PCN, driver not registered keeper DCBL

Nosy

@Coupon-mad thank you for reviewing and comments, i really appreciate it.

In the defence i have noted the other 2 pcn outstanding which they have not made a claim for yet. How would you advise i go about that? I did see the comment about contacting them but the two PCN the claim is for are the two that DCBL have been corresponding about only. 


Updates on CC
I will remove #31 as i didn't see any other shared company name . Its only been PPL and DCBL. I think that was left from ellaro9.

I still need to add the paragraphs numbers in the Correct order, spellchecker and grammer before sending.  I will post the final draft tomorrow, right now i am shattered and dozing off. Glad i have it nearly finished now, thanks to you all.

 

Nosy

 

19. This counterclaim is for damages for distress caused by the Claimant's multiple breaches of statutory duty.  The Defendant will rely upon the authorities of (i) Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 and (ii) Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) and other similar authorities as well as primary statute law.  Further, the authority in Vidal-Hall v Google Inc [2015] EWCA 311 confirms that pecuniary loss is not necessary for compensation to be payable and that pure distress is enough. 

20.  The bands of awards for injury to feelings, known as the Vento bands, have been updated from April 2020.  This stems from a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for Courts and Tribunals to apply when they are assessing injury to feelings awards for pure distress, as opposed to financial loss.  The Vento case decided that there is now an accepted quantum for compensation and courts have followed this guidance. In a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO - which was a claim for damages including disability discrimination and a breach of the DPA, an award of £2,500 was granted as compensation for distress, so the Defendant believes this counterclaim is extremely reasonable, given the circumstances.  For claims presented on or after 1st January 2021, the new Vento bands are as follows: 

• a lower band of £900 to £9,000 (less serious cases) 

• a middle band of £9,000 to £27,000 (cases that do not merit an award in the upper band), and 

• an upper band of £27,000 to £45,000 (the most serious cases), with the most exceptional cases capable of exceeding £45,000 

21.  To simplify the counterclaim and to assist the court in determining the issue without complicated calculations, it is set - notwithstanding which allegation(s) succeed - at a single sum in compensation at the lowest end of established guidance in the Vento bands, pursuant to the following:  

a) damages for distress caused by the Claimants’ breach of statutory duties under the Consumer Rights Act 2015 and misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection (Amendment) Regulations 2014 (“the Regulations”);   

b) damages for distress caused by breach of statutory duty under the Data Protection Act 2018 and General Data Protection Regulation ('the GDPR'); 

c) damages for distress caused by harassment contrary to the Protection from Harassment Act 1997 ('the PFHA') ref section 3;

 

Damages for distress caused by the Claimants’ breach of statutory duties under the Consumer Rights Act 2015 and misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection Regulations (Amendment) Regulations 2014 (“the Regulations”): 

 

22.  The Claimant alleges that there was a contract formed at the moment of parking the car by which the Driver is bound.  Thus, this was a transactional decision within the meaning of the Regulations at 20(b) even though the Driver had no fair opportunity to read and discover the terms by which they would be bound. 

23.  The Claimants behaviour seems to be an attempt to mislead the defendant in to thinking that liability cannot be transferred to the driver as the deadline has passed, when in reality the deadline had not passed as the defendant had transferred liability to the driver before court action commenced so the claimant had all the details required to pursue the party liable but instead started litigation processes against the wrong party. Protection of Freedoms Act 2012 Schedule 4 states that the 

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2)The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; 

From the notices to keeper received PCN 000001 does not comply with 

9 (e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

And Both Notice to keeper do not comply with

9 (2)The notice must—

 (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

In addition to this the article published by legal professionals part of SCS Law have made it clear if parking company receive driver details before commencing court proceedings then the parking company should pursue the driver. 

Civil Procedure Rules 7.2, 1 defines starting proceedings as:

(1) Proceedings are started when the court issues a claim form at the request of the claimant.

Thus the claimant was fully aware of the driver before commencing court proceedings. 

This misleading action questions the real intentions of the claimant as they are legally represented and fully aware of the liable party. The defendant is a litigant who knows they are not the liable party and although this fact was adequately expressed  to the claimant and their legal representatives, they continued to start litigation proceedings. The defendant made it clear that a claim in the name of the defendant would result to a counterclaim due to the unlawful processing of the Defendant’s data.   

24.  Accordingly the Claimants’ conduct amounted to: 

(i) an unfair commercial practice which is prohibited under regulation 3 and  

(ii) a misleading action within the meaning of regulations 5 and 6, for which redress is available under regulation 27(J)(b) of the Regulations. 

Damages for distress caused by breach of statutory duty under the Data Protection Act 2018 and General Data Protection Regulation ('the GDPR'):

 

25.  Personal data must be processed fairly and lawfully.  The Claimants stand in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency).  Predatory pursuing of the wrong person is entirely at odds with those doctrines and despite the wishes of their principal to cancel this unfair charge, the Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Accordingly, the processing of my DVLA data was not “necessary for the performance of, or commencing, a contract” and nor was it necessary or justified under any other data processing excuse.  Distress is now included under Article 82 of the GDPR and the 2018 DPA. The Claimants had, and still have, no prospect of furthering their purpose and no legitimate cause to store and/or then to continue processing the Defendant's data. In accordance with Principles 1,2 and 5 of the Data Protection Principles they were not permitted to process or keep it.  

 

26.  The Claimants noted, photographed and stored the Vehicle Registration Mark then requested and received the Defendant’s personal data due to obtaining the registered keeper data relating to that vehicle, from the DVLA.  The purpose was to seek payment of the parking charge which is the subject of the Claimants’ claim. The VRM itself and the Defendant’s details are 'personal data' within the meaning of the DPA 2018 and the associated General Data Protection Regulation (“GDPR”).  

 

27.  Accordingly, at all material times the Claimants were data controllers, and the Defendant a data subject, within the meaning of the Acts. The Claimants were thereby under a statutory duty to process the Defendant’s data only in strict accordance with the DPA 2018 and the GDPR Articles 5 (1)(a) and (b) and 6 (1)(f)).  

 

28.  Article 5 of the GDPR sets out seven key principles which lie at the heart of the general data protection regime. These are broadly the same as the DPA Principles. Article 5(1) requires that personal data shall be: 

(a) processed lawfully, fairly and in a transparent manner in relation to individuals (‘lawfulness, fairness and transparency’);  

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; (‘purpose limitation’); (c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);  

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);  

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed (‘storage limitation’);  

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate measures (‘integrity and confidentiality’). 

 

29.  Article 5(2) adds that: “The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability').   Article 6(1)f of the GDPR states an exemption if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data.  

 

30.  The processing of the Defendant’s data should have ceased once the claimant was made aware of the driver details.  Did the Claimants have any legitimate cause to continue processing the keeper's data for the purposes of pursuing a parking charge.

 

 

32.  In summary for this allegation, the Claimants as data controllers were and continue to be in breach of their statutory duty under the Acts as follows :- 

 i) by obtaining the Defendant’s personal data from the DVLA without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b) 

 ii) after receiving the driver details, processing the Defendant’s personal data unlawfully and unfairly and for a purpose other than pursuing the Claimants’ legitimate interests, contrary to the DPA 2018 and GDPR article 5 (1) (a) and (b) and article 6 (1)(f); 

 iii) by retaining the Defendants’ data after the purpose for obtaining it (if any) had ended

 

Damages for distress caused by harassment contrary to the Protection from Harassment Act 1997 ('the PFHA') ref section 3:

 

33.  It is alleged that the Claimant's conduct has crossed the line into harassment and that it has breached the PFHA, which states: 

(1) A person must not pursue a course of conduct— 

(a) which amounts to harassment of another, and 

(b) which he knows or ought to know amounts to harassment of the other. 

(2) For the purposes of this section [or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [or involves] 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. 

(3) Subsection (1) [or (1A)] does not apply to a course of conduct if the person who pursued it shows— 

(a) that it was pursued for the purpose of preventing or detecting crime, 

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or 

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable. 

 

34.  None of the justifications in (3) above can possibly apply.   Despite the Defendant’s appeal, information of driver at the time and continuing reasonable responses, the Claimants persisted in aggressively and unjustifiably pursuing their unreasonable charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents and/or from Premier Parking Logistics Ltd, multiple demands threatening legal action and misleading the Defendant.  As the Defendant explained to both the debt collection agency and claimant that parking companies cannot arbitrarily impose a 28 day 'limit' on transferring liability before court action. In addition to this providing evidence from legal professionals to avoid litigation against the wrong person, The proper course of action was to transfer liability to the named driver or cancel the PCN but instead, the Claimant's hostile correspondence and threats of court action have been particularly intimidating over a period of time, leaving the Defendant feeling emotionally vulnerable.

35. The Claimants’ course of conduct in pursuing this spurious parking charge, including the issue of these proceedings, amounts to harassment within the meaning of section 1, Protection from Harassment Act 1997.  Instead of transferring liability to the named driver or cancelling the PCN, the Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, distress and symptoms of their medical conditions, causing loss of sleep and interfering with their peace of mind.  In all the premises, the conduct of the Claimant amounts to harassment under section 1 of the PFHA as well as harassment pursuant to the EA.  Accordingly the Defendant respectfully seeks damages pursuant to s3(2) of the PFHA. 

Damages  

36.  By reason of the matters aforesaid, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct.   The 'thin skull' rules applies in that the Claimant must take its victim as they find them; the claim being served despite the Defendant's detailed response in pre-action communications.   It has taken - and continues to take - a monumental effort to deal with the aggressive conduct of this Claimant.  The Defendant has suffered substantial and exhausting distress which has impacted upon family life and respectfully seeks damages in the sum of £500 or such sum as the court sees fit. 

 

AND THE DEFENDANT COUNTERCLAIMS:-  

37. 

a). Compensation in the sum of: £500 or such sum as the Court sees fit including any award of aggravated damages at the court's discretion; 

b). Court fees: £60.00 filing fee (if the Defendant does not get help with fees: applied for); 

c).  Interest pursuant to s.69 of the County Courts Act 1984, at such rates / for such periods on the sums found due to the Defendant as the Court may deem fit; 

d). Costs to be assessed.  As a result of the Claimants’ unreasonable behaviour, the Court is respectfully invited to order the Claimants to pay the Defendants’ costs on an indemnity basis, pursuant to Civil Procedure Rules, rule 27.14 (2) (g).  

 

 

STATEMENT OF TRUTH 

 

I believe that the facts contained in this Defence and Counterclaim 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.  

  

Umkomaas

spellchecker and grammer before sending.

I'd definitely do that! 😊

Coupon-mad

Changes here (there is no new banding from 1st Jan this year so don't introduce arbitrary dates that could come back to bite you):

 In a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO - which was a claim for damages including disability discrimination and a breach of the DPA, an award of £2,500 was granted as compensation for distress, so the Defendant believes this counterclaim is extremely reasonable, given the circumstances.  For claims presented on or after 1st January 2021,  The new  current applicable Vento bands are as follows: 

And changes here because I've struck out the wrong part of the POFA.  ALL PARAGRAPHS WILL NEED NUMBERING!:

23.  The Claimant's behaviour seems to be represents a clear attempt to mislead the Defendant into thinking that liability cannot be transferred to the driver as some sort of arbitrary 28 day deadline has passed.  , when in   In reality, the deadline had not passed as the Defendant had transferred liability to the driver before court action commenced, which is all that the applicable law requires.  So the claimant had all the details required to pursue the party liable but instead started litigation processes against the wrong party.  The Protection of Freedoms Act 2012 Schedule 4 states:  that the 

''4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2)The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; 

Conditions that must be met for purposes of paragraph 4

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.''

From the notices to keeper received PCN 000001 does not comply with 

9 (e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

And Both Notice to keeper do not comply with

9 (2)The notice must—

 (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

In addition to this, before this claim was filed and in an attempt to narrow the issues and prevent this unjustified litigation against the wrong party, the Defendant drew the Claimant's and their legal representatives' attention to an  the  article published by legal professionals part of SCS Law.  It appeared recently in 'Parking News' (official British Parking Association publication)   have   and made it clear that if a parking company receive driver details 'before commencing court proceedings' then the parking company should  only have one option after that, and can only pursue the driver.  Civil Procedure Rules 7.2, 1 defines starting proceedings as: ''(1) Proceedings are started when the court issues a claim form at the request of the claimant.''

(NB: Defendant's underlining above).  Thus the claimant was fully aware of the driver before commencing court proceedings and the proper course of action for them was to pursue that named driver (or decide to cancel the parking charge). There was no longer any reasonable cause to continue to use and process the data of the registered keeper that the Claimants had originally harvested from the DVLA for £2.50 for the specific and strictly-defined purpose (in the DVLA KADOE rules) of enquiring who was driving.  Yet both the Claimant and their legal representatives continued to tell the Defendant that they were liable.

This misleading action questions the real intentions of the Claimant as they are legally represented and fully aware of the liable party. The Defendant  is a litigant who knows they are not the liable party and although this fact was adequately expressed to the claimant and their legal representatives, they continued to start litigation proceedings. The defendant made it clear that if a claim were to be filed against this Defendant (the wrong party) despite knowing the above, in the name of the defendant  it would have financial repercussions for the Claimant and result to a counterclaim, so they have not been labouring under any illusions that their conduct is not what it clearly is: wholly unreasonable and unlawful. Even if they had, ignorance of the law is no defence and under the Regs (above) a misleading action is in fact illegal (and actionable under civil law too).  due to the unlawful processing of the Defendant’s data.   

Le_Kirk

The defendant made it clear that if a claim were to be filed against this Defendant (the wrong party) despite knowing the above, it would have financial repercussions for the Claimant and result to in a counterclaim, 

Maybe change as above, small but important. 

Coupon-mad

Please show the whole counterclaim again and the finished version because it will help others copy and adapt one for themselves.

Nosy

Sure, i will paste on here before i send it.  just doing some final bit to ensure it makes sence. 

Below is my defence, i am in the process of numbering the paragraphs and reducing the size of my two paragraphs. I'm not sure if the parts regarding the SAR is necessary but i am trying make court aware  that there are two other outstanding PCN's why are they not in the claim- do you think this is important in the defence stage? Which parts do you think i should reduce or change, which parts are not significant/relevant?

1.. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

 The facts as known to the Defendant:

 

2. It is admitted that the Defendant was the registered keeper, not the driver of the vehicle in question and liability is denied. A contract requires three elements, Offer, Consideration and acceptance. This contract would have been with the driver not the registered keeper who is the defendant in this case, therefore it is denied that any contract with the claimant was formed.

3. The registered keeper submitted a subject access request and was sent eight items which consisted of 4 email screenshots and four outstanding PCN’s. This claim is for two out of four of the outstanding PCN’s which seems strange as the defendant clearly informed the claimant of the driver details for all four PCN’s. The claimant is aware that the defendant was not the driver in this case and all outstanding PCN’s as this was made clear within the initial appeal for PCN 00001 and then again in the defendants response email on 27th October 2019 including PCN’s 00002, 00003, 00004 and 00001.

 4. Within the appeal for PCN 00001 the defendant provided multiple reasons as to why the PCN cannot be enforced including unclear signs, and more importantly not being the driver at the time. The registered keeper was able to provide the justification of unclear signs, as the registered keeper visited the site, tested the telephone service and took photos of the poorly maintained car park. At the time the registered keeper did not provide the driver details as there was no legal requirement to do so and found that the claimant failed to comply with The Protection of Freedoms Act 2012.

 5. The defendant informed the claimant that PCN 00001 failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give the invitation to keeper in the format prescribed by section 9 (2) (e) of the Act. The claimant was also made aware of the failure to state the period of parking as the PCN only stated the time the PCN was issued. There was no mention of how long the parking observation took place or the period of parking as required by 9 (2) (a) of the same act. The claimant also failed to state that the creditor does not know both the name and a current address for service for the driver as required by (8) (2)(e)(fii) (this was only on the first NTK) (should period of parking within NTK contain time observed? but the NTK only states issue time and reason for charge "failing to pay for full duration of parking")

6. The defendant made it clear in October 2019 that any further contact will be seen as harassment and contact should only be made to confirm the cancellation of the PCN. The claimant and their debt collection agency ignored this and continued to harass the defendant. The defendant made it clear of the feelings of distress and harassment but contact from the defendants debt collection agency continued. On 1st December 2020 the defendant received a response email from the debt collection agency stating a claim will be made within 30days if the money was not paid. To avoid a claim being made the defendant provided both the debt collection agency and the claimant with the driver details for all outstanding PCN’s.

 

7. Few days later the defendant received a message from the debt collection agency stating the timeframe to transfer liability has lapsed. The defendant continued to receive demands for money after both the claimant and their debt collector knew the defendant was not liable. The defendant provided the claimant with a published article from SCS Law’s legally qualified staff for the British Parking Association regarding the period of transferring liability to a driver stating parking companies cannot arbitrarily impose a 28 day 'limit' on transferring liability before court action.

The defendant continued to receive messages and the defendant made it clear that the claimant will face a counterclaim on the basis of knowingly harassing and processing the data of the wrong person, without reasonable cause (breaching KADOE as well as the DPA 2018).

Coupon-mad

We'll have to look more closely tomorrow but you can't quote both para 9 and 8 of the POFA (it's one or the other, as you'll see when you read them).  

And the most important issue with most non-POFA NTKs is the crucial lack of a warning that the keeper will become liable (the words from either 8(2)f or 9(2)f are required).

Nosy

Ok thanks. I have attached some images of the car park. And two NTK, you can see the last paragraph is slightly different. Do they look compliant ntk's, period of parking, dates sent? 

Coupon-mad

Can't see any NTKs but you can check for the 8(2)f or 9(2)f words, it doesn't need us to look.

The words are either there or they are not, what do you think?  It's simply a case of reading the POFA para - is it there?