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

Anto_28 · 24 February 2024 at 10:53AM

Latest draft of my skelly before sending it in Monday ready for Thursday. Please do let me know if you think any amends should be made, thanks.

IN THE COUNTY COURT AT SHEFFIELD Claim No. xxxxxx

BETWEEN

XXXXXXXX

Claimant

- and -

VEHICLE CONTROL SERVICES LIMITED

Defendant

SKELETON ARGUMENT FOR THE CLAIMANT

Introduction

1. By his claim form, dated 30/10/2023, the Claimant brings a claim for non-material damages after he suffered stress and anxiety arising from the Defendant’s continuous processing and sharing of his personal data by the Defendant, its servants, and its agents.

2. The Defendant has advanced a part 20 counter claim against the Claimant, claiming they are owed damages for an alleged parking contravention on 15/06/2023.

Outline

3. This skeleton argument addresses the following matters / issues:

a. Summary of Claimant’s position

b. The Defendants witness statement

c. Relevant legal principles

i. DVLA Keeper at date of event (KADOE) rules

ii. GDPR Regulations Article 5 & Data Protection Act 2018 (Principles) Sections 34 & 36

iii. Consumer Rights Act 2015 – Section 69

iv. Data Protection Act 2018 – Section 168

d. Claimant’s right to compensation

(a) Summary of Claimant’s position

A permit was displayed, which was visible through the front windscreen.
The Claimant had a right to park his vehicle at the location in question. For clarity, this is 24 hours per day, 7 days per week.
If the permit was unclear (it is accepted that it was not placed directly in the windscreen on the dashboard) such period was limited in time.
There is no evidence before the Court that the Claimant’s vehicle was observed by the parking attendant in situ for a period beyond 30 minutes ('the free period') for which no permit is required.
A permit was produced to the parking attendant on site. No PCN had been issued at the point when the parking attendant saw the permit in full and spoke to the Claimant.
The decision to obtain data from the DVLA regardless of the facts was made some days later and that decision was unlawful.
The Defendant had no 'reasonable cause' as required by DVLA KADOE.
The Defendant now seeks £170 in relation to the failure to display a permit clearly, notwithstanding a permit was produced promptly and more than 48hrs prior to a PCN being issued. The claimant will contend that this is sufficient to amount to a penalty.
Whilst the Defendant relies on Beavis, the ratio of that decision is clear. The terms imposing a PCN engage the penalty rule. Accordingly, if the imposition of the charge is disproportionate to the breach the PCN is capable of being a penalty.
The distinguishing features of this case are:

That the Defendant was shown a permit at the material time (within minutes of first seeing the car) and therefore knew there was no legitimate reason to pursue the Claimant, well before the Defendant decided to obtain data from the DVLA. Any period of breach is de minimis.
That the Defendant had issued a permit authorising the Claimant to park 24/7 on site.
That the parking attendant must have seen previously a permit in the Claimant’s distinctive bright green vehicle (and it follows had actual knowledge of) the driver having a permit.
That the Defendant has incurred no financial loss.
That the Defendant has no legitimate purpose in issuing a PCN where the Claimant was a permitted driver, had not overstayed and the Defendant is not reliant upon the PCN as a sole revenue stream.

(b) The Defendants witness statement

The witness statement submitted by the Defendant is of Mr Jake Burgess, an Associate Legal Executive for the Defendant, not the parking attendant on the day of the alleged contravention. It contains statements made not of first hand witness evidence and further statements made on pure speculation and not fact.
The witness statement is a recitation of the Defence and other documents and is not a consideration of the facts as they occurred. See JD Wetherspoon v Harris [attached].
The Defendant has not served factual evidence from the one person able to give evidence regarding the permit at the point it was first seen, the parking attendant Mr Scott Taylor, whom is their employee.
The Defendant was put on notice in the Reply to Defence that evidence should be adduced, and the parking attendant in question made available.
As the parking attendant is their employee they know where he is and can both obtain a statement and make him available. They have previously emailed him with no difficulty as evidenced in Exhibit AH08 of the Claimant’s witness statement. It follows that there has been a conscious decision not to present his evidence to the court.
The court is asked to draw an inference from their failure to adduce that evidence. See for example:
Keefe v Isle of Man Steam Packet [6, 8, 9 & 14]
Wisniewski v Central Manchester Health Authority [1998] PIQR P324 [attached]
The witness statement is incoherent with conflicting statements made.
The witness statement has been misrepresented.

(c) Relevant legal principles

(i) DVLA Keeper at date of event (‘KADOE’) rules

22. The DVLA KADOE website states that keeper information will be made available to those who have “reasonable cause” to request the information and provides four reasonable causes for cars parking on private property as evidenced in Exhibit AH05 of the Claimant’s witness statement. Yet the Defendant in this case had no reasonable cause for the following reasons.

a. The Claimant’s vehicle was not obstructing access to land or property.

b. The Claimant’s vehicle had not been abandoned on private property.

c. The Claimant’s vehicle had not been parked without payment of the relevant fee as this was not a pay and display or a pay at exit car park.

d. The Claimant’s vehicle had not been parked without the right to do so, as he had a permit, which the parking attendant had seen, photographed and made the Defendant aware of on the day of the alleged parking contravention.

23. The Claimant therefore avers that in the event the court agrees that none of the above reasonable causes apply to this case; the Defendant therefore had no reasonable cause to request his personal data from the DVLA and did so both in breach of these rules, the GDPR and the DPA 2018.

(ii) GDPR Regulations Article 5 & Data protection act principles Sections 34 & 36

24. Due to the reasons outlined in (c) Relevant legal principles (i); the Defendant obtaining the Claimant’s personal data, choosing to issue a PCN with those said details, and then sharing the personal data with ELMS Legal were all breaches of Article 5 of the GDPR and Sections 34 & 36 of the Data Protection Act 2018.

a. GDPR Article 5(1)(a) states that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’)”

i. The processing of personal data must be lawful, fair, and transparent. Companies should have a lawful basis for processing, such as the necessity of processing for the performance of a contract, compliance with a legal obligation, protection of vital interests, consent, the performance of a task carried out in the public interest or in the exercise of official authority, or legitimate interests pursued by the data controller or a third party.

b. GDPR Article 5(1)(b) states that “Personal data shall be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes”.

i. Personal data should be collected for specified, explicit, and legitimate purposes. If a company obtains and shares personal data without a clear and lawful purpose, it is clearly in violation of this principle.

c. Chapter 2 Section 34 of the DPA 2018 sets out the six data protection principles. Section 36 requires that “the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate”.

d. The Defendant's acquisition and subsequent processing of the Claimant’s personal data from the DVLA, despite being aware of his lawful parking rights, raises a crucial question about their legitimate purpose. The fact that they processed his information in a manner inconsistent with any justifiable purpose demonstrates a concerning disregard for GDPR compliance.

(iii) Consumer Rights Act 2015 – Section 69 - Contract terms that may have different meanings

25. The plain English meaning of the wording “inside the front windscreen” is that the permit should be visible through the front windscreen. The signage does not specify where the permit must be located (as it could have done) much less require the permit to be affixed to the windscreen itself.

(d) Claimant’s right to compensation

26. The Claimant’s claim of a right to compensation is based on previous judgements attached to this skeleton argument. Attention is drawn to:

a. Vehicle Control Services Limited v Robert Ferguson [paragraphs 11-12 & 17-19]

b. Simon Clay v Civil Enforcement Limited [paragraphs 21, 23 & 27-30]

27. The Data Protection Act 2018 - Section 168 outlines the right to compensation for contravention of the GDPR.

28. In the matter of costs, the Claimant seeks:

a. Standard witness costs for attendance at Court, pursuant to CPR 27.14, and

b. For a finding of unreasonable conduct by this Defendant, seeking costs pursuant to CPR 44-47.

c. A schedule of costs has been included with this skeleton argument.

Johnersh · 24 February 2024 at 11:20AM

Personally, I don't think 12 is a great point for this case. Surely the better point is that parking had been paid for with the permit.

13. The counterclaim of the defendant may be misconceived, but is it an abuse of process to defend and claim. I doubt it. I'd lose that too, if it were me.

14a. I'd lose this too, since the free period clearly anticipates that there will be visitors without permits.

27 probably doesn't need to be there - 28. Is the argument.

I really hope that you have not and are not planning to refer to a template defence anywhere! I remain of the view that the court will enforce law, not what the law might be after an election and a change of government, so all consultations etc only get you so far.

Anto_28 · 24 February 2024 at 11:23AM

Johnersh said:

I really hope that you have not and are not planning to refer to a template defence anywhere! I remain of the view that the court will enforce law, not what the law might be after an election and a change of government, so all consultations etc only get you so far.

Thanks Johnersh, i'm not referring to the template defence, more just putting the exaggerated claim part into the skelly. I can remove that entire section if you think its not relevant.

Will amend as per your notes above and remove them paras.

Thank you for all the advice you have given me.

(post at the top updated) 👍🏻

Anto_28 · 24 February 2024 at 11:37AM

Johnersh said:

Personally, I don't think 12 is a great point for this case. Surely the better point is that parking had been paid for with the permit.

I'd misunderstood my bosses explanation on how the permits work. I had it explained to me by a more in the know VQMC director.

The blue permits (which I have) businesses get an allocation of them as part of the contractual cost VQMC pay VCS. My employer get 10. I'm just not sure how i'd word that esp with no proof as the VQMC wont let me see the contracts between businesses and themselves. (d/w i'd modified the defence omitting any £xxx is paid already for the permit). VCS do however get £££s from PCNs and £££s from VQMC just for being there!!

Each business pays additional £££s for yellow permits (temporary day permits) which are £100 for a batch of these permits.

Johnersh · 24 February 2024 at 11:41AM

So the permit is paid for, they get a set number of permits as part of the fee paid for use of the car park....

Anto_28 · 24 February 2024 at 11:49AM

Johnersh said:

So the permit is paid for, they get a set number of permits as part of the fee paid for use of the car park....

Yes. In theory.

Well, Eddisons (VQMC Secretary) on behalf of VQMC (landowner) pay £xxxx (number unknown) to VCS to manage the Victoria Quays Car Park. Eddisons distribute the passes to businesses (# of passes is in the contract between business and VQMC). The businesses themselves don't pay for the blue ones, only the yellow ones. The blue permits are in the name of Fernie Greaves (my old permit, the one used in this case). Eddisons incorporated Fernie Greaves.

The new permits Exp 29/07/2026 are in the name of Eddisons

Image: https://us-noi.v-cdn.net/6031891/uploads/editor/k9/xw2htl8raqpa.jpg

I’ll put it back in that they are paid for. Its upto VCS then to prove otherwise

Johnersh · 24 February 2024 at 12:33PM

I think one can. The business presumably pays a rent for the commercial premises and entitlement to park up to 10 vehicles. It follows that *some* of that cost us parking and, further, there's an argument (based on yellow permits) as to what that value is.

It all comes to the same:

1. Unlike Beavis the income to VCS is not wholly or even substantially reliant upon the issue of a PCN. They have no proper interest in issuing a PCN to vehicles that are parked as intended (ie so long as the company isn't parking 30 cars etc)
2. The o/p has no reason or incentive not to display a permit. It was his to use and paid for.

The evidence from the FOI is that the parking dude didn't see it, not that it was displayed after the event or even that it was not legible (both of which are pleaded). The fact that he is not called as a witness denies C the opportunity to cross examine him on that point.

Anto_28 · 28 February 2024 at 11:27PM

Got my hearing tomorrow, bit of a come down after my b'day today!

Fingers crossed all the effort we've put into this will pay dividends. I'll report the result as soon as possible.

Feels very real when you see it in the court listings.