Not the Keeper nor the Driver

Fruitcake

You need to claim costs, in your defence I think, and submit a schedule of costs a few days before the hearing, and remember to ask for those costs after the judgment. It will be harder, and might even be impossible to claim costs afterwards.

Coupon-mad

Pullmyfinger88 said:

Thanks @Coupon-mad & @fruitcake

Id love to prevent them from discontinuing, that’s the appeal of it. I’ll read those threads and see if it’s something I can navigate.

If not, I’ll ask after I win.

You can't.  A counterclaim MUST be now.

Pullmyfinger88

Thanks guys. I’ve had another email off I park refusing to share the data, refusing to discontinue and generally goading me so it’s on! 💪

The brass neck of these people 😱

Grizebeck

Just do the counter claim

Coupon-mad

Pullmyfinger88 said:

Thanks guys. I’ve had another email off I park refusing to share the data, refusing to discontinue and generally goading me so it’s on! 💪

The brass neck of these people 😱

Show us that email.  Are they saying they can't fulfil a SAR because it's 'out of our hands and at litigation stage'?!

Pullmyfinger88

Good afternoon. I’ve formulated my defence and counter claim & read up and see I can phone the court and pay the £70 fee over the phone. Please can be so bold to ask for one of you knowledgeable, kind, people to cast as eye over the below and provide me with some feedback?

Both I park services and DCBL are still refusing to share or delete their erroneous data and a reply from I Park services admitted that DCBL performed a second trace after the DVLA data was obtained that gave my detail as a “second address”. They say they’re having nothing more to do with me unless I admit I’m the keeper or driver and acknowledged my intent to counter claim, almost goading me to do it. I’d like to hammer this home, it can’t be legal, but I’ve limited it to my counterclaim. I feel it’s a bit weak and should be more prominent.

IN THE COUNTY COURT

Claim No.:  Xxxx

Between

I PARK SERVICES LTD

(Claimant) 

- and -  

Pullmyfinger88                        

 (Defendant)

_________________

DEFENCE

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. It is not admitted that the Defendant is or ever has been the registered keeper, has hired the “Vehicle” or was driving the “Vehicle” at the time of the alleged breach of “the Contract”

3. The defendant does not have any knowledge of this incident. The defendant is not the registered keeper nor was the defendant driving the vehicle. The defendant was in another country in the days before, during and after the alleged breach of “the contract”. The defendant has never hired or owned the vehicle referred to in the claim.

I then have the rest of the template, then this……….

COUNTERCLAIM 

 31. The Defendant repeats the defence above, in support of the counterclaim.  The Claimant was sent 2 separate, acknowledged, emails, in which the Defendant provided this Claimant with ample warning about the basis for this counterclaim and gave them every opportunity to take stock of their position and cease and desist with their unlawful, discriminatory and harassing conduct without resorting to litigation.  The Claimant's course of conduct has been wholly unreasonable, obstructive, vexatious and unlawful.

32. This counterclaim is for damages for distress caused by the Claimant's multiple breaches of statutory duty. The Defendant will rely upon the authorities of (i) Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 and (ii) Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) and other similar authorities as well as primary statute law.  Further, the authority in Vidal-Hall v Google Inc [2015] EWCA 311 confirms that pecuniary loss is not necessary for compensation to be payable and that pure distress is enough. 

33.  The bands of awards for injury to feelings, known as the Vento bands, have been updated from April 2023.  This stems from a landmark case from 2003 (Vento v Chief Constable of West Yorkshire Police) where the Court of Appeal set out clear guidelines for Courts and Tribunals to apply when they are assessing injury to feelings awards for pure distress, as opposed to financial loss.  The Vento case decided that there is now an accepted quantum for compensation and courts have followed this guidance. In a judgment at the Leeds County Court, 3SP00071 - Blamires v LGO - which was a claim for damages including disability discrimination and a breach of the DPA, an award of £2,500 was granted as compensation for distress, so the Defendant believes this counterclaim is extremely reasonable, given the circumstances.  For claims presented on or after 6 April 2020, the new Vento bands are as follows:

·         a lower band of £1,100 to £11,200 (less serious cases)

·         a middle band of £11,200 to £33,700 (cases that do not merit an award in the upper band), and

·         an upper band of £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200

34.  To simplify the counterclaim and to assist the court in determining the issue without complicated calculations, it is set - notwithstanding which allegation(s) succeed - at a single sum in compensation at the lowest end of established guidance in the Vento bands, pursuant to the following: 

·         a) damages for distress caused by the Claimants’ breach of statutory duties under the Consumer Rights Act 2015 and misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection (Amendment) Regulations 2014 (“the Regulations”);  

·         c) damages for distress caused by breach of statutory duty under the Data Protection Act 2018 and General Data Protection Regulation ('the GDPR');

Damages for distress caused by the Claimants’ breach of statutory duties under the Consumer Rights Act 2015 and misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection Regulations (Amendment) Regulations 2014 (“the Regulations”):

35.  The Claimant alleges that there was a contract formed at the moment of parking the car by which the Defendant is bound.  Thus, this was a transactional decision within the meaning of the Regulations at 20(b) even though the Defendant was not there.

Damages for distress caused by breach of statutory duty under the Data Protection Act 2018 and General Data Protection Regulation ('the GDPR'):

36.  Personal data must be processed fairly and lawfully.  The Claimants stand in breach of Article 5 (1) of the GDPR (the requirement for lawfulness, fairness and transparency).  Despite two separate emails, both acknowledged, the Claimant's aggressive pursuit and abuse of the Defendant's data has continued. The Defendant’s requests to erase the erroneous has been ignored. Accordingly, the processing of my DVLA data was not “necessary for the performance of, or commencing, a contract” and nor was it necessary or justified under any other data processing excuse.  Distress is now included under Article 82 of the GDPR and the 2018 DPA. The Claimants had, and still have, no prospect of furthering their purpose and no legitimate cause to store (on the day) and/or then to continue processing the Defendant's data. In accordance with Principles 1,2 and 5 of the Data Protection Principles they were not permitted to process or keep it. 

37.  The Claimants noted, photographed and stored the Vehicle Registration Mark then requested and received personal data due to obtaining the registered keeper data relating to that vehicle, from the DVLA.  The claimant then admit in their email, to DCBL carrying out some kind of trace, which resulted in discovery of a “second address”, the address of the defendant. The purpose was to seek payment of the parking charge which is the subject of the Claimants’ claim. The VRM itself and the Defendant’s details are 'personal data' within the meaning of the DPA 2018 and the associated General Data Protection Regulation (“GDPR”). 

38.  Accordingly, at all material times the Claimants were data controllers, and the Defendant a data subject, within the meaning of the Acts. The Claimants were thereby under a statutory duty to process the Defendant’s data only in strict accordance with the DPA 2018 and the GDPR Articles 5 (1)(a) and (b) and 6 (1)(f)). 

39.  Article 5 of the GDPR sets out seven key principles which lie at the heart of the general data protection regime. These are broadly the same as the DPA Principles. Article 5(1) requires that personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to individuals (‘lawfulness, fairness and transparency’); 

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; (‘purpose limitation’); (c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’); 

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’); 

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed (‘storage limitation’); 

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate measures (‘integrity and confidentiality’)

40.  Article 5(2) adds that: “The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability').   Article 6(1)f of the GDPR states an exemption if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. 

41.  The Defendant's data should never have been obtained from the DVLA or via this other “trace” that found the “second address”  Accordingly, the processing of the Defendant’s data was not “necessary for the performance of, or commencing, a contract” and nor, since further communication with the Defendant had no prospect of furthering their purpose, did the Claimants have any legitimate cause to continue processing the keeper's data. 

42.  In accordance with the DPA 2018 and the GDPR, they were no longer permitted to either process, keep it or share it but the Claimants compounded the issue by unlawfully sharing the data with another firm, DCB Legal ('DCBL'), whose name appeared on later communication.  They are not the same legal entity and the sharing of the Defendant's data between the blurred lines of their two databases was in itself unlawful, notwithstanding that the PCN should never have been issued and the acquisition and use of the Defendant’s personal data by the Claimant was at all material times, unlawful. 

43.  In summary for this allegation, the Claimants as data controllers were and continue to be in breach of their statutory duty under the Acts as follows :-

 i) by obtaining the Defendant’s personal data from the DVLA without a lawful basis, contrary to the DPA Principles and GDPR article 5(1)(a) and (b)

 ii) by processing the Defendant’s personal data unlawfully and unfairly and for a purpose other than pursuing the Claimants’ legitimate interests, contrary to the DPA 2018 and GDPR article 5 (1) (a) and (b) and article 6 (1)(f);

 iii) by retaining the Defendants’ data after the purpose for obtaining it (if any) had ended
 iv) by sharing the Defendant's data with DCBL and other third parties in attempting to pursue the charge.

Damages for distress caused by harassment contrary to the Protection from Harassment Act 1997 ('the PFHA') ref section 3:

 44.  It is alleged that the Claimant's conduct has crossed the line into harassment and that it has breached the PFHA, which states: 

(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 [or section 2A(2)(c)], the person whose course of conduct is in question ought to know that it amounts to [or involves] 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.

(3) Subsection (1) [or (1A)] does not apply to a course of conduct if the person who pursued it shows—

(a) that it was pursued for the purpose of preventing or detecting crime,

(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.

45.  None of the justifications in (3) above can possibly apply. Despite the Defendant’s multiple emails informing the claimant that the have the wrong person, the Claimants persisted in aggressively and unjustifiably pursuing their unreasonable charge and not discontinuing their proceedings. The Claimant’s harassing course of conduct included sending, either by themselves or through their agents and/or from DBCL, multiple demands threatening legal action over the course of almost a year.  The proper course of action was to cancel the PCN but instead, the Claimant's hostile and flippant correspondence and threats of court action have been particularly unwelcome when I am a single parent who is very busy working and raising my daughter.

46. The Claimants’ course of conduct in pursuing this spurious parking charge, including the issue of these proceedings, amounts to harassment within the meaning of section 1, Protection from Harassment Act 1997.  Instead of cancelling the PCN, the Claimant embarked on a harassing course of conduct that has continued for almost a year and has plagued the Defendant, exacerbating anxiety, and distress, causing loss of sleep and interfering with their peace of mind.  In all the premises, the conduct of the Claimant amounts to harassment under section 1 of the PFHA as well as harassment pursuant to the EA.  Accordingly the Defendant respectfully seeks damages pursuant to s3(2) of the PFHA.

 

Damages 

47.  By reason of the matters aforesaid, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct.   The 'thin skull' rules applies in that the Claimant must take its victim as they find them.   It has taken - and continues to take - a monumental effort to deal with the aggressive and flippant conduct of this Claimant.  The Defendant has suffered substantial and exhausting distress which has impacted upon family life and respectfully seeks damages in the sum of £900 or such sum as the court sees fit.

Pullmyfinger88

AND THE DEFENDANT COUNTERCLAIMS:- 

48.

(a). Compensation in the sum of: £900 or such sum as the Court sees fit including any award of aggravated damages at the court's discretion;

b). Court fees: £70.00 filing fee (if the Defendant does not get help with fees: applied for);

c).  Interest pursuant to s.69 of the County Courts Act 1984, at such rates / for such periods on the sums found due to the Defendant as the Court may deem fit;

d). Costs to be assessed.  As a result of the Claimants’ unreasonable behaviour, the Court is respectfully invited to order the Claimants to pay the Defendants’ costs on an indemnity basis, pursuant to Civil Procedure Rules, rule 27.14 (2) (g). 

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.

Pullmyfinger88

sorry @Coupon-mad , I didn’t see your message.

No, they’re not saying that, they’re just being “smart” and obstructive I think. I’ve mentioned it in my counter claim along with this trace that returned a “second address”. I did provide them with a redacted utility bill and a copy of their claim paperwork as suggested but they aren’t having it. 

Good evening, 

If you are claiming that we have the wrong person then we cannot provide you with any further information. 

If you are stating that the vehicle whose image is on the Notice to Keeper along with the details provided by the DVLA is not your vehicle then we will not continue correspondence with you. 

We can only legally provide a SAR to either the driver of the vehicle or the registered keeper.

We received the details from the DVLA which provided your name and the address recorded at the DVLA. When we passed the unpaid parking charge to DCBL they would have carried out a trace and found the second address. 

As far as we are concerned the parking charge was issued lawfully in accordance with Schedule 4 of the Protection of Freedoms Act 2012 and the parking charge will not be cancelled.

If you are not the person who is responsible for the parking charge it is your responsibility to discuss this with DCBL.

If you believe we have acted outside the law, then please contact the ICO. If we receive a request from them, we will provide them with all the information which we hold in relation to this parking charge which we would have released to the identified driver or registered keeper.

In relation to the request for ID verification of signature I can confirm that this is our method to confirm the identity of the person requesting the personal data which as previously discussed with the ICO is perfectly acceptable to confirm ID. 

In relation to the County Court Claim Form it is your option to provide evidence against the claim and if required submit a counterclaim. 

Regards 

Data Protection and Compliance Department

I Park Services Limited

PO Box 90

Cockermouth

CA13 3BA

Coupon-mad

Good counterclaim IMHO.

I think you should add under your para 3, as a new para 4 and 5:

4.  In short: the Defendant is not the right data subject.  This claim is the result of a 'bad trace' and a negligent (wrong) assumption that the Defendant is the same person as the motorist whose name and address the Claimants originally obtained from the DVLA.  The Claimant said, when the Defendant complained to their Data Protection Officer:  "We received the details from the DVLA which provided your name and the address recorded at the DVLA."  This is denied. That motorist is not the Defendant and they did not obtain the current address from the DVLA. 

5.  This claim is against the wrong person and despite being told this, the Claimant has stated as follows, taken to be an admission that they got it wrong and that they know the Defendant intends to counterclaim, yet they have not withdrawn the claim:

"If you are claiming that we have the wrong person then we cannot provide you with any further information.  If you are stating that the vehicle whose image is on the Notice to Keeper along with the details provided by the DVLA is not your vehicle then we will not continue correspondence with you. When we passed the unpaid parking charge to DCBL they would have carried out a trace and found the second address.  If you believe we have acted outside the law, then please contact the ICO.  In relation to the County Court Claim Form it is your option to provide evidence against the claim and if required submit a counterclaim."

Pullmyfinger88

thanks @Coupon-mad. That’s the pazzaz that I was feeling my defence and counter clam was lacking 🥰🥰🥰🥰 you’re fantastic. Thank-you

I’ve done a proof read, corrected some errors and now after lots of renumbering, it’s ready to go 🤣🤣🤣