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Multiple PCNs for parking in flat car park
Comments
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Have downloaded Nosy's WS & CCLe_Kirk said:
To clarify at this stage I am submitting a defence, NOT a WS is that correct?0 -
Correct - Defence (plus counter claim in your case). Remember that you'll (probably) need to pay a fee for the CC. (Although if you've already been down this path before then you'll probably be aware of this).Jenni x2
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CounterClaim
I XYZ of ABC am Counter Claiming in this case and will say as follows
1. The Defendant raising this counter-claim against the Claimant, is the registered keeper of the vehicle with the registration number XXX
2. My lease does not require a permit to be displayed in a private motor vehicle in the car park
3. UKPC issued the vehicle with multiple PCNs, despite myself having the right to park
4. Cause of action estoppel applies here; UKPC have already brought a case against the Defendant to court in the same residential car park. District Judge Devlin adjudged that UKPC’s claim be dismissed. Additionally the Defendant was successful in counterclaiming £500 from UKPC for “damages for breach of s13 of the Data Protection Act 1998”. UKPC is estopped from bringing further claims after 16/03/2018 when the prior judgement ordered that “The Claimant’s claim be and is hereby dismissed”. By continuing to harass myself for money, despite the earlier adjudgment, UKPC has acted in a venal and vexatious manner.
5. The Managing Agents have caused a nuisance by appointing UKPC whom have then targeted me; an individual that they already know has the right to park there. UKPC has a very poor reputation as a basic online search shows. The Managing Agent should have realized that UKPC are not a suitable firm to bring onto a residential development.
6. The Consumer Rights Act 2015 states “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”. Given that there was a significant imbalance to my detriment, the Managing Agent has breached the consumer rights act
7. I am claiming for the sum of £500 due to the Claimant breaching the Data Protection Act and also for a breach of the Protection from Harassment Act.
8. The Data Protection Act 1998 states that “An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
a) The individual also suffers damage by reason of the contravention, or
b) The contravention relates to the processing of personal data for the special purposes
9. I have suffered distress from the repeated use of my personal data being used to demand money from myself.
10. I refer to Parking Eye V Beavis 2015 were it was stated that “And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced”
“Code of Practice” refers to the BPA Code of Practice
The Claimant has misused my personal data that they acquired from the DVLA and had no reasonable cause to obtain it in the first place
The relevant language of the Protection from Harassment Act reads as follows:
Prohibition of harassment.
1(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, 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.
Offence of harassment.
2(1) A person who pursues a course of conduct in breach of section 1 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.
Civil remedy.
3(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
11. It is claimed that the Claimant has harassed the Defendant with repeated demands for money over from Nov 2016 until the present day.
12. I refer to Ferguson Vs British Gas 2009 whereby British Gas were ordered to pay £10,575 for breaching the Protection from Harassment Act 1997.
13. I refer to Chartered Trust plc V Davies 1997 whereby it was concluded that "If one man agrees to confer particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other."
''...And the real issue is whether the landlords were liable for that conduct. An important subsidiary issue that emerged on the case law cited before us was whether the landlords were under any legal obligation to intervene to put a stop to any nuisance caused...''
''What is clear is that the landlords could have acted to stop the {nuisance conduct}... Instead, the landlords prevaricated and did nothing. They could have acted effectively, and they should have done so. Instead they chose to do nothing, and thereby made the premises materially less fit for the purpose for which they were let. In failing to act to stop the nuisance, in my judgment the landlords continued the nuisance and derogated from their grant.
The trial judge found this to be a repudiation of the lease - a substantial interference with the tenant's business driving her to bankruptcy. That was a judgment he was entitled to come to on the evidence he heard.
Accordingly, I agree with the judge's conclusion, albeit that I have reached it by a different route. I would dismiss this appeal.''The Judge found that the landlord had failed to interfere with a nuisance that made the premises materially less fir for the purpose for which they were let and had therefore continued the nuisance and derogated from their grant. This is a similar situation to the one that I find myself in since the introduction of a permit scheme patrolled by UKPC.
14. I refer to Vidal-Hall V Google Inc 2015. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, misuse of personal data is a tort and that damages may be non-pecuniary.
15. I also refer to Halliday V Creation Consumer Finance 2013) which provides authority that a reasonable sum for compensation would be £750
16. The Claimant’s letters have all had an aggressive tone. I have attempted to reason with UKPC directly, pointing out that this situation has already been heard in court but they have been unreasonable and refused to accept this. I was open with them that I didn’t want to waste either party’s time but again they insisted on continuing their aggressive pursuit of me.
17. Over time I have suffered a great deal of distress from the whole affair. Sleepless nights and the inability to concentrate on my career due to expending energies on this. I worry too about what further PCNs they may bring me to court over, trapped in a seemingly never ending cycle.
18. With regards to the size of the damages I struggle to quantify it. In 2018 I was awarded £500 and I am being very reasonable by claiming for the same. I appreciate that the court might deem a higher sum to be appropriate for this being the second instance of harassment form UKPC
19. In conclusion, this notoriously aggressive claimant company should have never pursued me for an offense that wasn’t committed and had absolutely no business to obtain my personal data, causing myself undue stress and loss of peace of mind and should be made liable to pay for my distress.
STATEMENT of TRUTH
I believe that the facts stated in this counter claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date:
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There should be no 'I, me or my' in a defence or counterclaim. You are still 'the Defendant' in the counterclaim, so use the third person throughout.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD1 -
Will amend accordingly. Apart from that is it good to go?Coupon-mad said:There should be no 'I, me or my' in a defence or counterclaim. You are still 'the Defendant' in the counterclaim, so use the third person throughout.1 -
Typo here:And can you add the old claim number and date of hearing decision to the point where you mention Judge Devlin? Looks more reasonable if you can point the Claimant to that case and they can check the case notes.
The Judge found that the landlord had failed to interfere with a nuisance that made the premises materially less fir for the purposePRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
Thanks. Here's the final CC
I XYZ of ABC am Counter Claiming in this case and will say as follows
1. The Defendant raising this counter claim against the Claimant, is the registered keeper of the vehicle with the registration number XXX
2. The Defendant’s lease does not require a permit to be displayed in a private motor vehicle in the car park
3. UKPC issued the vehicle with multiple PCNs, despite the Defendant having the right to park
4. Cause of action estoppel applies here; UKPC have already brought a case against the Defendant to court in the same residential car park. On 16/03/2018 District Judge Devlin adjudged that UKPC’s claim be dismissed (Claim number ABC). Additionally the Defendant was successful in counterclaiming £500 from UKPC for “damages for breach of s13 of the Data Protection Act 1998”. UKPC is estopped from bringing further claims after 16/03/2018 when the prior judgement ordered that “The Claimant’s claim be and is hereby dismissed”. By continuing to harass the Defendant for money, despite the earlier adjudgment, UKPC has acted in a venal and vexatious manner.
5. The Managing Agents have caused a nuisance by appointing UKPC whom have then targeted me; an individual that they already know has the right to park there. UKPC has a very poor reputation as a basic online search shows. The Managing Agent should have realized that UKPC are not a suitable firm to bring onto a residential development.
6. The Consumer Rights Act 2015 states “A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”. Given that there was a significant imbalance to the Defendant’s detriment, the Managing Agent has breached the consumer rights act
7. The Defendant is claiming for the sum of £500 due to the Claimant breaching the Data Protection Act and also for a breach of the Protection from Harassment Act.
8. The Data Protection Act 1998 states that “An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
a) The individual also suffers damage by reason of the contravention, or
b) The contravention relates to the processing of personal data for the special purposes
9. The Defendant has suffered distress from the repeated use of his personal data being used to demand money from him
10. The Defendant refers to Parking Eye V Beavis 2015 were it was stated that “And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced”
“Code of Practice” refers to the BPA Code of Practice
The Claimant has misused the Defendant’s personal data that they acquired from the DVLA and had no reasonable cause to obtain it in the first place
1. The relevant language of the Protection from Harassment Act reads as follows:
Prohibition of harassment.
1(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, 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.
Offence of harassment.
2(1) A person who pursues a course of conduct in breach of section 1 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.
Civil remedy.
3(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
11. It is claimed that the Claimant has harassed the Defendant with repeated demands for money over from Nov 2016 until the present day.
12. The Defendant refers to Ferguson Vs British Gas 2009 whereby British Gas were ordered to pay £10,575 for breaching the Protection from Harassment Act 1997.
13. The Defendant refers to Chartered Trust plc V Davies 1997 whereby it was concluded that "If one man agrees to confer particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other."
''...And the real issue is whether the landlords were liable for that conduct. An important subsidiary issue that emerged on the case law cited before us was whether the landlords were under any legal obligation to intervene to put a stop to any nuisance caused...''
''What is clear is that the landlords could have acted to stop the {nuisance conduct}... Instead, the landlords prevaricated and did nothing. They could have acted effectively, and they should have done so. Instead they chose to do nothing, and thereby made the premises materially less fit for the purpose for which they were let. In failing to act to stop the nuisance, in my judgment the landlords continued the nuisance and derogated from their grant.
The trial judge found this to be a repudiation of the lease - a substantial interference with the tenant's business driving her to bankruptcy. That was a judgment he was entitled to come to on the evidence he heard.
Accordingly, I agree with the judge's conclusion, albeit that I have reached it by a different route. I would dismiss this appeal.''The Judge found that the landlord had failed to interfere with a nuisance that made the premises materially less fit for the purpose for which they were let and had therefore continued the nuisance and derogated from their grant. This is a similar situation to the one that the Defendant finds himself in since the introduction of a permit scheme patrolled by UKPC.
14. The Defendant refers to Vidal-Hall V Google Inc 2015. In Vidal-Hall, it was held by the Court of Appeal that compensation was payable upon the fact of breach, misuse of personal data is a tort and that damages may be non-pecuniary.
15. The Defendant also refers to Halliday V Creation Consumer Finance 2013) which provides authority that a reasonable sum for compensation would be £750
16. The Claimant’s letters have all had an aggressive tone. The Defendant has attempted to reason with UKPC directly, pointing out that this situation has already been heard in court but they have been unreasonable and refused to accept this. The Defendant was open with them that he didn’t want to waste either party’s time but again they insisted on continuing their aggressive pursuit of the Defendant.
17. Over time the Defendant has suffered a great deal of distress from the whole affair. Sleepless nights and the inability to concentrate on his career due to expending energies on this. The Defendant also worries too about what further PCNs they may bring him to court over, trapped in a seemingly never ending cycle.
18. With regards to the size of the damages the Defendant struggles to quantify it. In 2018 he was awarded £500 and the Defendant is being very reasonable by claiming for the same. The Defendant appreciates that the court might deem a higher sum to be appropriate for this being the second instance of harassment form UKPC
19. In conclusion, this notoriously aggressive claimant company should have never pursued the Defendant for an offense that wasn’t committed and had absolutely no business to obtain his personal data, cause undue stress and loss of peace of mind and should be made liable to pay for the distress caused.
STATEMENT of TRUTH
I believe that the facts stated in this counter claim are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date:
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Here's the Defence. Changes I made are in bold. Anything not in bold is the template
IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
(UK Parking Control)
(Claimant)
- and -
ZYX
(Defendant)
____________________
DEFENCE
____________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.
The facts as known to the Defendant:
2. It is admitted that the Defendant was the driver and the registered keeper of the vehicle in question but liability is denied.
3 The location in question is a residential car park where the Defendant lives as a leasehold owner.
4. The lease Particulars contain an Allocated Parking Space- “The parking space shown on the Plan 1 being part of the Parking Spaces”
5. The lease requires the Defendant to “Not to use the Allocated Parking Space for any purpose other than for the purpose of parking a private motor vehicle”.
6. The vehicle in question was indeed a private motor vehicle
7. Cause of action estoppel applies here; UKPC have already brought a case against the Defendant to court in the same residential car park. On 16/03/2018 District Judge Devlin adjudged that UKPC’s claim be dismissed (Claim number XYZ). Additionally the Defendant was successful in counter claiming £500 from UKPC for “damages for breach of s13 of the Data Protection Act 1998”.
8. The Claimant is estopped from bringing further claims after 16/03/2018 when the prior judgement ordered that “The Claimant’s claim be and is hereby dismissed”.
9. Despite this judgement, the Claimant is continuing to pursue the Defendant for £815.12
10. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.
11. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.
12. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.
13. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').
14. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.
The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished
15. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.
16. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.
17. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.
18. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.
19. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.
20. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and
(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,
both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and
(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,
where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.
21. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.
22. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
In the matter of costs, the Defendant seeks:
23. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.
24. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.
Statement of Truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date:
1 -
Para 13 - "....He was not taken by either party to Somerfield in point #5 above ..."Should this be altered?An observation:-"8. The Claimant is estopped from bringing further claims after 16/03/2018 when the prior judgement ordered that “The Claimant’s claim be and is hereby dismissed”." - and others.Do you have documention that perhaps states "Judgment" - i.e. no middle "e" in this context?Also - "(UK Parking Control)(Claimant)"make sure the full name is stated as per claim form.2
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