DCBL - Letter of Claim - Defence to be filed

Maybelle

Thanks @Redx - if I've understood correct, this is the only part in the thread that relates to sending off the defense

'I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read'

Umkomaas

Maybelle said:

Thanks @Redx - if I've understood correct, this is the only part in the thread that relates to sending off the defense

'I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read'

Written pre-covid. Email is the accepted medium now while the pandemic persists. 

Redx

Maybelle said:

Thanks @Redx - if I've understood correct, this is the only part in the thread that relates to sending off the defense

'I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read'

then you missed all this , which links the template defence thread ( its in the newbies thread post number 2 about court claims ) ( nb:- there is no S in the word DEFENCE )

THEN - UNLESS YOU HAVE A PARKING EYE CLAIM (DIFFERENT) - READ THIS TEMPLATE DEFENCE AND EDIT IT TO SUIT:

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

That template defence is new for 2020. From the 6 April 2020 a statement of truth at the end of a defence must now be in the following form:

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.

Send your defence to the CCBCAQ email address given by KeithP in all the other recent claim/defence threads we need you to read first.

Redx

then this is what it says in the defence template thread (note that we recommend a digital signature appending to the pdf instead of printing , signing and scanning , especially due to covid19 changing our world forever)

Submitting your defence:
Thanks to KeithP for this summary of how to submit a defence by email to the CCBCAQ email address:  

If you have no access to a scanner, then put an electronic signature in it. When you are happy with it, your defence is to be filed via email as suggested here:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk 
5. Just put the claim number (check it very carefully) and the word Defence in the email title, and in the body of the email something like 'URGENT RE CLAIM XXXXXXXX - Please find my Defence attached.
6. After filing your Defence, there is more to do.

Redx

which reminds me , I must book an appointment at Specsavers now I have had both Jabs

Coupon-mad

Have a look at the one just written by @Redman2186 as well, to make sure you have everything and then please show us the final draft defence and counterclaim.  You will have to phone the CCBC after you email this off, to pay the £50.

Maybelle

Oh ignore me! I've seen other updates! Thank you everyone!

Yes @Castle - thank you for spotting that I've double checked again and all the registered keeper references are correct now!

@Le_Kirk - Thank you so much for sharing that!

@1505grandad - I decided to keep this in just in the off chance I have a difficult judge and therefore I can refer to this as my secondary back up. The bulk of my defence however will be the mistaken identify of course!

Maybelle

So to confirm the court fees (filing fee) is £50?

Here is my counterclaim - I used @Nosy's one as they had a similar situation (where they were not the driver). I had a look at @Redman2186 and the key parts are the same; just different ordering and since they were the keeper but couldn't remember the driver I felt Nosy's was more appropriate. I'm going to send off tomorrow so please kindly let me know your thoughts! I have kept the rest of the template the same but of course personalised points 1-3

Please let me know if ;
1- I have missed anything
2 - any glaring spelling errors (I have checked but fresh pair of eyes never hurt)
3- Any formatting issues

Maybelle

Counterclaim

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

20.  The bands of awards for injury to feelings, known as the Vento bands, have been updated from April 2020.  This stems from a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for Courts and Tribunals to apply when they are assessing injury to feelings awards for pure distress, as opposed to financial loss.  The Vento case decided that there is now an accepted quantum for compensation and courts have followed this guidance. In a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO - which was a claim for damages including 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.  Current applicable Vento bands are as follows: 

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

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

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

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

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

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

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

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

22.  The Claimant alleges that the Defendant was the driver or Registered keeper which the Defendant denies. The Claimant alleges that as a result of the previous point there was a contract formed at the moment of parking the car by which the Driver is bound.  However, as the Defendant denies this claim, it is clear that no contract was formed and therefore they are not bound by any terms and conditions.

23.  The Claimants behaviour represents a clear attempt to mislead the Defendant into thinking that their details were recovered from the DVLA and that they had been identified as both the registered keeper and driver. In reality the Defendant has confirmed through the Freedom of Information records provided by the Claimant that the DVLA had not supplied their details nor had they identified themselves as the driver at any point in any of the correspondences. The Protection of Freedoms Act 2012 Schedule 4 states: 

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

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

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

Conditions that must be met for purposes of paragraph 4.

5(1) The first condition is that the creditor— (a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but (b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.''

 

24. In addition to this, before this claim was filed and, in an attempt, to narrow the issues and prevent this unjustified litigation against the wrong party, the Defendant drew the Claimant's and their legal representatives' attention to this information in two separate letters which they disregarded.

25. Thus, the Claimant was fully aware that the Defendant was not the driver nor the registered keeper before commencing court proceedings and the proper course of action for them was to pursue that registered keeper (or decide to cancel the parking charge). There was no longer any reasonable cause to continue to use and process the data of the Defendant that the Claimants had originally harvested from an email appeal sent on behalf of the registered keeper. Yet both the Claimant and their legal representatives continued to tell the Defendant that they were liable and used their data incorrectly.

26. This misleading action questions the real intentions of the Claimant as they are legally represented and fully aware of the liable party. The Defendant made it clear that if a claim were to be filed against the Defendant (the wrong party) despite knowing the above, they would seek to defend the claim in full as their conduct was wholly unreasonable and unlawful. Despite knowing this they continued to file a claim against the wrong party (Defendant) and ignorance of the law is no defence and under the Regs (above) a misleading action is in fact illegal (and actionable under civil law too).   

27.  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'):

 

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

 

29.  The Claimants noted, photographed and stored the Vehicle Registration Mark then requested and received the Defendant’s personal data due to the Defendant filing an appeal on the behalf of the registered keeper whom is disabled. 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”).  

 

30.  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)).  

 

31.  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’). 

 

32.  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.  

 

33.  The processing of the Defendant’s data should have ceased once the Claimant was made aware of the fact they were neither the driver nor the registered keeper. The Claimants had no legitimate cause to continue processing the Defendant’s data for the purposes of pursuing a parking charge. 

34.  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 an appeal without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b) 

 ii) after being made aware that the Defendant was neither the driver not the registered keeper the Claimant continued to process the Defendant’s personal data unlawfully and unfairly and for a purpose other than pursuing the Claimants’ legitimate interests, contrary to the DPA 2018 and GDPR article 5 (1) (a) and (b) and article 6 (1)(f); 

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

 

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

 

35.  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. 

36.  None of the justifications in (3) above can possibly apply.   Despite the Defendant’s appeal, information of registered keeper at the time and continuing reasonable responses, the Claimants persisted in aggressively and unjustifiably pursuing their unreasonable charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents and/or from First Parking LLP, multiple demands threatening legal action and misleading the Defendant.  As the Defendant explained to both the debt collection agency and Claimant that they were not nor have they ever been the registered keeper or driver of the vehicle. The proper course of action was to continue pursuing the registered keeper or cancel the PCN but instead, the Claimant's hostile correspondence and threats of court action have been particularly intimidating over a period of time, leaving the Defendant feeling both emotionally vulnerable and anxious during a global pandemic.

37. 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 pursing the registered keeper, driver or cancelling the PCN, the Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, distress and symptoms of their medical conditions, causing loss of sleep and interfering with their peace of mind.  In all the premises, the conduct of the Claimant amounts to harassment under section 1 of the PFHA as well as harassment pursuant to the EA.  Accordingly, the Defendant respectfully seeks damages pursuant to s3(2) of the PFHA. 

Damages  

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

 

AND THE DEFENDANT COUNTERCLAIMS: -  

39. 

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

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

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

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

Coupon-mad

No time to look but if it's based on others but adjusted to suit your case then it'll be right.