DCBL - Letter of Claim - Defence to be filed

Coupon-mad

Maybelle said:

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).  

Just reminding us all of the context, that you filed the above counterclaim because the C knew that the Defendant was neither the driver not the registered keeper.

First, read through the above.  Have you got as exhibits, all the cases your CC relied upon?

Maybelle

No I don’t as I didn’t realise I needed them in the witness statement. Can you please share some more insight as I’m really confused now. I thought the witness statement was just explaining what happened and why I thought this claim was bogus? 

Can I just repeat the body of text used in my defence in my WS? I would really appreciate it if you could provide some clarity as the other WS I read didn’t have all this information so I’m quite confused as to what I need to do here 

Maybelle

Do I need 2 separate witness statements as I already have 16 exhibits without adding the ones my CC in the defence relied upon. 

This is all so confusing and distressing to be perfectly honest. I’ve spent so much time on it over the last month and half and it seems like it’s still got a long way to go. 

I’ve referred to this forum multiple times and used the signposted stickies etc but there aren’t many people on here who were neither the driver nor the keeper and as someone who doesn’t have a background in law I don’t know what I need to include. Between the stress of this whole case and my own day job it’s a wonder I haven’t completely lost the plot. 

Coupon-mad

The WS supports your defence and also brings in all exhibits you wish to rely on, such as photos and evidence of not being the keeper or driver and proof of your efforts to tell the C that.

And technically all the case law can and should go in a separate skeleton argument, but newbies usually find two documents hard to manage, so most just narrate something about the case law in the WS and attach that too. 

Have a look at what exhibits @Nosy and @ellaro9 and @Redman2186 included with their counterclaim WS or whether they split the legal authorities off.

Fruitcake

Please show us the landowner contract.

As for identifying the driver, there is no law that can compel you to name them. It was not you. You have said it was not you. You have included this information in your correspondence with the claimant, and have declared it to be true under a signed statement of truth.
The court can ask no more of you, and the judge should not think unfavourable thoughts of you for not naming the driver.

Maybelle

Hi All, I've made the suggested changes - please have a read and let me know what you think

@Fruitcake - the landowner contract is heavily redacted and missing a number of pages but I will take photos and upload as soon as possible.

IN THE COUNTY COURT AT (TOWN)

CLAIM No: XX

BETWEEN 

XX
 and
XX
 __________
WITNESS STATEMENT OF THE DEFENDANT AND PART 20 CLAIMANT
 __________

1. I, XX of  XX am the Defendant and Counterclaimant in this matter 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 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 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 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 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 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 my appeal. I sent an appeal (Exhibit 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.

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 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 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 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 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 11 shows correspondence from my recruiter which states that I was on shift at XX 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 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 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. 

Maybelle

 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 patrons 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 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...''

 

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 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 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 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 alongside preparing a defence when I have little to no legal knowledge created unmeasurable distress. I have spent the last year not knowing whether that I would end up with a County Court judgment and 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 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 family 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 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?

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 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 and tries to dismiss their error as a mere typo, 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 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 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 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 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 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

 

Fruitcake

With regards to the redacted landowner contract, have a look at this thread by Johnersh where he refers to an appeal court case in which the judge stated that redactions in disclosure are generally unacceptable.

Quote the case, case number, the judge's name, and thee judge's findings. Note that this was an appeal court case and is therefore persuasive on the lower courts.

Whilst it might be acceptable to redact for example how much the PPC is being paid, or is paying the landowner because it could be considered as being commercially sensitive, redacting anything else would be unreasonable.
It is reasonable to think that the average person (the man on the Clapham omnibus) would believe unnecessary redactions were a deliberate attempt to hide clauses that would favour the motorist. You should aver that this is the case and put the claimant to proof that the contrary is true.

Redactions in Disclosure — MoneySavingExpert Forum

I have sent you a private message about the contract. I'm sure the other regulars will vouch for me.

Le_Kirk

Fruitcake said:

I have sent you a private message about the contract. I'm sure the other regulars will vouch for me.

Absolutely, you could not have a better regular on your side when it comes to contracts, especially when PPCs try to hide stuff.