DCB Legal on behalf of Highview Parking - Advice on Defence for Claim

Redman2186

Redx said:

My advice is simple , dont go for overkill because it's deemed retaliatory , but make it a sum that is more than their inflated claim , as in if someone hits you , hit them back harder , twice as hard , and be smarter too. Be above reproach. A judge may look favourably at £500 but not £5000 , remember that you have to prove your case , so throwing away that proof didn't assist you !!

Each side must prove their claim , so think about how you prove each element in your case against HIGHVIEW , your counter claim ( not just your statement s ) , so £600 is not unreasonable , but £100 is , imho

Taking all of the advice into consideration that everyone has shared - I've arrived at a total of £500 which I think is reasonable based on the following breakdown:
1. Highview unlawfully obtaining my data (they had no grounds based on double dip) - £100 
    Based on the data they have, the following is an example illustrative profile that could be inferred arrived at from personal data which they should never have been entitled to. "Name, Historic Address, Current Address, Make of Car, Model of Car, Colour of Car, reasonable assumption of young child(ren) in family arrived at via "Baby on board",  Reasonable assumption of types of shops frequented as only 7 Shops at Waterfields Retail Park (arrived at as visited on 2 consecutive days), etc...  
2. Highview sharing my data with:
    i. Debt Recovery Plus Ltd - £100 (Highview admitted to this in the SAR)
    ii. Direct Collection Bailiffs Ltd -£100 (Highview admitted to this in the SAR)
    iii. DCB Legal Ltd - £100 (Can reasonably be inferred - via Claim Form)
3. Harrassment - £100 (assuming I am able to obtain "Debt Collection" correspondence via SAR I will then include as evidence in Witness Statement).

D_P_Dance

If you win your counter claim this will probably cost the PPC c@ £1,000

Redman2186

First draft of Counterclaim - I will share in 2 parts: Part 1 now for intro and damages for data breach. Will share damages for harassment tomorrow. I welcome your thoughts/updates/advice

Note. I refer back to 3ii & 3iii so including at the base of Counterclaim for reference so you do not need to jump back to earlier page on thread

Counterclaim

21.       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.

22.       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

23.       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: 

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

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

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

24.       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). The Defendant refers [3(ii)] where the Claimant has recorded the Defendant’s vehicle entering and exiting the carpark on two separate days from ''01/10/2016 11:55 to 02/10/2016 15:48''. This is a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s personal data with multiple third parties, preparing pre-action letters and then a claim.

 

25.       Reiterating points from [3(iii)], The PCN divulged for the first time in the SAR, shows that it was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4. The Defendant's research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Sch 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and because - on the balance of probabilities - this was a case of two separate visits across two days, incorrectly grouped together, the Claimant had no reasonable cause to obtain the Defendant’s personal data from the DVLA, at all.

 

26.       The Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Firstly, as illustrated in [24 & 25] the Claimant should have realised that they had no grounds to obtain the Defendant’s personal data from the DVLA. Accordingly, the processing of the Defendant’s DVLA data was not necessary for the performance of, or commencing, a contract and nor was it necessary or justified under any other data processing excuse.  Distress is now included under Article 82 of the GDPR and the 2018 DPA. The Claimants had, and still have, no prospect of furthering their purpose and no legitimate cause to store 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. 

27.       The Claimants noted, photographed and stored the Vehicle Registration Mark then requested and received the Defendant’s personal data due to obtaining the registered keeper data relating to that vehicle, from the DVLA.  The purpose was to seek payment of the parking charge which is the subject of the Claimants’ claim. The VRM itself and the Defendant’s details are 'personal data' within the meaning of the DPA 2018 and the associated General Data Protection Regulation (“GDPR”). 

28.       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)). 

29.       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’).

30.       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.

 

31.       The Claimant has exhibited wrongdoing on multiple fronts, failure to notice ANPR inherent flaws, obtaining and ongoing processing of the Defendant’s personal data inclusive of sharing the Defendant’s personal data with multiple third parties. The Claimant has admitted through SAR response to Defendant on 18th May 2021 “We can confirm that your name and address details, along with details of the outstanding Charge, were passed to Debt Recovery Plus Ltd and Direct Collection Bailiffs Ltd who are our Collection Agents on the 02/12/2016 and 17/06/2020 respectively for the purposes of recovering the outstanding amount on this Charge”. Furthermore, the Defendant’s details have clearly also been shared with DCB Legal Ltd who are named as the Claimant’s legal representatives on the Claim Form.

 

32.       In summary for this allegation, the Claimants as data controllers were and continue to be in breach of their statutory duty under the Acts as follows :-

                 i.         by obtaining the Defendant’s personal data from the DVLA without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b)

              ii.         failure to recognise that they unlawfully obtained the Defendant’s personal data from the DVLA, processed 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.         shared the Defendant’s personal data with at least three (as known to the Defendant) third parties unlawfully and unfairly as the Claimant had no legitimate lawful basis.

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

For Reference from Defence

   3 ii.       The Defendant's vehicle was recorded from ''01/10/2016 11:55 to 02/10/2016 15:48''.  The recorded duration of the stay is stated to be 03:52 (hh:mm), in other words, the PCN states incorrectly that the stay was almost 4 hours.  In fact, this spans two days and by the Defendant's calculations that is actually a stay all day and all night for a total of 27:52. The court is invited to come to the same conclusion as the Defendant: something does not add up. The Defendant lives 15 minutes away and this is very likely to have been a family trip to the retail park on two consecutive days over the weekend (could also be two different drivers). The Defendant can definitively say that the family never slept in the car overnight and would have had no reason to leave the car there for two days; this is preposterous and robustly denied. The Claimant's SAR reply divulges a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s data with multiple third parties, preparing pre-action letters and then a claim.

           3iii.       The PCN divulged for the first time in the SAR, shows that it was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4.  The Defendant's research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Sch 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and because - on the balance of probabilities - this was a case of two separate visits across two days, incorrectly grouped together, there is no charge due and the Claimant had no reasonable cause to obtain the Defendant’s data from the DVLA, at all.

Redman2186

any advice on part 1 of counterclaim above?

Coupon-mad

Did you see court fees went up a bit last week?  £50 now for a claim up to £500.

Part 1 of counterclaim looks fine.  

As part of the harassment 'course of conduct' argument don't forget to include the latest matter of the Particulars of Claim, which misstate the liability by unlawfully saying under a statement of truth that the D is liable as the keeper (i.e. even if they knew they were not driving, or the driver was unknown after all these years).  This is part of the continued harassment because the C knows this statement about keeper liability is untrue due to their own choice of never using the POFA 2012 provisions in Schedule 4.  It should not fall to a litigant-in-person Defendant to have to spend hours of research to find this out.  The Claimant undoubtedly knows it does not use the POFA.  It has reportedly lost every POPLA appeal where appellant keepers have pointed out the lack of POFA compliance.  It appears they have decided to file a batch of claims in the hope that most keepers (and courts) will not know what POPLA know and might wrongly assume that any parking firm can hold a keeper liable as of right.  Plenty choose not to, and Highview was one, which suited them because they never had to consider the deadlines in the POFA and had longer to issue their notices, and never sued people until 2021 so this has only now become an issue before the courts.

Redman2186

Coupon-mad said:

Did you see court fees went up a bit last week?  £50 now for a claim up to £500.

Didn't see - Not so worried about this though as believe that Highview have probably been willfully neglecting to consider ANPR failings and they should be held accountable.

Draft of 2nd Part of Claim - Any Advice?
I will put entire Defence and Claim in a couple of posts this afternoon for final review before submitting.

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

1.       It is alleged that the Claimant's conduct has crossed the line into harassment and that it has breached the PFHA, which states:

                i.         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.

              ii.         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.

             iii.         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.

2.       None of the justifications in (33iii) above can possibly apply. The Claimant incorrectly issued a PCN where clear failings of their ANPR system should have been highlighted via a quick scan of the two images which contain both Date and Time stamp. The Defendant has shown that this was an easy error to spot for one completely unfamiliar with these types of images, the Claimant should have a process in place for highlighting the inherent flaws that come with using an ANPR system. The Defendant dreads to think how many times the Claimant may have issued and been paid for unjust PCNs issued against other vehicles where there were also clear and obvious ANPR failings. The Claimant having failed (through convenience or incompetence) to spot a clear and obvious error, issued a PCN without merit then persisted in aggressively and unjustifiably pursuing their unreasonable, unjust and unfounded charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents (Debt Recovery Plus Ltd, Debt Collection Bailiffs Ltd and/or DCB Legal Ltd, multiple demands threatening legal action and misleading the Defendant. The proper course of action was to own up to a clear and obvious error, cancel the PCN and apologise for any inconvenience caused. The Claimant's hostile correspondence and threats of court action have been particularly intimidating over a prolonged duration, leaving the Defendant feeling emotionally vulnerable.

3.       Furthermore, even if in a hypothetical situation where the Claimant’s ANPR had not failed, there is the matter of the Particulars of Claim, which misstate the liability by unlawfully saying under a statement of truth (signed by the Claimant’s Legal Representative) that “D is liable as the driver or keeper (i.e. even if they knew they were not driving, or the driver was unknown after all these years).This is part of the continued harassment because the Claimant knows this statement about keeper liability is untrue due to their own choice of never using the POFA 2012 provisions in Schedule 4. It should not fall to a litigant-in-person Defendant to have to spend hours of research to find this out. The Claimant undoubtedly knows it does not use the POFA. It has reportedly lost every POPLA appeal where appellant keepers have pointed out the lack of POFA compliance. It appears they have decided to file a batch of claims in the hope that most keepers (and courts) will not know what POPLA know and might wrongly assume that any parking firm can hold a keeper liable as of right. 

4.       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 recognising failing in their parking system upfront which would never have resulted in a PCN or cancelling the PCN once the Claimant discovered it was issued without merit, the Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, distress, 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 

5.       By reason of the matters aforesaid, the Defendant suffered distress and anxiety because 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 PCN having been issued without merit where there is a clear and obvious failing of the ANPR system. It has taken a monumental effort to deal with the aggressive conduct of this Claimant. The Defendant has suffered substantial and exhausting distress through harassment and the multiple counts of data breach which has impacted upon family life and respectfully seeks damages in the sum of £500 or such sum as the court sees fit.

 

AND THE DEFENDANT COUNTERCLAIMS: - 

6.       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;

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

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

 

Statement of Truth

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

Defendant’s signature:

Date:

Redman2186

Posting Full Defence and Counter Claim - This post and following 2 posts for your final review, please kindly let me know if I've missed anything important or have random spelling/grammar issues - Appreciate all of your support to-date. 1 small point of note.. I will validate the court filing amount with the County Court Tomorrow and update accordingly.

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.       The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant Highview Parking Limited for a Total amount of £286.71 (inclusive of £25 Court Fee & £50 Legal representative's costs). Through research the Defendant has come to understand that this relates to a PCN that was issued against the Defendant’s vehicle nearly 5 years ago. The PCN was issued for the alleged offence on 2nd October 2016 at Waterfields Retail Park, Watford.

 

3.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied and any breach of terms is also denied. The identity of the driver(s) at the material time is unknown to the Defendant, who was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on two occasions, across two days nearly 5 years ago.  The Defendant has just received the Claimant's reply to a Subject Access Request ('SAR') and it discloses the following key issues for the first time, some/all of which show there can be no cause of action against this Defendant and the claim is wholly without merit:

 

            i.       The Notice to Keeper, also known as a Parking Charge Notice ('PCN') dated 10/10/2016 went to an old address, hence why the Defendant had no recollection of the original - because it was never properly served.  At some point the Defendant's address has been updated as the Claimants did at least use the correct address on their N1 Claim Form.

 

           ii.       The Defendant's vehicle was recorded from ''01/10/2016 11:55 to 02/10/2016 15:48''.  The recorded duration of the stay is stated to be 03:52 (hh:mm), in other words, the PCN states incorrectly that the stay was almost 4 hours. In fact, this spans two days and by the Defendant's calculations that is actually a stay all day and all night for a total of 27:52. The court is invited to come to the same conclusion as the Defendant: something does not add up. The Defendant lives 15 minutes away and this is very likely to have been a family trip to the retail park on two consecutive days over the weekend (could also be two different drivers). The Defendant can definitively say that the family never slept in the car overnight and would have had no reason to leave the car there for two days; this is preposterous and robustly denied. The Claimant's SAR reply divulges a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s data with multiple third parties, preparing pre-action letters and then a claim.

 

          iii.       The PCN divulged for the first time in the SAR, shows that it was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4.  The Defendant's research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Sch 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and because - on the balance of probabilities - this was a case of two separate visits across two days, incorrectly grouped together, there is no charge due and the Claimant had no reasonable cause to obtain the Defendant’s data from the DVLA, at all.

 

4.       Following on from [3(iii)] where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a Highview Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £211.71. The Defendant has excluded the £25 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

 

5.       The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

 

6.       The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

 

7.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 

8.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

 

9.       The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 

10.    Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

11.    Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

12.    Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

13.    Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

14.    The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

15.    The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

16.    Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

                i.         Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

              ii.         Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

             iii.         Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

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17.    Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

18.    In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

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: 

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

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

 

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

22.    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). The Defendant refers [3(ii)] where the Claimant has recorded the Defendant’s vehicle entering and exiting the carpark on two separate days from ''01/10/2016 11:55 to 02/10/2016 15:48''. This is a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s personal data with multiple third parties, preparing pre-action letters and then a claim.

 

23.    Reiterating points from [3(iii)], The PCN divulged for the first time in the SAR, shows that it was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and it was therefore incapable of invoking the ‘keeper liability’ provisions set out in the PoFA, Schedule 4. The Defendant's research has revealed that Highview is a parking firm which has chosen never to use 'keeper liability' wording (primarily as set out in para 9 of the POFA Sch 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a non-POFA PCN like this one and because - on the balance of probabilities - this was a case of two separate visits across two days, incorrectly grouped together, the Claimant had no reasonable cause to obtain the Defendant’s personal data from the DVLA, at all.

 

24.    The Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Firstly, as illustrated in [24 & 25] the Claimant should have realised that they had no grounds to obtain the Defendant’s personal data from the DVLA. Accordingly, the processing of the Defendant’s DVLA data was not necessary for the performance of, or commencing, a contract and nor was it necessary or justified under any other data processing excuse.  Distress is now included under Article 82 of the GDPR and the 2018 DPA. The Claimants had, and still have, no prospect of furthering their purpose and no legitimate cause to store 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. 

25.    The Claimants noted, photographed and stored the Vehicle Registration Mark then requested and received the Defendant’s personal data due to obtaining the registered keeper data relating to that vehicle, from the DVLA.  The purpose was to seek payment of the parking charge which is the subject of the Claimants’ claim. The VRM itself and the Defendant’s details are 'personal data' within the meaning of the DPA 2018 and the associated General Data Protection Regulation (“GDPR”). 

26.    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)). 

27.    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’).

28.    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.

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29.    The Claimant has exhibited wrongdoing on multiple fronts, failure to notice ANPR inherent flaws, obtaining and ongoing processing of the Defendant’s personal data inclusive of sharing the Defendant’s personal data with multiple third parties. The Claimant has admitted through SAR response to Defendant on 18th May 2021 “We can confirm that your name and address details, along with details of the outstanding Charge, were passed to Debt Recovery Plus Ltd and Direct Collection Bailiffs Ltd who are our Collection Agents on the 02/12/2016 and 17/06/2020 respectively for the purposes of recovering the outstanding amount on this Charge”. Furthermore, the Defendant’s details have clearly also been shared with DCB Legal Ltd who are named as the Claimant’s legal representatives on the Claim Form.

 

30.    In summary for this allegation, the Claimants as data controllers were and continue to be in breach of their statutory duty under the Acts as follows :-

 

                i.         by obtaining the Defendant’s personal data from the DVLA without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b)

              ii.         failure to recognise that they unlawfully obtained the Defendant’s personal data from the DVLA, processed 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.         shared the Defendant’s personal data with at least three (as known to the Defendant) third parties unlawfully and unfairly as the Claimant had no legitimate lawful basis.

             iv.         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:

31.    It is alleged that the Claimant's conduct has crossed the line into harassment and that it has breached the PFHA, which states:

                i.         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.

              ii.         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.

             iii.         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.

32.    None of the justifications in (33iii) above can possibly apply. The Claimant incorrectly issued a PCN where clear failings of their ANPR system should have been highlighted via a quick scan of the two images which contain both Date and Time stamp. The Defendant has shown that this was an easy error to spot for one completely unfamiliar with these types of images, the Claimant should have a process in place for highlighting the inherent flaws that come with using an ANPR system. The Defendant dreads to think how many times the Claimant may have issued and been paid for unjust PCNs issued against other vehicles where there were also clear and obvious ANPR failings. The Claimant having failed (through convenience or incompetence) to spot a clear and obvious error, issued a PCN without merit then persisted in aggressively and unjustifiably pursuing their unreasonable, unjust and unfounded charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents (Debt Recovery Plus Ltd, Debt Collection Bailiffs Ltd and/or DCB Legal Ltd, multiple demands threatening legal action and misleading the Defendant. The proper course of action was to own up to a clear and obvious error, cancel the PCN and apologise for any inconvenience caused. The Claimant's hostile correspondence and threats of court action have been particularly intimidating over a prolonged duration, leaving the Defendant feeling emotionally vulnerable.

33.    Furthermore, even if in a hypothetical situation where the Claimant’s ANPR had not failed, there is the matter of the Particulars of Claim, which misstate the liability by unlawfully saying under a statement of truth (signed by the Claimant’s Legal Representative) that “D is liable as the driver or keeper (i.e. even if they knew they were not driving, or the driver was unknown after all these years).This is part of the continued harassment because the Claimant knows this statement about keeper liability is untrue due to their own choice of never using the POFA 2012 provisions in Schedule 4. It should not fall to a litigant-in-person Defendant to have to spend hours of research to find this out. The Claimant undoubtedly knows it does not use the POFA. It has reportedly lost every POPLA appeal where appellant keepers have pointed out the lack of POFA compliance. It appears they have decided to file a batch of claims in the hope that most keepers (and courts) will not know what POPLA know and might wrongly assume that any parking firm can hold a keeper liable as of right. 

34.    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 recognising failing in their parking system upfront which would never have resulted in a PCN or cancelling the PCN once the Claimant discovered it was issued without merit, the Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, distress, 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 

35.    By reason of the matters aforesaid, the Defendant suffered distress and anxiety because 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 PCN having been issued without merit where there is a clear and obvious failing of the ANPR system. It has taken a monumental effort to deal with the aggressive conduct of this Claimant. The Defendant has suffered substantial and exhausting distress through harassment and the multiple counts of data breach which has impacted upon family life and respectfully seeks damages in the sum of £500 or such sum as the court sees fit.

 

AND THE DEFENDANT COUNTERCLAIMS: - 

36.    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;

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

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

 

Statement of Truth

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

Defendant’s signature:

Date:

1505grandad

"b). Court fees: £60.00 filing fee;"

Is that the correct fee?

Civil and Family Court FeesFrom 18 May 2021
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/986795/ex50-eng.pdf