Tort for incorrect KADOE request?

pould

Hi all,

As registered keeper, have received a PCN from Smart Parking as a NTK. GP surgery car park, driver stayed over ninety minutes but, crucially, gave registration number to receptionist. Clearly something has gone wrong and they have issued a PCN.

I've sent the usual "Non POFA 2012 compliant appeal" and am not worried in the slightest about it. HOWEVER... I *am* bothered about the KADOE request since it shouldn't have been made. I suspect the receptionist may have entered in the registration number incorrectly.

Has anyone ever issued a successful tort for this kind of thing in the small claims court? It's a clear data privacy breach.

nosferatu1001

Theyll claim it was the receptionists fault
SAR them fotr a copy of the terminals records. 

D_P_Dance

AFAIAA,  several people have successfully claimed for misuse of data by paking scammers, here is one, you can easily google more

http://parking-prankster.blogspot.com/2017/05/motorist-awarded-900-for-data.html

Read what Pete Wishart MP said recently in the House of commons about Smart Parking.

"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.

…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices.

Read also this

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

pould

nosferatu1001 said:

Theyll claim it was the receptionists fault
SAR them fotr a copy of the terminals records. 

Thanks.

For clarity, this is an SAR on Smart Parking and not the GP surgery?
I understand that the BPA have insisted their members only ask for a nominal sum for keying mistakes. Is this correct?
I think I will do an SAR this afternoon regardless as it will scare them into dropping the PCN.

nosferatu1001

On SMART. The GP wont have access I am pretty sure. State you require an excerpt showing all VRMs that days blanked out EXCEPT yorus *or anything that could be close to it* in line with the BPAs guidance on miskeying
It wont scare SMART. Theyre too dumb.

pould

nosferatu1001 said:

On SMART. The GP wont have access I am pretty sure. State you require an excerpt showing all VRMs that days blanked out EXCEPT yorus *or anything that could be close to it* in line with the BPAs guidance on miskeying
It wont scare SMART. Theyre too dumb.

Do you have a reference for the new BPA guidance on miskeying?

KeithP

pould said:

Do you have a reference for the new BPA guidance on miskeying?

It's in section 17, on pages 10 and 11, of the current BPA Code of Practice.

pould

KeithP said:

It's in section 17, on pages 10 and 11, of the current BPA Code of Practice.

Perfect - Thanks again. SAR will go this morning.

nosferatu1001

However if this is *reception* typing it in, the repsonsibility for it being incorrect is NOT yours. I wouldnt personally offer a reduced payment to cover the landholder cocking up

pould

nosferatu1001 said:

However if this is *reception* typing it in, the repsonsibility for it being incorrect is NOT yours. I wouldnt personally offer a reduced payment to cover the landholder cocking up

I'm not offering *any* payment. Their NTK is unenforceable and the issue here is whether they made a request for my details as registered keeper inappropriately. If they couldn't even be bothered to check whether any violations on the day had been miskeyed, I'd suggest "yes".

pould

Hi all,
Have just issued the following letter before action. I am more than happy to test the principle in court that if a company has already received all the evidence that no contravention occured but has not sought to check it, that a KADOE request at that point is a clear data protection breach.

Letter edited appropriately.

Smart Parking Ltd
Unit 43, Elmdon Trading Estate
Bickenhill Lane
Birmingham, B37 7HE

25th March 2020

Sirs,

WITHOUT PREJUDICE SAVE AS TO COSTS

i)                 On the XX of MON YYYY the vehicle XX XXX (of which I am the registered keeper) was parked in YYY. Since the time of stay was over 90 minutes, the driver on the day informed the receptionist (who acted as your agent) of the vehicle’s VRN in order to comply with the contractual terms of parking in the aforementioned car park.

ii)                As your employee ZZZZZ confirmed in an email sent on or around ZZZ GMT on ZZZZ, the registration keyed in by your agent was not XX YY ABX but rather XX YY BAX. Given that VRNs are inputted by your agents and NOT by your customers on this site, this was outside of the driver’s control.

iii)              Section A(17.4) of the BPA Code of Conduct, Edition 8, 2020 makes it clear that such a keying error should be regarded as a reasonable mitigating circumstance.

 

Despite Smart Parking Limited already being in possession of reasonable evidence that no contravention had occurred, a KADOE request was made for the registered keeper’s details. As you are aware your KADOE terms and conditions only allow you to make requests where a contravention is clearly understood to have occurred. Since it was already clear from all the material that Smart Parking Ltd had received that a contravention had NOT taken place, the KADOE request made by Smart Parking Ltd was not appropriately requested and my personal details were acquired by Smart Parking Ltd in an unlawful manner.

As you should be aware, in Vidal-Hall v Google [2015] EWCA Civ 311, the Court of Appeal held that damages for distress could be claimed against data controllers for contravention of the Data Protection Act 1998, even where there was no financial loss.  Whilst the quantum of damages in that specific case was £750, in other cases since then such as TLT & others v Secretary of State for the Home Department and the Home Office [2016] EWHC 2217, the quantum was much higher.

In order to give you an opportunity to not incur higher damages, I am prepared to accept a reasonable payment of £250 (TWO HUNDRED AND FIFTY POUNDS) in this matter to settle any outstanding claim on my behalf. I believe such a sum is reasonable and proportionate.

I refer you to the Practice Direction (Pre-Action Protocols) in particular paragraph 15 and the sanctions for non compliance. You can find these on the Ministry of Justice website at: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct.

Unless payment of the sum of £250 is received within 14 days of the date of this letter, Court proceedings may be issued against you without further notice. Any Court proceedings will include a claim for interest from the date of the original violation of my personal data, Court fees and legal costs.
If a Judgment is subsequently registered against you it is likely to affect your credit rating, including that of Directors of the company.
I look forward to receiving your payment as a matter of urgency.

NAME AND ADDRESS