DCBL - Letter of Claim - Defence to be filed

Maybelle

I am 100% sure I appealed via email! I even state in my appeal that I had to send an email appeal in the appeal as they had no other way to contest the ticket. I used the same exhibit  they are relying on in their witness statement but to show that they’ve fraudulently stated I was the driver when I wasn’t! 

patient_dream

Maybelle said:

I am 100% sure I appealed via email! I even state in my appeal that I had to send an email appeal in the appeal as they had no other way to contest the ticket. I used the same exhibit  they are relying on in their witness statement but to show that they’ve fraudulently stated I was the driver when I wasn’t! 

Something for the judge to hear.  DCBL have to prove what they claim

I would not use the word "fraudulently" .... if you are correct the best word to use is "incompetent"

Maybelle

IN THE COUNTY COURT AT (xx)

CLAIM No: xx

BETWEEN 

First Parking LLP
xx
 __________

WITNESS STATEMENT OF THE DEFENDANT AND PART 20 CLAIMANT
 __________

1. I,XX of XX am the Defendant and Counterclaimant in this matter and will say as follows. I have very little legal knowledge regarding court proceedings and no legal training, the defence and witness statement have been created from my own research, so please accept my apologies for anything which does not look normal. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  

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

Sequence of events and signage 

 

3.  As I have maintained throughout this process, it is denied that I was the Driver or the Registered Keeper at the time of the alleged contravention. However, to be able to provide an accurate witness statement I have asked the Driver to share their version of events with me which I will outline below.

4. The Driver has driven through that road on several occasions as evidenced by the ANPR log in Exhibit xx 1. The Driver entered the location several times in July 2020 but never parked due to the fact they were simply using the road as a ‘cut through’.

5. On this day the Driver was planning to do the same however on this occasion there were a number of cars parked and stopped on the side. Considering the narrow space and the size of the vehicle the driver took longer than expected to manoeuvre through the road. The Claimant claims that the vehicle was parked but you can see in Exhibit xx 2 the vehicle is not parked in any of the images, rather they are either stuck behind another vehicle or are moving around parked cars or people.

6. The Driver had no way of being made aware that they would be sent a parking charge notice for overstaying as it is quite apparent from the images supplied by the Claimant’s ANPR footage in Exhibit 2 that there was never any attempt to park nor stay. The Driver did observe signage at the entry stating that this was pick up and drop off only zone but the signage at the entrance were not legible and the entrance signage simply said ‘see signs for more details’. The fact that the terms and conditions were not clearly stated at the entrance prevent a driver from entering into an agreement as there is no clarity on what those conditions were. When it became apparent to the Driver that they were stuck behind vehicles they did try to find the signs that had more ‘details’, but these were not easily visible from the driving seat.

7. The Claimant has shared images of the signage following a subject access request made by myself (Exhibit xx 3).The images they’ve provided following this request appear to be large, clear and legible however if one is to visit the location it is apparent that the signage is not as legible as they claim it is. Exhibit xx 4 shows pictures taken on site by the Claimant which clearly demonstrate that the location of the signage is not at eye level and therefore not visible from a driver’s vantage point. Whilst the signage at the entry does state ‘Pick Up and Drop Off Only’  the text containing the permitted duration is at a reduced size and the sign itself doesn’t state what the terms and conditions are thereby making it virtually impossible for a driver entering the location to know what the timing restrictions are. Upon further investigation the time limit is 5 minutes but as you can see in Exhibit 3 the arch shape of the road plus the narrowness makes it incredibly difficult to adhere to this time frame when there are a number of vehicles in the area.

8. The signage once you enter the area are dotted in awkward locations as evidenced by the images provided in Exhibit 4. The signage is not erected at eye level but the Claimant has rather confusingly chosen to place them at a low point meaning that most drivers would struggle to see or read them. The fact that the text is a reduced size, the terms and conditions are not outlined at the entry and all signs are not placed at eye level means it is wholly unfair to expect drivers’ to be able to safely read it and agree to the terms and conditions within the allocated 5 minutes.

9. The alleged contravention took place on 14th July 2020 and the ticket was issued 2 days later and was received by the keeper on the 16th. The parking charge notice in Exhibit xx 5 is difficult to understand as it states the contravention was for a breach of the parking restrictions but namely for overstaying. As mentioned the Driver did not park anywhere in that location in the day nor did they pay a toll so it was incredibly confusing to understand how they could have overstayed if they were never invited to park.

10. The Registered Keeper, my father, is a disabled man and when he received the notice asked me to appeal on his behalf. The Keeper whilst he was not the driver requested, chose to not reveal the driver and therefore I sent the appeal on his behalf as the Keeper. After having carried out some research online I decided to use the confusing parking charge notice, excessive payment requested and proprietary interest as the grounds for the appeal. I sent an appeal (Exhibit xx 6) via email address as the parking charge notice states appeals are considered but did not provide an address or email to send the appeal. I did not want to send a letter as at the time we were in the height of the pandemic with various restrictions and I did not want to risk the appeal being delivered outside of the allocated timeframe. I fortunately was able to find an email address for the Claimant online as many others seem to have had a similar challenge. I at no point addressed myself as the driver and whilst my email details contains my full name, I don’t recall signing off in the email with my name as the intention always was to send the appeal on behalf of the Keeper. I would like to highlight to the court that on the Claimant's system it states ‘I was the driver – yes’ but I did not at any point reveal myself as the driver. The Claimant has incompetently claimed this to support their argument and I would ask that they share any documentation in which I clearly state I am appealing as the Driver. I sent an email appeal which is evident by the fact I state so in the body of my appeal.

11. The Claimant did not address the points highlighted in my claim instead responding that they were BPA compliant and that they would not be cancelling the parking charge notice (Exhibit xx 7). I wanted to continue appealing but the Keeper became distressed at the line in their rejection that stated they could begin court proceedings if a payment wasn’t made. I attempted to make a payment but was informed that this was no longer possible as this claim was now with the debt collectors. I sent another email to the Claimant (Exhibit xx 8) as I was advised on a phone call with the Claimant that the debt collectors would be pursuing action against me despite the fact that I wasn’t the Keeper nor Driver.

12. I started receiving increasingly threatening letters from DCBL’s non legal arm in which they included intimidating language and referred to their TV appearances in the show ‘can’t pay, we’ll take it away’ in which they act as bailiffs. They chose to use this distressing wording despite the fact this claim hadn’t been escalated to a court case and therefore there could possibly be no bailiff action as this point in time.

13. I became distressed at the fact that these letters were being addressed to me despite the fact I was neither the Keeper nor Driver. I received a Letter Before Claim from DCB legal addressed to me and I replied back stating that there was a mistake on their end as I had never been the keeper nor was I the driver on the day in question. DCB Legal and the Claimant alleged (Exhibit xx 9) that my details were provided by the DVLA and that I had sent an appeal on 6th August in which I identified myself as the driver; both statements were false as evident in Exhibit xx 10 and Exhibit 6. Exhibit 10 shows the keeper details that were provided by the DVLA as being a male with a different name whilst Exhibit 6 demonstrates that the driver’s details were never shared or revealed. To further bolster the fact that I could not have been the driver Exhibit xx 11 shows my timesheet which states that I was training at xxx hospital on the day in question.

14. I tried once more to reason with the Claimant and their legal team by advising them they were attempting to pursue legal action against the wrong individual (Exhibit xx 12). I reminded them that the driver had not be named and that I felt hounded by the constant threatening letters. I warned that if they continued that I would highlight this to the court as evidence of their failure to undertake due diligence.

15. If the Claimant made a genuine error in which they sincerely believed up that I was the Driver, then at this point,  they would have been made aware that through these correspondences that I was neither the driver nor the keeper and therefore they should have apologised and instead continued correspondence with the Keeper or requested details of the Driver. Instead they chose to continue to harass me and use my details which I believe is a breach of their statutory duty under the Data Protection Act 2018 and General Data Protection Regulation (GDPR).

16. The Claimant and their legal team in their reply to my defence are still maintaining that I was identified by the DVLA as the registered keeper when all the evidence demonstrates this is inaccurate. This is wholly concerning as it shows a lack of due diligence and unlawful processing of my personal data.

17. The Claimant’s reply to my defence (Exhibit xx 13) is inconsistent as in paragraph 7 they state that I was identified as the registered keeper but in paragraph 10 they accept that I was not the Registered Keeper and instead argue that I accepted that I was the Driver of the vehicle which I have evidenced has not been the case. I would ask the court to draw the logical conclusion that the Claimant is therefore pursuing legal action against the wrong individual. I also invite the court to view this contradiction as evidence of their procedural impropriety and unlawful data processing.

 

The Beavis case is against this claim 

 

18. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

 

19. However, there is no such legitimate interest where there is no parking fee to be paid.  As such, I take the point that the requested parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 

 

Landowner contract

 

20. Following a Subject Access request, the Claimant has shared a redacted copy of the ‘terms and conditions for the supply of parking enforcement services – Landowner’ but this document has little or no probative value as there is nothing to say what the Landowner’s approach is to penalising genuine drivers who had no intention of parking or overstaying.

 

21. Furthermore, the ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.  The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

 

22. I would ask that the Claimant provides a non redacted version of the Landowner agreement to verify this information. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 for which a link to the full transcript and extracts of paragraphs [74] and [75] have been exhibited to this statement as Exhibit xx 14 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract.  The relevant paragraphs state “…The document must in all normal circumstances be placed before the court as a whole...”  “Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality ...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

 

Maybelle

Abuse of process - the quantum 

 

23. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process (Exhibit xx 15), approved judgment in Excel Parking Services v Ann Wilkinson (Bradford Court 01.07.20).  Leave to appeal that case was refused and Judge Jackson became a Specialist Civil Circuit Judge last year, soon after handing that judgment down:  ‘I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases’.

 

24. Dozens of other cases have been struck out at allocation stage in that court area alone, on the back of (now) HHJ Jackson's considered 'test case' (as Judges are calling it). This is a crucial and very relevant case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case already decided, as it covers more than the cost of an average of four automated demands that are fundamental to the business model. The conclusion of this case is being echoed by other judges.

 

25. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Britannia Parking v Crosby case (Southampton Court 11.11.19) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

26. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):

https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''    

 

27. This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.  

 

28. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (Exhibit xx 16), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.  

29. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432, the transcript of which is exhibited to this statement as Exhibit xx 17,where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

30. Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied. 

THE EFFECT OF THE DEMANDS ON MYSELF AND MY FAMILY:

31. It is not possible for me to accurately quantify the distress I have suffered over the last 12 months but I will attempt to outline the significant and emotional abuse I feel I have suffered at the hands of the Claimant.

32. During this whole process DCB Legal (the Claimant’s legal representative) have been particularly challenging to deal with. They ignored multiple attempts made by myself through letters and phone calls to stop this claim and instead chose to cause undue distress and anxiety by consistently sending me letters threatening me with warnings of a CCJ and court proceedings.

33. The threat of a CCJ is worrisome, it affected me. I was worried that it could ruin my credit worthiness and employability. As a young woman starting out in life what matters most to me is the threat of my credit rating being destroyed causing significant problems applying for loans and mortgages. 

34. I wrote letter after letter, made multiple phone calls and repeatedly asserted that I was not the driver nor keeper and I pleaded with them to please stop harassing me but these pleas fell on deaf ears. The majority of my letters received no response at all and the ones that did were unhelpful and it was clear that the Claimant and DCBL did not want to do the right thing. They were adamant that I was the Keeper and Driver even when I brought proof that I wasn’t.  

35. I wasted so many hours of my life on this, more importantly, I was brought to a state of considerable anxiety and distress on multiple occasions. As a frontline worker during the pandemic, I was already in a heightened state of stress and having to deal with unrelenting threats from their legal representatives whilst I attempted to prepare a defence when I have little legal knowledge created unmeasurable distress. I have spent the last year not knowing whether  I would end up with a County Court judgment, if a bailiff would come at any time to remove all my goods, whether I missed a court claim form such that legal proceedings might have already been brought upon me or it had already been reported to a credit rating agency.

36. I have included 2 examples of these letters in Exhibit xx 18. These letters were headed as “Notice of Debt Recovery” were particularly worrisome. The letters contained such menacing wording “Can’t Pay? We’ll Take It Away!”. These notorious enforcement agents are seen on TV and my impression is that they just go out of their way with the sole aim to recover the monies for their client.  I didn't realise until this point that I was being pursued to court, that in fact these earlier letters were never from the Direct Collection Bailiffs Limited ‘Bailiff Arm' seen on TV.  That wording was misleading and designed to intimidate me.  I honestly had visions of someone knocking on my door to take things away or clamping my father’s car. As a disabled individual my father relies on his car to be able to live his life, go to appointments and remain independent. Even though I know wholeheartedly that I did nothing wrong, these threatening letters created a sense of guilt and regret as I worried that I may have inadvertently caused his lifeline to be taken away.

37. It’s hard to express in words how bad this whole thing has made me feel. Each time I began to think they must have dropped the case, another letter arrived.  I feel they were using these letters not as a genuine means to progress the matter in a fair and open way, but as a weapon to frighten me into giving up.

38. The thought of having to go to court to defend yourself, particularly against something that you know to be wholly untrue is frankly terrifying, I have worked tirelessly with my sister (who has helped me immensely) to prepare for the court proceedings and hearing.  I hope this is evident through this witness statement.

Maybelle

39.  My counterclaim is in essence:

(a)    that this Claimant's course of conduct, by unreasonably and unlawfully subjecting me to a barrage of demands for money that I did not owe, meets the bar of harassment pursuant to the Protection from Harassment Act 1997

and

(b)   that serious data breaches have occurred for the last 12 months, stemming from the Claimant's abject failure to carry out sufficient checks of their faulty data, then sharing that data widely with third parties to demand money with menaces and even now refusing to face up to their actions and be accountable for their significant data abuse, is a clear breach of the Data Protection Principles and the Data Protection Acts 1998 and 2018.     

40. I am seeking damages for severe distress, anxiety and alarm caused by the actions of the Claimant pursuant to the above respective Acts. My counterclaim is set at a very reasonable and justified sum of £500, which I broke down as follows:

£100 per data breach * 4 = £400
£100 harassment 


Harassment element:

41.  DCB Legal claim in their reply to my defence that their Client, the Claimant, didn’t harass me. I vehemently disagree. To send intimidating letters and ‘Final Notice of Debt Recovery’ notices when they have been informed that I was not the Keeper nor Driver on multiple occasions is nothing short of harassment and bullying. They claim that their conduct can’t amount to harassment but I ask the court, are aggressive letters threatening legal action addressed to the wrong person not an example of harassment in itself? Do their threats to start legal proceedings, seize my goods and report me to credit rating agencies not constitute as harassment when they know I am not the right person to pursue?

42. My case demonstrates a course of conduct of prolonged harassment of a person who does not owe the alleged debt and where some simple checks and diligence by the trader would have uncovered that fact from the outset, or at any time during the ensuing year.  The harassment and threats are on all fours with the case of Ferguson v British Gas Trading Limited [2009] EWCA Civ 46 (Exhibit xx 19) where a trader was held to have breached the Protection from Harassment Act 1997 for subjecting a consumer to a barrage of demands for money she did not owe.   

43. Ms Ferguson succeeded with her claim for £5000.  It made no difference that the letters were automated.  British Gas was liable for harassment over a period of just over two years.  It is to be noted that the Act does not provide any defence for “accidental” harassment. Confirmed by Lord Justice Jacob in the Ferguson v British Gas case, also there is no policy reason why companies such as the Claimant should be exonerated for conduct which, if carried out by an individual, would amount to harassment.  The Claimant argues that they have done nothing wrong which actually makes it worse because they are still not stopping their conduct and could easily have discontinued the claim straight away once I did their job for them and pointed out the obvious. 

44.  Damages for harassment are conventionally assessed by reference to the “Vento guidelines”, originally laid down by the Court of Appeal in the case of Vento v Metropolitan Police [2002] EWCA Civ 187113  (Exhibit xx 20) regarding compensation for distress in the Employment Tribunal.  Whilst that case was relating to discrimination, the Vento guidelines are widely used by the courts for any assessment of damages for distress and this approach was fully endorsed by Court of Appeal in Roberts v Bank of Scotland Plc (2013 EWCA Civ 882 15 at paras 59-64 - Exhibit xx 21).    

45.   Harassment is both a crime and a tort.  In Majrowski v Guy’s and St Thomas’ NHS Trust [2006], Lord Nicholls explained “To cross the boundary from the regrettable to the unacceptable the gravity of the conduct must be of an order which would sustain criminal liability under section 2”.   I take the point that this Claimant’s conduct has crossed that boundary:

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

 s.2(1) “Offence of harassment. (1) A person who pursues a course of conduct in breach of [F5section 1(1) or (1A)] is guilty of an offence”.

46.  I have given sufficient evidence and information to show that the Claimant knew, or really ought to have taken stock, checked their facts and evidence at some point in the last year and realised that the conduct amounted to harassment.  Further, I have evidenced a prolonged campaign of harassment and misleading 'bailiff' impersonating letters capable of causing me alarm and distress.  All of this could have been quickly and simply dealt with, without causing immense amounts of distress at a time where I was already in a heightened state of anxiety due to the unfolding pandemic and my job as a frontline worker.

The Data abuse issue (DPA Principles and 1998 and 2018 DPA breaches:

47.     Article 5 of the UK GDPR sets out 7 key principles which lie at the heart of the general data protection regime.  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; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial 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; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals (‘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 technical or organisational measures (‘integrity and confidentiality’).”

48.  Also of significance given the Claimant's failure to be accountable and admit the error that I highlighted when I stated I was neither the Driver nor Keeper, Article 5(2) adds that: “The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).” 

49.  Compliance with the spirit of these key principles is therefore a fundamental building block for good data protection practice. It is also key to any trader’s compliance with the detailed provisions of the UK GDPR.  Failure to comply is covered in Article 83(5)(a) which states that infringements of the basic principles for processing personal data are subject to the highest tier of administrative fines.  The ICO states could mean a fine of up to £17.5 million, or 4% of total annual turnover, whichever is higher.  Given the gravity, I think my £500 counterclaim is more than reasonable.

 

50.  It is submitted that the Claimant has breached the DPA Principles in more than one way.  My data was never obtained properly from the DVLA.  Within weeks this Claimant was sharing my data unlawfully and was using it to send misleading letters and allowing its agents to harass me.   

Comparable cases involving harassment and data abuse by parking firms

51.   I am aware that these are not precedents but it may assist the court to review Simon Clay v Civil Enforcement Limited which I have included in Exhibit xx 22.  This was a successful £200 claim for damages for data abuse by a parking firm, a case without any harassment or aggravating features.  Also a recent transcript: VCS v Ferguson, Claim No. G2QZ60G1, 14/5/21 (Exhibit xx 23- the approved judgment).  This was a counterclaim for £1500 where the wrong person was pursued for 5 years.  This shows that the learned Judge at Portsmouth Court was persuaded that a case involving unjustified demands and unreasonable conduct by a parking firm matches the 2 year conduct in Ferguson v British Gas.  My £500 counterclaim for 12 months of both data abuse and harassment is set at a comparatively proportionate level.

52.  In conclusion, the Court is respectfully invited to order damages for distress in the sum of £500.   My claim is set at almost half the lowest level in the established Vento guidance for harassment claims and I appreciate that the court may assess a sum higher or lower than the sum claimed.

53.    However, the aggravating features of my case are that the Claimant is knowingly pursuing the wrong person for simply sending an appeal. They have never bothered to update their records, nor did they resume correspondence with the Keeper. Accidental harassment is no lawful excuse and a service provider such as this Claimant has a duty of care to consumers that has not been exhibited at all to me.

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

CPR 44.11 - further costs 

  

55. I am appending with this bundle, a fully detailed costs assessment (Exhibit Xx 24) which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).  In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that I was not the Keeper and that I had not identified myself as the Driver.  Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes double recovery. 

  

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

  

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

 

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

 

 

Statement of truth: 

 

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

 

SIGNATURE 

 

…………

 

DATE

Coupon-mad

Good work.  When does this have to be in by?

I think near the start, say how you got caught up in this by the Claimant presuming wrongly, that you were the driver because (explain you merely sent an email for a vulnerable relative who couldn't handle it).

State very early on "Because I am neither the keeper nor driver, I am and always was a stranger to this alleged contract (except for acting to help a relative with an email) and cannot be liable under any applicable.  Yet the Claimant has apparently tried to mislead the court by stating in xxxxx (where? In para xx of their Witness Statement? State where) that I 'admitted to being the driver' which is clearly not the case and would have been impossible for me to admit. I was not and this Claimant has known this from week one, yet has continued to harass me for money I don't owe and to process my data unlawfully, hence my counterclaim.  I reached the end of my tether long before the Claimants filed this claim.  I look to the courts to help me to finally achieve justice.

I think this heading needs the added words, to show that the paragraphs from this point on, are about the counterclaim:

IN SUPPORT OF MY COUNTERCLAIM: THE EFFECT OF THE DEMANDS ON MYSELF AND MY FAMILY:

1505grandad

Just checking:-

"11. The Claimant did not address the points highlighted in my (claim) instead responding that they were BPA compliant and that they would not be cancelling the parking charge notice (Exhibit xx 7). I wanted to continue appealing ...."

Should this be (appeal)?

Maybelle

@1505grandad - thank you for spotting that! Yes it should be appeal, I've amended it

@Coupon-mad -as always thank you for the recommendations. I've included it in the first paragraph of the sequence of events. The deadline is tomorrow as the hearing is on 29th.

I've put everything together in a PDF file and will be emailing it to the claimant and the courts. Can I send it back to the individual that sent me the Claimant's witness statement? Or should I send it to where I sent my defence?

Is there specific wording I need to use 'Please find attached my Witness Statement for the hearing on XXXXX'?

Coupon-mad

No specific wording as long as the subject line contains the words 'Urgent: witness statement & evidence: claim xxxxxxx hearing on (date/time).

And send to the local court and the Solicitors (use both emails you have for them) and send to court & Claimant's solicitor at the same time, cc'd into the court's email to stop the Claimant pretending you never served it to them.

Check the PDF is not over 25kb and if it is, compress it.

Fruitcake

If you have the PPC's WS, please show it to us. Only redact YOUR personal data.

Upload it to Dropbox or similar and post the link here. Make sure it doesn't need a password and that the site does not ask readers to allow their personal data to be shared.