Pre-action Protocol Letter before Claim -v- UKPC and DCB Legal - Data Protection Act breach

136_NW

It is hoped that this draft may assist others in the same situation:

To: (Removed by Forum Team), Senior Partner, DCB Legal Ltd

"You are addressed as the directing mind behind the recent court proceedings instituted by your client against me (court reference number [redacted])

"It became clear during those proceedings, which you now seek to discontinue, that your client, UK Parking Control Limited ("UKPC"), breached my personal data by unlawfully obtaining keeper details from the Driver and Vehicle Licensing Agency (DVLA) and that your firm DCB Legal Ltd continued and exacerbated the breach by attempting, metaphorically, to harvest fruit from a poisoned tree, knowing as you should, as lawyers, that the personal information was unlawfully obtained. Matters that have understandably, and since, caused very considerable distress.

"Your attention is drawn specifically to paras 31 to 34 in the Amended Defence in claim [redacted].

"By way of this email, which satisfies pre-action protocol, notice is given herewith of seeking remedy via the courts for (i) non-material damages totalling £750 plus exemplary damages in a sum to be assessed by the court against both UKPC and DCBL and (ii) non-material relief in the form of a written apology from both defendants.

"Draft Particulars of Claim

1. This is a claim brought by [redacted] ("the Claimant") against the defendants, who are two separate organisations: UK Parking Control Limited ("first defendant" or "UKPC") and DCB Legal Limited ("second defendant" or "DCBL").

2. The claim is for a sum of £500 damages from the first defendant and £250 from the second defendant for breach of the Data Protection Act 1998, as set out within a protocol letter before claim served on 29th April, 2024. The Claimant also invites the court to consider and assess exemplary damages against each defendant. A written apology from both defendants is also sought.

3. The essence of the claim of breach of the Act derives from the management and administration of a car park, which, it is now accepted by both defendants, that they have failed to prove in pleadings filed at the County Court in [redacted] that the Claimant used on the relevant occasion.

4. As a consequence of that alleged use, and an allegation made by the first defendant that the Claimant had infringed the terms upon which he was permitted to use the car park, the first defendants invoked procedures available within the Protection of Freedoms Act of 2012, Schedule 4.

5. That procedural gateway, which is available to them under that Schedule if the enforcement operators are unable to identify the driver of the vehicle, to request information from the DVLA as to the identity of the registered keeper of the vehicle, which then permits enforcement of any parking charge against the registered keeper where the driver of the vehicle is unknown.

6. In taking those procedural steps the first defendant made the request to the DVLA for the identity of the registered keeper of the Claimant’s vehicle to be provided to them.

7. The information was duly given by the DVLA to the first defendant. The Claimant asserts that that information was wrongly obtained and in breach of the Data Protection Act, 2018 because UKPC are not able to establish that they had the requisite authority to so act from the owner of the land on which the car park was situated.

8. Therefore, if they did not have that requisite authority, they had no right to seek, under the Act, the private information about the Claimant’s ownership of the vehicle in question.

9. It follows, further, that the first defendant had no legal basis upon which to found enforcement action that was subsequently taken by the first defendant for recovery of the alleged excess parking charges from the Claimant in the instant proceedings. Willingly aided and abetted by the second defendant. As officers of the court, it fell to DCBL, instructed by UKPC, to satisfy themselves that the claim had a proper evidential foundation. A matter in which they have signally and repeatedly failed in that first duty to the court.

10. The primary contention in UKPC's claim is that the Claimant in the instant proceedings had infringed the terms and conditions of parking on this particular site. Again, a matter that both defendants in the instant claim failed to even begin to prove.

11. On the basis that it is [the Claimant] who brings these DPA proceedings, then of course the usual Rules in respect of the burden and standard of proof apply. The burden of proof is upon the person who brings the proceedings; that is the Claimant. He must prove, on balance of probabilities, that what he says is established as more likely than not. The defendants do not have to prove anything as a matter of general principles.

12. The Amended Defence in claim ref [redacted], already referred to above, provides clear and insightful expositions of the legislation and regulatory framework, in respect of this class of parking actions. It also provided very helpful information to the court, and to UKPC and DCB, about the scheme established by the Data Protection Act and the possible breaches that there may have been in circumstances where, as alleged, a company obtains private information about an individual under the statute when they had no authorisation so to do.

13. The central and only issue for further determination in the instant DPA proceedings is the entitlement of the first defendant to enforce parking charges for the ‘relevant land’, (a term of art which derives from the legislation on behalf of the landowners). It was clear from the claim K6KF71162 that the court would direct production of further evidence in order to determine that issue in those enforcement proceedings.

14. It is averred by the Claimant in these DPA proceedings that no such documentation existed, sufficient to satisfy a court that UKPC had been instructed by the Landowner to carry out services on their behalf at the relevant time, prior to the issue which arose in respect of the alleged infringement by the Claimant, leading to the subsequent attempts by UKPC to secure payment of the excess parking charges levied in respect thereof.

15. The Claimant further submits that in order to pursue charges, and obtain the requisite information,cark park operators are required to comply with their Trade Association Code of Practice. The relevant Trade Association is the British Parking Association and their Code of Practice, which is said must be followed, sets out at paragraph 7(1), 7(2) and 7(3) that, ‘Private operators must have the written permission of the landowner in order to issue and enforce parking charges’.

16. That pleading derives its force from, in particular, paragraph 7.1 of the code which says:
‘If you do not own the land on which you are carrying out parking management you must have that 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 and give you the authority to carry out all aspects of carpark management for the site that you are responsible for. In particular it must say that the landowner, or their appointed agent, requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges’.

17. That Code of Practice makes it abundantly clear as to the necessity for written consent, in compliance with the code itself. The code, whilst not statutory, was given further legal force in Neuberger J’s judgment in the seminal authority of Parking Eye Limited v Beavis [2015] UKSC 67 where, at paragraphs 95 and 96, His Lordship referred to the need for compliance with the Code of Conduct in order for parking operators to obtain data from the DVLA.

22. Joining the dots between the various parts of these pleadings, and the Amended Defence from the enforcement claim [redacted], the inevitable conclusion, on the balance of probabilities, is that it will be established that, at the relevant time, the first defendant did not have any written agreement with the Landowner, in order to issue and enforce parking charges. Such is clear from both defendants’ (UKPC and DCBL) inability to provide the required documentary evidence central to the determination of the enforcement claim .

23. On that basis, the Claimant in the DPA claim will have established the absence of written permission and, in the absence of that evidence, that the first Defendant did not have the requisite authority to seek the information about who was the registered keeper of the Claimant's vehicle. In those circumstances, it must be accepted on all sides that there was a breach of the Data Protection Act, which requires compliance with the strict provisions of the Protection of Freedoms Act before that information can be requisitioned by a third party.

24. As such the Claimant will, inevitably, succeed in this DPA claim, given that he has established all the requisite elements of it to the required standard.

25. That leads to the issue of remedy. The claimant seeks £500 from the first Defendant, the primary 'offender', which is calculated to be an appropriate amount to compensate him for the issues which arise in terms of distress and so on as a consequence of the unauthorised obtaining of the Claimant's private information. £250 is sought from the aider and abetter, the second Defendant.

26. The court might also, in its wisdom, and in knowledge of both defendants' repeated misuse of the civil justice system consider an award of exemplary damages against them.

27. The Claimant will also seek a sanction against both defendants, by way of costs on the indemnity basis, to reflect their exceptionally poor conduct of this matter over a long period of time and the steadfast refusal of the first Defendant to engage the services of a competent, experienced litigation solicitor, or counsel.

28. The Claimant will further seek a written apology from both defendants.

"Both defendants are given until [usually 14 or 21 days] in which to respond to this Letter before Claim, at this email address, absent of which County Court proceedings will be instituted without further notice."

Umkomaas

To: (Removed by Forum Team), Senior Partner, DCB Legal Ltd

I believe she has left DCB Legal, so anyone using this as a template will need to find who the current incumbent is. 

7. The information was duly given by the DVLA to the first defendant. The Claimant asserts that that information was wrongly obtained and in breach of the Data Protection Act, 2018 because UKPC are not able to establish that they had the requisite authority to so act from the owner of the land on which the car park was situated.

8. Therefore, if they did not have that requisite authority, they had no right to seek, under the Act, the private information about the Claimant’s ownership of the vehicle in question.

As many just copy and paste without reading (let alone understanding) what they are launching into a legal arena, on what basis did you determine that the PPC did not seem to have the relevant authority?

Are you currently in the process of pursuing this line with UKPC and DCB Legal?  Where are you in that process please?

Thanks for putting this up on the forum. 

Coupon-mad

Yes thanks for this, but as Umkomaas says, what's the basis for saying there's no landowner authority?

That argument can win if there's a basis for it. See Simon Clay v CEL (he only got awarded £200 though) which has a full judgment template on the forum linked somewhere in an older thread.

136_NW

The basis for saying there is no landowner authority is very simple: Asked to produce the contract between landowner and PPC to the court and myself, as defendant, DCB Legal have declined to do so. At that point, stating in email (not copied to the court) that 'we are closing this file and taking no further action'. UKPC/DCB Legal are on notice that I will oppose any discontinuance notice, absent of them paying my costs.

136_NW

The claim is at the pre-action protocol stage. DCB Legal/UKPC have been served with a Letter before Claim. However, litigating against parties that have no regard for the court's Rules, Practice Directions and Protocols has to be weighed in the balance before deciding whether it is worth issuing a claim. Also, thanks to a heads up from Umkomaas I have checked the SRA register and the subject senior partner is no longer listed as working for DCB Legal (that is not to say she isn't self-employed and 'consulting' for DCB Legal). Neither are the other two DCB Legal solicitors who have had conduct of the UKPC litigation against me. One, with over 20 years on the solicitors' roll, was in contact with me as recently as February, but has not had her practicing certificate renewed this year.

Coupon-mad

But they have half a dozen solicitors.

I don't see a cause of action here. Parking firms always have to have landowner authority and will hold it.  They will defend and produce it and say it was reasonable not to disclose the document until court stage.

136_NW

Coupon-mad said:

But they have half a dozen solicitors.

I don't see a cause of action here. Parking firms always have to have landowner authority and will hold it.  They will defend and produce it and say it was reasonable not to disclose the document until court stage.

You are entitled to your view, of course. But parking firms do not always hold authority. In a recent claim pursued by UKPC and the same legal representatives (DCBL) in Prestatyn County Court, relating to an alleged parking charge and contract breach in Great Ancoats Street, Manchester, the claim was dismissed because UKPC failed to prove that they were authorised to manage that land and issue parking charges. An adverse costs order amounting to £200 was made against UKPC.

Notwithstanding that point, the contemplated claim, as it stands, not only has unequivocal cause of action, it would most certainly succeed. The issue for me remains: Is it worth the candle? 

136_NW

Coupon-mad said:

But they have half a dozen solicitors.

I don't see a cause of action here. Parking firms always have to have landowner authority and will hold it.  They will defend and produce it and say it was reasonable not to disclose the document until court stage.

Request for default judgment against DCB Legal Ltd to be filed tomorrow morning. UK Parking Control Ltd have filed AoS but no defence, as yet.

In the Civil National Business Centre                                                     Claim Ref: [redacted]

 

 

Claimant                                                     [redacted]

 

v

 

Defendant 1                                      UK Parking Control Ltd

 

Defendant 2                                              DCB Legal Ltd

 

 

 

Request for default judgment against second defendant

 

 

1. This is a claim brought by [redacted] ("the Claimant") against the defendants, who are two separate organisations: UK Parking Control Limited ("First Defendant" or "UKPC"), a car park management entity, and DCB Legal Limited ("Second Defendant" or "DCBL), a bulk litigation firm of solicitors.

 

1.1 The claim was issued on 7th June, 2024 and deemed to be served, by the court, on 12th June, 2024.

 

1.2 The First Defendant filed an Acknowledgement of Service on 18th June, 2024.

 

1.3 The Second Defendant has filed neither an Acknowledgement of Service nor a Defence. The deadline for doing so was, of course, 26th June, 2024

 

2. The claim is for a sum of £750 in non-material damages for breach of the Data Protection Act 1998 and/or the General Data Protection Regulations. Plus the court fee of £70, making a total claim of £820.

3. As per para 25 of the Particulars of Claim, certified as being served by the Claimant on both Defendants on 12th June, 2024, the sum of £750 claimed is split between the two defendants as follows: £500 from the first defendant and £250 from the second defendant.

 

3.1 On that basis the proportional split of the court fee is £46.67 to be paid by the First Defendant and £23.33 by the Second Defendant.

 

4. Neither the MCOL procedure for requesting default judgment nor form N205A make provision for dealing with just one of two defendants.

 

5. This Request follows as closely as possible the procedural steps of both MCOL and N205A using the same sub-headings.

 

6. The defendant has not filed an admission or defence to the claim or an application to contest the court’s  jurisdiction.

 

7. The second defendant’s date of birth is not known.

 

8. Judgment details:

 

8.1 I would like the Second Defendant to pay immediately the sum stated in the Particulars of Claim, which is £250.00.

 

8.2 Interest is not claimed.

 

8.3 The proportion of court fees is £23.33

 

8.4 There are no solicitor’s cost on either issuing the claim or requesting judgment.

 

8.5 Amount payable by the Second Defendant is £273.33.

 

9. The claim against the First Defendant will proceed if they file a Defence on or before the deadline of 10th July, 2024. Failing which, default judgment will be sought for the remaining sums of £500 and £46.67 as the proportion of the court fee.

 

10. A request for default judgment does not attract a court fee.

 

 

 

 

 

I certify that the information given is correct

 

 

 

[redacted

…………………………………

 

[redacted]

 

Claimant

 

28th June, 2024

Coupon-mad

Good luck!

The CNBC is appallingly clueless and slow though.  I hope they come good.

136_NW

Coupon-mad said:

Good luck!

The CNBC is appallingly clueless and slow though.  I hope they come good.

Luck is not needed with a request for default judgment, but thank you anyway. Also, your point is taken regarding the tardiness of CNBC, a matter they have conceded publicly in the recent past. Given the novelty of the Request, process-orientated CNBC may allocate it to DCB Legal's local county court for determination. 

Coupon-mad

Luck is not needed with a request for default judgment.

Sadly it is, in my experience.  The CNBC are that bad.

I've seen requests for judgment ignored (and even refused for counterclaimants, with the Claimants handed a lifeline of an extension of time to defend).

Even @troublemaker22 who is a solicitor, was left banging his head against a brick wall trying to get a default judgment in a case where there were two Defendants and therefore, no ability to use the magic 'Request Judgment' button.

The CNBC are appalling IMHO.