Ticketed in space owned by me

LondonE5

See below the 3rd draft of my LBC to P4Parking (UK) LTD and "The managing agent".

Comments welcome as ever.  I still need to research the PAP for damages claims as suggested by @Coupon-mad, and tighten anything up/proof read, but I think it is getting there now?  

Thank you again for all your help.  Hopefully every person who fights these rogue outfits can move the needle a little....

Letter Before County Court Proceedings

5/11/2023

[MY ADDRESS]

Dear sir/madam

I am writing regarding a planned county court claim for damages and distress arising from unlawful acquiring and processing of data, as detailed in the Data Protection Act 2018.

This letter is served jointly to:

[MANAGING AGENT LTD]

AND

P4Parking (UK) LTD of: 

I bring your attention to article 12 of the UK GDPR law which legally requires all data controllers to store and process personal data accurately.

P4Parking (UK) LTD, contracted by [MANAGING AGENT LTD] as joint data controllers (ref: sections 58 & 59 Data Protection Act 2018), issued an invoice to [MY NAME] because it has wrongly recorded that vehicle [MYCARREG] parked in breach of an alleged contract between [THE REGISTERED KEEPER OF THE VEHICLE/MYNAME] and the landowner, also [MY NAME].  

[MANAGING AGENT LTD] and its representative [POWERTRIP MANAGING AGENT REP] had a duty of care and should have been aware that P4Parking (UK) LTD did not have the authority to operate on [MY NAME’S] property, and furthermore did not have a valid legal basis for obtaining [MY NAME’S] data from the DVLA. 

This is deemed unlawful processing of personal data, and there is a substantial wealth of case precedent to validate and support my claim.

Please note the following examples of case precedents relating to my claim of damages:

The precedents for claiming damages and compensation for such unlawful processing are the decisions of the Court of Appeal in Zeta Jones & Douglas v Hello! Magazine [2003] EWHC 786 and Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333, both being binding on all County Courts in England and Wales.  In the latter claim, Mr Halliday was awarded compensation of £750 at what the Court regarded was the lowest level of award, and although this was a claim under Section 13 of the Data Protection Act 1998, similar provisions - amended to take account of a decision by the EU Grand Chamber that the 1998 Act did not properly implement EU law into UK domestic legislation - replaced the old Section 13 provisions with Article 12 of the UK GDPR and Section 168 of the Data Protection Act 2018.

In Simon Clay v Civil Enforcement Ltd, Case No: D9QZ9E8Q, (JD/20: Bundle of Authorities) heard at High Wycombe in 2018, the claimant was successfully sued by a motorist for £200 in damages and the claim revolved around exposing that Civil Enforcement Ltd ('CEL') had no authority flowing from the landholder to their company and therefore, there was no reasonable cause to obtain or process the data of the registered keeper. Three more cases, all counterclaims against CEL in 2018 were also successful or settled by this Claimant for substantial sums, following on from the Clay case, where the parking contract was shown to be with Creative Car Parks, a separate legal entity, and the provenance of the documents provided by CEL were called into question and thrown out by District Judge Jones. 

A landmark decision of the Court of Appeal in Vidal-Hall v Google Inc ([2015] EWCA Civ 311) may lead to a sea-change in how claims are brought for breaches of data protection laws. The judgment classifies the misuse of private information as a tort and allows claimants to recover damages under the Data Protection Act 1998 (DPA) for non-material loss.

Furthermore, I would request you take careful note of sections 168 & 169 of the Data Protection Act 2018 which state the following:

 

Section 168 - Compensation for contravention of the GDPR

(1)In Article 82 of the GDPR (right to compensation for material or non-material damage), “non-material damage” includes distress.

(2)Subsection (3) applies where—

(a)in accordance with rules of court, proceedings under Article 82 of the GDPR are brought by a representative body on behalf of a person, and

(b)a court orders the payment of compensation.

(3)The court may make an order providing for the compensation to be paid on behalf of the person to—

(a)the representative body, or

(b)such other person as the court thinks fit.

Section 169 - Compensation for contravention of other data protection legislation

(1)

A person who suffers damage by reason of a contravention of a requirement of the data protection legislation, other than the GDPR, is entitled to compensation for that damage from the controller or the processor, subject to subsections (2) and (3).

(2)

Under subsection (1)—

(a)

a controller involved in processing of personal data is liable for any damage caused by the processing, and

(b)

a processor involved in processing of personal data is liable for damage caused by the processing only if the processor—

(i)

has not complied with an obligation under the data protection legislation specifically directed at processors, or

(ii)

has acted outside, or contrary to, the controller’s lawful instructions.

(3)

A controller or processor is not liable as described in subsection (2) if the controller or processor proves that the controller or processor is not in any way responsible for the event giving rise to the damage.

(4)

A joint controller in respect of the processing of personal data to which Part 3 or 4 applies whose responsibilities are determined in an arrangement under section 58 or 104 is only liable as described in subsection (2) if the controller is responsible for compliance with the provision of the data protection legislation that is contravened.

(5)

In this section, “damage” includes financial loss and also damage not involving financial loss, such as distress.

The unlawful processing of my data has resulted in considerable personal distress, as has been detailed to [POWERTRIP MANAGING AGENT] and colleagues at [MANAGING AGENT LTD]. As of the time of writing this letter before county court proceedings, I have not received a written apology from either of the joint data processors for their actions.

Furthermore, both of the aforementioned data controllers were previously informed in writing multiple times including but not limited to 25/9/2023 not to proceed with the invoice (and therefore the resulting data processing & requests), due to my legal ownership of the parking bay in question at the site [PARKING SITE ADDRESS].  Had this request been heeded, further acquisition and processing of data may not have occurred.

On 6/11/2018 proof of ownership of [PARKING BAY NUMBER] was also provided to [OTHER MANAGEMENT AGENT REP] in the form of a scanned Land Registry TR1 document.

This letter services as notice of 14 days notice to the aforementioned data controllers above of my intention to seek a minimum of £500 nominal damages and compensation through the County Court under Article 12 of the UK GDPR and Section 168 of the Data Protection Act 2018 for unlawful processing of my personal data and the resulting distress this has caused to me.  

This unlawful processing of data resulted in written threats from TNC Collections to my place of residence.  This caused considerable distress as well as time spent resolving the matter.

Please note that [POWERTRIP MANAGING AGENT REP] of [MANAGING AGENT LTD] will also be personally liable, as they had a duty of care, as detailed under section 58 of the Data Protection Act 2018.

I will not proceed with filing the above claim with the County Court if I am compensated jointly by P4Parking (UK) LTD and [MANAGING AGENT LTD] for the sum of £500 for damages and distress the resulting unlawful data breach and resulting distress has caused me, along with a signed written unreserved apology from Cristina Axente (registered Director of P4Parking UK LTD according to UK Companies House records) and [POWERTRIP MANAGING AGENT STAFF MEMBER] of [MANAGING AGENT LTD].

You are advised to seek legal advice.

I look forward to hearing from you within the stated time period.  If I do not hear from both parties within the stated time period of 14 days, I will initiate court proceedings.

Yours Sincerely,

[MYNAME]

LondonE5

One other piece of information - at one point the jobsworth managing agent staff member fired this quote at me from the lease (in September when I was telling her to cancel the ticket over email).

As I interpreted it, it does not enable them to charge money for parking ultimately (which the PPC had in effect attempted to do), and I considered it irrelevant to the cancellation of a ticket, and importantly now particularly irrelevant to the resultant DPA/GDPR breach.  

Obviously now the ticket has been cancelled anyway, and the parking company wrote to me saying they will not monitor the space anymore (as a result of my letter, as previously detailed in this thread...).

Welcome thoughts though.

Managing agent's email:

MA: As per the lease, the landlord is permitted to employ a parking enforcement facility if it is deemed necessary, which it has been, and tenants are responsible for taking steps to ensure the regulations are followed (as set out in the lease excerpt below).

[lease excerpt she pasted]

"To take all reasonable steps to ensure that all persons using the Parking Space with the authority of the Tenant while in the Parking Area and/or the Estate conform to the stipulations and regulations contained or referred to in this Schedule".

Coupon-mad

I'd put Google above Clay because Clay is just a county court decision.  Remove '(JD/20: Bundle of Authorities)' and instead make it clear that you will also rely on Clay because it was a claim against a parking firm for a similar cause of action (damages for DPA breach due to lack if landowner authority).

You should also remove this bit (not relevant):

or settled by this Claimant for substantial sums, following on from the Clay case, where the parking contract was shown to be with Creative Car Parks, a separate legal entity, and the provenance of the documents provided by CEL were called into question and thrown out by District Judge Jones.

And instead state in a new paragraph under the final word 'successful' re Clay v CEL, that your case has the aggravating feature that your company (unlike in Clay) is also the aggrieved owner of that land, not just the motorist. So the deliberate or negligent private nuisance of aggressively running an unsolicited business on this land is worse.  You are not just the wronged motorist but also the wronged landowner so the damages are twofold.

How about also pleading private nuisance as a second cause of action that a Judge might like:

Case law here:

https://e-lawresources.co.uk/Nuisance.php#:~:text=Private%20nuisance%20is%20essentially%20a,has%20been%20unreasonably%20interfered%20with.&text=The%20claimant%20must%20possess%20a,facility%20that%20is%20being%20deprived.


Explanation of the cause of action here:

https://www.studysmarter.co.uk/explanations/law/civil-law/private-nuisance/#:~:text=Define%20Private%20Nuisance%3A%20Key%20Elements&text=This%20interference%20must%20be%20substantial,by%20another%20person%20or%20entity.

LondonE5

Just received this from the managing agent!  This is the first time I have seen some form of apology.

Dear London E5,

 

Thank you for your email below which I have been appointed to deal with. I apologise that the situation got to the stage that it did and I have spoken to [POWER TRIP MANAGING AGENT] and her manager about this. 

 

[POWER TRIP MANAGING AGENT] has confirmed that the ticket has been cancelled and she has also advised the ticketing company to make a note of your details and to not ticket you again. Hopefully this will prevent a recurrence, however we would still suggest always displaying your permit as this will definitely prevent a repeat situation.

 

If you have any further issues at all please do not hesitate to contact me directly.

 

Thank you for your time.

 

Kind Regards,

 

[Director of Managing Agent]

Coupon-mad

Good - but too late, eh?

Especially if POWER TRIP MA was rude/dismissive about the nuisance being caused.

Unlawful interference

 

Private nuisance requires an unreasonable use of land by the defendant which leads to an unreasonable interference with the claimant's use or enjoyment of their own land. This requires a balancing exercise of competing rights often referred to as the principle of give and take. Unreasonable interference alone is insufficient:

 

London Borough of Southwark v Mills [1999] 3 WLR 939 Case summary

 

In assessing the reasonableness of the use and reasonableness of the interference, the courts take all the circumstances into account. In particular the courts will consider:

1. The nature of the locality/neighbourhood
2. Duration
3. Sensitivity
4. Malice

LondonE5

Indeed - too late.

Also, I would like a personal apology from the staff member in question.  The tone of the apology email hits the right note, but I believe the accountable person should really be apologising as well.

fisherjim

LondonE5 said:

fisherjim said:

Worth noting the actual KADOE contract section I imagine is of relevance which I would say has obviously been completely ignored in this case:

B2.3. Before making each request for Data, the Customer shall gather
evidence to demonstrate that it has Reasonable Cause to request that
Data. This evidence may include scans, images, photographs,
correspondence and any other evidence that the Customer may rely
on to show its compliance with the requirements of this Contract and
of the relevant Accredited Trade Association’s Code of Practice

They "the customer"  obviously cannot have any evidence that they had authority on that piece of land.

https://assets.publishing.service.gov.uk/media/5a81a0c7e5274a2e8ab55036/Annex_A_-_KADOE_Fee_Paying_Contract_V4.pdf

This is in addition to the BPA COP:

7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent). The written confirmation must be given before
you can start operating on the land in question.......

Not looking good for these arrogant idiots!

This looks great too - I'll see if I can thread that in.  Thanks @fisherjim !

EDIT: just a thought - wouldn't one issue here though be the "appointed agent" is the managing agent who has some authority to act on behalf of the land owner, though?  Though the fact they backed down on the invoice shows the PPC knows they don't have a leg to stand on, I suppose.

But did you sign a contract for them to act as your agent for the land specifically owned by you surely not?

LondonE5

fisherjim said:

LondonE5 said:

fisherjim said:

Worth noting the actual KADOE contract section I imagine is of relevance which I would say has obviously been completely ignored in this case:

B2.3. Before making each request for Data, the Customer shall gather
evidence to demonstrate that it has Reasonable Cause to request that
Data. This evidence may include scans, images, photographs,
correspondence and any other evidence that the Customer may rely
on to show its compliance with the requirements of this Contract and
of the relevant Accredited Trade Association’s Code of Practice

They "the customer"  obviously cannot have any evidence that they had authority on that piece of land.

https://assets.publishing.service.gov.uk/media/5a81a0c7e5274a2e8ab55036/Annex_A_-_KADOE_Fee_Paying_Contract_V4.pdf

This is in addition to the BPA COP:

7.1 If you do not own the land on which you are carrying
out parking management, you must have the written
authorisation of the landowner (or their appointed
agent). The written confirmation must be given before
you can start operating on the land in question.......

Not looking good for these arrogant idiots!

This looks great too - I'll see if I can thread that in.  Thanks @fisherjim !

EDIT: just a thought - wouldn't one issue here though be the "appointed agent" is the managing agent who has some authority to act on behalf of the land owner, though?  Though the fact they backed down on the invoice shows the PPC knows they don't have a leg to stand on, I suppose.

But did you sign a contract for them to act as your agent for the land specifically owned by you surely not?

No.

The building is leasehold though, so collectively the owners of apartments in there may have.

But again, the role of these agents is surely to act in the interests of leaseholders and not work against them? You’d hope…

Coupon-mad

Yes and their remit (if any) only relates to parking relating to the common land. Not privately owned bays.

You need to use the word 'unreasonable' and use the private nuisance tort as well (because that's perhaps your stronger cause of action against the MA).

Fruitcake

LondonE5 said:

Just received this from the managing agent!  This is the first time I have seen some form of apology.

Dear London E5,

 

Thank you for your email below which I have been appointed to deal with. I apologise that the situation got to the stage that it did and I have spoken to [POWER TRIP MANAGING AGENT] and her manager about this. 

 

[POWER TRIP MANAGING AGENT] has confirmed that the ticket has been cancelled and she has also advised the ticketing company to make a note of your details and to not ticket you again. Hopefully this will prevent a recurrence, however we would still suggest always displaying your permit as this will definitely prevent a repeat situation.

 

If you have any further issues at all please do not hesitate to contact me directly.

 

Thank you for your time.

 

Kind Regards,

 

[Director of Managing Agent]

What that director is saying is that they cannot guarantee it won't happen again, and want you to do something you are neither required to do, nor want to do, in the hope the agent they employed doesn't ticket your vehicle again.
In my opinion this is further unreasonable behaviour.