Advice re blue badge owner

[Deleted User] · 6 December 2021 at 7:35PM

Coupon-mad said:

Some paragraphs are too long. Break them up into new shorter paras, e.g in #23 you have a sentence starting 'The EHRC CoP' which looks better to be the start of a new para 24.

Just checking this is true, did you?
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.

Yes I did tell them I would claiming against them if they carry on in reply to their LBC to me.

OK I will have another read through and then repost after. Thanks for your input

[Deleted User] · 6 December 2021 at 8:40PM

COUNTERCLAIM

Distress
Harassment
Disability Discrimination

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).''

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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).

30. 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”):

31. 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).

32. 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”.

33. 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.

34. 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).

35. 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.".

36. 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'):

[Deleted User] · 6 December 2021 at 8:40PM

37. 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 two 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.

38. 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”).

39. 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)).

40. 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’)

41. 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.

42. 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.

43. 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.

44. 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:

45. 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.

46. 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.

47. 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

48. 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:-

49.

(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:

Coupon-mad · 6 December 2021 at 9:18PM

Shouldn't this be in bold?

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

1505grandad · 6 December 2021 at 9:27PM

Para 49(b):-

Don't forget to alter fee amount as pointed out by Umkomaas at 11.35am

[Deleted User] · 6 December 2021 at 10:08PM

COUNTERCLAIM

Distress
Harassment
Disability Discrimination

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