Update Judgement - Both struck out (29th Feb) - Victoria Quays - Sheffield, S2 5SY

Anto_28

troublemaker22 said:

“perusing” - Did you mean to write “pursuing”?

I did yeh. I’ve spotted a few typos in those initial notes. I always do a hard proof read before sending to remove anything like these, and to avoid Paragraph 39 mishaps like VCS have dropped 🙂

Coupon-mad

Anto_28 said:

Got the defence and counter claim today through the post

Just posting it on this page so we can see it.

Coupon-mad

And the second part

Anto_28 said:

Continued from above

Coupon-mad

Anto_28 said:

My rough initial points raised in response:

1.      The Claimant would like to respond to points raised in the Defendants defence in turn.

2.      Paragraph 12 admits Paragraph 4 of the Particulars of Claim and states the patrol officer would be required to have taken images of the vehicle.

a.     The Claimant would like to make the court aware the car park allows for 30m of parking without the need for a permit for the purposes of loading and unloading; therefore The Claimant holds the Defendant to strict proof that the patrol officer observed the car for the required 30 minutes to ascertain whether loading/unloading was taking place at the time of the alleged contravention.

3.      Paragraph 13 of the defence states the permit be displayed on the front windscreen which is not what the terms and conditions state. They state inside the front windscreen. EXHIBIT AH01 shows the permit in situ inside the front windscreen.

a.     The Claimant avers that the term “inside the front windscreen” is ambiguous in this context due to the many meanings of such term, with the possible meanings of this including but not limited to:

                                               i.     Placed on the dashboard

                                             ii.     Affixed to the interior side of the front windscreen

                                           iii.     Positioned inside the vehicle cabin specifically near or close to the front windscreen area where the permit would be visible from outside

                                            iv.     Infused into the glass of the front windscreen

b.     I therefore refer the court to Exhibit AH02 the Consumer Rights Act 2015 ('CRA2015') – Section 69

4.      Paragraph 14 – as this was a verbal exchange only Mr Scott Taylor would be able to corroborate the wording he used. The Claimant vehemently denies the Defendants allegation of retrospectively placing the permit on the centre console as the permit can be seen in the Defendants evidence photos contained with the PCN, see EXHIBIT AH01.

The Claimant raises a question to the court: If the permit was retrospectively placed as the Defendant speculates, why would the Defendant's patrol officer have taken additional evidential photos? The Claimant suggests that it is a natural human instinct to immediately engage with the patrol officer beside his car to understand the reason for a ticket being issued. At that moment, the patrol officer would have been closely observing the Claimant's actions, leaving no opportunity to retrospectively place the permit. The Claimant seeks the court's agreement on this perspective.

The Defendant mentions the words “on the front windscreen” in this paragraph, the Claimant asks the court to disregard this as the wording is “inside the front windscreen”.

The Claimant denies there was any delay in talking to the patrol officer upon exiting the building. The Claimant can only assume the 5 minutes the patrol officer speaks of is the time he stood at the Claimants vehicle before being noticed by a colleague which prompted the Claimant to exit the building to engage with the patrol officer.

5.      Paragraph 15 - The SAR response pack sent to me by the Defendant included notes indicating at 15:03:06 on the 15th June 2023, Mr. Scott Taylor informed the Defendant about the interaction the Claimant had with him in which the valid permit the Claimant was in possession of was pointed out as evidenced by EXHIBIT AH03.

I find it perplexing and wish to pose a question: Why, when Mr. Taylor made the Defendant aware of the permit's presence, did he not provide the additional evidence to the Defendant at that moment? Instead, he chose to wait for an entire month before doing so.

The Claimant wishes to clarify that it was not my responsibility to ensure that the patrol officer handed over all the photographic evidence to the Defendant. I assert that this delay in supplying all relevant evidence before the issuance of the PCN is a failure on the part of the patrol officer employed by the Defendant. The failure to hand over all the evidence on the day it was collected undermines the validity of the PCN as a critical evidential photograph was withheld.

6.      Paragraph 16 – As there was no auto response via email having used the website contact form, the Defendants website gives no way to prove the contact was made. The Claimant finds it interesting to note that emails to the data protection officer are met by auto responses.

7.      Paragraph 17-24 aims to reject the Claimants claim in its entirety. The Claimant vehemently rejects these paragraphs for the following reasons:

a.     Failing to display the permit on the windscreen is the incorrect wording rise to the terms displayed on the Defendants signage.

b.     DVLA KADOE rules for obtaining keeper details implicitly states that the details can only be obtained where a vehicle has been parked without the right to do as evidenced by EXHIBIT AH04.

c.     To enter the Victoria Quays car park you must enter a code at the barrier. This code is periodically changed. By knowing this code the driver inherently has the right to park.

d.     Despite the patrol officer personally witnessing and confirming the presence of a valid permit, as an employee of the Defendant, he neglected his duty to provide all pertinent evidence to the Defendant during the alleged contravention. The Claimant avers that the failure to disclose crucial evidence resulted in the unlawful issuance of the PCN.

e.     The Claimant avers that there is absolutely no legitimate interest in pursuing a driver that the Defendant knew had the right to park.

8.     Paragraph 26 – ENTER INFO FROM DHLUC

9.     Paragraph 28 – The Claimant provides to the court all communications sent to the Defendant in an attempt to have the PCN cancelled as evidenced by EXHIBIT AH05.

a.     The Claimant vehemently disagrees that the letter before action was pure retaliation rise to the fact the Claimant wholeheartedly believes the Defendant issued the PCN unlawfully rise to evidence raised in this reply.

b.     As a litigant-in-person whose routine daily responsibilities are not that of a law background the Claimant did all in his power to research and abide by the Civil Procedure Rules and relevant Practice Directions required to bring forth this claim against the Defendant’s. The letter before action sent by the Claimant was constructed using the relevant Pre-Action Protocol/Practice Direction he believed to be the one applicable to this case which was not the Media and Communications one highlighted by the Defendant. The Claimant can therefore neither accept or deny this allegation.

c.     The Claimant urges the court to carefully examine the highlighted sections in the evidence, revealing that the Defendant had no intention of cooperating with the Claimant to prevent legal proceedings. Instead, the Claimant consistently encountered dismissive language, indicating an unwillingness to engage in further dialogue.

10.  In Paragraph 30 of the Defendant's defence, the intention is to reject any unlawful breaches of the GDPR. The Claimant avers that the acquisition of personal details, against DVLA KADOE rules, without any legitimate interest or reasonable cause, for the purpose of issuing a PCN, and subsequently sharing this information with ELMS Legal (a third-party company), constitutes a further breach of the GDPR.

11.  In paragraph 30 of the Defendant’s defence, there is an attempt to dismiss the significance of the terms displayed at the entrance to the car park where the Claimant parked his vehicle. Exhibit AH05 illustrates the terms presented by "Victoria Quays", not the Defendant. The Claimant avers that he entered the car park based on these terms, and consequently, additional clauses cannot be incorporated after a contract has been established (i.e., upon entering the car park at the barrier). There is legal precedent supporting this position, as seen in the case of Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2.

a.     The Claimant also would like to make the court aware that he was parked on the private road and not withing a designated parking space.

b.     The Defendants signs can only be found beside these designated spaces and not on the private road leading to confusion as to which terms should be abided by as evidenced by Exhibit AH06.

c.     The Claimant does not deny that this has been the case for the past 5 years.

12.     In paragraph 31 of the Defendant's defence, the intention is to reject the idea that the Claimant is entitled to compensation for the breach of the GDPR. However, there are precedent cases where such compensation has been awarded against private parking companies. The Claimant urges the court to consider the case of SIMON CLAY vs CIVIL ENFORCEMENT LIMITED (D9QZ9E8Q) as presented in EXHIBIT AH07. Notably, the Defendant has a track record of breaching data protection laws due to internal failures, and the Claimant argues that similar failings are evident in this case, drawing parallels with VEHICLE CONTROL SERVICES LTD vs ROBERT FERGUSON (G2QZ60G1) as demonstrated in EXHIBIT AH08.

13.  The Claimant vehemently disagrees with Paragraph 32 in its entirety that the Defendant issued the PCN correctly and that the exhibited contravention images prove without doubt the permit was displayed inside the front windscreen and therefore there are reasonable grounds for bringing forth this claim.

a.     The Claimant as a litigant in person whose routine daily responsibilities are not that of a law background was of the understanding that evidence is not be provided with the Particulars of Claim and that it is provided later in the court proceedings via a witness statement.

14.  The Claimant does not deny that he has not paid the PCN issued as stated in Paragraph 33, however he would like to make the court aware that while no financial loss has yet been suffered (apart from the court fee bringing forth this claim), the Claimant has had to dedicate a significant amount of time having to deal with this unlawfully issued PCN.

15.     The Claimant vehemently rejects everything in Paragraph 34 except the fact the Claimant had used the car park for 5 year which neither party disagree on.

a.     The Claimant disputes the Defendant's assertion that there is no cause of action. It is evident that the cause of this legal action stems from the failures of both the Defendant and their patrol officer. The actions of these parties left the Claimant with no alternative but to commence legal proceedings, aiming to put an end to the Defendant's unlawful processing and sharing of his personal data.

REPLY TO THE COUNTER CLAIM 

16.  The Claimant does not deny that signage at the car park is intended to form contracts between the landowner, its agents and the party entering the land, however the Claimant vehemently disagree with paragraph 36 that he entered any contract with the Defendant; only entering into a contract with Victoria Quays, the sole contract offered at the car park entrance. Exhibit AH05.

17.  The Claimant denies entirely with the wording in Paragraph 37 averring to the fact that the wording on the Defendant’s signs do not mention the words “on the front windscreen”

18.  The Claimant denies Paragraph 38 in its entirety as there was no breach of the aforementioned term and again notes the use of the words “on the front windscreen”.

a.     The Claimant avers that the continued usage of the word “on” is an attempt to misdirect the court away from the actual ambiguous wording found on the Defendants signage.

19.   The Claimant is puzzled by Paragraph 39, which appears to suggest that the Defendant has breached their own explicit terms and conditions. Since the Defendant has not specified the particular terms breached by the Claimant, confusion arises as to why the Defendant has initiated a counterclaim. The Claimant requests the court to dismiss the counterclaim promptly due to the lack of clarity regarding the alleged breaches.

Summary

20.  In light of the evidence provided by the Claimant, it's evident that there were serious lapses on the part of the Defendant and their patrol officer. The failure of the patrol officer to disclose all relevant evidence to the Defendant from the beginning led to the Defendant unlawfully obtaining the Claimant's personal data. Subsequently, this data was processed in violation of GDPR, resulting in the initiation of this claim. The Claimant respectfully urges the court to reject the Defendant's request to dismiss this claim. The Defendant's assertion that the permit was retrospectively placed has been conclusively disproven. This casts doubt on the Defendant's claim that the sole motivation behind the Claimant's legal action was retaliation for receiving a PCN. The claim was filed independently based on the evidence presented by the Claimant, who firmly believes that the PCN issued by the Defendant was both invalid and illegal. Considering these circumstances, the Claimant kindly requests the court to strike out the counterclaim lodged against them, as they believe there is no merit to the Defendant's allegations. The Claimant asserts their right to park on the day of the alleged contravention.

Your draft reply to defence above.

And your useful evidence:

Remember, from earlier in the thread, I can prove the permit was infact there and not placed retrospectively

Coupon-mad

So your photo (using their own pic?) is saying the permit was there all along in the part of the windscreen where the sun was shining & obscuring the view in their sneaky pic?

How come the middle section of the windscreen is matt black but the rest reflecting sunlight & clouds?  And the time is said to be 2.45pm but in the background the car park looks dark (nighttime, with lights)?

Was the car partly in a particularly dingy undercover area and part not?

Or do you think they took the photo at night then changed the timestamp and photoshopped clouds in?  Surely not...

Anto_28

Coupon-mad said:

So your photo is saying the permit was there all along in the part of the windscreen where the sun was shining & obscuring the view in their sneaky pic?

that is correct, here is the original, which it can still be seen once its pointed out

Anto_28

@Coupon-madJust an FYI

The evidence MR02 they submitted were images of even worse quality and in B&W obscuring the permit further

Coupon-mad

 Change:

REPLY TO THE COUNTER CLAIM 

to 

DEFENCE TO PART 20 COUNTER CLAIM 

and that part needs to use the Template Defence to an extent, and be signed and dated as a defence.  Like they did.

Or do two documents. A Part 20 CC defence and a reply to defence.

Anto_28

Coupon-mad said:

So your photo (using their own pic?) is saying the permit was there all along in the part of the windscreen where the sun was shining & obscuring the view in their sneaky pic?

How come the middle section of the windscreen is matt black but the rest reflecting sunlight & clouds?  And the time is said to be 2.45pm but in the background the car park looks dark (nighttime, with lights)?

Was the car partly in a particularly dingy undercover area and part not?

Or do you think they took the photo at night then changed the timestamp and photoshopped clouds in?  Surely not...

The pic with the Permit overlaid has had the contrast ratio altered by me from their original photo to make it easier to see the permit. Thats whats making the building reflection in the windscreen to go black.

The car is parked alongside my workplace with is a 5 storey building. In the original VCS photo you can see the outline of the roof of the building.

Had the building been 1 storey taller, there would of been no clouds in the picture at all.

I partly think the PO took the photo at the angle its been taken at in an attempt to make the permit look like the sun. However, for as long as i've looked at clouds in the sky, when clouds pass the sun, the sun becomes obscured by the clouds meaning the circular object can only be the permit in the location shown in the POs additional evidence photo

Anto_28

Coupon-mad said:

and that part needs to use the Template Defence to an extent, and be signed and dated as a defence.  Like they did.

Does it matter that the defendant didn’t actually date it, they only signed it?

I’ll put the Template Defence into the Part 20 response and send all as 1 document.