Need help with the Defence Letter

Coupon-mad

mmatopper said:

Thank you, then I am ok with the counterclaim. What should I add to the defence about the counterclaim?

I don't understand.  I pretty much wrote you a bespoke counterclaim above.  And I said:

"That just means paying a reclaimable up front £35 fee to the CNBC and adding this to the bottom of the Template Defence (of course all paragraphs except the statement of truth require a number):"

Look at the Statement of Truth I wrote. It says 'this defence and counterclaim' so you can tell it's all one document.

Le_Kirk

parking lot

What is one of those?  Maybe Car Park or Parking Area as we are not in USA.

mmatopper

@Coupon-mad thank you now clear for me.

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

XXX

(Claimant) 

- and -  

                                                                       XXX

 (Defendant)

_________________

DEFENCE

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) 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 Particulars.

 

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper but not the driver of the vehicle..

 

3. The driver entered the site on consecutive days, September 28, 2023, and September 29, 2023, to carry out cargo distribution. The purpose of entry was not to park in the site parking area but to make brief stops and deliveries. Moreover, as clearly stated on the informational sign hung at the building entrance, waiting time in the car park for deliveries is limited to 10 minutes after which a penalty fine may be issued. As evidenced by the penalty records, the driver remained below the 10-minute limit on both visits, thus the penalty fines were issued incorrectly.

 

continues to 30...

 

Counterclaim for damages for:

31.

 (a) harassment and

 (b) unauthorised use and subsequent misuse of the registered keeper's data                       which was obtained without reasonable cause.

32. The Defendant seeks compensatory damages for distress and misuse of DVLA data from the outset because there was no 'reasonable cause' (DVLA requirement) to get it in the first place, nor process that data, nor to store it or share it with third parties. Let alone use it to issue a PCN, with no human checks to make sure the PCN was validly issued (it was not, given the ten minute clear 'no penalty' consideration period offered on a sign on site).  

 

33. The Claimant bombarded the registered keeper Defendant with unjustified and aggressively worded debt demands (duplicated for two PCNs) which resulted in a number of threatening letters from debt recovery agents, when in fact no parking charge at all was owed or properly given.

34. The Claimant's course of conduct was unjustified and grave, causing significant distress and alarm to the registered keeper, who was not the driver and had done nothing to deserve the wrongful and aggressive pursuit and harassment since September 2023.

35. Further, the unjustified PCN issuance and illegal DVLA data harvesting was repeated twice, with separate and near duplicate letters arriving.  No staff member at UKPC bothered to check at any stage whether these two PCNs were correct, not even before taking the serious steps of sending the Defendant's data to third parties, and then deciding to litigate: a typical roboclaim with no checks and balances.

36. This is nothing short of horrific to endure for a litigant-in-person consumer and the effect on the Defendant of the shock of a court claim cannot be underestimated.  The Claimants may be used to boilerplate litigation and can take it in their stride but the Defendant cannot. 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 withstand the pressure of a series of aggressive letters. The Defendant has suffered substantial distress which has impacted upon their peace of mind for many months, during which there has been no prospect of stopping this Claimant until the matters reached litigation.  

37. This has been an appalling course of conduct of harassment to withstand and was wholly avoidable by the Claimants who have just as much an obligation to take note of and adhere to signage on site as they would be heard to parrot that a driver does.  It will be common ground that a sign offered ten minutes to visitors and for deliveries.  Both PCNs saw the vehicle observed for less than ten minutes so they were both unlawfully issued from the start. 

 

38. Statute laws relied upon for the Counterclaim:

     Data Protection Act 2018 and the Protection from Harassment Act 1997

Authorities:

39. (Tort of harassment giving rise to damages):
https://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, [2009] All ER (D) 80 (Feb)

 The only real difference between the crime (s 2 of the Protection from Harassment Act 1997) and the tort (s 3) is standard of proof: to prove the civil wrong of harassment it is necessary to prove the case on a balance of probabilities. Ms Ferguson endured debt demands for monies she did not owe. 

 

 

40. (DPA 2018 breach / misuse of data giving rise to a remedy in cases where distress is caused):

Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333.

The claimant was awarded £750 following the wrongful disclosure of information to a credit reference agency. Although the impact of the breach was minor, the Court of Appeal decided that a modest damages award was justified to mark the “frustration” it had caused. 

41. The principle that damages were available for distress alone under the DPA 1998 was established by the Court of Appeal’s landmark decision in Vidal-Hall v Google [2015] EWCA Civ 311.  The Court held that there is now no need to establish pecuniary damage to bring a claim under the DPA and that distress alone is sufficient. The Court of Appeal held that Article 23 of Directive 95/46/EC should be given its natural and wide meaning so as to include both material and non-material damage. As the aim of the Directive was to protect privacy rather than economic rights, and to ensure that data-processing systems protect individuals' fundamental rights and freedoms, it would be "strange" if the Directive could not compensate those whose data privacy had been invaded by a data controller so as to cause them emotional distress (but not pecuniary damage).

42. In 2016, came the General Data Protection Regulation (GDPR) which replaced the1995 Data Protection Directive. The provisions of the EU GDPR have been incorporated directly into UK law as the UK GDPR.

43. UK organisations that process personal data must now comply with: The DPA (Data Protection Act) 2018 and UK GDPR, which this Claimant did not, due to its conduct in wrongfully obtaining the Defendant's DVLA registered keeper data - twice in 2023 - without reasonable cause.  At all material times the Claimants were data controllers, and the Defendant a data subject, within the meaning of the DPA. 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.  In fact, they should never have obtained the DVLA data at all.

44. The Claimant - who has no prospect of success and has acted vexatiously and in breach of its DPA statutory duties throughout - is urged to discontinue now and settle this Part 20 Counterclaim.

45. By reason of the matters aforesaid, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct and respectfully seeks damages in the comparatively very modest sum of £300.

AND THE DEFENDANT COUNTERCLAIMS:- 

46.

(a). Compensation in the sum of: £300 (or such sum as the Court sees fit) including any award of aggravated damages at the court's discretion;

b). Fixed Court fees: £35 for the Part 20 Counterclaim filing fee (and a £27 hearing fee if the case reaches that stage);

c).  Interest at a rate of 8% per annum beginning pursuant to s.69 of the County Courts Act 1984 from 28/9/2023 accumulating at the applicable daily rate until judgment or sooner payment;

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 and Part 20 Counterclaim 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.

 

Signature

Date

 

 

Coupon-mad

This tells me you aren't using the current template defence:

"(understood to have a bare licence as managers)"

mmatopper

Sorry yes I've just realised when you told me. Copied from the wrong page. @Coupon-mad

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (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. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper not the driver.

3. The driver entered the site on consecutive days, September 28, 2023, and September 29, 2023, to carry out cargo distribution. The purpose of entry was not to park in the site parking area but to make brief stops and deliveries. Moreover, as clearly stated on the informational sign hung at the building entrance, waiting time in the car park for deliveries is limited to 10 minutes after which a penalty fine may be issued. As evidenced by the penalty records, the driver remained below the 10-minute limit on both visits, thus the penalty fines were issued incorrectly.

Continues to 30...

Counterclaim for damages for:

31.

 (a) harassment and

 (b) unauthorised use and subsequent misuse of the registered keeper's data                       which was obtained without reasonable cause.

32. The Defendant seeks compensatory damages for distress and misuse of DVLA data from the outset because there was no 'reasonable cause' (DVLA requirement) to get it in the first place, nor process that data, nor to store it or share it with third parties. Let alone use it to issue a PCN, with no human checks to make sure the PCN was validly issued (it was not, given the ten minute clear 'no penalty' consideration period offered on a sign on site).  

 

33. The Claimant bombarded the registered keeper Defendant with unjustified and aggressively worded debt demands (duplicated for two PCNs) which resulted in a number of threatening letters from debt recovery agents, when in fact no parking charge at all was owed or properly given.

34. The Claimant's course of conduct was unjustified and grave, causing significant distress and alarm to the registered keeper, who was not the driver and had done nothing to deserve the wrongful and aggressive pursuit and harassment since September 2023.

35. Further, the unjustified PCN issuance and illegal DVLA data harvesting was repeated twice, with separate and near duplicate letters arriving.  No staff member at UKPC bothered to check at any stage whether these two PCNs were correct, not even before taking the serious steps of sending the Defendant's data to third parties, and then deciding to litigate: a typical roboclaim with no checks and balances.

36. This is nothing short of horrific to endure for a litigant-in-person consumer and the effect on the Defendant of the shock of a court claim cannot be underestimated.  The Claimants may be used to boilerplate litigation and can take it in their stride but the Defendant cannot. 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 withstand the pressure of a series of aggressive letters. The Defendant has suffered substantial distress which has impacted upon their peace of mind for many months, during which there has been no prospect of stopping this Claimant until the matters reached litigation.  

37. This has been an appalling course of conduct of harassment to withstand and was wholly avoidable by the Claimants who have just as much an obligation to take note of and adhere to signage on site as they would be heard to parrot that a driver does.  It will be common ground that a sign offered ten minutes to visitors and for deliveries.  Both PCNs saw the vehicle observed for less than ten minutes so they were both unlawfully issued from the start. 

 

38. Statute laws relied upon for the Counterclaim:

     Data Protection Act 2018 and the Protection from Harassment Act 1997

Authorities:

39. (Tort of harassment giving rise to damages):
https://www.bailii.org/ew/cases/EWCA/Civ/2009/46.html

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, [2009] All ER (D) 80 (Feb)

 The only real difference between the crime (s 2 of the Protection from Harassment Act 1997) and the tort (s 3) is standard of proof: to prove the civil wrong of harassment it is necessary to prove the case on a balance of probabilities. Ms Ferguson endured debt demands for monies she did not owe. 

 

 

40. (DPA 2018 breach / misuse of data giving rise to a remedy in cases where distress is caused):

Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333.

The claimant was awarded £750 following the wrongful disclosure of information to a credit reference agency. Although the impact of the breach was minor, the Court of Appeal decided that a modest damages award was justified to mark the “frustration” it had caused. 

41. The principle that damages were available for distress alone under the DPA 1998 was established by the Court of Appeal’s landmark decision in Vidal-Hall v Google [2015] EWCA Civ 311.  The Court held that there is now no need to establish pecuniary damage to bring a claim under the DPA and that distress alone is sufficient. The Court of Appeal held that Article 23 of Directive 95/46/EC should be given its natural and wide meaning so as to include both material and non-material damage. As the aim of the Directive was to protect privacy rather than economic rights, and to ensure that data-processing systems protect individuals' fundamental rights and freedoms, it would be "strange" if the Directive could not compensate those whose data privacy had been invaded by a data controller so as to cause them emotional distress (but not pecuniary damage).

42. In 2016, came the General Data Protection Regulation (GDPR) which replaced the1995 Data Protection Directive. The provisions of the EU GDPR have been incorporated directly into UK law as the UK GDPR.

43. UK organisations that process personal data must now comply with: The DPA (Data Protection Act) 2018 and UK GDPR, which this Claimant did not, due to its conduct in wrongfully obtaining the Defendant's DVLA registered keeper data - twice in 2023 - without reasonable cause.  At all material times the Claimants were data controllers, and the Defendant a data subject, within the meaning of the DPA. 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.  In fact, they should never have obtained the DVLA data at all.

44. The Claimant - who has no prospect of success and has acted vexatiously and in breach of its DPA statutory duties throughout - is urged to discontinue now and settle this Part 20 Counterclaim.

45. By reason of the matters aforesaid, the Defendant suffered serious distress and anxiety as a result of the Claimant's conduct and respectfully seeks damages in the comparatively very modest sum of £300.

AND THE DEFENDANT COUNTERCLAIMS:- 

46.

(a). Compensation in the sum of: £300 (or such sum as the Court sees fit) including any award of aggravated damages at the court's discretion;

b). Fixed Court fees: £35 for the Part 20 Counterclaim filing fee (and a £27 hearing fee if the case reaches that stage);

c).  Interest at a rate of 8% per annum beginning pursuant to s.69 of the County Courts Act 1984 from 28/9/2023 accumulating at the applicable daily rate until judgment or sooner payment;

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 and Part 20 Counterclaim 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.

 

Signature

Date

Coupon-mad

Change this:

Moreover, as clearly stated on the informational sign hung at the building entrance, waiting time in the car park for deliveries is limited to 10 minutes after which a penalty fine may be issued. As evidenced by the penalty records, the driver remained below the 10-minute limit on both visits, thus the penalty fines were issued incorrectly.

to this, with the notice in bold:

Moreover, there is a clear offer of 10 minutes free at this site, as clearly stated on the informational sign hung at the building entrance by the principal (the owners) which reads:
                               " xxxx COURT
                        Deliveries And Visitors
Waiting time in the car park is limited to TEN MINUTES after which penalty fine may be issued. To avoid this please enter your vehicle registration number in the key pad on the left of the reception area "
The Defendant was shocked to receive 2 PCNs for both brief delivery stops, despite the fact that my wife (who was driving, with the Defendant as passenger only) was there for just just 5 minutes on Monday and 9 minutes on Tuesday. Thus both these parking charges were issued incorrectly by this agent, who has no standing to litigate and no cause of action.

Then add an extra para 4 then renumber all the rest (not losing the template para 4):

4.  The Defendant will rely upon the judgment on appeal of HHJ Harris QC in Jopson v Homeguard [2016] B9GF0A9E case where the judge said: “Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes.”

mmatopper

 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. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper not the driver.

3. The driver entered the site on consecutive days, September 28, 2023, and September 29, 2023, to carry out cargo distribution. The purpose of entry was not to park in the site parking area but to make brief stops and deliveries. Moreover, there is a clear offer of 10 minutes free at this site, as clearly stated on the informational sign hung at the building entrance by the principal (the owners) which reads:
                               " xxxx COURT
                        Deliveries And Visitors
Waiting time in the car park is limited to TEN MINUTES after which penalty fine may be issued. To avoid this please enter your vehicle registration number in the key pad on the left of the reception area "

The Defendant was shocked to receive 2 PCNs for both brief delivery stops, despite the fact that my wife (who was driving, with the Defendant as passenger only) was there for just just 5 minutes on Monday and 9 minutes on Tuesday. Thus both these parking charges were issued incorrectly by this agent, who has no standing to litigate and no cause of action.

4.  The Defendant will rely upon the judgment on appeal of HHJ Harris QC in Jopson v Homeguard [2016] B9GF0A9E case where the judge said: “Neither party was able to direct the court to any authority on the meaning of the word “park”. However, the Shorter Oxford Dictionary has the following: “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required.” The concept of parking, as opposed to stopping, is that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars. Delivery vans, whether for post, newspapers, groceries, or anything else, would not be accommodated on an interpretation which included vehicles stopping for a few moment for these purposes.”

mmatopper

It should be "despite the fact that her husband" instead of my wife? husband was driving and the defendant is the wife

Coupon-mad

Yes.       

mmatopper

Thank you.So is it ready to send? And I will pay the upfront fee now