Biting back with a vengeance

GettingOnInYears

I've been working like hell to redraft the Particulars of Claim and my Witness Statement. Honestly I couldn't have done all this without Microsoft Co-Pilot. It spits out things I would never have thought about. I'm just about finished with the particulars of claim and have my new Witness Statement completed. Of course, they still have until the 19th of this month to respond to the claim without having to go to court. 
I'll be putting the new witness statement online for download shortly. 
One thing of great interest is that the reasonable cause for obtaining keepers details extends to lapses of compliance that were already present before the issue of a PCN. Such as procedural things like non conformity with PoFA, signage that was deficient or poorly displayed, even if it bears no relevance to the actual ticket. Just do a co-pilot search for it  : Question - if non compliance to the code of practice not relating to signs alone was discovered after the pursuit of a PCN, whether or not an appeal was successful or rejected, also was under the unreasonable cause limits : Answer - Absolutely. That’s a sharp and legally relevant addition—it reinforces that any breach of the BPA Code, not just signage-related, undermines the lawful basis for DVLA data access and falls below the threshold of reasonable cause.
All of this !!!!!! is taking valuable time away from being with my wife in her time of need. I really intend to kick a9se here.

Car1980

They can't have their cake and eat it.

Belonging to a trade association is designed to put the onus and work into checking compliance into the hands of a middle man.

But they can't assume a body with no legal obligation to anybody whatsoever will perform the task they can't be arsed doing and take all responsibility from their shoulders.

If errors/non-compliance/fraud is pointed out to them they can't argue that it's not their responsibility when they have passed auditing over to what amounts to some blokes down the pub.

But then the relationship is a cosy one because of cold hard cash.

GettingOnInYears

Updated Witness Statement 

GettingOnInYears

Doing more research, I think that an action for fraud could be inserted into the claim. The Fraud Act 2006 states :

Fraud by false representation (Section 2)

The defendant: made a false representation – dishonestly - knowing that the representation was or might be untrue or misleading - with intent to make a gain for himself or another, to cause loss to another or to expose another to risk of loss.

All of these apply in the case here.
CP Plus were notified on several occasions as to the lack of an entry sign but didn't even stop to think it over. In fact the wording on their email responses is "Clear signs at the entrance of this site and throughout inform drivers of the terms and conditions that apply". There are signs inside the area but they may be construed as being applicable to other stopping places where trader vehicles load and unload. The is no entry sign into the roadway at all, so that is an absolute misrepresentation that falls within the remit of the Fraud Act.
The more I look - the more things come out in my favour.

And more from the emails - The Charge was issued and the signage is displayed in compliance with The British Parking Association’s Approved Operator Scheme Code of Practice and all relevant laws and regulations. That is despite the C.O.P. states that an entry sign must be displayed. --- ooh - things get better.

GettingOnInYears

Here's the full particulars of claim including the secondary charge of fraud. https://drive.google.com/file/d/1qBPSRRTEeh1AuhnJSbSLiFEn-U2HaLCt/view?usp=sharing

And here's the full Witness Statement now completed. You will see stuff in it that may have some personal emotional effect on you but I want it all to be in the written testimony rather than an Annex where it may not be fully read by the judge. I apologise if this affects you. https://drive.google.com/file/d/1SJzk2FBLtslDOq-LB1YlkpUfQ3xn84jk/view?usp=sharing

GettingOnInYears

Thorndorise said:

Interested in this @GettingOnInYears, I did approach the DVLA about a breach of the CoP (IPC at the time) and therefore they had no right to access my data as they had breached their 'contract' (sorry memorandum of understanding) with KADOE/DVLA.

DVLA were not interested, their argument being that breaches were to be dealt with by the ATA, and when they sought comment on the apparent breach they then regurgitated back the tripe from the industry, shocking really, I gave up, all too stupid.

You could always make a claim against the operator as I'm doing. Both for breach of DPA and in my case fraud. The Statute of Limitations gives you 6 years

Thorndorise

GettingOnInYears said:

Thorndorise said:

Interested in this @GettingOnInYears, I did approach the DVLA about a breach of the CoP (IPC at the time) and therefore they had no right to access my data as they had breached their 'contract' (sorry memorandum of understanding) with KADOE/DVLA.

DVLA were not interested, their argument being that breaches were to be dealt with by the ATA, and when they sought comment on the apparent breach they then regurgitated back the tripe from the industry, shocking really, I gave up, all too stupid.

You could always make a claim against the operator as I'm doing. Both for breach of DPA and in my case fraud. The Statute of Limitations gives you 6 years

It was on my radar and certainly threatened (both them and DCBL who had no right to share onward with DCB Legal) - Legal dropped it like a stone when I flagged it, the operator, well, they're not too bright. I even considered Jackson Yamba as an option and started preliminary discussions. Thing is, circa 3000 individuals details were shared unlawfully by this operator, unfortunately I don't have the capacity (time wise) to take it all the way through.

Interestingly I raised a complaint about them with the ICO, they also just went and checked the website and said, yeah, they're okay to share (actually even as it stands now I disagree). But I will follow this up due to the above. Watching with interest!

GettingOnInYears

Thorndorise said:

GettingOnInYears said:

Thorndorise said:

Interested in this @GettingOnInYears, I did approach the DVLA about a breach of the CoP (IPC at the time) and therefore they had no right to access my data as they had breached their 'contract' (sorry memorandum of understanding) with KADOE/DVLA.

DVLA were not interested, their argument being that breaches were to be dealt with by the ATA, and when they sought comment on the apparent breach they then regurgitated back the tripe from the industry, shocking really, I gave up, all too stupid.

You could always make a claim against the operator as I'm doing. Both for breach of DPA and in my case fraud. The Statute of Limitations gives you 6 years

It was on my radar and certainly threatened (both them and DCBL who had no right to share onward with DCB Legal) - Legal dropped it like a stone when I flagged it, the operator, well, they're not too bright. I even considered Jackson Yamba as an option and started preliminary discussions. Thing is, circa 3000 individuals details were shared unlawfully by this operator, unfortunately I don't have the capacity (time wise) to take it all the way through.

Interestingly I raised a complaint about them with the ICO, they also just went and checked the website and said, yeah, they're okay to share (actually even as it stands now I disagree). But I will follow this up due to the above. Watching with interest!

Thanks for drawing my attention to that case. It's highly relevant in my own circumstances and will be in a redrafted Particulars of claim. The fact that this is a very recent case that went as far as the Appeals Court will add a lot of weight. I see that the appeal was heard on the 2nd September. Do you have any knowledge of how it went?

Coupon-mad

Which case?

doubledotcom

Whilst I can sympathise with your situation, I fear you are bulldozing on with this in the wrong way and are likely to end up wasting all this time and effort for nought.

IANAL but I do have a family member who is a very long serving district judge and having been involved with this and the FTLA forum for many years and gathering a lot of legal experience on the way, I hope you take the following as constructive criticism.

Your Particulars of Claim (PoC) need redrafting

1) What’s wrong with the current PoC

• It reads like a witness statement, not a PoC. A PoC must be a concise statement of the material facts, the legal basis, and the remedy sought (and, if claiming interest, the required interest particulars). It should not contain narrative, evidence, argument, quotations or exhibits. See CPR 16.4 and PD 16.

• The draft includes background narrative (care responsibilities and insolvency), quotations/case extracts, POPLA commentary, “public interest” submissions, and rhetorical language. Those are matters for a witness statement (and later skeleton/authorities), not for the PoC. 

• Disclosure/Part 18 requests inside the PoC are inappropriate. Part 31 disclosure does not apply to small claims, and requests for further information (Part 18) are made separately and only with the court’s permission if appropriate. They do not belong in the PoC.

• Injunctive relief is a different remedy that significantly complicates the case and is rarely suitable for the small-claims track; if pursued it may lead to different procedure, fees and undertakings. It should not be tacked onto a simple DPA damages claim.

• Statutory citation: the right to compensation sits under Article 82 UK GDPR and section 168 DPA 2018 (not “section 13”). If you plead interest, CPR 16.4(2) requires you to set out the statutory basis and the dates/rate.

2) Do not plead a Fraud Act allegation in a civil PoC

• The Fraud Act 2006 creates criminal offences. Only the police/CPS (or a separate private prosecution) can bring a Fraud Act charge. A county court dealing with a civil DPA claim cannot determine criminal liability under the Fraud Act, nor order a criminal-style “finding of fraud”.

• Your current PoC includes a “Secondary case of Fraud under section 2 Fraud Act 2006” and seeks a finding/apology. That is not justiciable in this civil claim and risks strike-out or delay. If you suspect crime, report it to the police separately. 

• If you wish to rely on dishonesty/bad faith to support aggravated damages in the DPA claim, you may plead those facts succinctly. But do not frame them as a Fraud Act count. (Note: civil deceit/fraudulent misrepresentation is a separate tort with exacting pleading standards under PD 16 ¶8.2 and is not recommended here.)

3) What a compliant PoC should look like (structure)

Keep it to the essentials:

1. Parties and site (one paragraph).

2. Cause of action: unlawful processing of personal data contrary to Art 82 UK GDPR / s.168 DPA 2018 (no reasonable cause to obtain DVLA data; absence of entrance signage means no legitimate interest/necessity).

3. Key facts only (dates: parking event, DVLA request, cancellation/appeal outcome).

4. Damage: non-material damage (distress). (If seeking aggravated damages, say so briefly and why.)

5. Remedy: damages (state value or bracket), interest (s.69 CCA 1984—give rate and dates), issue fee.

6. Statement of truth.
   (No exhibits, quotations, POPLA extracts, disclosure demands, or injunctive relief.)

4) Model short PoC (for this case)

1. The Claimant brings a claim under Article 82 UK GDPR and section 168 Data Protection Act 2018 for compensation for non-material damage (distress) arising from the Defendant’s unlawful processing of the Claimant’s personal data.
2. On [date] the Defendant (a private parking operator) requested and obtained the Claimant’s keeper data from the DVLA in relation to an alleged parking event at [location] on [date], and issued a PCN.
3. The site lacked mandatory entrance signage on the material date. Accordingly the Defendant had no reasonable cause/legitimate interest to obtain or process the Claimant’s data and the processing was not necessary or lawful under Article 6(1)(f).
4. The PCN was later cancelled following appeal, but the unlawful data access and ensuing demands caused the Claimant distress.
5. The Claimant seeks: (a) damages for distress under Art 82 UK GDPR / s.168 DPA 2018 [state amount or “not exceeding £….”]; (b) interest under s.69 County Courts Act 1984 at [rate]% from [date] to judgment; and (c) the issue fee.
Statement of Truth.