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

Redman2186

60.           I have wasted 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, 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.

 61.           The thought of having to go to court to defend yourself, particularly against something that you have not done is frankly terrifying and I had to work tirelessly with my Husband in order to prepare for the court proceeding

 RE MY COUNTERCLAIM:

62.           My counterclaim is mainly based upon the legal implications stemming from the evidence I have given above. The remedy I seek is not a remedy unknown to the law (see Vidal Hall v Google (exhibit xx), Roberts v Bank of Scotland para 59-64 (exhibit xx) and Ferguson v British Gas (exhibit xx).

 63.           My counterclaim is that this Claimant's course of conduct amounts to unlawful harassment pursuant under the Protection from Harassment Act 1997 and data protection breaches, pursuant to the Data Protection Act 2018 for unlawfully obtaining, processing and passing on my data to notoriously aggressive third party debt recovery agencies when there was no basis for the PCN and furthermore I cannot be held as the liable party. I am seeking remedy for distress, anxiety and alarm caused by the actions of the Claimant pursuant to the above respective acts.

 64.           I have satisfied that in the balance of probabilities that the claimant “knew or ought to have known” that I was not liable in law as I have pointed out that the images are from different days and represent compliant visits to the retail park prior to visit away from the sight backed up by purchases in other locations. The images they have provided on the original PCN simply contained an inherent ANPR flaw. I have further strengthened my position that the Claimant was negligent by continuing to process my data unlawfully and their sole aim was to continue to bully me for money which they had no lawful entitlement to, as by their own admission the Claimant does not rely on PoFA and as such as the registered keeper I cannot be held liable. The driver, which is all that is required in the Protection of Freedoms Act 2012, Schedule 4: 

 'Conditions that must be met for purposes of paragraph 4' (Right to claim unpaid parking charges from keeper of vehicle):

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.

 65.           I am seeking damages in total for the sum of £500 broken down as £400 for 4 counts (£100 each) of Data Protection material breaches and £100 for harassment.

 66.           The Claimant has failed in their duty of care and I have satisfied the balance of probabilities that the Claimant has committed 4 counts of Data Protection material breaches by unlawfully obtaining and misusing my details from DVLA and for unlawfully passing on this sensitive data to these third parties firms, I am claiming £100 per material breach:

                         i.         £100 from the Claimant for obtaining my personal data from the DVLA without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b).

                       ii.         £300 from the Claimant for sharing 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.

a.  Debt Recovery Plus Ltd – 02/12/2016

b. Direct Collection Bailiffs Ltd - 17/06/2020

c.  DCB Legal Ltd – 17/06/2020

 67.           Furthermore the relentless harassment for monies that was never due was unwarranted and for this I am seeking a claim of £100.

 68.           This case without a doubt demonstrates a serious act of prolonged harassment believed to be equivalent to the harassment and threats Lisa Ferguson was at the receiving end of in the case between Ferguson vs British Gas Trading Limited [2009] EWCA Civ 46.

  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.

(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.

 69.        It is to be noted that the Act does not provide any defence for “accidental” harassment. Confirmed by Lord Justice Jacob in the above cited case, nor there is any policy reason why companies such as the Claimant should be exonerated for conduct which, if carried out by an individual, would amount to harassment.

 70.        I have provided sufficient evidence and information to show that the Claimant knew the conduct complained of amounted to harassment, or that it ought to have so known it was. I have evidenced a prolonged campaign of harassment capable of causing me such alarm and distress.  In accordance with what I understand in the Laws of Agency - the Claimant is ultimately responsible for the third parties conduct and actions.  I did everything that was reasonably expected in a territory virtually unknown to me at the time.

 71.        The Claimant effectively says it has done nothing wrong; that it is perfectly all right for it to treat me in this way for years.  It is obvious that the Claimant had provided some sort of robotic template defence to my counterclaim. I can clearly see that they have failed to engage with any of the core issues and facts submitted in my particulars of counterclaim.  Their response (defence to counterclaim) lacks the detail and rationale to engage to the defendants points, as you would ordinarily expect from a defence to a counterclaim.

 72.        The aggressive tone of the Claimants’ letters has been extremely intimidating. Which I now understand to have occurred even from early at the earliest stages where the PCN threatens with enforcement action and court proceedings.  I am sure the Claimants are fully aware of the effect this has on people who are not experienced in the law or litigation, but just to be clear: it is terrifying. Even more so when the people who are bullying you refuse to listen to reason. I was always absolutely open and honest with them but being unable to stop this Claimant from its aggressive pursuit of me, made me feel vulnerable, frustrated and helpless.

 73.        As a result I suffered a great deal of distress over a long period.  It’s hard to express in words how bad it 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.

 74.        The distress I have suffered could and should have been avoided if the Claimants had taken the time to fully assess the images they had captured of my vehicle across two separate unremarkable dates 5 years ago. The would have had no reason to pursue me as the registered keepers as they would have realised that the PCN was issued in error as a result of the ANPR flaw. Furthermore, after pointing out that the driver was unknown at the material time, the Claimant has suggested that they would ask me under oath who the driver was. The answer has been the same since I signed a statement of truth on defence and counterclaim, the drive was and is unknown and as such the Claimant should have ceased in their pursuit in the knowledge that they are non-compliant with PoFA.

Redman2186

75.           This case highlights the dangers of company’s “Robo Claim“ business model, impersonal approach , spewing out robotic responses, and making no attempt to read anything presented in front of them in pre-action correspondence and also after filing this claim, they didn't even bother to read or properly defend the counterclaim, showing a complete disregard for the rights and interests of consumers.

 76.           Re quantum of damages: it is not possible for me accurately to quantify the distress I have suffered in money terms. My claim is simply set at the lowest level in the established guidance for harassment claims (see exhibit xx, the Vento Guidelines) and I appreciate that the court may assess a sum higher or lower than the sum claimed.  In Simon Clay v Civil Enforcement (Exhibit xx) a case with no aggravating features of harassment where a Defendant counterclaimed just for misuse of his data, the court awarded the counterclaim for £200.  However, the aggravating features of my case are that the Claimant is knowingly pursuing me despite having the knowledge that the PCN should never have been issued as a result of the ANPR flaw. They have harassed and refused to accept any attempts from myself to illustrate that this whole claim is without merit, prior to starting this vexatious action.

 77.           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

 78.           As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

79.           Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) which 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).

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

 80.          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.

 81.           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.

 Witness’ signature:

Redman2186

Hi all, 

Set out in the 5 posts above (apologies for the length) is full draft of Witness Statement. Unfortunately I am unable to use Dropbox on this computer (work firewalls).

Please note that I have been pulling all of the Evidence Items in as I've been going and will fully structure and order with correct naming convention tomorrow - Please ignore the random Exhibit references.

Questions for everyone

1. Full document prior to clean up with exhibits is 148 pages it will be about 170 by the time I clean up the exhibits with title pages (i've included full transcripts) - Is this a mistake?
2. What are your thoughts - anything obvious to update or change?
3. I have omitted Beavis points - this whole section has confused me - based on the rest of my Witness Statement, do I need to include, is anyone able to help with the text for this section if I should include?
4. Cost section - I was under the impression that this should be at the Litigant in person rate of £19 ph - this section has slightly confused me any advice on what the table should look like here - for reference I've spent way in excess of 25/30 hours on this so for arguments sake lets say 20 hours i have:

• Litigant in person 19 * 20 = £380
• Court Fee £70 (I paid for up to £1000 claim) 
• Total of £450
• Added to my counter claim of £500 (for data breach and harrasment) I'm at a total of £950 am i missing anything?
• Where does the £95 court attendance fit in?
• Do I need to reduce to the 20hours to keep this under £1000?  

Coupon-mad

• Where does the £95 court attendance fit in?  It can be included if you've had to take a day off work/miss leave.
• Do I need to reduce to the 20hours to keep this under £1000?   No, your counterclaim isn't costs anyway.

I will be working a bit more on the one for @Densta47 tonight so will hopefully finish it and post it there.

Le_Kirk

 The facts outlines outlined in this Witness Statement 

 5.           For the length of this Witness Statement, I can only apologies apologise in advance

6.           The PCN was issued for the alleged offence incident [event]

“2 Hours Maximum Stay”. Which neither I nor anyone

Better as

“2 Hours Maximum Stay”, which neither I nor anyone

Check the rest of the WS for similar errors.

Redman2186

Le_Kirk said:

 The facts outlines outlined in this Witness Statement 

 5.           For the length of this Witness Statement, I can only apologies apologise in advance

6.           The PCN was issued for the alleged offence incident [event]

“2 Hours Maximum Stay”. Which neither I nor anyone

Better as

“2 Hours Maximum Stay”, which neither I nor anyone

Check the rest of the WS for similar errors.

Thanks - Yes am all over the grammar - I'm also re-wording and re-ordering quite a lot

Redman2186

@Le_Kirk - Revised Para 1-19 below. 

1.           I am xyz of abc, and I am the Defendant against whom this claim is made. The facts outlines in this Witness Statement are true to the best of my belief and my account has been prepared based upon my own knowledge. 

 2.           In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 Justification for length of Response to Claim & Witness Statement

 3.           In response to the Claimant’s belittling comments about me in their witness statements from Paragraph 20 and 23 (copied below for reference). I am a litigant in person that had zero prior knowledge of UK parking law, I think it is wholly reasonable that I:

                        i.         researched parking law to the best of my ability in the limited time that I’ve had since being made aware of the claim

                       ii.         made use of a widely available template which covered lots of bases. I have no baseline for what would be considered a legally complex defence and as such I took the decision to include everything which I deemed as potentially valuable in being able to best represent my case and demonstrate that this claim is without merit

 Para 20: "…There can be no reason, other than to frustrate the matter, why the Defendant has submitted a 36 paragraph legally complex defence in response to that.”

Para 23:“The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time”.

 4.           I will demonstrate throughout this Witness Statement, that I have tried on numerous occasions to point out to the claimant that this claim is without merit and that it is as a result of a well-known ANPR failing. This has fallen on deaf ears, leaving me with no other choice than to try and represent myself as best I can.

 5.           For the length of this Witness Statement, I can only apologise in advance, however, it has been produced in the belief that paragraphs 6-30 should suffice to support my defence with subsequent paragraphs to support my counterclaim. In the event that paragraphs 6-30 are not sufficient, I have included further counter arguments and illustrations to fully support my case.

 Background & Change to Notice:

 6.           I never received the original PCN as it was sent to a previous address.

 7.           I only became aware that a PCN existed sometime after the fact when threatening letters from various debt collection agencies started to arrive at my current address.

 8.           Unfortunately, this did not afford me an opportunity to appeal via the normal process as I missed all windows.

 9.           The PCN was issued on 2nd October 2016 at Waterfields Retail Park, Watford. The PCN is exhibited to this Statement at “Exhibit 1” which show my vehicle entering and exiting as follows:

Date and Time of Entry – 1st October 2016 11:55

Date and Time of Exit – 2nd October 2016 15:48

 10.        The PCN “Exhibit 1” states that the “Recorded duration of the stay was 03:52 (hh:mm). I invite the court to reach the same conclusion that I did something does not add up here. Clearly the images attached to the PCN have recorded my vehicle entering and exciting on 2 separate days and this does not tally with the recorded duration. I will offer that this itself should render the PCN void and this claim without merit.

 11.        For nearly 5 years the claimant has pursued this claim based on the belief that my vehicle stayed on site for 03:52 (hh:mm). Nearly 5 years later, they have diverted in this belief.

 12.        This diversion of belief only occurred to them when I pointed out during my defence and in further correspondence with DCB Legal (Email to DCB Legal exhibited to this Statement at “Exhibit 5” and RESPONSE TO CLAIMANT’S “REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM” exhibited to this Statement at “Exhibit 6”) that the PCN was clearly issued in error. The images are from 2 different days and that they had in fact made an error in issuing the PCN in the first place.

 13.        This error was caused by a well-known inherent flaw with the ANPR system. Extract from British Parking Association Website is exhibited to this statement as “Exhibit 7”. It is well documented by the British Parking Association that ANPR systems have this 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. Prior to issuing me with a PCN, 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.

 14.        The fact that the PCN initially state 03:52 (hh:mm) is a clear indication that in 2016 the Claimant never spotted the different dates on the images, solely focussed on time and hence never bothered to check for the ‘orphan’ images of the vehicle leaving on the 1st October or arriving on 2nd October. Had they done so they would have realised that the vehicle never breached the contractual terms and conditions and subsequently no PCN would have been issued.

 15.        Fast forward to 2021 when I pointed out this clear and obvious error. Rather than investigate my finding, the claimant quickly came to the conclusion that there is “typographical error” on the PCN. The claimant is now citing that the PCN is incorrect as it contains a“typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes” and that “The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes”. I’d offer that this in itself should render the PCN void and this claim without merit.

 16.        Notwithstanding, the point above, I will demonstrate how the Claimant’s accusation of a 27:52 (hh:mm) overnight stay at a retail car park, which is 3.4 miles from my house, is simply preposterous and untrue and I invite the court to reach the same conclusion.

 17.        The Claimant’s legal rep poses two questions in Paragraph 20 of the Claimant’s Witness Statement, which I will respond to in turn over the following two paragraphs:

                         i.         “were they driving?”

                       ii.         “did they overstay?”

 18.        In response to “were they driving?” – I was heavily pregnant (7.5months – my 2nd Son was born in December 2016) at this time and on the balance of probabilities, I was likely not the driver on either day. As outlined in my defence the identity of the driver(s) at the material time is unknown. I was not the only insured driver of the vehicle in question and I am unable to recall who was or was not driving on two separate visits to Waterfields Retail Park across two separate two separate unremarkable days 5 years ago.

 19.        In response to “did they overstay?” – No, as I will outline in the sequence of events below, this is simply a case of two separate visits to Waterfields Retail Park across two separate unremarkable days 5 years ago. For completeness, I can confirm that both visits were for less than the "2 hour max stay" and hence the terms of any contract with the claimant were not breached.

Le_Kirk

You have missed the change I suggested for paragraph 1.

Coupon-mad

And please slow down as I am liaising with @Densta47 over their one and you can crib from it.  I suspect there are things you will want to copy.

Redman2186

ICoupon-mad said:

And please slow down as I am liaising with @Densta47 over their one and you can crib from it.  I suspect there are things you will want to copy.

Going fairly slow, however, it is due on the 5th so I do need to clean up as best I can so that I am at least prepared.