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

KeithP

Typo in para 12a - 'withing'.

Anto_28

KeithP said:

Typo in para 12a - 'withing'.

Thats a great spot, thanks for that Keith, I've updated my document

1505grandad

"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."

Just checking  -  there are several paras that contain the word "rise"  -  is this a "legal" term via DC?

Anto_28

1505grandad said:

"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."

Just checking  -  there are several paras that contain the word "rise"  -  is this a "legal" term via DC?

I think I saw it on another forum posters defence when researching tons of defences, i'm going to replace all the "rises" to "due" just so its crystal clear

Amended that one to:

a.     The Claimant strongly disputes the characterisation of the letter before action as pure retaliation. This vehement disagreement arises from the Claimant's sincere belief that the Defendant issued the PCN unlawfully, as evidenced by the details presented in this response.

and the other place it existed i've changed to

a.     The Claimant contends that the phrase “Failing to display the permit on the windscreen" is inaccurately worded, as it does not align with the terms displayed on the Defendant's signage.

Johnersh

I need to come back to this later when I have a keyboard not a phone, but I would suggest a massive simplification. Don’t let it become a he said/she said.

you should do a reply to the ppc defence and a defence to the counterclaim, but there’s a lot of scope here.

1. the claimant is put to proof, but the defence of the ppc refers to what the parking operative said, so let’s make sure the reply asks the court that the ppc provides witness evidence from him and that he is available to give evidence at trial. 

2. Can you clean up the photos? I confess I can’t see the permit. The o/p defence should request all images undertaken that day are disclosed, call logs and emails etc. Following the post office cases we can expect non disclosure of clearly relevant documents to get traction if signposted and dealt with in the WS. 

The defence to the counterclaim should criticise the quality of any photos that fail to provide a clear image of the whole windscreen and, in particular the near side (where car stickers and permits are placed, out of the driver sight lines). If there is not a photo of the whole windscreen the ppc has failed to show one was not displayed.

3. The defence admits that C may have had a permit and avers that he probably displayed it within 5 mins even if not immediately visible. So on their own case for breach of contract, at its highest, they claim a breach of contract for a 5 minute failure to display a sticker for a car that they accept was authorised to park, but they seek £170+ for that. (See below)

Even that ppc best case is built on speculation not fact, because it is not stated to be the evidence of the parking operative. The reply need only say that such an assertion does not appear to have a factual basis and the court will be invited to find that it is more likely to have been present in the windscreen throughout.

Whilst they say Beavis allows them to charge a fee, if they read the case, they’ll find the same case is authority for when contractual charges can be impermissible penalties.  The penalty charge is self-evidently disproportionate to the 5 minute failure. Unlike Beavis they cannot contend any commercial interest, need to vacate parking bays for others or ceasing of the license to remain on site. Basically the permit is a point of reference to deter third parties only. 

4. the counterclaim defence should object to the charge, and the level of debt recovery charges (and entitlement to charge those which are not specified in the signage nor defined or evidenced by receipts or schedules in the counterclaim)

finally. Can I just say how rubbish the ppcs defence is. It’s like a merged template witness statement with a few defence paragraphs. It’s padding. Also just because you ‘vehemently’ deny a case doesn’t make it any more or less a denial and it begins to look silly after a while.

Anto_28

thank you for your input on this @Johnersh, it's really appreciated

Johnersh said:

1. the claimant is put to proof, but the defence refers to what the parking operative said, so let’s make sure the reply asks the court that he provides witness evidence and is available to give evidence at trial.

If we could force the patrol officer to give evidence at a hearing if it got that far, I think when facing me face to face corroborate my version of events on what was said and that the permit was there the entire time and he just missed it.

2. Can you clean up the photos? I confess I can’t see the permit. The defence should request all images undertaken that day are disclosed, call logs and emails etc. that said, the reply should criticise the quality of any photos that fail to provide a clear image of the whole windscreen and, in particular the near side (where car stickers and permits are placed, out of the driver sight lines).

I would love to get hold of the entire transcript of how this note was added to Zatpark

Note ID: 12002928

As i was walking away the man came out said he had a permit he said look its there in the centre console not in the windscreen

I SAR'd ELMS Legal, who responded today just before 5pm, and this was contained in their SAR response

According to this, the PO did see the permit..... 

This is the best I can clean the images up to make it more visible within the reflection

VCS Evidence

Recreation - you can see when using a clear image and then comparing the VCS evidence side by side, the permit is in the same region in both photos.

Last thing to note I just thought, VCS allege I only spoke to PO 5 minutes after PCN issued, the PCN was issued 6 days AFTER the PO took the photos and submitted them to VCS. The PO didnt even issue a ticket, he issued a Privacy Notice

Johnersh

What does the privacy notice say? If that could amount to a notice to the driver, they should not have applied for DVLA details for a further period, which is grist to the mill when it comes to the unlawful processing.

Others on here like @Coupon-mad are better placed to make suggestions for the Reply on that point.

**edit**

Found another example on the forum. So it says very little other than “we’ll process your data,” but that does call into question the reliability of the PPC pleading and reveal that the PCN had not been issued at that juncture - they chose to issue it, despite having seen a permit contemporaneously.

Anto_28

Just so that the crux of the case are all together in one post and for the aid of everybody generously helping with the reply to defence.

- I parked my vehicle at work on the 15/06/23, placing the permit on the arm rest, while admittedly not on the dashboard, it was still visible with details easily readable when looking in from the front windscreen.
- The PO was seen taking photos of my vehicle by a work colleague. He informed me.
- The initial photos were sent to VCS by the PO at 14:54:47 on the above date.
- I ran out and engaged with the PO pointing the permit out to him. He took additional evidence photos.
- The PO informed VCS of the presence of the permit at 15:03:06 on the above date. (IMPORTANT NOTE: He did not send the additional photo with the update)



- My personal details were requested from the DVLA on 20/06/2023 at 08:26:40 



- The PCN was issued on 21/06.23



- It wasn't until 16/07/23 that the PO disclosed the additional evidence to VCS, an entire month later.



- VCS shared my personal data with ELMS Legal at a date unknown, but before 23/10/23 as this is when I got the Notice of Instruction from ELMS Legal. I'm currently in the process of finding out the exact time and date from ELMS Legal.



The rest regarding appeals process/signage etc etc is in my eyes completely irrelevant as the crux of my case focus only on the clear GDPR breaches by VCS. The defence to the CC can deal with the signage etc.

Anto_28

I've updated my draft to simplify it, removing any speculative statements and adding in the points raised by @Johnersh

1.      The Claimant brings to the court's attention that the entire defence presented by the Defendant is insufficient for this case due to the following reasons:

a.     The defence and statement of truth has not been dated, a requirement, as outlined in CPR r.22 Practice Direction 22 point 2.7.

b.     The defence and statement of truth are signed by Mark Robinson of Excel Parking Services Ltd. However, Excel Parking Services Ltd is not the Defendant in this case. Additionally, the statement of truth fails to explicitly state that the defence has been signed on behalf of the Defendant, instead using the wording "I believe”.

Given the outlined deficiencies, the Claimant respectfully requests the court's intervention to strike out this defence - which is undated and is signed by a third party, not the Defendant - and find in favour of the Claimant forthwith.

2.      The Claimant would now like to respond to points raised in the Defendants defence.

3.      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 wishes to draw the court's attention to a significant point: considering the patrol officer had a 30-minute window to observe the vehicle as per the Defendants signage Exhibit MR01, how could he overlook the prominently displayed permit inside the front windscreen of the Claimant's vehicle?

4.      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.

a.     The Claimant avers that the term “inside the front windscreen” is ambiguous in this context due to the many meanings of such term.

b.     The Claimant also avers that Exhibit MR02 the Defendant relies on does not Exhibit any PCN produced by the Defendant.

5.      Paragraph 14 –The Claimant 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, as evidenced in EXHIBIT AH01.

Exhibit AH02 displays the Claimant's attempt to recreate, to the best of his ability, the photo from the same angle captured by the patrol officer in the evidence photo. This recreation illustrates that, from the perspective of the photo, the permit is situated in the region that the Claimant has identified the permit to be evidenced in Exhibit AH01. This proves the object highlighted in Exhibit AH01 to be the permit that the Defendant erroneously accuses the Claimant of placing retrospectively.

The erroneous assertion of retrospectively placing the permit is built on pure speculation as the Defendant that put forth the defence is not the patrol officer. The Claimant asks the court to require that the Defendant provide witness evidence from the parking officer and that he is available to give evidence should this case progress to a hearing.

As the aforementioned assertion does not appear to have any factual basis and given the evidence provided by the Claimant the court is invited to find that it is more likely the permit was present and visible inside the front windscreen throughout.

The Claimant would like to highlight to the court that the Defendant's pleadings erroneously claim that the Claimant approached the patrol officer 5 minutes after the PCN had been issued. However, at this very juncture, the PCN had not been issued; the Defendant opted to issue it six days later, despite the parking officer having already observed and made the Defendant aware of the presence of a valid permit.

6.      Paragraph 15 - The SAR response pack sent to the Claimant by the Defendant included Note ID: 12002928 which indicated at 15:03:06 on the 15th June 2023 (just 9 minutes after submitting the initial evidence photos), the parking officer 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.

The Claimant finds it perplexing and wishes to pose a question to the court: Why, when the parking officer made the Defendant aware of the permit's presence, did he not provide the additional evidence to the Defendant at that moment?

The Claimant avers 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 and undermines the validity of the PCN due to critical evidence being withheld.

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

a.     In Paragraph 17, the Defendant admits that the PCN was issued on the 21st June 2023, contradicting their earlier claim in Paragraph 14, where they asserted that the PCN was issued 5 minutes before the Claimant spoke to the parking officer.

b.     The Claimant contends that the phrase “Failing to display the permit on the windscreen" is inaccurately worded, as it does not align with the terms displayed on the Defendant's signage exhibited in Exhibit MR01.

c.     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 so as evidenced by EXHIBIT AH03.

d.     To gain access to the Victoria Quays car park, one must input a code at the barrier, and this code is subject to periodic changes. Possessing knowledge of this code inherently grants the driver the right to park.

e.     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.

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

8.     In respect to Paragraph 26 of the Defendant’s defence the Claimant presents the following to the court to uphold his belief that the charge is unjust:

a.     The Beavis case is also authority for when contractual charges can be deemed impermissible penalties. The defence admits that the Claimant had a permit and alleges that he retrospectively displayed it within 5 minutes even if it was not immediately visible. The penalty charge is therefore self-evidently disproportionate to the 5-minute failure. Unlike Beavis the Defendant cannot contend any commercial interest, need to vacate parking bays for others or ceasing of the license to remain on site. The permit is a point of reference to deter third parties only.

b. -> n. DLUHC points from Template Defence

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 AH04.

a.     The Claimant disputes the characterisation of the letter before action as pure retaliation. This disagreement arises from the Claimant's sincere belief that the Defendant issued the PCN unlawfully, as evidenced by the details presented in this response.

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 29 of the Defendant's defence, the intention is to reject a further breach 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 within 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 disagrees with Paragraph 32 in its entirety that the Defendant issued the PCN correctly due to points raised in this reply to defence 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 to 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 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 continued unlawful processing and sharing of his personal data.

Coupon-mad

2.      The Claimant would now like to respond to points raised in the Defendants defence.

It's not the defendant's defence though, is it?! Shouldn't that be:

2.      The Claimant will respond to points raised in the 'defence' signed by the wrong company (Excel Parking Services Ltd). The following is intended to assist the court and will stand as the Claimant's Reply to Defence, only in the event that the court does not strike out that 'defence':

You also have some unnumbered paragraphs.  Put that right.  Use 1.15 line spacing, especially if filing and serving a printed version (VCS may well have said they don't accept service by email, so do everything right).

BTW what does your Defence To Counterclaim look like?