Counterclaim - Civil Enforcement Ibis Hounslow - WON £500

Jame4ters

No “gagging” or “confidentiality” clause mentioned which leaves you free to report them to the various bodies and to discuss it

MothballsWallet

Wait, so if a company puts a "gag"/"confidentiality" clause in a settlement, that means you can't report them to the authorities even if they have broken the law?

Bazarius

https://forums.moneysavingexpert.com/discussion/comment/81907597#Comment_81907597

That’s your opinion . Bear in mind CEL have a new person in charge of the legal team , looks like they don’t know the law in their latest letter (it depends what exactly was pleaded in the Particulars of Counterclaim)

do you ever see cases in the past with the same facts ever get offered £500 prior to court ? Never in my lifetime ! 

£650 is the most Ive ever pushed to settle out of court in a case where D put the parking operator on notice twice that it was a double dip anomaly . (Different facts to this case) . 

Also in my opinion if it went to court it will probably be dismissed or reduced to around £200 . And the Claimant could possibly be awarded for costs for attending to the hearing even if you won , because they made a Calderbank offer of £500 and it was rejected .

But … the Claimant may be correct in their letter if the PoCC did not ask the court to award the £50 court fee, you cannot arbitrarily add on the court fee in settlement negotiations. The Claimant has offered the full amount sought without any admission of liability.

Swedishcabbie

Accepted the £500. Todays email confirmation from CEL.

Car1980

https://forums.moneysavingexpert.com/discussion/comment/81907494#Comment_81907494

I've never seen a hearing with similar facts posted on here. A default judgment of £1000+ was obtained a few months ago, but it's hard enough to get people to try and obtain costs when they win vanilla cases, let alone make their own claims against PPCs.

Not to say that the £500 (£450 minus fee) shouldn't be accepted. Although I would say it was fair, not generous.

NCC1701-A

https://forums.moneysavingexpert.com/discussion/comment/81908715#Comment_81908715

Well done!! £450 better off than this time last week :-)

If only more people had your tenacity it might make these firms rethink their business models.

I do hope you will complain to DVLA, ICO and your MP about their unlawful use of your data and failure to abide by their own (albeit awful) code of practice.

Swedishcabbie

Hey guys,

£500 has landed in my account today. As promised, below is the defence wording and counterclaim wording I used.

Tomorrow I will email my local court to confirm that the matter has been settled and the counterclaim is resolved. Additionally, I will be complaining to the DVLA, ICO and my MP about their unlawful use of my data and failure to abide by their own (albeit awful) code of practice.

A big thank you to everyone who helped and contributed to this thread, especially Coupon-mad who drafted the defence wording, really appreciated. Hopefully this thread will be useful to others who find themselves in the same boat!

Regards,
SC

DEFENCE:

1. The Defendant did not enter the car park the Claimant purports to manage and merely performed a U turn on the public highway just outside the entrance.

2. The evidence on the Claimant’s website contained photographs of a different vehicle with a different numberplate.

3. It appears the Claimant’s ANPR cameras are poorly positioned and are capturing number plates outside their jurisdiction AND their computer system is clearly faulty, cross referencing completely different vehicles.

4. This was communicated to the Claimant, yet they refused to acknowledge that there was no merit to their demands for payment.

5. No contract whatsoever exists between the two parties.

6. It is submitted that the claim be struck out as having no cause of action under CPR 3.4(2)(a) (where a statement of case discloses no reasonable grounds for bringing a claim) or a claim falling under rule 3.4(2)(b) - where it is vexatious, scurrilous or obviously ill-founded.

*****

COUNTERCLAIM:

Counterclaim for damages for breach of statutory duty (UK GDPR/Data Protection Act 2018), harassment, and recovery of litigant in person costs.

1. BREACH OF STATUTORY DUTY (UK GDPR AND DATA PROTECTION ACT 2018)
The Claimant accessed the Defendant’s personal data from the DVLA via the KADOE service. To do so lawfully, the Claimant must have “Reasonable Cause” under the DVLA’s terms and the Data Protection Act 2018. The Claimant’s own evidence consists of photographs of a vehicle with a different registration mark and of a different make or model than that belonging to the Defendant. Consequently, the Claimant had no lawful basis to process the Defendant’s data. This constitutes a non-trivial breach of Article 82 of the UK GDPR.

2. NEGLIGENCE AND BREACH OF DUTY OF CARE
The Claimant owes a duty of care to ensure that its ANPR systems and manual review processes are accurate before initiating financial demands and legal proceedings. By failing to identify that the vehicle captured in the evidence was not the Defendant’s, and subsequently ignoring the Defendant’s formal appeal pointing out this definitive error, the Claimant has acted with professional negligence.

3. HARASSMENT (PROTECTION FROM HARASSMENT ACT 1997)
The Defendant notified the Claimant by formal appeal that they were pursuing the wrong individual and that the evidence provided did not match the Defendant’s vehicle. Despite being put on notice of this absolute defense, the Claimant continued a course of conduct involving automated debt-collection demands and the commencement of legal proceedings. This conduct is considered oppressive and has caused the Defendant significant alarm, distress, and interference with their quiet enjoyment.

4. DAMAGES FOR NON-MATERIAL LOSS
The Defendant claims damages for non-material damage including distress, anxiety, and loss of control of personal data. Under the precedent set in Lloyd v Google (2021) and Driver v CPS (2022), such distress arising from a data breach is compensable. The Claimant’s refusal to rectify a clear administrative error has exacerbated this distress.

5. THE CLAIMANT’S CONDUCT
The Defendant submits that the claim against them is vexatious and an abuse of the court process. The Claimant has failed to follow the Pre-Action Protocol by failing to engage with the evidence provided during the appeals process.

6. CLAIM FOR DAMAGES (£500.00)
The Defendant counterclaims for the total sum of £500.00, comprised of:
• £310.00 in General Damages: For the distress, inconvenience, and loss of quiet enjoyment caused by the Claimant’s data breach and continued pursuit of an unfounded debt.
• £190.00 in Special Damages (Litigant in Person Costs): Representing 10 hours of time spent at the statutory Litigant in Person rate of £19.00 per hour (as per CPR 46.5). This time was incurred solely due to the Claimant’s negligence in responding to the Defendant’s correspondence and the necessity of preparing this Defence and Counterclaim.

7. INTEREST
The Defendant claims interest under Section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of the issuance of the PCN to the date of judgment or sooner payment.
The Defendant invites the Court to strike out the Claimant’s claim under CPR 3.4(2) and award the Counterclaim in full.

*****

cooldude255220

https://forums.moneysavingexpert.com/discussion/comment/81902194#Comment_81902194

That full hearing transcript is brilliant!

Coupon-mad

Very good - an inspiration!

The LiP rate is in fact £24ph nowadays, so anyone copying this counterclaim approach should note that and also include an addition of the counterclaim fees and any subsequent hearing fee.

😋

patient_dream

BRILLIANT … Hope the DVLA AND ICO do something