Advice re blue badge owner

[Deleted User]

KeithP said:

I'm not suggesting that you need to explain exactly how their actions conflict with the CPUTRs, that can be left for your Witness Statement. 
I'm just suggesting that the initialisation needs to be spelt out fully at least once in your Defence.
I added a suggested change in my earlier post but you may have missed it.

Yes I missed it. Thanks again for your input.

Fruitcake

I thought the CPUTR was replaced by the Consumer Rights Act (CRA) 2015.

Fruitcake

HotelUniform74 said:

Fruitcake said:

I think Thornton Vs Shoe Lane might be applicable here.

Judge Lord Denning, he of the "Red Hand Rule" said,

"The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late."

I think NCP Vs HMRC also applies. The contract is accepted when the green button is pressed to obtain a ticket. 

Hello Fruitcake, thanks for your reply.

Please can you explain how to reference the above in my counterclaim? I did a google and I can find the below. Is it correct please?

Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2

Thanks.

Yes, that is the correct citation. Quote it in your defence, and briefly state the judge's findings and the judge's name.

KeithP

Fruitcake said:

I thought the CPUTR was replaced by the Consumer Rights Act (CRA) 2015.

Wasn't it the Unfair Terms in Consumer Contracts Regulations 1999 that was replaced by the CRA?

Coupon-mad

The CPUTRS still exist and were not replaced.

I couldn't read the draft new paragraph because it had become so long it is a wall of text.  Any Judge would likely think the same.

Please repeat the latest draft of that section here but in about 5 or 6 paragraphs (all need a number).

[Deleted User]

IN THE COUNTY COURT

Claim No.: xxxxxxxxxx

Between

Premier Parking Solutions Limited 

(Claimant) 

- and -  

xxxxxxxxxxxxx                        

 (Defendant)

____________________

DEFENCE

____________________

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 of the vehicle in question but liability is denied. 

 

3.       The Defendant’s car entered the car park at 17:51. The signage was not visible from the car as it was dark and the signage was not lit. A ticket was purchased for one hour’s parking at 17:55, following the Claimant's terms and conditions. The car was captured leaving past the exit at 19:07. The Defendant correctly paid for their hour's parking and the Defendant denies any breach of the terms on offer to drivers arriving before 6pm. The Claimant is bound by their accredited trade association’s (ATA) terms and conditions. The Claimant’s ATA, the IPC, state in their code of practice, page 13, part b, 15.1, 15.2 that a “reasonable” amount of time should be given to a motorist after entry to a car park, and before purchase of a ticket, to make an informed choice on whether to park or not. The IPC also state that a separate 10 minutes should be given to a motorist, after expiry of the ticket, to exit the car park. These periods of time are known as “grace periods”. The Defendant is a disabled person with 'protected characteristics' pursuant to the Equality Act 2010 (per Chapter 1, paragraph 6 of the EA).

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

[Deleted User]

COUNTERCLAIM 

19. The Defendant repeats the defence above, in support of the counterclaim.  The Claimant was also served with a full response to their Letter Before Claim, in which the Defendant provided this Claimant with ample warning about the basis for this counterclaim and gave them every opportunity to take stock of their position and cease and desist with their unlawful, discriminatory and harassing conduct without resorting to litigation.  The Claimant's course of conduct, beginning from November 2019, has been wholly unreasonable, vexatious and unlawful.

20. This counterclaim is for damages for distress caused by the Claimant's multiple breaches of statutory duty which includes disability discrimination.  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. 

21.  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 6 April 2020, 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

22.  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 lower end of established guidance in the Vento bands, pursuant to the following: 

a) damages for discrimination, distress and harassment of a person with protected characteristics, pursuant to the Equality Act 2010 ('the EA') Part 113 'proceedings' and Part 119 'remedies' and the Claimant's breach of their statutory duty as a 'service provider' as set out in the EHRC Code of Practice relating to the EA;
b) 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”);  

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

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

Damages for discrimination, distress and harassment of a person with protected characteristics, pursuant to the Equality Act 2010 ('the EA') and breach of statutory duty as a 'service provider' as set out in the Equality & Human Rights Commission Code of Practice relating to the EA (the EHRC CoP):

23.   Under the EA section 119 'remedies' at (2), the county court has power to grant any remedy which could be granted by the High Court, in proceedings in tort; and this includes damages as stated at (4) ''An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).''  The EHRC CoP defines the duties of a service provider, who must not discriminate or harass a disabled person and must make 'reasonable adjustments' and would only be considered to have taken 'all reasonable steps' to avoid discrimination ''if there were no further steps that they could have been expected to take''.   A person is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities.  It is likely to be common ground that the definition of 'protected characteristics' (per Chapter 1, paragraph 6 of the EA) applies to the Defendant and the Claimant is fully aware of that fact, which it is envisaged will not be in dispute.  The Defendant also has a 'Blue Badge' issued by the Council and the Claimants knew this before filing this claim and also hold a copy of it in their databases.  

[Deleted User]

24.  The EA and the associated EHRC CoP (which in itself creates statutory duties, breach of which is an offence) require that service providers dealing with the public shall not cause detriment by disproportionate, unfair or harassing treatment of people with protected characteristics and must make 'reasonable adjustments' to accommodate the needs of such persons, either as an anticipatory adjustment or retrospectively, once the facts about that person and their needs are known.  Traders are legally required to take 'every step' and cannot continue to cause detriment and apply blanket policies to a disabled person who has suffered unfair treatment. 

25.  The Claimant has failed in its statutory duties with reference to the EA Chapter 2 'Prohibited conduct' where it states under 'Discrimination' at paragraph 21 'Failure to comply with duty': 
(1)  A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2)  A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

26.  Where a trader knows about the fact that an individual is disabled, the offence is direct discrimination.  Where an arbitrary policy is imposed on the disabled population 'at large' the offence is indirect discrimination.  The Defendant alleges breaches of one or both types of discrimination took place during the two years of this ordeal and that there has been harassment, victimisation and a clear failure to make 'reasonable adjustments' for the Defendant.  The statutory duty to make reasonable adjustments in a car park are not met merely by painting some disabled bays; barriers to access are not just physical and discrimination includes harassment of disabled people.

27.  There is no lawful excuse or justification by citing cost/efficiency or that the conduct was unintentionally discriminatory nor indeed if the Claimants might say that they did not know at the point of first printing a 'parking charge notice' that the Defendant was disabled.  The Claimant certainly knew that the Defendant was disabled as photographic proof of the Defendant’s ‘Blue Badge’ was included in the Defendant’s appeal to the Claimant in December 2019.

28.    A parking firm cannot lawfully seek to punish a known disabled person for breach of a contractual term on signage, when they know that the person in fact was entitled to park, because it is trite law that the statutory EA takes precedence over contractual terms.  Cancelling the parking charge would have been the 'reasonable adjustment' needed.  It is known that this Claimant does cancel parking charges for no cost for their clients, therefore the administration cost would have been negligible and cannot be passed onto a disabled person in any event: Ref: EA Chapter 2, para 20 (7). 

29.  The most recent unlawful harassment under the EA was the court claim, so this counterclaim is well within the timeline pursuant to part 113 of the EA, for seeking a remedy pursuant to Part 119.  The EA at Part 114 'Jurisdiction' states: (1)  The county court or, in Scotland, the sheriff has jurisdiction to determine a claim relating to — (a) a contravention of Part 3 (services and public functions).  Part 3 defines the duties in para 29 'Provision of services, etc.' in order to avoid discrimination and Schedule 2 applies to this Part.  The Claimant's conduct from the outset is in clear breach of the EA.  The only question remaining will be the quantum of compensation for this offensive conduct.

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”):

30.  The Claimant alleges that there was a contract formed at the moment of entry to the car park by which the Defendant is bound.  Thus, this was a transactional decision within the meaning of the Regulations at 20(b).

31. Unclear/unfair terms and consumer notices are unlawful pursuant to the Consumer Rights Act 2015 ('the CRA') which includes a right to a compensatory remedy that may be sought by litigants in person against traders whose terms and/or consumer notices are in breach. Section 62(4) of the CRA brings in the elements of open dealing and good faith. An unfair term is described as a term which is “contrary to the requirement of good faith, it causes a significant imbalance in the party's rights and obligations under the contract to the detriment of the consumer”. Causing detriment to a protected disabled consumer by attempting to put alleged contractual breach terms above primary discrimination law, and placing those terms in hidden, small text where they can only be read by a disabled person having to leave their car is inherently unfair. Broadly, Part 2 of the CRA protects the consumer against contractual wording that could be used to give the business an unfair advantage. It requires that such wording should be:

(i) fair: not weighting the contract unfairly against the consumer, or hidden away; and

(ii) transparent: enabling the consumer to make informed choices.

It is averred that because the terms and/or notices relied upon by this Claimant are unfair under Part 2 of the CRA, they are not legally binding on the Defendant and are actionable due to failing the fairness and/or transparency tests.

32. It is averred that the overall presentation of this information away from the parking bays was likely to deceive the average motorist, thus fulfilling the definition of a “misleading action” under regulation 5 (2)(a) of the Regulations at 20(b). Since it would have been easy to present the information properly and/or to exempt the Defendant and immediately cancel the PCN, it is reasonable to presume that this deception was deliberate. The Claimant offers a tariff that applies to cars that park before 6pm and a different tariff that applies to drivers who park after 6pm, and the Claimant have used that as a 'concealed pitfall or trap' (a phrase from the Supreme Court in ParkingEye v Beavis about a parking charge situation of poor practice that would not have been enforceable) to generate wholly improper parking charge notices. Their machine ticket printed an expiry time of 6pm, giving just five minutes parking instead of the advertised hour. By any reasonable interpretation, this is a misleading action under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs). The Claimant's reply to the Defendant before they filed this claim, compounded this action by including the preposterous idea that a driver arriving and paying for an hour before 6pm is expected to return to the car park at 6pm and buy a new ticket, despite having paid the advertised rate. The authority in National Car Parks Ltd v Revenue And Customs [2019] EWCA Civ 854 (ref: paras 16, 18) affirmed that the contract was brought into being when the green button was pressed. In Thornton vs Shoe Lane Parking (1970) EWCA Lord Denning, then Master of the Rolls stated that "The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late.".

33. 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'):

34. Personal data must be processed fairly and lawfully. The Claimant stands in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency). Predatory ticketing of a known disabled 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 for three years. 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 (on the day) 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.

[Deleted User]

35. 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”).

36. 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)).

37. 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’)

38. 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.

39. None of the above conditions applied, from the moment when the Claimant received a copy of the Defendant's Blue Badge along with their appeal, and knew that this was a disabled driver using their bay. The Defendant's data should never have been obtained from the DVLA. Accordingly, the processing of the Defendant’s data was not “necessary for the performance of, or commencing, a contract” and nor, since further communication with the Defendant had no prospect of furthering their purpose, did the Claimants have any legitimate cause to continue processing the keeper's data.

40. In accordance with the DPA 2018 and the GDPR, they were no longer permitted to either process, keep or share the Defendant’s data but the Claimant compounded the issue by unlawfully sharing the data with another firm, bwlegal.

41. 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) by 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

iv) by sharing the Defendant's data with Excel and other third parties in attempting to pursue the charge.

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

42. 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.

43. None of the justifications in (3) above can possibly apply. Despite the Defendant’s appeal, Blue Badge evidence and continuing reasonable responses, the Claimants persisted in aggressively and unjustifiably pursuing their unreasonable charge over the course of the ensuing years. The Claimant’s harassing course of conduct included sending, either by themselves or through their agents and/or from Premier Parking Solutions, multiple demands threatening legal action and misleading the Defendant. The proper course of action was to cancel the PCN but instead, the Claimant's hostile correspondence and threats of court action have been particularly intimidating over a period of time when the Defendant's medical conditions have resulted in Hospital appointments, including an admission just 2 days after the claim arrived and another outpatient Hospital appointment 8 days later, leaving the Defendant both emotionally and physically more vulnerable.

44. 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 cancelling the PCN, the Claimant embarked on a harassing course of conduct that has continued for over two years 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

45. 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. 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 £1,250 or such sum as the court sees fit.

AND THE DEFENDANT COUNTERCLAIMS:-

46.

(a). Compensation in the sum of: £1250 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;

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 stated in this defence 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.

Defendant’s signature:

Date:

Umkomaas

I'm no expert on the subject of 'Counterclaims', nor am I going to pick through the tome you've written to try to find my way around it, but here's a few observations, for what they're worth. 

1. You're heading close to 4,000 words describing your counterclaim. While you might feel you want to 'unload' everything at the Judge, you should ask yourself the question are you being reasonable in expecting an undoubtedly under extreme pressure of work Judge to read all that and understand it. Remember, you need to get him/her closer to you than to the claimant. 

2. I'm not sure on what grounds you are counterclaiming (because I've not read it in detail), but I think I saw words like 'distress', 'harassment', 'disability discrimination' - would it not be a good idea to list the individual elements at the head of the counterclaim - single line for each, bullet point style?  But, if you want my honest opinion, I don't see anything unique in much of what you describe more than most motorists who are subject to the excesses of the private parking operator network go through. I'd think hard about whether you're going to be throwing good money away in your pursuit. And by the way, £60 fee now reads £80 following recent court price hikes. 

3. Are you aware that payment for the counterclaim must be made at the time of submitting it; you can't leave it to later?

Hope the above helps in some way.