Author Topic: Rescuing a poor defence and counterclaim (Read 327 times)

b789 · « **on:** March 12, 2024, 07:32:44 pm »

Seeking the advice of the more legally trained and experienced of the forum (@H C Andersen, @Nosey Parker, @DWMB2) on a case I have just picked up today. A friend who knows I help out with PCNs has advised a former colleague to get in touch as they have dug themselves a bit of a hole regarding a PCN and subsequent claim.

Background... From what I can make out, so far, the defendant was first notified about an outstanding debt of £170 on 5/5/22 by DRP for an alleged parking infringement on 22/2/22 from CP Plus (Nexus). At some stage, the defendant got in touch with DRP and had a phone conversation that was unpleasant and was terminated by the defendant after the DRP employee was rude and demanded to know how much the defendant had in their bak account and could they pay the "fine".

The defendant then went on to get in touch with DRP again through a "chat " service where they demanded a transcript of the phone conversation. They were told that a transcript would be provided but nothing was forthcoming. They have a record of the "chat" conversation where they were told transcript was being requested.

The next interaction that I have evidence of is the claim issued through DCB Legal on 23/10/23 which was acknowledged. A defence and counterclaim for £500 was submitted. The defence and counterclaim were poorly pleaded snd I am pretty sure that the counterclaim has no legs.

It is a pity that I was not contacted earlier in the process as it would have been easily defended as back in 2022, CP Plus t/a Group Nexus did not rely on PoFA in their NtKs and the driver has not been identified. Also, the PoC were the typical rubbish that DCB Legal provide which failed to comply with Civil Procedure Rule 16.4 and Practice Directions Part 16 and could easily have been requested to have the claim struck out as a preliminary matter using the CEL v Chan appeal judgment. Too late for that now.

Interestingly, the claim was sent to the defendants local court where the DDJ reviews the case before a hearing date was set and issued an order for the claimant to submit amended PoC because of the CPR 16.4 problem. See below:

As you can see, the DDJ is not too wet behind the ears and has ordered the claimant to specifically whether the claim is brought under PoFA (which, even without seeing the original NtK, we know was not likely to be at that time). Also, to explain that if they are not relying on PoFA, what the cause of action is.

The claimant submitted amended PoC. However, in the amended PoC, they make no mention of PoFA but do the often seen, feeble attempt to make an excuse by stating: "Following receipt of the Notices, the Defendant failed to nominate a Driver. As such, the Defendant is now pursued on the balance of probabilities that they were the Driver of the Vehicle in that, if they were not,
they would have nominated."

I can provide copies of the various documents if required once I have redacted them. The defendant could have submitted an amended defence by yesterday but I only received this all today. I am hopeful that the failure of the claimant to submit in their amended PoC what was requested by the DDJ will be enough to get the claim struck out.

This is the General form of judgment and the amended PoC:

The amended PoC:

andy_foster · « **Reply #1 on:** March 12, 2024, 08:45:56 pm »

The rules in the Small Claims Track are somewhat more discretionary than they are in regular courts. The fact that D was allowed until the day before he sent this to you to lodge a revised defence may or may not be an issue. From the Order. it would appear that the DDJ is concerned more about PPCs attempting to misuse the law to their advantage than he is about the finer points of court procedure.

If the DDJ in question ends up hearing the case, whether by reserving it to himself or otherwise, I would not expect D to have to say very much.

Clearly as a cause of action against D, C not bothering to comply with the requirements to hold the RK liable, and the RK then inexplicably failing to voluntarily name the driver must mean that the RK was the driver is about as weak as a weak thing that has been bed-ridden for the last 6 weeks.

Obviously, as regards "rescuing" a poor defence, it is all but impossible to determine whether the original defence is capable of stretching to address the relevant points, without seeing your friend's colleague's hairdresser's dog walker's original defence.

As regards the counterclaim - as above but more so.

I am aware of a fairly persuasive authority debunking the presumption lie - but will leave it for the person that sent it to me to respond (if he hasn't done so by 10pm, PM me, and I'll forward it to you).

Nosy Parker · « **Reply #2 on:** March 12, 2024, 10:54:47 pm »

Sorry. Reading in late. The most recent case I know of debunking the presumption that the keeper was driving is the 2023 appeal decision in VCS v Edward which is available for download here https://www.dropbox.com/scl/fi/w0k19zxzlpf9eumu68u7b/VCS-v-EDWARDS-Transcript.pdf?rlkey=5t2gilebrjx7g0d6jmy32lou4&dl=0

b789 · « **Reply #3 on:** March 13, 2024, 08:50:14 am »

I will add the Ds initial defence and counterclaim and then the amended defence (redacted where necessary) verbatim below:

Initial defence:

Quote

I received a letter from Debt Recovery Plus, representing CP Plus LTD, on/around 11.05.2022 informing me that I owe £170.00 for a PCN from 21.02.2022.

I called the telephone number from the form as I wanted to question why I was receiving a Final Reminder, instead of any initial letters, which had added £70.00 to a car park fine where the PCN charge is £100.00, and was this a methodology to try to get more money from me?

The agent that I spoke to on the phone was extremely rude and aggressive, to the point where was asking how much money was in my bank account and if it was enough to pay the fine, then when I responded saying the amount in my bank account could pay the fine however this is not the point, he said JUST PAY IT THEN. I told this agent I was not happy at all with how he was behaving towards me and I was now going to end the call and consider my options.

Defence Particulars Continued:

their online web chat service to let them know I have decided I will not move forwards with a decision whether to pay or not until I have received transcripts of both the phone call with their agent, and also this web chat. I have the end of this conversation screenshotted on my phone for evidence, however I will provide a written copy below:

Me: I was told my phone call would be reviewed and I would hear back from them so I left the chat. However I would like transcripts of both please
Nadine (agent): Ok I will request this for you. Please can I take your email address for all evidence to be set to you.
Me- Yes no problem; it's XXXXXXXX@Gmail.com
Nadine (agent): Request has been set for you now please await a reply . Many thanks.
Me: Thank you
Me: Can I leave the chat now?
Nadine (agent): Correct, Goodbye.
END OF WEB CHAT

This web chat occurred on the 31st of May 2022. I have been waiting since then for the retrieval of these transcripts which I requested (phone call and web chats), as per my rights stated under the Data Protection Act 2018 and GDPR.

To this day they have not been sent to me. I think it is important to make clear that the reason for these transcripts was so that I could decide/seek advice on whether or not the behaviour and intimidation from the agent was proper and legal when requesting money from me.

Fast forward to yesterday, 31.10.2023 when I returned back to my home from a work trip overseas to find a Claim Form stamped by The County Court informing me of this case in the Civil National
Business Centre. I work in XXXX XXXX XXXXXXX which has a significant impact on my bodily fatigue and also suffer from anxiety, so to find myself writing my own defence to a court today having asked citizens advice for help but them being unable to provide any, is having a significant affect on my mental health which I would really like to stress to you.

I have contacted the Information Commissioners Office regarding whether my data rights have been breached (right to retrieval), however their web chat seems to provide an automated response telling me to make a complaint directly to Debt Recovery Plus.

Obviously, this is not possible now that I am in an active legal situation. However, I do believe that my Data Protection Act right to retrieval not being granted to me has led to significant distress and I do not think this is fair or just. I intend to counterclaim due to the emotional distress and additional anxiety this has caused for me.

Counter claim:

Quote

Reason for counterclaim: Breach of Data Protection Act 2018 - Chapter 3 - 45.

In accordance with the Data Protection Act 2018, Chapter 3, subheading 45 - Data Subjects Right of Access, I am entitled to retrieval of transcripts of recorded phone calls or chat logs of which I have been a subject.

Counterclaim Particulars Continued:

When this was requested by myself on the 31.05.2022 in order to help inform my decision on whether or not I had been subjected to intimidation by the agent I spoke to at Debt Recovery Plus, representing CP Plus LTD, in order to get money from me which I didn't think was owed having not received any initial notices that this case existed. (As included in the defence statement I can provide a screenshot of the conversation where the transcripts were promised to me if necessary).

As a result of these transcripts not being provided I have now found myself subjected to a court case and significant emotional distress and anxiety, having to defend myself whist having no legal background or knowledge and therefore only through my own research of the relevant information.

Had I received the information that I am legally entitled to, I could have made an informed decision on whether or not to move forwards with paying the fine, or challenging it further - either way this would most likely not have ended up taking up the time of a Court. But instead no transcripts were provided to me.

According to my research breaches of the Data Protection Act 2018 which result in emotional distress can result in compensation amounts much higher than I am claiming (£1000-£42000), however I just want this to be over.

Amended defence:

Quote

Part 8 of the Amended Particulars of Claim form claims that following a contravention of the terms of the car park in question, I (the defendant) was issued with Charge Notices informing me of the contravention. This is false. I received a first communication in the form of a letter from a company named Debt Recovery Plus Ltd dated 05/05/2022, which was a "Final Reminder" stating "You have missed 2 payment deadlines already". This letter claimed, in bold red lettering, that; "You owe: £170.00". I knew this could not be correct, as I had not received any parking charge notices in advance of this letter and also the £170.00 was an arbitrary amount which upon checking, was not the amount of £100.00 which was written on the car park signage and is also referenced by the Claimant in part 5 of the Amended Particulars of Claim.

Part 9 of the Amended Particulars of Claim form claims that I (the defendant); "failed to engage with any of the aforementioned options". This is false. I called the collection team contact number which was stated on the letter in order to question what was going on. A final reminder for £170.00 with no prior notices could not be correct, surely? This is when the agent began being disrespectful and intimidating towards me, and asked how much money I have in my bank account and shouted at me to "JUST PAY IT!". I said to him directly, I want a transcript of this phone call sent to me immediately and I will not be going any further until I have it, and that I was ending the phone call, which I did. I went further, and shortly after this I logged on to the web chat of Debt Recovery Plus to ask directly for a transcript of the conversation in question. My email address was taken for this to be sent to, and the agent told me I would receive it shortly. I have a screenshot of this conversation saved and can provide this to the court. I never received the transcript and therefore did not contact Debt Recovery Plus Ltd again, as I beleived their behaviour was illegal - trying to intimidate me into paying £170.00 by only sending a final reminder letter and then intimidating me when I called to question it. There is a clear financial benefit to their company if I had capitulated and just paid this amount out of fear.

To make clear, I never refused to pay a legitimately issued parking fine. I refused to capitulate to what I believe to be illegal tactics to intimidate people into paying £170.00 instead of a usual £100.00 fine which is usually reduced even further if paid early.

Amended counterclaim:

Quote

In accordance with the Data Protection Act 2018, Chapter 3, subheading 45 - Data Subjects Right of Access, I am entitled to retrieval of transcripts of recorded phone calls or chat logs of which I have been a subject. As a result of non-compliance by the Claimant/Debt Recovery Plus Ltd I have ended up in court proceedings for the first time, which is causing immense personal stress and anxiety. I have attached a letter to the court in accordance with CPR 20.5(1) to request the addition of Debt Recovery Plus Ltd into this counterclaim.

As you can see, a hole has been dug by completely missing all the known points of defence against the likes of CP Plus and DCB Legal. Additionally, by submitting the amended defence the D has possibly confounded the situation with this sentence: "I knew this could not be correct, as I had not received any parking charge notices in advance of this letter and also the £170.00 was an arbitrary amount which upon checking, was not the amount of £100.00 which was written on the car park signage and is also referenced by the Claimant in part 5 of the Amended Particulars of Claim."

Whilst not a direct admission of being the driver, in my opinion, it is fairly damning, considering that otherwise this was quite probably going to be thrown out as the C had not answered the DDJs orders.

Any suggestions on any possible recovery would be appreciated.

H C Andersen · « **Reply #4 on:** March 13, 2024, 10:10:51 am »

My approach would be different..

along the lines of...

I would go back to the DDJ's Directions and develop these in the context of the PoC and official Government data.

....

2 .....
(e) If the claim is not brought under the Protection of Freedoms Act 2012:
The cause of action and how it arose;

(f) If the cause of action is breach of contract, the parties to the contract, the consideration provided by the Claimant and the alleged breach of contract.

The Claimant does not assert that the claim is brought under the Protection of Freedoms Act 2012 but asserts at paragraphs 9 and 10 of their Amended Particulars of Claim that:

9. .....
10......As such, the Defendant is now pursued on the balance of probabilities that they were the Driver of the vehicle in that, if they were not, they would have nominated.

I would submit that by virtue of the Directions it is clear that the court is aware of the clear distinction between PoFA and non PoFA-based claims regarding 'relevant obligations'. PoFA affords a creditor the opportunity to pursue the registered keeper subject to complying with the relevant provisions of Schedule 4 to the Act.
There is no issue here that the Claimant is not relying on PoFA i.e. has not complied with the mandatory provisions.
Instead, they are seeking to side-step/kick into the long grass/ignore these provisions by claiming that any keeper who fails to respond to an 'opportunity to pay, appeal or nominate[a driver] ' may thereby by assumed to be the driver and is therefore liable.

I refer the court to the government's National Travel Survey published in 2022 which states that '..The proportion of households with one car was 45% in 2022' and its English Housing Statistics 2022-2023 which states that 'In 2022-23, the mean number of persons per household was 2.2,'.

If the above are combined with the government's published data on driving licences which show that 74% of UK adults hold a full driving licence, then I submit that as probabilities are based in statistics and that as these do not support an assumption that a keeper is the driver on any occasion then the Claimant's assertion on this point is baseless and is nothing more than a device to ignore the requirements of PoFA and bring undue pressure on the keeper.

I always like to go back to official data and, as in this case, the court's Directions because these are unarguable. I would not want to introduce anything else for the purposes of dismissing the Claimant's case. If a counterclaim is then pursued then I would do this sequentially, but the Defendant's defence should be dealt with first IMO.

b789 · « **Reply #5 on:** March 13, 2024, 10:46:31 am »

have received one added piece of information from the D which was submitted to the court in response to the DDJs order, not that it adds anything to the defence and is unlikely to assist anything in the counterclaim:

I am of a thought that I should tell the D that they need to wait and see what the DDJ comes back with. If it is not struck out, then they should prepare a WS for any subsequent hearing, although there is not much that can be entered as so little was put in the defence in the first place.

I am also minded to tell the D to abandon the counterclaim as they have so confused the role of DRP in this matter and have not realised that the claim is from CP Plus, not DRP. The D has been erroneously focused on their GDPR rather than the claim itself which is for a PCN.

b789 · « **Reply #6 on:** March 13, 2024, 12:40:18 pm »

Any thoughts on advising the D to discontinue the counterclaim? I suspect that it could muddy the waters if the judge want to just strike out the original claim.

At the moment we are just waiting to see the judges response to the amended PoC and amended defence. They will either strike out to proceed to a hearing.

This is the claimants response to the counterclaim:

b789 · « **Reply #7 on:** March 15, 2024, 03:43:40 pm »

Just a quick "bump" to see what the consensus, if any, is on advising the D to discontinue the counterclaim at this stage or whether there is any advantage to leave in standing.

andy_foster · « **Reply #8 on:** March 15, 2024, 04:08:28 pm »

It depends. Mostly on the disposition of the judge.

Personally, I find that a counterclaim is useful for preventing the PPC from playing Knock-Down Ginger, but that is not most defendants' priority.

b789 · « **Reply #9 on:** March 15, 2024, 04:34:41 pm »

The problem facing this D is that if the judge reviewing the amended PoC, which are typically sloppy and incoherent from this C, when looked at agains the original order from the DDJ, does throw out the claim because of the ridiculous pleading that the D must be the driver based on a balance of probabilities, then the D cannot just walk away with a win as the counterclaim has to be heard too.

With the counterclaim having no likely prospect of winning, is the D not better off discontinuing at this stage than risk losing the counterclaim and risking an order for costs because of unreasonable behaviour? After all, what better example of unreasonable behaviour could there be than pursuing a claim which was always bound to fail?

andy_foster · « **Reply #10 on:** March 15, 2024, 05:09:59 pm »

Generally, the bar for unreasonable behaviour is set unreasonably high.

Striking out a claim tends to serve 2 purposes - avoiding wasting everyone's time, and giving the offending party a slap.
As far as I know, there is no reason that a claim could not be struck out and the counterclaim continue - although it would reduce the time saving.

Off the top of my head, I don't know what the procedure would be for proceeding with a counterclaim after the claim had been struck out, but if the gist of the counterclaim is variously that the claim is bollox, and that C has been engaged in a pattern of misbehaviour, the claim being struck out for being bollox would seem to be a good start.

N.B. Whilst the DDJ's order seems to be suggesting that he has no intention of entertaining any presumption nonsense, in terms it required a clarification of whether or not C was relying on PoFA 2012, not whether C was relying on PoFA 2012 and if not how the f**k it intended to prove with evidence that D was the driver.

I would say that a strike out, when C appears to have complied with the order, is far from certain.

In my (albeit limited) experience in civil courts, unless the judge is on a mission (e.g. HHJ Maloney), judges often seem to favour the least "contentious" disposal - giving each party less than they wanted as if a compromise for compromise's sake had any relation to the law or justice. If there is a counterclaim for him to deny D, there is no need to find a compromise within C's claim.

However, if the judge is fired up about the usual (IMHO) criminal scam perpetrated by the PPCs in bringing both exaggerated and flawed claims, then he might be minded to give D anything that he can reasonably justify. If there is a counterclaim that he can hang his hat on, he might do so.

If your friend's ex-lodger's mother-in-law's hairdresser's boyfriend simply wants to defeat the claim with the least involvement on his part, then that would seem to be having the claim struck out and no counterclaim to proceed with. How likely that would be to happen is in the judge's hands, but IMHO far from a racing certainty.

b789 · « **Reply #11 on:** March 15, 2024, 05:22:21 pm »

Unfortunately, the counterclaim was initiated long before my advice was sought. The D had gone to Citizens Advice with a bee in their bonnet that they were counterclaiming against the Debt collector for insulting them and then failing to provide them with a transcript of the insulting telephone conversation. Completely missed the point of defending the claim itself.

After the order to issue the amended PoC, the D wrote to the judge requesting that the debt collector be added as another defendant in the counterclaim and was then shocked that they were told they must pay the £275 for the privilege. So, of course, they have now abandoned that course after I told them they were on a hiding to nothing and should write off the £50 fee they paid for a £500 counterclaim.

The main point I'm trying to get some feedback on is whether they should discontinue now as the counterclaim has absolutely no legs to stand on. Have a read of it in the docs I showed earlier. It is really bad and has no bearing on the claim or the claimant. My additional worry is that it really could be seen as unreasonable behaviour because it is so obviously bound to fail.

I repeat the counterclaim verbatim here:

Quote

Reason for counterclaim: Breach of Data Protection Act 2018 - Chapter 3 - 45.

In accordance with the Data Protection Act 2018, Chapter 3, subheading 45 - Data Subjects Right of Access, I am entitled to retrieval of transcripts of recorded phone calls or chat logs of which I have been a subject.

Counterclaim Particulars Continued:

Quote

When this was requested by myself on the 31.05.2022 in order to help inform my decision on whether or not I had been subjected to intimidation by the agent I spoke to at Debt Recovery Plus, representing CP Plus LTD, in order to get money from me which I didn't think was owed having not received any initial notices that this case existed. (As included in the defence statement I can provide a screenshot of the conversation where the transcripts were promised to me if necessary).

As a result of these transcripts not being provided I have now found myself subjected to a court case and significant emotional distress and anxiety, having to defend myself whist having no legal background or knowledge and therefore only through my own research of the relevant information.

Had I received the information that I am legally entitled to, I could have made an informed decision on whether or not to move forwards with paying the fine, or challenging it further - either way this would most likely not have ended up taking up the time of a Court. But instead no transcripts were provided to me.

According to my research breaches of the Data Protection Act 2018 which result in emotional distress can result in compensation amounts much higher than I am claiming (£1000-£42000), however I just want this to be over.

Amended counterclaim:

Quote

In accordance with the Data Protection Act 2018, Chapter 3, subheading 45 - Data Subjects Right of Access, I am entitled to retrieval of transcripts of recorded phone calls or chat logs of which I have been a subject. As a result of non-compliance by the Claimant/Debt Recovery Plus Ltd I have ended up in court proceedings for the first time, which is causing immense personal stress and anxiety. I have attached a letter to the court in accordance with CPR 20.5(1) to request the addition of Debt Recovery Plus Ltd into this counterclaim.

H C Andersen · « **Reply #12 on:** March 15, 2024, 10:05:44 pm »

Criminal courts look at punishment; civil courts look at compensation.

If the claimant has committed a crime under an unrelated(as regards their claim) enactment, then this court is not the correct forum to raise the issue.

Compensation by its nature means a loss which raises the question: what loss has D suffered which it would be within this court's power to make a financial award in their favour against the claimant?

There are other, IMO more appropriate, routes available to D if they wish to pursue their 'counterclaim' against the claimant. At present, they appear to be mistaking a counterclaim for a defence.

b789 · « **Reply #13 on:** March 16, 2024, 12:51:28 am »

I will advise that the D issues a N279 Notice of Discontinuation. With that out of the way, they can then just wait on the directions and will produce a WS if necessary when the time comes.

If the claim is not struck out, will have to rely on no keeper liability and any CPA 1987 arguments as the defence is so poor.

b789 · « **Reply #14 on:** March 16, 2024, 03:10:07 pm »

Sorry, I meant CRA 2015.

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Author Topic: Rescuing a poor defence and counterclaim (Read 327 times)

b789

Rescuing a poor defence and counterclaim

andy_foster

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Nosy Parker

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b789

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Re: Rescuing a poor defence and counterclaim

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