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

Coupon-mad

Claimant’s Non Compliance with PoFA:

32.    Regardless of the fact it was sent to an old address, the PCN issued by the Claimant “Exhibit BL-01” is 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, which is exhibited to this statement as “Exhibit BL-10”.

33.   The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and expert parking law 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 operators should never suggest anything of the sort” as quoted from the POPLA Annual Report 2015, Page 13 (exhibited to this statement as Exhibit BL-11).

34.   My research has revealed that the Claimant, Highview Parking Limited is a parking firm which has chosen never to use 'keeper liability' wording (paragraph 9 of Schedule 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 the Claimant has no lawful business issuing claims to registered keepers (potentially causing default CCJs for many) with no evidence whatsoever of the driver's identity many years before.  

35.  The Claimant has included a clear falsehood in their Particulars of Claim ('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 can possibly be 'liable as keeper', as this Claimant's POC states.  

36.  To demonstrate the extent to which the Claimant recognises this shortcoming and actively seeks  (for want of a better word) to “trap” registered keepers I have included my communications to the Claimant for a Subject Access Request and their response with “In House” Form which is exhibited to this statement as “Exhibit BL-12”. The Claimant asks the following question as part of the SAR for a registered keeper: “Were you the Driver at the Time of Incident?”.  There can be no valid purpose for this question to be included in their 'SAR form' except to paper over the cracks of a non-POFA PCN.

37. The Claimant admits in their witness statement:   “My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge…” which begs the question, why and on what basis are they suing me then?

Abuse of process – the quantum

38.   In addition to the disputed PCN of £85, the Claimant has added an extortionate sum of £70 that is disingenuously described as 'debt recovery costs'. There is no debt but clearly there has been no debt recovery.   

39.  The Claimants have also applied 8% interest to the whole global sum of £155 as if that was the PCN sum due from 2nd October 2016, yet the first appearance of the added false £70 (that this Claimant has not incurred and is put to strict proof at cross examination) was not until 2017 in various (suspiciously fluctuating in amount) Debt Recovery Plus demands.  Even though I did not get the PCN, the exhibits show that it says: "If payment is not received within 28 days, an initial debt recovery charge of £40.00 will be incurred".  So, interest on £155 from the outset is not and never was payable but my research shows me that this is what Group Nexus (who own Highview and CP Plus parking firms) always state in their POC.   I hope the court will share my dim view of the entire calculation of the quantum by this serial Claimant.  

40.   As was found at the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims. That case was Excel v Wilkinson: G4QZ465V, heard in July 2020, the transcript of which is exhibited to this statement as “Exhibit BL-13”. Leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

41.  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 BL-14”, 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.

42.  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.

Redacted Landowner Contract

43.  The Claimant has appended a ‘Witness Statement’ (Claimant’s Exhibit 1) as evidence of their company’s agreement with the Land Owner (“ Landowner Agreement”) This document has little or no probative value and which offends against the rules of evidence. 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.

44.  Furthermore, the “Witness Statement” was arbitrarily executed on 20th October 2020, does not reference this claim in any way.  It appears to have been produced as a way of withholding the landowner agreement itself, a document that would show the court and Defendant all the vital detail, restrictions, operational hours and days, grace periods and parking charges.  This is redaction of contract detail in the extreme.

45.  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 BL-15” 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...''

Coupon-mad

Re my Part 20 Counterclaim for £500:

46.        Exhibited to this statement is the following correspondence chains (“Exhibit BL-05”) which includes:

i.         All correspondences with Group Nexus (Parent Company of Highview Parking Limited)

ii.         All correspondences with Debt Recovery Plus

iii.         All correspondences with Direct Collections Bailiffs Limited & DCB Legal

47.  During this whole process DCB Legal (the Claimant’s legal representative) have been particularly challenging to deal with. In addition to the earlier noted “Privilege” issue [39]-[43], they also failed to supply me with all my data requested when I submitted a SAR.  Having endured but chosen not to respond to threatening demand after demand from both DRP and Direct Collections Bailiffs Limited, I received a letter from the Claimant’s legal representative DCB Legal.  This is not exhibited as I am unable to locate and DCB Legal declined to provide as part of the SAR at time of drafting Witness Statement. It was a “FINAL NOTICE” with a last warning that if a payment was not forthcoming - a County Court Judgement (“CCJ”) may be issued against me.

 

48.  The threat of a CCJ is worrisome, it affected me. I was worried that it could ruin my credit worthiness and employability. The frequent letters brought a state of distress and anxiety; I was so shocked and angry and was never offered appeal even though they knew the first PCN had gone to an old address.  Demands after demands and threatening letter after threatening letter were sent. Always with varied amounts, I worried that these letters were some sort of scam and rightly or wrongly I chose to ignore them.

49.   Letters from Direct Collection Bailiffs Limited provided in “Exhibit BL-05” were headed as “Notice of Debt Recovery” were particularly worrisome. The letter 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 car.

50.  Finally, at the point when a “Claim Form” arrived, I realised that this was not going to disappear, I would need to take action to defend myself. The threats at this stage were threefold in nature: those to start legal proceedings against me could cause considerable anxiety, distress and harm having bailiffs turn up at my door to remove goods and having a CCJ being recorded at the credit reference agencies for 6 years.

51.  My employability was under threat, not only would a CCJ would harm my employment prospects should I lose my current job.  My credit rating would be destroyed, causing significant problems applying for loans and mortgages.  I have 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 or not I would end up with a CCJ or a bailiff would come knocking to remove my possessions, 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.

52. 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 husband to prepare for the court proceedings and hearing.  I hope this is evident through this witness statement.

53.   My counterclaim is based on the facts I have given above, and my original defence and counterclaim submission is repeated in support of the remedy that I seek.  I did claim under the Data Protection Act 2018 as stated at the start of my counterclaim but I notice that the parking event and earlier letters fall under the earlier DPA 1998 so the 5 years of letters I was bombarded with in fact span the time of both laws, which are essentially the same.  The GDPR updated the 1998 Act.

54.  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 almost 5 years (twice as long as in the case of Ferguson v British Gas, see below), 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.    

 

55. 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 

Costs
Counterclaim filing fee = £70
40.5 hours at £19 per hour = £769.50



Harassment element:

56.  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 years.  The harassment and threats are on all fours with the case of Ferguson v British Gas Trading Limited [2009] EWCA Civ 46 (Exhibit BL-16) 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.   

57.  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.

 

58.  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 BL-17) 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 BL-18).

    

59.   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”.

60.  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 five years 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 what should have been a very happy time with my husband and baby sons.

continued...

 

 

 

 

Redman2186

Yes counterclaim is £500, which I broke down as follows:

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

Costs
I have reached 40.5 hours at £19 per hour for £769.50
Do I also put fee in for the Claim £70??
Fixed Cost is not applicable - Will not be working on a Thursday

Coupon-mad

Do I also put fee in for the Claim £70??

Certainly!


final part:

 

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

61.  For simplicity I am quoting from the current Data Protection Act even though the data abuse started when the previous version was in place.  The Data Principles are the same.

62.     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’).”

63.  Also of significance given the Claimant's failure to be accountable and admit the error that I exposed when the claim arrived, Article 5(2) adds that: “The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).”

 

64.  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.

 

65.  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 so the abuse began in October 2016.  Within weeks this Claimant was sharing my data unlawfully and was using it to send misleading letters and allowing its agents to harass me.  My data was not processed under any rule of law, because no PCN should ever have been issued for such a well-known ANPR flaw, and it was kept for longer than was necessary or lawful.  Filing the claim to a registered keeper without being able to rely upon the POFA is against a non-liable party and it was for a non existent 'breach'.  The Claimant knows that, but continues to argue the opposite with 'typo' excuses and lack of accountability - when will this lack of regard for my consumer rights finally end?

 

Comparable cases involving harassment and data abuse by parking firms

66.   I am aware that these are not precedents but it may assist the court to review Simon Clay v Civil Enforcement Limited (Exhibit BL-19).  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 BL-20 - 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 five years of both data abuse and harassment is set at a comparatively proportionate level.

67.  In conclusion, the Court is respectfully invited to order damages for distress in the sum of £500.  It is submitted this is substantially less than I could justifiably have claimed.   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.

68.    However, the aggravating features of my case are that the Claimant is knowingly pursuing the wrong person because they have never bothered with the POFA and cannot pursue registered keepers but misleadingly said they can, in their standard POC.  Further, they have harassed me for an eye watering 5 years, leaving it to me to discover their error (that took me less than 5 minutes to see when looking at the PCN I had not been provided with pre-action) and they have belligerently refused to admit fault and be accountable for their course of conduct.  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.

 

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:

**************************

BL-19

https://www.dropbox.com/s/3wzxq4pk7omj22y/Simon Clay v Civil Enforcement Ltd and Fusion Lifestyle_Approved Judgment.pdf?dl=0

BL-20

https://www.dropbox.com/s/ybf6cbc3rq9ygiq/1329396-Vehicle Control Services Ltd v F-Approved Judgment-14.05.2021-Redacted.pdf?dl=0

Discussed here for your amusement:

https://forums.moneysavingexpert.com/discussion/comment/78492813#Comment_78492813

Redman2186

Thanks @Coupon-mad

Do I also need CPR 44.11 section
Assume I don't need My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

Coupon-mad

No your costs are already mentioned in that statement including the £70 fee and the costs at £19 per hour.  You should attach a sheet of costs reflecting that and break down the 40.5 hours into ‘reading the claim and reply forms and registering with MCOL, reading guidance fir LiPs - 3 hours’ and ‘replying to this/that the other / 1 hour’ etc.  Every hour accounted for. 

My concern is that you binned the letters from DRP and DCB and never responded but that’s a concern that might affect your chances of winning the counterclaim only.  There is no chance of a Judge deciding you left the car there overnight, not with your detailed evidence! 

Redman2186

Cost In Relation to	Duration	Cost @ £19 ph
Reading Claim & Reply Forms	1.5 hours	£28.50
Registering with MCOL	0.5 hours	£9.50
Reading guidance for Litigants in Person	3 hours	£57
Researching Parking Law and Relevant Cases	10 hours	£190
Preparation & Drafting of Emails (9) @ 10mins per email	1.5 hours	£28.50
Drafting of Defence to Claim & Counterclaim	10 hours	£190
Drafting response to Claimant’s Reply	2 hours	£38
Drafting Witness Statement (screen grab of editing time below)	37 hours	£703
Sub-Total	65.5 hours	£1244.50
Court Fee	-	£70
Totals Costs Claimed		£1314.50

Redman2186

Witness Statement has now been filed with both Claimant and Court - Big thank you to everyone that supported along the way.

October 7th is the date by which the Claimant must pay the Court Trial Fee - I will call on the 8th to Pay for the Counterclaim hearing if they do not. 

November 4th is scheduled hearing date.

I will go and do some reading on the Newbie Forum to ensure we are ready for the actual day.

Will keep you all posted.   

Coupon-mad

I hope you’ve done the vital public Government Consultation and email to your MP that we are all discussing...sorry I can’t recall but think you have?  Please share on other forums, social media and certainly with your MP:

https://forums.moneysavingexpert.com/discussion/6286801/government-consultation-re-private-parking-charge-levels-august-2021-please-bookmark-this-thread/p1

We are calling for everyone to do a full and robust response by email to the MHCLG, attaching evidence of what happened to you and what you think is wrong about £100 charges and fake debt recovery ‘fees’ that no PPC actually incurs or pays.

We also need people to contact their MP to ask questions about why the MHCLG appear to have performed a U-turn on their March promise to cap parking charges, and why instead they propose to fund the race to court at £70 a time from victims

https://forums.moneysavingexpert.com/discussion/comment/78517562/#Comment_78517562

Sorry if preaching to the converted but anyone reading this:
PLEASE DO THIS IF YOU WANT CONSUMER VOICES TO OUTWEIGH THE PARKING INDUSTRY’S GREED. WHICH SEES THEM TRY TO CLAIM MORE THAN THE LAW ALLOWS, FROM A REGISTERED KEEPER,

I just looked at the POFA Explanatory Notes (part of the legislation):

https://www.legislation.gov.uk/ukpga/2012/9/notes/division/5/1/3/3

221.Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).

Redman2186

Hope all keeping well.

Quick update - I checked with Court today and the Claimant has paid the hearing fee on the 4th October.