In a pickle - Admitted I was the driver to IAS - BW legal email response help

Help___please

Coupon-mad said:

Help___please said:

Thanks all. I will file the AOS as advised after 18/02. In the meantime I will start prepping my defence. 

Like I said, not the template (except the headings and first paragraph).  Then what I said to put, then - under the signed & dated defence, a continuation of the same document) a signed Counterclaim.

Ok, so first draft below...

IN THE COUNTY COURT

Claim No.: XXXXX

Between

XXXXXXXXXXXXXX Ltd

(Claimant) 

- and -  

XXXXXXXXXXXXXXXXXXXX                   

 (Defendant)

____________________

DEFENCE

____________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

 2. The Claimant has brought a claim against the Defendant, alleging that the Defendant violated parking regulations at Lusty Glaze car park and subsequently, that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

3. The Defendant admits that they were the driver of the vehicle in question but denies any breach of parking regulations. The Defendant further asserts that the parking charge of £6.20, for the first session at Lusty Glaze car park between 11:01 – 14:01 on 21/07/2024, was paid in full and in advance. The claimant has a record of this payment that they confirmed with the defendant. 

4. The Defendant, alongside their wife and friends, left the vehicle to visit the beach, and upon returning, exited the car park sometime between 13:00 and 14:01 to drive back to their campsite so that their 2-year-old child could take a nap.

5. Later that same day, the Defendant returned to Lusty Glaze car park after collecting fish and chips in Newquay town centre to eat at the same beach they attended earlier that day, beneath Lusty Glaze car park. The Defendant entered the car park again at approximately 16:38 and purchased a second parking session from 16:38 to 18:38, paying the £4.50 charge in full. Again, the claimant has a record of this payment, which they confirmed with the defendant. The vehicle exited the car park at 18:38.

6. The Defendant asserts that the Claimant has wrongly assumed a parking contravention occurred due to a failure to fully review the Automatic Number Plate Recognition ("ANPR") images. This led the Claimant to wrongly obtain the Defendant’s personal details from the DVLA under false pretences.

7. The Defendant submits that the Claimant’s claim arises from a mistaken interpretation of the vehicle’s movements and the associated parking sessions and is a clear case of “double dipping” as referred to in the IPC code of practice (7.3 note 1). The Defendant fully complied with the parking requirements and paid for both parking sessions at Lusty Glaze car park, as evidenced by payment by the defendant.

8.  The Defendant further asserts that "double dipping" (where a vehicle is mistakenly recorded as having overstayed when it has in fact exited and re-entered the car park during the same day -  IPC code of practice (7.3 note 1)) is a common occurrence and can be caused by factors such as adverse weather conditions, or, more commonly, tailgating. In this case, the Defendant believes that such a scenario occurred, leading to an inaccurate claim of a parking violation.

9. The Defendant would like to bring to the attention the specifics in the IPC code of practice (7.3 note 1): ‘The manual quality control check for remote ANPR and CCTV systems is particularly important for detecting issues such as “double dipping”, where image camera systems might have failed to accurately record each instance when a vehicle enters and leaves controlled land, and for checking images that might have been taken other than by a trained parking attendant (see Clause 15). The manual check might also reveal where “tailgating” – vehicles passing a camera close together – is a problem, suggesting relocation of the camera might be necessary'. 

10. The Defendant asserts that the vehicle was parked legally during both parking sessions and was only in the car park for the time periods for which payments had been made. The claim of a parking contravention is therefore without merit. The defendant has disputed this on multiple occasions through direct contact with the claimant, the IAS and BW Legal. On each occasion, at best, receiving back copy and paste, template responses and on some occasions nothing at all.   

11. The Defendant contends that the Claimant failed to fully review their ANPR images and failed to properly consider the circumstances of the Defendant’s parking sessions. The Claimant's actions in pursuing this matter are indicative of a lack of due diligence. 

12. The Defendant submits that the Claimant's actions in acquiring the Defendant's personal data from the DVLA were unlawful under the DPA 2018. The Claimant did not have a legitimate basis to access the Defendant's details, as the vehicle was not in contravention of parking regulations.

13. The Defendant asserts that the Claimant has committed an offence under the DPA 2018 by wrongfully obtaining the Defendant’s personal data from the DVLA based on a false claim of a parking contravention. The Claimant has caused unnecessary distress to the Defendant by relentlessly harassing the defendant pursuing this false claim, which amounts to a breach of the Defendant's rights under the DPA 2018.

Counterclaim

14. In light of the above, the Defendant respectfully counterclaims for:

a. A declaration that the Claimant has breached the provisions of the Data Protection Act 2018 by unlawfully obtaining the Defendant’s personal data from the DVLA in connection with an unfounded parking contravention claim.

b. Damages for the distress caused to the Defendant by the wrongful pursuit of the parking charge, including the wrongful acquisition of personal data from the DVLA, in violation of the DPA 2018. Similar cases being raised in court; Vidal-Hall v Google [2014] EWHC 13 (QB) establishes that misuse of personal data is a tort and that damages that damages for a breach of the DPA could include non pecuniary damage.

http://www.5rb.com/case/vidal-hall-ors-v-google-inc/

The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

c. An order requiring the Claimant to cease any further collection of personal data from the Defendant under false pretences, and that they review their internal procedures to prevent similar occurrences in the future.

d. Costs associated with defending this claim and the counterclaim.

Conclusion

15. The Defendant respectfully submits that the Claimant’s claim is based on a misunderstanding of the circumstances and an improper assumption of a parking contravention. The Defendant denies liability for the parking charge and asserts that the Claimant’s actions in obtaining personal data from the DVLA were unlawful.

16. The Defendant seeks the dismissal of the Claimant's claim, along with the appropriate relief for the breach of the Data Protection Act 2018, and any other remedies the Court deems fit.

17. The Defendant further seeks a full award of costs and damages related to the counterclaim.

18.  The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

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.

Defendant’s signature:

Date:

Help___please

Also If I counterclaim, my understanding is I have to pay an additional fee prior to the claim being heard? Is this all I have to do? A quick google search suggests £80 for a claim of £1000, do I need to make clear in my claim how much specifically I am claiming for? @Coupon-mad @ChirpyChicken

Le_Kirk

 2. The Claimant has brought a claim against the Defendant, alleging that the Defendant violated parking regulations at Lusty Glaze car park and subsequently, that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

What are you trying to say here?  To me that reads like the claimant is claiming that!  shouldn't the defendant (you) be saying that?

Help___please

Le_Kirk said:

 2. The Claimant has brought a claim against the Defendant, alleging that the Defendant violated parking regulations at Lusty Glaze car park and subsequently, that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

What are you trying to say here?  To me that reads like the claimant is claiming that!  shouldn't the defendant (you) be saying that?

I’m trying to say that they wrongfully obtained my data as I didn’t contravene any parking rules. 

How would you word it? 

Le_Kirk

You could tack it on to the end of paragraph #3

2. The Claimant has brought a claim against the Defendant, alleging that the Defendant violated parking regulations at Lusty Glaze car park. and subsequently, that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

3. The Defendant admits that they were the driver of the vehicle in question but denies any breach of parking regulations. The Defendant further asserts that the parking charge of £6.20, for the first session at Lusty Glaze car park between 11:01 – 14:01 on 21/07/2024, was paid in full and in advance. The claimant has a record of this payment that they confirmed with the defendant.  This means that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

Help___please

Le_Kirk said:

You could tack it on to the end of paragraph #3

2. The Claimant has brought a claim against the Defendant, alleging that the Defendant violated parking regulations at Lusty Glaze car park. and subsequently, that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

3. The Defendant admits that they were the driver of the vehicle in question but denies any breach of parking regulations. The Defendant further asserts that the parking charge of £6.20, for the first session at Lusty Glaze car park between 11:01 – 14:01 on 21/07/2024, was paid in full and in advance. The claimant has a record of this payment that they confirmed with the defendant.  This means that the Defendant’s personal data was wrongfully obtained from the DVLA in relation to the alleged contravention.

Thank you, that sounds better. 

Help___please

AOS now completed (thanks @KeithP for the simple instructions)

I would like to get the defence sent early March still. Would really appreciate a few of you experts casting your critical eyes over my defence.

Was a little more tricky as had to avoid most of the template as per the advice from @coupon-mad

Coupon-mad

Are you not trying to plead a counterclaim?  You don't have to, and we understand that it is easier not to.

Help___please

Coupon-mad said:

Are you not trying to plead a counterclaim?  You don't have to, and we understand that it is easier not to.

Thanks for the response. I thought I had done so in the draft? Copied below, probably got it wrong!

Counterclaim

14. In light of the above, the Defendant respectfully counterclaims for:

a. A declaration that the Claimant has breached the provisions of the Data Protection Act 2018 by unlawfully obtaining the Defendant’s personal data from the DVLA in connection with an unfounded parking contravention claim.

b. Damages for the distress caused to the Defendant by the wrongful pursuit of the parking charge, including the wrongful acquisition of personal data from the DVLA, in violation of the DPA 2018. Similar cases being raised in court; Vidal-Hall v Google [2014] EWHC 13 (QB) establishes that misuse of personal data is a tort and that damages that damages for a breach of the DPA could include non pecuniary damage.

http://www.5rb.com/case/vidal-hall-ors-v-google-inc/

The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

c. An order requiring the Claimant to cease any further collection of personal data from the Defendant under false pretences, and that they review their internal procedures to prevent similar occurrences in the future.

d. Costs associated with defending this claim and the counterclaim.

Coupon-mad

Remove 14c because that's not related to the counterclaim (sorry I missed it!).

Change this as shown:

14. In light of the above, the Defendant respectfully counterclaims for:

a. A financial compensation remedy due to the Claimant's breach of the provisions of the Data Protection Act 2018 by...

Add in some wording about Simon Clay v CEL (search the forum) and point out that he won his case against a parking firm which had no reasonable cause to obtain his DVLA data.  I think he got £200 plus costs.

Add 'and counterclaim' to your Statement of Truth otherwise your Counterclaim isn't signed or dated!

You need to say how much your counterclaim is for (£300 for which the fee is £35?) and put the sub-heading in bold, so the CNBC staff spot it.  You then phone up the CNBC next week to pay the fee, say a day after emailing it off to them.