UKPC/DCB Legal Windscreen PCN PAPLOC now Claimform - 1 to 21 The Martletts, Crawley, West Sussex, RH10 1ER **Claim dismissed, counterclaim dismissed**

[FTMDave]

Sorry for taking a million years to get back to you.

The parts which are (arguably) out of date are (F) 43 & 44, given that after Beavis the charge of £100 has generally been accepted by judges if the car park T&Cs were not complied with.

You give two sections the header "H" but that is neither here nor there as the numbering is perfect.

We all know about the strategy disagreements.

You have made some wonderful, well-researched points to blow UKPC's rubbish case out of the water.  I hope these points have not been lost in 15 pages and 92 paras (plus sub-paras) and you don't end up with a "can't see the wood for the trees" judge.

Sometimes less is more.

To me this is a simple case.  You entered a pay car park, read the T&Cs, and paid.  It later transpired that in part of the car park there was an invisible line which led to a second car park which had no entrance sign and pathetically-small signage placed well away from where the motorist would look for signs in a deliberate attempt to entrap, contrary to the trade associations' CoPs. 

Insufficient signage.  Predatory behaviour.  Rubbish contract.  Easy.

Like LFI and I'm sure everyone here I hope you absolutely smash UKPC.

[Intrepid]

22 hours ago, lookinforinfo said:

If you parked in their car park without a Permit they had a reasonable cause to apply to the DVLA for your details.

I disagree per Duff v Secretary of State for Transport [38] ii) "In any event, a person who wanted disclosure to enforce a liability by improper means would have a cause for wanting it, but not reasonable cause".

If UKPC's claim fails they have attempted to enforce a liability by improper means. Even if the judge only strips them of £60 I can still argue this point.

22 hours ago, lookinforinfo said:

 It is hard to believe that both parties would not have noticed that the contract had terminated so the expectation would be that some agreement to continue would be in place.

It may be hard to believe, but I will argue it still needs to be evidenced, I know its judge lottery, but the decision should be based on the evidence before the Court, if the Claimant has failed to produce that evidence it should not be for the Court to assist them in their claim by speculating on their behalf.

22 hours ago, lookinforinfo said:

Similarly I would have thought that  UKPC would have some form of corroboration that Savillles did have the ability to sign per pro on behalf of the land owner which could have been produced in Court .

Same as point above.

22 hours ago, lookinforinfo said:

Now that much has come out since you commencec your counter claim there is a danger that the Judge may decide that you claim was vexatious or frivolous as indicated by UKPC and ask that you pay their costs.

Thanks to your input I wrote to UKPC very early on notifying them it's notice to keeper was non-compliant. By the time UKPC initiated proceedings it was clear they were attempting to enforce a liability using improper means, I counterclaimed on this basis.

[Intrepid]

21 hours ago, FTMDave said:

The parts which are (arguably) out of date are (F) 43 & 44, given that after Beavis the charge of £100 has generally been accepted by judges if the car park T&Cs were not complied with.

I disagree insofar as that it was a finding of fact in Parking Eye v Beavis UKSC that sufficient signage was exhibited at the entrance and throughout the car park. In my view the UKSC hasn't overturned anything of significance in the judgment in Beavis EWCA, both courts found that sum was enforceable. However the EWCA considered in more depth the applicability of good faith and the disclosure of terms. The fact the UKSC didn't revisit this topic is either indication that it was satisfied as to the EWCA's assessment or that it wasn't a point upon which the appeal was brought to the UKSC.

How this is relevant is that the judgment of Beavis EWCA still re-affirms at common law the good faith practice of disclosing terms which I will argue UKPC failed to do under the circumstances.

I agree less is more. I'm aware the Skeleton should be designed to navigate the court succinctly through the issues. The problem I believe defendants face in these circumstances is that the Claimant fails entirely to narrow the issues in what is a poorly particularised claim. This is in part because their main goal is to obtain default judgement and they know the risk of facing an application to strike out is probably in the single digit percentages in part because the cost of application is larger than the value of the claim.

So I had a choice file something very succinct, a couple of pages perhaps, or on the other hand the full monty. As you've alluded to yourself why risk leaving anything out the judge can latch on to that may side with you.

What I ultimately decided was to do was use a trickle down argument; the car wasn't there, and if it was UKPC aren't entitled to act as a creditor, and if they are they didn't offer proper terms, and if they did they didn't provide notice of them, and if they did they didn't notify the driver, and if they did they didn't transfer liability to the keeper, and if they did they over claimed, and if they didn't they litigated unreasonably.

21 hours ago, FTMDave said:

Insufficient signage.  Predatory behaviour.  Rubbish contract.

A good summary, I will focus on these points at the hearing.

I expect at one point the judge will ask me whether I accept the fact the vehicle was parked at 1-21 the Martletts. It's probably much easier to give judgment and less likely to be appealed if you can get parties to admit facts rather than having to find facts based on probabilities.

Given the evidence before me I'm not sure that a red line on a google maps screenshot (which is incorrect as they have included spaces clearly belonging to the car park) is sufficient. No boundary has been provided from the land registry, UKPC's so called "land plan" is as valid as my assertion that the Martletts is on the other side of the premises until proven otherwise. Perhaps I should have made more of the fact they have not provided evidence that these properties are able to share the use of any land.

Edited March 4 by Intrepid

[Intrepid]

Claim dismissed, counterclaim dismissed, no order as to costs.

Certainly one of the better experiences in front of the bench.

I wasn't wrong that of course the Court had a proper copy of UKPC's witness statement. As I did too there was no test to what would have happened if I did not, probably a quick hand over and 5 minutes of reading to save an adjournment.

The Judge did almost all of the heavy lifting based upon the evidence without removing the opportunity for either party to speak, they saved a lot of argument and put aside any assumptions that could be borne out of any of the stated facts making quite clear that the Court wouldn't deal with assumptions.

It's clear that parking claims are bread and butter to most judges but in this case no expense was spared.

The Judge immediately addressed the evidential hurdles UKPC had to overcome, the fact Mr Little wasn't available to give evidence and that it could plead its case against the driver or the keeper but not both (Counsel pleaded the keeper).

UKPC's counsel were clearly aware of the deficiencies of UKPCs WS and wasn't going to waste the courts time (I'm not saying they didn't adequately represent them, just that it was clear they knew they'd been given almost nothing legitimate to work with and were unable to give evidence).

From this point I got the impression the judge was simply working off their experience rather than what was within the skeleton which covered almost everything the Judge did and a little more.

Having only been to one parking claim (this one) I have no idea whether judges ever sit back and let the parties have their go and depending on their sensibilities leave the unprepared flaying in the wind. In any case because the Skeleton was so full there can be no question that the Defence was advanced by the judge. Only a regular returning barrister would know if the submissions made any difference or whether this was just the judge's style (probably the latter).

The points honed in on were:

the contract expiry date and lack of evidence to support the assertion the contract had been renewed;
the contract did not clearly evidence who was the landowner;
the photos were not clear evidence of the vehicle's location in reference to signage or land;
the description of the address on the expired contract is not determinative;
the photos showed no time allowed for a driver to read the terms (BPA 13.1, the Judge directly referenced Beavis on the applicability of the code, and the code itself);
the PCN was issued first and then the photos were taken (a point I had missed);
the terms didn't form a contract as no license was on offer, you either have it or don't (and I was asked if I did);
the NTK was defective for not specifying a period of time; and
the so called "land plan" held no weight because it didn't show the location of the signs (I wasn't expecting this but as pointed out the "land plan" wasn't keyed) and didn't properly identify any boundaries.
 

I added, and it was accepted that the additional £60 was unenforceable and that the notice didn't comply with the wording of the legislation (credit to @LookingForInfo ).
 

As to the counterclaim the judge dropped an early hint that one issue to overcome was when it was determined UKPC had breached the act as it was pleaded that the breach had already occurred but no judgment had been given. They also said they had received no medical evidence in support of the claim and that quantum was at the Court's discretion so why £1000.

I had for some reason (incorrectly) the idea in my head that the claim would be heard and decided and then the counterclaim heard and decided, albeit that the judge knew which way they were going on the claim before hearing the counterclaim. Of course the judge provided their judgment on both at the end of the hearing consecutively.

The way the argument fell was that I asserted UKPC's application for data was unlawful because there was no reasonable cause.

The judge concluded that the power of the legislation within the POFA 2012 was sufficient to allow the PPC to apply for the data. There was a question as to whether one legislation should override the other. I said they were not at odds but that if it is later found that UKPC had no reasonable cause then they can be held liable per the DPA 2018.

It was not accepted that if a PPC later impermissibly enforced a liability that this then invalidated the PPC's previous request for data.

The question was raised as to why the DVLA shouldn't be held responsible as the controller to which I responded because UKPC processed the data (processors are also liable). I'm not sure if I had successfully pleaded that UKPC continued to unlawfully process my data that would have changed the outcome.

UKPC were listed in court 3 times today (one was a judgment set aside) so that certainly puts to bed any impression from other areas of the internet that UKPC give up every claim. However I expect UKPC would have discontinued and I would never have had sight of the contract without the issuing a counterclaim.

I accept that waiting for the claim to be over and then making a claim for breach of GDPR would overcome the issue of whether it had been determined the breach has occurred.

It is clear now from the evidence that UKPC have applied for my data using an out of date contract but as that was not known to me at the time I did not raise it as an argument (perhaps I should have) but it could not have contributed to any distress.

I knew the counterclaim was dead by this point but I still offered submissions on quantum and argued that outside of medical examination, evidence of distress can only come in the form of a witness statement. It was pointed out to me in the WS that I had evidenced how the claimant's conduct could be distressing but did not clearly state that it affected me. However I referred the judge to the particulars which did do that, in any case it was irrelevant.

The counterclaim was dismissed because the judge held there was reasonable cause to apply for personal data based on the fact a vehicle was parked on land without a permit. I wasn't sure if the judge was going to inadvertently accept UKPCs claim with the finding but it was worded carefully enough so that it appeared to UKPC to be a breach and therefore that was sufficient. We disagreed on the point that appeared wasn't good enough but obviously I don't get to decide. The judge was mainly persuaded by the mechanism provided for by the legislation in the POFA 2012 to request keeper details.

Of course it would take a brave judge to open up the idea as was Counsel's point that every failed PPC claim should become an automatic breach of the UK GDPR.

For £70 and a free hearing I'd call that a cheap lesson. I am debating whether to advance another claim, it could be argued a fresh claim is being advanced on the same facts but now there is evidence the contract was out of date this should differentiate it from the counterclaim.

As to costs the Judge couldn't be persuaded UKPC's conduct was unreasonable, it was held costs should only be paid as compensation and that dismissing of their claim was the outcome of the deficiencies of its claim.

Edited March 5 by Intrepid

[Intrepid]

Thank you to everyone that contributed.

[Intrepid]

Regarding the disclosure of data, UKPC's counsel did reference a document which I don't recall having read.

The document is an opinion published by the ICO on the lawful basis upon which the DVLA processes (discloses) vehicle keeper details.

https://ico.org.uk/media/about-the-ico/documents/4020676/dvla-opinion-20220613.pdf

I haven't fully digested its impact on a claim for a breach of the UK GDPR. The fact UKPC requested vehicle keeper details with an expired contract could mean it failed to show it had reasonable cause but I can also imagine a tenuous argument that even if the contract is expired the data can be requested for the establishment, exercise or defence of legal claims. In this case the DPA 2018 would be at odds with the criteria set out by Transport Secretary to show reasonable cause but I would expect a legislative mechanism to trump governmental policy.

[lookinforinfo]

Intrepid thank you for a very thorough snyopsis of your day in Court. You were lucky to have a well clued up Judge even if the result was not quite what you had hoped for. Not all of them are as well read up on PoFA and do come up with come perverse decisions.

I reread Duff v Secretary of State and it all came back to me. Duff was a bailiff who had been a clamper , banned by the DVLA as he or his company refused to join an ATA. As he didn't have permission to use the DVLA he complained and the Judge ruled that by not being a member he did not have a reasonable cause even though he had a cause [there was a bit more to it than that but that was the gist]. If you decide to try again you might try using the reason that as one  the reasons they used against Duff was his signage was forbidding therefore cannot form a contract  though is signs were a lot worse that your case.

There is a possibility that there may be a new contract or perhaps  a short note confirming the continuation of the old contract that did not require a new contract being produced. Otf course there may also have been a new contract with new rules added , subtracted or changed we do not know. There still would need confirmation from the landowner that Savills were permitted to sign on their behalf and also confirmation of who the land owner was.

I can see what the Judge was saying about the timing of the breach of your GDPR. You claimed that it happened at the time the PCN was issued. Now your claim could be that there was no reasonable cause since, there was no contract; signage unc;lear; signage prohibitive; photographs taken after the PCN issued [I missed that too]; the land plan does not show the positions of the signs nor the boundaries; insufficient Consideration period  and presumably no planning permission.  [The last poser doesn't seem to get much traction but it is a breach of the BPA code and is a criminal offence ]. Some of which did not become apparent till later but did not  invalidate the claim despite apparently being parked on the land they were patrolling.

the PCN being non compliant is not breaching the GDPR idea since the PCN would still apply to the driver.

[Intrepid]

We we're about to cross post.

 

I have taken the time to re-read the thread from the beginning and I have to say a lot of @lookinforinfo earlier posts, in particular #25 were right on the money. In addition thank you @FTMDave for sticking with the thread.

It has been quite useful to re-read the comments after hearing and with a full appreciation of how they were applied by the judge. A lot of the information provided between you was so on point you may as well have been deciding the claim.

Having had some time to process the judge's approach to the counterclaim I accept my mistake was to focus on UKPC's application for data and not for the subsequent processing which took place, a point @lookinforinfo made very early on.

I was concerned if the claim wasn't heard that UKPC would withdraw prior to the hearing and any opportunity to gather important evidence would be lost.

I do understand the logic of a separate claim giving the opportunity to settle but I am also mindful that if no settlement is reached something credible has to be on offer to decide the claim. The safest approach would be a complaint to the ICO seeking  their view. If it is returned in favour then the a claim becomes almost a slam dunk save perhaps for quantum.

 

I will give some thought as to a further claim in the next few days but I want to make sure I get it right.

I agree it was fortunate to have a prepared judge, it would have been very distasteful to have had to fight the judge as well as the claimant but it couldn't have been further from having to do that.

That's a good summary of Duff v Secretary of State and in the full context of the claim I see now that without reasonable cause is in reference to the lack of Duff's membership to an accredited association. I believed it could be applied in other similar contexts, and it probably still can.

I think the point was mainly that it was only particularised that the breach had occurred but not when. How was I to know at the time the application for my data was made it was allegedly unlawful, I couldn't, even though I argued that it was even if outside of my knowledge for a period of time. So I moved on to it being within my knowledge from the date the PCN was received.

I recall you suggested informing UKPC that I was neither the driver and the PCN wasn't compliant and that a breach would occur if further processing occurred. I did not inform UKPC I was not the driver, although I think the judge made clear that once you are pursuing the keeper you must give up pursuing the driver as that is the intention of the POFA.

I agree that just because they failed to evidence an up to date contract in their claim doesn't mean it doesn't exist.

I will give it some thought and come back with any questions/ideas as they come up.

Edited March 6 by Intrepid

[lookinforinfo]

Thank you for your generous comments though not sure entirely merited since dx100, Dave, Brassnecked, Nickyboy, Honeybee and JK2054 all contributed.

. Dave and I mostly have been fo trying to advise motorists how to avoid paying the rogues and latterly doing our bit to encourage GDPR claims for a good few years now and have become a tad experienced as a result.

Yes PoFA S9[2][f] does state that once 28 days have passed since the issuance of an NTK and has not been paid the keeper then becomes liable providing the PCN is compliant. I was surprised that as it  was not compliant that Counsel opted for the keeper. Of course DCBL do that most the time so perhaps I shouldn't be surprised at just one slip.

I read the ICO document earlier this year. It's rather the opposite of my old boss's statement above inasmuch as in this case they appear to be saying "even if they were wrong, they were right". Don't expect too much from the ICO they had a bruising number of emails several years ago between themselves and the DVLA resulting in an impasse when they should have beaten the DVLA hands down, so they are not too keen to put their head above the parapet much these days.

On the question of the counterclaim I was sorry i did not continue with the explanation that to be successfull with  part of your counter  claim you did need to express  some your distress, anxiety,shock, surprise, fears etc as a result of what you felt as an unmerited PCN. Unmerited because you had expected to be parking with NCP . And I am so disappointed that you didn't get what you were looking for.

                                                                                                                              

          

[Nicky Boy]

Well done Intrepid.

Your detailed synopsis of the hearing will help with clarification on a number of things.

[brassnecked]

Well done and thanks for the in depth debrief, will be useful for others faced by UKPC claims.

[FTMDave]

Thanks for the detailed report back.

[SeldomSeen]

Well done Intrepid,

I am fighting the same claim from UKPC, 

different alleged parking violation date, same place at Martlets, now awaiting a court date. 

There are a lot of others similarly caught out. 

I have challenged DCBL on several points but think I might just leave things as is and let the Judge decide if it gets that far.

I will do a bundle, maybe a skeleton. 

The problem is with these scamsters is that they rely on people giving in and the law of averages means that although you and others won or UKPC discontinued, there are a host of others who paid.   

My feeling is that they are paying £50 for a legal rep, to attend and they have no right to speak for the landowner who is Kames Investments. 

My case is no contract as no signage that was visible to indicate I had entered a UKPC area.

Photos were taken after the ticket issued too in my case and the parking attendant was on site saw us mistakenly buy NCP ticket. 

 

 

[dx100uk]

please create your own topic by hitting create or + in the top red banner

dx

 

[FTMDave]

SeldomSeen, the antics of the attendant make your case even stronger than Intrepid's, as legally the attendant should have "mitigated" the loss and told you you were parked in the wrong place.

However, every case is different, as dx says, please start your own thread.