolved at all.  The thought of having to go to court terrified me and it still does.   I wrote a handwritten letter to the Claimant on xx/xx/xx (Exhibit x, page xx) , explaining that I had written and emailed on separate occasions and they were all blatantly ignored.

23. The Claimant wrote to me again months later; a template letter which stated: “We write regarding to the above matter. I am disappointed to note that we have not reached an amicable agreement in respect of our “Letter before claim “ despite our engagement in open correspondence. As such, in accordance with the Pre-action protocol (for all debt claims) we are giving you 14 days notice of our intention to start court proceedings.” (Exhibit x, page xx).   None of the points I previously raised was replied to and by threatening a court claim within just 14 days meant that they were in breach of the Pre Action Protocol that is required for all debt claims, which I discovered includes a mandatory 30 days, at least.

Coupon-mad

continued...

RE MY COUNTERCLAIM:
24. My counterclaim is mainly based upon the legal implications stemming from the evidence I have given above.   This is most certainly not a counterclaim that can be categorised as “totally without merit” as the Claimant has tried to suggest, because the remedy I seek is not a remedy unknown to the law (see Vidal Hall v (exhibit xx), Roberts v Bank of Scotland para 59-64 (exhibit xx) and Ferguson v British Gas (exhibit xx).

25. My counterclaim is that this Claimant's course of conduct amounts to unlawful harassment pursuant under the Protection from Harassment Act 1997 and data protection breaches, pursuant to the Data Protection Act 2018 for unlawfully obtaining, processing and passing on my data to notoriously aggressive third party debt recovery agencies when I was not the liable party.  I am seeking remedy for distress, anxiety and alarm caused by the actions of the Claimant pursuant to the above respective acts.

26.  I have satisfied that in the balance of probabilities that the claimant “knew or ought to have known” that I was not liable in law. I have further strengthened my position that the Claimant was negligent by continuing to process my data unlawfully and their sole aim was to continue to bully me for money which they had no lawful entitlement to, because I had transferred liability to the driver, which is all that is required in the Protection of Freedoms Act 12012, Schedule 4:  'Conditions that must be met for purposes of paragraph 4' (Right to claim unpaid parking charges from keeper of vehicle):

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

27.  At this point, I was so fed up, thinking it was becoming something of a joke or a scam - the letters coming in was relentless, nothing I say over the telephone or write will ever bring any resolution to this matter at all.    I was so distressed and angry, it affected my relationship with my partner and family. The stress of all this triggered anxiety and uncertainty; I was not able to function normally in my daily routine. I couldn’t sleep because of the constant stress and worry. The thought of the amount of time I have wasted with this cowboy parking company - having to deal with this purported “debt” was too much to bear.

28.  In their Defence to Counterclaim the Claimants have not disputed any of the allegations I made in my counterclaim.  Under Civil Procedure Rule 16.5(5) the Claimant can therefore be taken to taken to admit those allegations and I shall not go through each and every one.  However for the sake of completeness there are some specific points of evidence I would like to add.

29. The Claimant has failed in their duty of care and I have satisfied the balance of probabilities that the Claimant has committed 4 counts of Data Protection material breaches by unlawfully obtaining and misusing my details from DVLA and for unlawfully passing on this sensitive data to these third parties firms , furthermore the relentless harassment for monies that was never due was unwarranted. 

30. This is a case without a doubt demonstrates a serious act of prolonged harassment believed to be equivalent to the harassment and threats Lisa Ferguson was at the receiving end of in the case between Ferguson vs British Gas Trading Limited [2009] EWCA Civ 46.

 s.1(1)(b): “he knows or ought to know amounts to harassment of the other; And in s1(2): For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.”

 s.2(1) Offence of harassment. (1)A person who pursues a course of conduct in breach of [F5section 1(1) or (1A)] is guilty of an offence.
(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

31. It is to be noted that the Act does not provide any defence for “accidental” harassment. Confirmed by Lord Justice Jacob in the above cited case, nor there is any policy reason why companies such as the Claimant should be exonerated for conduct which, if carried out by an individual, would amount to harassment.

32. I have provided sufficient evidence and information to show that the Claimant knew the conduct complained of amounted to harassment, or that it ought to have so known it was . I have evidenced a prolonged campaign of harassment capable of causing me such alarm and distress.  In accordance with what I understand in the Laws of Agency - the Claimant is ultimately responsible for the third parties conduct and actions.  I did everything that was reasonably expected in a territory virtually unknown to me at the time.

33.  The Claimant effectively says it has done nothing wrong; that it is perfectly all right for it to treat me in this way for years.  It is obvious that the Claimant had provided some sort of robotic template defence to my counterclaim. I can clearly see that they have failed to engage with any of the core issues and facts submitted in my particulars of counterclaim.  Their response (defence to counterclaim) lacks the detail and rationale to engage to the defendants points, as you would ordinarily expect from a defence to a counterclaim.

34. The aggressive tone of the Claimants’ letters has been extremely intimidating. Even at the earliest stages the PCN threatened me with enforcement action and court proceedings.  I am sure the Claimants are fully aware of the effect this has on people who are not experienced in the law or litigation, but just to be clear: it is terrifying. Even more so when the people who are bullying you refuse to listen to reason. I was always absolutely open and honest with them but being unable to stop this Claimant from its aggressive pursuit of me, made me feel vulnerable, frustrated and helpless.

35.  As a result I suffered a great deal of distress over a long period.  It’s hard to express in words how bad it made me feel. Each time I began to think they must have dropped the case, another letter arrived.  I feel they were using these letters not as a genuine means to progress the matter in a fair and open way, but as a weapon to frighten me into giving up. 

36.  The Claimant’s bullying attitude is manifested in its comment in the Defence to Counterclaim: “Any stress or anxiety the Defendant has experienced could have been avoided if the Defendant had paid the PCN”.  No. The distress I have suffered could and should have been avoided if the Claimants had taken the data of the driver from means properly pursued that individual instead, as the POFA requires. 

37.  This case highlights the dangers of company’s “Robo Claim“ business model, impersonal approach , spewing out robotic responses, and making no attempt to read anything presented in front of them in pre-action correspondence and also after filing this claim, they didn't even bother to read or properly defend the counterclaim, showing a complete disregard for the rights and interests of consumers.

38.  Re quantum of damages: it is not possible for me accurately to quantify the distress I have suffered in money terms. My claim is simply set at the lowest level in the established guidance for harassment claims (see exhibit xx, the Vento Guidelines) and I appreciate that the court may assess a sum higher or lower than the sum claimed.  In Simon Clay v Civil Enforcement (Exhibit xx) a case with no aggravating features of harassment where a Defendant counterclaimed just for misuse of his data, the court awarded the counterclaim for £200.  However, the aggravating features of my case are that the Claimant is knowingly pursuing the wrong person and they have harassed and refused to accept a transfer of liability from me, prior to starting this vexatious action.

39.  As such, it is without a doubt they are engaging in unreasonable conduct in litigation and still continues with the same pattern of behaviour that constitutes a course of conduct amounting to harassment and intimidation . This case , without a doubt , falls comfortably within those types of cases in which the Court should exercise its powers under CPR 27.14(2)(g) and give out the strongest sanctions allowable .

CPR 44.11 - further costs

40.     I am appending with this bundle, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). Exhibit 5.   In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness altering the Statement of Truth (an attempt to avoid a personal duty) and attaching stock images of signs instead of actual images and a redacted 'landowner authority' document that could be from anyone.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

41.     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

42.  The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

STATEMENT OF TRUTH:
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

name

signature

date

Nosy

Thanks @Coupon-mad

i will use this and upload another WS this evening.  the hearing is on 23rd and the order is that i send in a WS 14days before which i think is 4pm this Thursday not Wednesday.