County Court Claim - Defence + Counterclaim

theeagleman

COUNTERCLAIM

____________________

 

1.     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.

2.     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.

 

3.     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”):

 

4.     The Claimant alleges that there was a contract formed at the moment of parking the car by which the Driver is bound.  Thus, this was a transactional decision within the meaning of the Regulations at 20(b) even though the Driver had no fair opportunity to read and discover the terms by which they would be bound. 

5.     The Claimants behaviour represents a clear attempt to mislead the Defendant into thinking that liability cannot be transferred to the driver as some sort of arbitrary 28-day deadline has passed. In reality the defendant had transferred liability to the driver before court action commenced, which is all the applicable law requires. So, the claimant had all the details required to pursue the party liable but instead started litigation processes against the wrong party. The Protection of Freedoms Act 2012 Schedule 4 states:

 

4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;

Conditions that must be met for purposes of paragraph 4.

5(1) The first condition is that the creditor— (a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but (b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.''

 

6.     Thus, the claimant was fully aware of the driver before commencing court proceedings and the proper course of action for them was to pursue that named driver (or decide to cancel the parking charge). There was no longer any reasonable cause to continue to use and process the data of the registered keeper that the Claimants had originally harvested from the DVLA for £2.50 for the specific and strictly defined purpose (in the DVLA KADOE rules) of enquiring who was driving.  Yet both the Claimant and their legal representatives continued to tell the Defendant that they were liable.

 

7.     This misleading action questions the real intentions of the Claimant as they are legally represented and fully aware of the liable party. The Defendant made it clear that if a claim were to be filed against this Defendant (the wrong party) despite knowing the above, it would result in a counterclaim, so they have not been labouring under any illusions that their conduct is not what it clearly is: wholly unreasonable and unlawful. Even if they had, ignorance of the law is no defence and under the Regs (above) a misleading action is in fact illegal (and actionable under civil law too).  

 

8.     Accordingly the Claimants’ conduct amounted to:

(i) an unfair commercial practice which is prohibited under regulation 3 and 

(ii) a misleading action within the meaning of regulations 5 and 6, for which redress is available under regulation 27(J)(b) of the Regulations.

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

9.     Personal data must be processed fairly and lawfully.  The Claimants stand in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency).  Predatory pursuing of the wrong person is entirely at odds with those doctrines and despite the wishes of their principal to cancel this unfair charge, the Claimant's aggressive pursuit and abuse of the Defendant's data has continued.  Accordingly, the processing of my 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. 

 

10. 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”). 

 

11. 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)). 

 

12. 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’).

 

13. 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. 

 

14. The processing of the Defendant’s data should have ceased once the claimant was made aware of the driver details.  Did the Claimants have any legitimate cause to continue processing the keeper's data for the purposes of pursuing a parking charge.

15. 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)               after receiving the driver details, processing the Defendant’s personal data unlawfully and unfairly and for a purpose other than pursuing the Claimants’ legitimate interests, contrary to the DPA 2018 and GDPR article 5 (1) (a) and (b) and article 6 (1)(f);

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

theeagleman

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:

(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.

 

 

 

2.     None of the justifications in (3) above can possibly apply. Despite the Defendant’s supplying information of driver at the time, and providing proof that the Defendant was abroad and continuing reasonable responses, the Claimants persisted in aggressively and unjustifiably pursuing their unreasonable charge. The Claimant’s harassing course of conduct included sending, by themselves or through their agents and/or from UK Car Parking Control Ltd, multiple demands threatening legal action and misleading the Defendant.  As the Defendant explained to the Claimants legal team that they cannot arbitrarily impose a 14 day 'limit' on transferring liability if there was no response from the driver at the serviceable address within that time period before court action. In addition to this providing evidence from legal professionals to avoid litigation against the wrong person, the proper course of action was to transfer liability to the named driver or cancel the PCN but instead, the Claimant's hostile correspondence and threats of court action have been particularly intimidating over a period, leaving the Defendant feeling emotionally vulnerable.

 

3.     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 transferring liability to the named driver or cancelling the PCN, the Claimant embarked on a harassing course of conduct that has continued several occasions and has plagued the Defendant, exacerbating anxiety, distress, and symptoms of their medical conditions, causing loss of sleep, significant increase of blood pressure 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

 

4.      By reason of the matters aforementioned, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct.   The 'thin skull' rules apply in that the Claimant must take its victim as they find them; the claim being served despite the Defendant's detailed response in pre-action communications.   It has taken - and continues to take - a monumental effort to deal with the aggressive conduct of this Claimant.  The Defendant has suffered substantial and exhausting distress which has impacted upon family life and respectfully seeks damages in the sum of £500 or such sum as the court sees fit.

 

 

AND THE DEFENDANT COUNTERCLAIMS: -  

5.      

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: £50.00 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 stated 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.

theeagleman

on the phone to CBCC and i am in the queue at position 51! 
Can i pay for the counterclaim over the phone in advance or can i pay a short while after submitting the defence and counterclaim together? 
I imagine during the holiday period + some staff isolating, it will be skeleton staffed. 

theeagleman

Any thoughts or opinions will be greatly appreciated, seeing as there is a week left  

theeagleman

Hope you are all enjoying the holiday season..

But any thoughts will be highly appreciated.

I will assume if no further thoughts by 28th (deadline 29th) - then it is more or less fine

Thanks again in advance!

theeagleman

About to submit this soon.

Just wanted to enquire about the costs.

Is it just the CC costs or also standard attendance costs come into play (or is that the judges decision?)

Redx

theeagleman said:

About to submit this soon.

Just wanted to enquire about the costs.

Is it just the CC costs or also standard attendance costs come into play (or is that the judges decision?)

It's the judges decision , but most judges don't allow advocate costs unless the defendant was unreasonable , or in some cases hasn't objected to those costs , which is why we never recommend a hearing on papers because it doesn't allow for an objection to be lodged

Allowed charges are court claim costs plus legal fees , typically around £100 , plus the PCN ( maximum per PCN is £100 )

theeagleman

Got it, thank you for the swift response!

Yes will attend a hearing for CC.

theeagleman

Just got off the from the CBCC, and the operator mentioned that I do not have to pay for filing now and to wait for Claimant to get it judged or drop it.

Explained to him that the claimant could drop it and i wont know anything about it and if the deadline eclipses, then cases collapses.

Responded by saying, you will be given a deadline to make filing fee payment (and can get help with that if elligble).

Said i can still pay for it next week.

theeagleman

UKPC legal team wrote to me this morning to call them to discuss  the matter

Really curious to do so, but will just write - no call will be made, everything over writing and see you in court

Will also point out that on two occasions they could have chosen not to proceed.