County Court Claim-QDR solicitors/Met Parking

berseker

Good Morning,

@KeithP Thanks for the response. I completed AOS within the two-week time frame that I had. Thanks

@Coupon-mad I have sent @bargepole a Direct/Private message, hopefully, he gets back to me  
Is there a specific thread i should be looking for when searching 'counterclaim DPA 2018 defence parking' or just read through them all to get an understanding of the matter?

Coupon-mad

A counterclaim must be pleaded properly; written in as much detail as the defence and it tags on the BOTTOM of the same document (both are signed and dated).  Both submitted as one PDF attachment headed 

DEFENCE AND PART 20 COUNTERCLAIM

For examples of the level of detail to argue counterclaims (albeit these will be very different from your facts) see the completed threads by

@ellaro9  

@Nosy

and read HenryHippo's successful pepipoo thread.  I helped him as did other posters there (I am SchoolRunMum on pepipoo) and he succeeded with his residential counterclaim:

http://forums.pepipoo.com/index.php?showtopic=114450

It was years ago but gives you a steer!

berseker

@Coupon-mad That's great, appreciate all your time and help. I'll be sure to check out all the links you have sent. 

Coupon-mad

You'll find the laws I mentioned above are pleaded properly in all those CC examples.

I'd DEFINITELY counterclaim, in your shoes.  With the large size of claim you have (13 PCNs?) it's going to a hearing in 2024 anyway and you know you have a case if you are certain about those PCN dates.

So go all in. On the attack.  Don't just defend this one IMHO. 

berseker

@Coupon-mad I Hope you had a good Christmas . I'm drafting up my CC now. I just wanted to clarify something. Last year when I went to court it was QDR solicitors who were the claimants. This time it is DCB legal. In my defence I have written 'This is the second time that this Claimant has issued a claim against this Defendant for alleged parking charges from 2019/2020.' As they are both different companies, does this need to be changed? 

Thank you

Coupon-mad

Nope.

Same Claimant.  Make them work it out!

berseker

In the CC, is it worth me stating that I have already been to court for two of the pcns? or is it better to remove it and keep them guessing? 22-25 is suited to my claim, the rest is copied and adjusted to my claim. If there is something that I should add or any other input would be greatly appreciated. Thanks 

COUNTERCLAIM

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

20.  The bands of awards for injury to feelings, known as the Vento bands, have been updated from April 2020.  This stems from a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for Courts and Tribunals to apply when they are assessing injury to feelings awards for pure distress, as opposed to financial loss.  The Vento case decided that there is now an accepted quantum for compensation and courts have followed this guidance. In a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO - which was a claim for damages including a breach of the DPA, an award of £2,500 was granted as compensation for distress, so the Defendant believes this counterclaim is extremely reasonable, given the circumstances.  Current applicable Vento bands are as follows: 

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

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

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

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

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

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

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

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

22.  The Claimant alleges that there was a contract formed at the moment of parking the car by which the Driver is bound. In the Defendants signed tenancy agreement there is nothing that states there is a contract between the defendant and the parking operators.

23. There are a total of 13 PCNs that are being brought forward for this claim. 2 of the 13 PCNs have already been paid for in 2022 and that claim was dismissed. This should have been checked before bringing this case forward.

24. When the Defendant received the SAR documents from the claimant in 2021, the documents had all 13 PCNs included but the claimant decided to only take three of the PCNs to court in 2022. Two of the three PCNs that have already been paid for earlier in 2023 are now being reissued within these 13 PCNs. Should the claimant have wanted to take all 13 PCNs to court, they should have done so in 2021 with the other three. Section 3.6 in the defence.

25. The processing of the Defendant’s data should have ceased once the claim that was taken to court in early 2023 was dismissed. Did the Claimant have any legitimate cause to continue processing the keeper's data to pursue more parking charges?

26. Personal data must be processed fairly and lawfully.  The Claimants stand in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency).  Predatory pursuing is entirely at odds with those doctrines and despite this, the Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Accordingly, the processing of my DVLA data was not “necessary for the performance of, or commencing, a contract” 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 continue processing the Defendant's data. Following 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 and 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.  

 

Damages for the 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: 

(1) A person must not pursue a course of conduct— 

(a) which amounts to harassment of another, and 

(b) which he knows or ought to know amounts to harassment of the other. 

(2) For the purposes of this section [or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. 

(3) Subsection (1) [or (1A)] does not apply to a course of conduct if the person who pursued it shows— 

(a) that it was pursued for the purpose of preventing or detecting crime, 

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or 

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable. 

32.  None of the justifications in (3) above can apply, the Claimant persisted in aggressively and unjustifiably pursuing their unreasonable charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents, multiple demands threatening legal action and misleading the Defendant, leaving the Defendant feeling emotionally vulnerable.

33. 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. The Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, and 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  

34.  By reason of the matters aforesaid, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct. The Defendant has suffered substantial and exhausting distress which has impacted upon day to-day life and respectfully seeks damages in the sum of £500 or such sum as the court sees fit. 

 

AND THE DEFENDANT COUNTERCLAIMS: -  

35. 

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

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

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

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

 

STATEMENT OF TRUTH 

 

I believe that the facts contained in this Defence and Counterclaim 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.

Coupon-mad

I think what you have as 22-25 should be your first CC points as you need to say what it is about.  What is the reason for this Counterclaim?  Set it out first.

Remove the question from para 25 and make it a statement of fact:

the Claimant knew or should have known that some of the Parking Charges pursued aggressively for the past year were already paid.  As such, there was no longer a lawful reason to send further demands during 2022/23, nor to retain, process or share that PCN data with another solicitor and issue a claim.  This is not excused as an oversight and if anything, the conduct in trying to gain from double recovery by part-duplicating an earlier claim is worse than the harassment suffered in Ferguson v British Gas because Ms Ferguson was not sued for the monies, she merely received half a dozen letters.

1505grandad

Just checking  -  Para 24  -  should this be there/correct?:-

"Section 3.6 in the defence."

berseker

@Coupon-mad I have made the changes as advised and included the section you have kindly given. Would you say that is enough detail for the CC? Thank you so much

COUNTERCLAIM

19. The Claimant alleges that there was a contract formed at the moment of parking the car by which the Driver is bound. In the Defendants signed tenancy agreement there is nothing that states there is a contract between the defendant and the parking operators.

20. There are a total of 13 PCNs that are being brought forward for this claim. 2 of the 13 PCNs have already been paid for in 2022 and that claim was dismissed. This should have been checked before bringing this case forward.

21. When the Defendant received the SAR documents from the claimant in 2021, the documents had all 13 PCNs included but the claimant decided to only take three of the PCNs to court in 2022. Two of the three PCNs that have already been paid for earlier in 2023 are now being reissued within these 13 PCNs. Should the claimant have wanted to take all 13 PCNs to court, they should have done so in 2021 with the other three.

22. The processing of the Defendant’s data should have ceased once the claim that was taken to court in early 2023 was dismissed. Did the Claimant have any legitimate cause to continue processing the keeper's data to pursue more parking charges.

23. The Claimant knew or should have known that some of the Parking Charges pursued aggressively for the past year were already paid.  As such, there was no longer a lawful reason to send further demands during 2022/23, nor to retain, process or share that PCN data with another solicitor and issue a claim.  This is not excused as an oversight and if anything, the conduct in trying to gain from double recovery by part-duplicating an earlier claim is worse than the harassment suffered in Ferguson v British Gas because Ms Ferguson was not sued for the monies, she merely received half a dozen letters.

24. 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. 

25. 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 

 

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

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

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

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

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

27. Personal data must be processed fairly and lawfully.  The Claimants stand in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency).  Predatory pursuing is entirely at odds with those doctrines and despite this, the Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Accordingly, the processing of my DVLA data was not “necessary for the performance of, or commencing, a contract” 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 continue processing the Defendant's data. Following Principles 1,2 and 5 of the Data Protection Principles they were not permitted to process or keep it.  

 28. The Claimants noted, photographed, and stored the Vehicle Registration Mark and 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”).  

 29. 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)).  

 30. 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’). 

 31. 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.  

 

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

 

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

(1) A person must not pursue a course of conduct— 

(a) which amounts to harassment of another, and 

(b) which he knows or ought to know amounts to harassment of the other. 

(2) For the purposes of this section [or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. 

(3) Subsection (1) [or (1A)] does not apply to a course of conduct if the person who pursued it shows— 

(a) that it was pursued for the purpose of preventing or detecting crime, 

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or 

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable. 

33.  None of the justifications in (3) above can apply, the Claimant persisted in aggressively and unjustifiably pursuing their unreasonable charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents, multiple demands threatening legal action and misleading the Defendant, leaving the Defendant feeling emotionally vulnerable.

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. The Claimant embarked on a harassing course of conduct that has continued on several occasions and has plagued the Defendant, exacerbating anxiety, and 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 serious distress and anxiety as a result of the Claimant's conduct. The Defendant has suffered substantial and exhausting distress which has impacted upon day to-day 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 (if the Defendant does not get help with fees: applied for); 

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

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